This Morning

This morning, unfortunately, I am thinking about abortion.

And since I’ve been doing it for four hours, now, while I’ve been writing this, it is no longer morning. I am not happy about this. But why should I be?

None of us should think about abortion. None of us should have to. There should be no unwanted pregnancies. Birth control should be universally effective and universally available, and no one should ever be a victim of rape.

To be clear right from the outset: the simplest and most effective way to eliminate unwanted pregnancies, and therefore to put an end to abortion, is to give every man a  vasectomy as early as is practicable. Vasectomies are simple, safe, reversible, and extremely effective birth control. [Information here]

However: since not every vasectomy is reversible — and in fact, it is easier to reverse a vasectomy the sooner it is done after the initial procedure, which tends to put a damper on my “as early as practicable” plan — even this system does not ensure there will be no unwanted pregnancies. There is no way, with our current understanding of medicine and fertility, to ensure there are no unwanted pregnancies without additional unwanted consequences.

Therefore we have to think about abortion.

I would like to limit this post to the logical, rational aspect of the debate. The rational argument regarding abortion hinges on definitions, and on rights, and essentially, it all comes down to one question: is abortion murder? Because if abortion is murder, then the pro-choice argument can’t proceed; there can’t be a legal nor a rational argument for murder. If abortion is not murder, then a woman’s right to choose can override the needs of the infant.

This was pointed out to me in a recent Facebook debate, and the person who commented to this effect also pointed out that the abortion debate never comes to a final decision on this critical question — neither side. And indeed, though the overall debate where that comment was made went on for scores of posts, not one person touched that specific comment  that tried to get to — or at least point out the way to — the heart of the matter. I suspect that the reason is because we have such a hard time separating the two aspects of this debate, the logical and the emotional; which is why I’m going to do it here. Because logically, I think it is clear that abortion is not murder, but emotionally, it certainly feels like it to a lot of people — people who generally come down on the pro-life side because of that feeling.

That’s why I’m starting with this argument: because I think it is simpler. Not easier to deal with or accept, but simpler to make and to understand. And because it is not easier to deal with, I’m spending all of this time hemming and hawing, hedging and prefacing everything I want to say. But enough waffling. Here we go.

(One brief note: because I am trying to remove emotion, I’m going to use the term “infant” or “child.” Fetus and baby are both too charged and aligned to specific sides of the debate.)

Is abortion murder? It is not, for two reasons: the definition of murder, and the unique status of the unborn child within the mother.

The definition of murder: “Murder occurs when one human being unlawfully kills another human being.” Wex Legal Dictionary  Therefore, since abortion is currently legal in this country, abortion is not legally murder.

Of course that’s an oversimplification. But there are two considerations that also prevent abortion from being murder. One is the mother’s intent in killing the infant. Murder statutes contain some element of intent: first degree murder is generally predicated on the idea of “malice aforethought,” or premeditation and intent to harm. While abortion is of course premeditated, there is clearly no malice present. Women who get abortions are not intentionally seeking the death of the infant: they are seeking the termination of the pregnancy. I can’t really imagine a scenario where a woman seeks an abortion with malicious intent, abortion sought expressly to harm the infant; such a scenario would require a highly disturbed woman, one I would term a psychopath, and such an extreme case does not define the standard. I presume in most cases, women regret the inevitable death of the infant as a necessary but horrible part of the intended goal.

So at most, an abortion is some form of manslaughter, unintended homicide, or accidental death. But I would argue that it is not any of those: rather an abortion is justifiable homicide (if it is homicide at all, which I’ll get to in a while with the question of fetal personhood) because the mother is acting in self-defense.

Wex defines self-defense this way: “The use of force to protect oneself from an attempted injury by another.  If justified, self-defense is a defense to a number of crimes and torts involving force, including murderassault and battery. ” Law.com offers a fuller explanation:

self-defense

n. the use of reasonable force to protect oneself or members of the family from bodily harm from the attack of an aggressor, if the defender has reason to believe he/she/they is/are in danger. Self-defense is a common defense by a person accused of assault, battery or homicide. The force used in self-defense may be sufficient for protection from apparent harm (not just an empty verbal threat) or to halt any danger from attack, but cannot be an excuse to continue the attack or use excessive force. Examples: an unarmed man punches Allen Alibi, who hits the attacker with a baseball bat. That is legitimate self-defense, but Alibi cannot chase after the attacker and shoot him or beat him senseless. If the attacker has a gun or a butcher knife and is verbally threatening, Alibi is probably warranted in shooting him. Basically, appropriate self-defense is judged on all the circumstances. Reasonable force can also be used to protect property from theft or destruction. Self-defense cannot include killing or great bodily harm to defend property, unless personal danger is also involved, as is the case in most burglaries, muggings or vandalism.

