Personhood and Fetal Rights
Candidates in the just-concluded election whose remarks about rape provoked outrage are identified with the personhood movement, a national effort to extend to the unborn the full legal protections enjoyed by persons. Advocates believe their success will greatly clarify the central issues surrounding abortion.
I think they’re wrong about that. Defending no particular position on abortion, I suggest only that extending personhood to the unborn doesn’t bring added clarity to the issue.
In 1971, two years before Roe v. Wade, Judith Jarvis Thomson of the Massachusetts Institute of Technology published a searching examination of the assumption animating the personhood movement. She accepted the premise that the fetus is a person and teased out its implications. For the most part, I’m channeling her.
Some, though not all, personhood advocates believe, as do most other people, that abortions to save the life of the mother are morally permissible. It’s all the other abortions, including those in cases of rape, that they think are barred if the fetus is a person. As Mitt Romney’s running mate, Congressman Paul Ryan, famously said, the “method of conception” doesn’t compromise the fetus’s right to life.
But personhood advocates who believe abortions to save the mother’s life are the “easy” cases and all the others are the “hard” ones get things exactly backwards.
Consider this. Our intuition that abortion to save the mother’s life is morally permissible is grounded in the mother’s right of self-defense. Having the same self-defense right as the rest of us, she’s not morally required to wait passively for a toxic pregnancy to kill her. Moreover, health care professionals are morally permitted to support her in the exercise of her self-defense right.
So far, so good. But if the fetus is a person with the same right to life as everybody else, then it has the same right of self-defense as the mother. And if third parties may intervene in support of the mother’s exercise of her self-defense right, they may do so for the fetus.
It turns out, then, that taking the personhood of the fetus seriously lands us squarely in a moral stalemate. Sorting that out I leave as an exercise for the reader.
Focusing on our self-defense right, meanwhile, reveals something very important about the right to life. If we grant that people have a right of self-defense, then the right to life obviously can’t be the right not to be killed no matter what. It can only be the right not to be killed unjustly, that is, in violation of your rights. But if you’re trying to kill me and the only way I can save my life is to kill you first, I don’t violate any right of yours if I succeed. I’m just exercising my self-defense right.
That’s true even of innocent threats. Had Jared Loughner been so deranged that he thought his gun was a cucumber when he shot then-Congresswoman Gabrielle Giffords surely we wouldn’t think he’d been killed unjustly if dispatched by police at the scene.
Now if the right to life is the right not to be killed unjustly, that opens up some moral space for abortions in the case of rape, because the right to life doesn’t automatically give you the right to everything necessary to sustain your life.
For example, suppose a FEMA official shows up at your door accompanied by a Hurricane Sandy victim. He tells you that this poor wretch is doomed without nine months room and board with you. It would be a great kindness of you to agree, and callous of you to refuse. But your refusal would violate no right of the storm victim even if it ensures his death. Certainly he has a claim on your charity, but charity isn’t something that anybody is due as a right. He has no right to nine months room and board with you unless you’ve agreed to it.
In the same way, even though a fetus has a right to life, in the case of rape it doesn’t have a right to the use of the mother’s body. That isn’t a right she’s given it. It might be callous of her to refuse to carry it to term. But she violates no right of the fetus if she refuses, even if that ensures its death.
Some readers will have virogous objections to this story. But that just underscores my point: Extending legal personhood to the unborn is too blunt an instrument to capture adequately our considered moral beliefs about abortion.
Julia Ewen
10:04 am on Saturday, November 17, 2012
Thanks for tackling this. Yes, the self-defense argument produces a stalemate. Better to look at it morally than legally, for the law has no answers to what's actually a moral problem. Those are better resolved by the woman consulting her religious community, and better yet, God, who is the author of moral law. Nobody else's agreement is required. You're groping in the right direction with the charity analogy. The ultimate in charity, as Jesus said, is to 'lay down your life for friend'. He's the example and lays his life down voluntarily for all. Nobody passed a law requiring him to do it. He did it from love. Women may choose to sacrifice their own physical and mental health, even risk their own lives. Many choose to do so on behalf of their unborn baby. But nobody can require them to do it. The fetus has not the mental development or experience of life to make any such self sacrifice nor the ability to communicate a decision if he/she/it did. We don't require it to as a matter of law. Legally we can't compel either mother or fetus, and the woman is the only one in the position to make a valid moral decision. I suggest we get out of the way and let her, and God, do it.