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abortion and infanticide

When I read something that takes what I believe and carries it to its natural conclusion (or what seems like that), I find it very upsetting – almost violent. That happened today, when I saw a moderate-conservative friend on FB commenting on an article:

Ethicists Argue in Favor of 'After-Birth Abortions' as Newborns 'Are Not Persons'

Now, there are lots of things that made me skeptical about the post. When I loaded the article it had an ad for Goldline and Glenn Beck TV. An issue that seemed mostly secular ethics was listed under "Faith." The first two columnists listed on their contributors page are Glenn Beck and Rick Santorum. And so on. But the article certainly isn't raving. If anything, it seemed remarkably matter-of-fact given the subject matter. Apparently some university-affiliated ethicists down in Australia are advocating for a legal right to what they call "after-abortion," and what the rest of us (including me) call infanticide or just plain old murder.

The thing is, there's a lot in that basic argument that's similar to some things I've argued in the past. I don't believe a zygote produced from a human sperm and a human egg is a full-fledged person. And I don't think the fetus magically acquires the traits that make us human in one fell swoop when its head passes out of the mother's womb. Its moral status the moment before it is born is more or less its status just after it's birth. But I stop way before we get to the point suggested this article suggests those Aussie ethicists take it to, so I thought I'd try to work through why. This may only end up being interesting to me. :-)

First, the false start: that a law outlawing infanticide doesn't actually say you should kill your children, but just that it should be an individual choice. I know pro-choice people (myself included) tend to talk about giving people the right to choose an abortion even when we believe it's the wrong choice. I think there's something to be said for letting people make their own choice – and making everything illegal takes away possibilities of doing the right thing for the right reason. But as Michael Sandel put it in his very well-done book Justice, this in itself is a moral position and rests on the assumption that people can reasonably disagree over whether the fetus is a person. I would never say e.g. that people should have the right to decide whether to kill their eight-year-old child. Or even their one-minute-old child.

But I do think there's a legitimate difference the Blaze author is skipping past. There are real moral differences between a newly-fertilized ovum and a fetus about to be born. I can't necessarily point to a specific day when it is a person and before it wasn't. This is one of the things that drive me crazy about the abortion debate: as if just because I can't point to a hard dividing point, that means there's no difference between the extremes. (Evolution tells us there are all kinds of intermediate states between a chimpanzee and homo sapiens, so perhaps in some case you would struggle to know whether one of the linking individuals between the two groups, but no one would mistake one for the other.)

I am willing to accept the very real possibility that a fetus is sentient or even rational at some point in its development, and so would be a person. This was actually portrayed very well in the last Twilight movie, where Edward senses Renesme's thoughts before she is born and suddenly she seems real to him and worthy of moral consideration. As it happens, I think the law is ill-equipped to handle that distinction, but I'm thinking about the issue more from a morality standpoint anyway. Even before then, there can be reasons – good reasons – why it's wrong to kill a non-human animal. It's just not murder.

There's also another distinction that the Aussie ethicists totally overlooked if they're being fairly reported. I have no hard evidence that the Blaze is taking them out of context, but do consider the source. Also, this is so basic that if they're university-affiliated philosophers I'd be very surprised, since this is a rather significant and well-known distinction. It's that simply because you have a moral right to an abortion, it doesn't mean you have a moral right to kill the fetus. You have a right to keep it from using your body, and it may be a scientific fact that without those nutrients it will die, but that doesn't give you the right to cut its throat or shoot it if somehow it survived being separated from your body. So the mother could maybe say she didn't want to care for the child after giving birth to it, and she could surrender it to the state or someone else.

I find that a bit iffy, actually, given that the mother's had nine months to decide whether she wants the child, but I can see a few exceptions – like if she had carried it to term with the express intent of giving the child up for adoption, or if there were some new circumstances she hadn't planned on (like a birth defect where she wasn't prepared to raise the child). But this idea that it might be cruel to the mother for her to know her child is out there somewhere doesn't hold up for me. Lots of things are cruel, and we usually accept that as long as they aren't intentionally cruel. Life just stinks sometimes, whether as a consequence of our own choice or something done to us. Society can do what it can to mitigate the suffering (perhaps keeping the mother's identity a secret from the child if that's what she wants, or placing the child with parents in a different part of the country to minimize the chances mother and child will meet up.

But only up to a point. Certainly not up to the point of killing another person. I don't know enough about obstetrics or early pediatrics to say for sure this child is rational or for sure this child is sentient from the very second it leaves the womb. But it's well on its way, and it at least has the potential for those traits – a nervous system, for instance. The mother never had the right to kill the fetus, but even if she did, I'd say she had less and less of a claim to that right as the fetus/child approached personhood.