Source

An abortion is a woman’s attempt to protect herself from harm. She may justifiably use force to do it, even lethal force, which is necessitated in this instance, because there is no way to stop the pregnancy without killing the infant.

Absurd, you may say; an unborn child is not a danger to its mother. But of course it is. It is a danger to the mother’s health — and quite a serious one — and a threat to the mother’s life: 700  women die each year in the U.S. from pregnancy or childbirth. [Source] 26.4 maternal deaths per 100,000 live births. (Three or more times the rate in other industrialized Western countries, by the way. Makes one question the argument that America respects the sanctity of life, particularly since the majority of deaths in childbirth are preventable. Information here.

But there’s more than that. Because life is not the only right that a woman has to protect: she has a right to liberty, as well.

Pregnancy is enslavement. It is biologically, as the infant uses hormones to control the mother in every possible way, causing biological changes that last for the rest of her life; it is, without the right to abort, legally enslavement, as a woman is required to surrender her bodily sovereignty to the child. I think there cannot be any argument that one would have the right to use force to defend one’s self against enslavement. The right to liberty is not less important than the right to life: both are inherent, both are inalienable, both are necessary components of our existence as distinct individual persons.  And in pregnancy, these two rights — the mother’s right to liberty and the child’s right to life —  are in conflict. For the child’s right to be protected, the mother must lose her right, and vice versa.

There is no way around this conflict. Perhaps someday we will have the technology to remove an infant from a woman at whatever stage she wishes to terminate the pregnancy, and then gestate that child to full term; but our attempts to create an artificial womb are extremely preliminary — and if we do ever manage to produce such a device, it will only exacerbate the issue of overpopulation, particularly within the already burdened foster care system. But regardless, we can’t do that yet, so for a woman to terminate a pregnancy — the only way to retain control over her own body, her own person — is to kill the child.

Most people who are pro-life but not anti-woman argue that the woman’s consent to sex is what removes her right to liberty, that this is essentially a contract she has entered into and she must surrender her bodily sovereignty as the “consequence of her action;” but this falls apart for several reasons. First, consent to sex is not consent to pregnancy, and consent to pregnancy is not consent to carrying an infant to term and giving birth, and carrying an infant to term is not consent to motherhood. That is not how consent works. Consent must be informed, positive, and constant: contracts have termination clauses. The contract is only legally binding as long as both parties continue to agree to it. A more fraught but more appropriate analogy is consent to sex: if at any point a person having sex removes their consent to the continuation of the sex, it is no longer consensual; it becomes rape. Instantly. We can argue about whether both parties are  aware of the removal of consent and therefore whether the rape is prosecutable — but there’s no question of its definition. Consent to sex one minute does not even imply consent to sex the next minute: how could it possibly imply consent to nine months of pregnancy? To a lifetime of motherhood?

Furthermore, consent has to be informed, and not based on deception or fraud. Contracts cannot be put forth as promising one thing, but actually promising something else: if I sign a contract but don’t read the fine print, it is legally binding — but not if I was told I was signing a contract to buy a toaster, when in fact I was signing a contract to give away my car. Not even if the fine print said so. Subsequent consequences are also not part of a contract: if I agree to teach for the next school year, it does not oblige me to teach for the year after that, not even if that is expected, not even if that is what  the school wants, not even if that is what happens 99% of the time. So unless the woman intentionally, knowingly, before the  sex  act, consents and expresses her consent to pregnancy, then that consent is not implied by consent to the sex act.