By the way, National Catholic Register, when you wrote:

The second we allow ourselves to become the arbiters of who is human and who isn't, this is the calamitous yet inevitable end. Once you say all human life is not sacred, the rest is just drawing random lines in the sand.

You're breaking your own standard in the space of two sentences. If you're saying anything with human genetic material is a human, that is a definition of human. And when you're excluding acts like biopsying (living, genetically human) cancerous cells from your definition of murder, you're also excluding some genetically-human, living organisms from the classification of humanity. We all do philosophy; some of us are just more explicit about this fact than others.

All said, I think those ethicists are either misreported or went too far (and how). That doesn't make my position that life doesn't begin at conception wrong, though.


( 5 comments — Leave a comment )
Feb. 29th, 2012 02:06 pm (UTC)
The actual paper is available here. I haven't had time to read it yet, but see for yourself.
Feb. 29th, 2012 06:59 pm (UTC)
Thanks. I have saved the link and will read it when I have the time, though it will probably be a while. (I'm knee-deep in my own research preparing for an examination in a few weeks, at the moment.) Still, I do want to give those scholars a fair shake and will try to read this.
Feb. 29th, 2012 05:11 pm (UTC)
This is one of the things that drive me crazy about the abortion debate: as if just because I can't point to a hard dividing point

But there is a hard dividing point, at least as a practical matter: birth.

Ignoring for a moment the philosophical/moral underpinnings of what makes a sentient being, birth is a certain event, a bright line rule. There is no uncertainty associated with when it happens, and there are certain biological processes that occur immediately at birth that are not present in the organism prior to birth. Why is that not a sufficient dividing line between (a) the exercise of choice on the one hand, and (b) criminal liability for murder on the other hand?
Feb. 29th, 2012 08:35 pm (UTC)
I agree with a lot of what you say, Roh. It is a clear event, and I definitely think it would be wrong to say the mother has a right to kill the child after birth like she has a right to an abortion - if she does, it should be judged along the same lines we use to judge any killing of a human. (Did she have the necessary mens rea? Was it self-defense? Etc.) I think birth provides a perfectly good division if all we're looking at is sorting out the set of legal acts from illegal ones.

The problem is that many people, particularly many but not all philosophers want to relate the law to morality and justice. Law is not supposed to be just a social contract that's blind to things like justice, but it is supposed to help protect the weak against the strong. The problem is this. Say that the fetus just before birth is basically the same right before birth is that the baby is just after death (from a philosophical point of view). The law handles them very differently. This seems to mean that we're being unjust to someone. Either we're being unfair to the adults acting toward the baby when we put restrictions on them that don't really fit the baby's nature, or else we're not giving the late-term fetus enough rights. And this problem isn't unique to birth, so you can't just back it up a few weeks and say once you pass the eight-month mark the fetus has legal rights, because again there's no radical change so it seems like you're giving legal rights to someone unfairly. That's where the slippery-slope argument comes in.

My solution was to recognize that there are some times when a fetus might have moral protection but didn't have legal protection, because the law should basically match up with justice and the good, but that it was a clumsy instrument in the more borderline cases - that was where human freedom and moral choices came in. Law just made sure people didn't go completely overboard. So there is a point somewhere before birth where the fetus has moral rights as a person, but the law isn't finetuned enough to capture that so we have to depend on (moral) justice. But once the child was born that was a hard divide so the law could recognize the qualities the fetus/child actually had a while before that.

Dunno if that's any clearer! What I'm trying to say is: I think you're basically right here.
Feb. 29th, 2012 10:24 pm (UTC)
The law handles them very differently.

To be fair, the law in many states treats both those instances pretty much the same. Most states (39) prohibit late-term abortions (i.e. after 24 weeks) in the United States, as do a majority of countries in the world. The standard is viability (i.e. ability to be sustained as a living organism after removal from the womb), and at least in the US, states are allowed to presume viability at a certain gestational age, even if, as a practical matter, a particular fetus would not be viable outside the womb.

That means that, as far as the law is concerned in most parts of the US, there's no practical distinction between having an abortion two days before your due date or killing the child after birth.

In that sense, the law seems to be pretty congruent with modern conceptions of fairness and morality.

Where it breaks down is in in the assertion that pre-viability fetuses ought to be treated as live beings. Moral considerations would suggest yes, but for the law, it's too amorphous a proposition.
( 5 comments — Leave a comment )



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