People argue that pregnancy is a natural and expected consequence of sex, but it isn’t: because the cause and effect relationship is not direct. Each instance of sex does not create an instance of pregnancy. Even when people are trying, and doing everything possible to get pregnant, it frequently requires more than a single instance of sex to produce a pregnancy. Sex increases the probability of becoming pregnant, and that is all. It is, of course, a necessity for pregnancy to happen (Except in the case of artificial insemination), but that doesn’t tell us the probability of pregnancy happening from a sex act. Imagine if we could always know, with certainty, when pregnancy would result from sex: if a tiny imp popped up next to a couple right before sex and said, “Hi! This sex act will result in a pregnancy,” can you imagine how often that sex act would not occur? If that surety existed, then we could logically argue that a woman’s consent to sex was also consent to pregnancy, because the consent would be informed, the consequences known and assured; but it doesn’t work that way. So while there is some reasonable expectation of the probable results, they are not sufficiently causally connected to associate consequences with them. The best we can do is argue that the known chance of the increased probability of pregnancy implies some logical consideration of the probable results, but since we can’t make an informed prediction of pregnancy, we certainly can’t say that a woman should lose her unalienable right to liberty based on a possibility.

An analogy: if I walk into the street, there is a known chance that I will be hit by a car and killed. If someone drives their car down the street, there is a known chance that they will hit and kill a pedestrian. Neither result is possible without that initial choice to create the conditions necessary for the result, but the choice to walk into the street is not the choice to be hit by a car, and the choice to drive down the street is not the choice to hit a pedestrian: if I get hit by a car when I only intended to walk, it would not be suicide; and if someone hits me when their only intent was to drive, then it wouldn’t be first degree murder with malice aforethought. There are subsequent choices with direct connections to the result, which are the determining factors: if I walk directly in front of the car without allowing it time to stop, then it does become suicide; if the car sees me and refuses to stop, it becomes murder. Even though the initial choice of walking or driving was a necessary pre-requisite for the later choices, that initial choice does not imply the later choice. There are also conditions entirely out of each person’s control that are determining factors: how fast the car is moving, how quickly I cross the street, the visibility, our separate reaction times, the functionality of the car’s brakes and the surface of the street, and so on, so on. A thousand things that determine whether I live or die, and even though my choice to walk into the street is necessary  for me to be hit by a car, it is clearly not the only cause of it.

Coming back out of the analogy: a woman becomes an intentional carrier of a pregnancy to term when she chooses to do so — in other words, when she decides not to have an abortion, she becomes a mother, at least of her unborn infant. She did not choose to become a mother when she had sex: because otherwise there would be women who chose to be mothers (by choosing to have sex) yet did not become pregnant and do not have children, and that removes all sense from the definition of motherhood.

So here we are: consent to sex does not logically imply consent to pregnancy (A brief repetition of that argument, because it is crucial: if consent to sex implies consent either to what is possible afterwards, and/or what is best for the child, then consent to sex should also imply a commitment to child-rearing on the part of the father, because that is what is best for the child. In other words, if a man has sex with a woman, he is marrying her and agreeing to provide her with a stable home and life partnership. Also, if the mother dies in childbirth, then it should be considered either suicide, as she consented to the possibility of her own death when she consented to the sex act, or murder on the part of the man who impregnated her and created that result with his choice to have sex with her, since pregnancy and death in childbirth are known potential consequences of the sex act, which could not occur without the sex act. These would be logically consistent positions. Does anyone hold them?), and therefore a woman who has sex cannot be considered to have given up her right to liberty  voluntarily. The conflict between mother and child is a conflict between two unalienable rights, the child’s right to life and the mother’s right to liberty, neither of which is necessarily more important than the other, but either of which would justify the loss of a right to the other party — that is, if the child’s right to life is paramount, then the mother should justifiably lose her right to liberty; if the mother’s right to liberty is paramount, then the child should justifiably lose its right to life. Simply saying “Wait nine months and the conflict will be resolved” is not acceptable; imagine if I was holding a gun to your head and threatening your life, but I promised to stop after nine months — clearly that doesn’t mean you can’t fight back against me to remove the threat  to your life, nor, I would argue, to your liberty.

So who wins?

The final piece of this argument is personhood. Only living persons have unalienable rights to life and liberty — though it is an interesting argument that the dead have the right to bodily sovereignty because we cannot legally take their organs to save the living — so if the mother and child are both persons, then it becomes difficult to argue who has the right to decide the outcome. (Not impossible, and I’ll try to get to that one too. Hold on.) But here is the final answer: An unborn child is not a person, and does not have a legal or logical right to life.

This is something of an ugly position, and even I don’t like all the implications of it. But it is impossible to determine otherwise. Because personhood, as a legal concept, has to come with autonomy: there is simply no way to legally protect a person’s rights if that person cannot be separated from another person in a meaningful sense.

Let’s begin with twins as a test case. First, the argument that a unique genetic code, created at the moment of conception, is the defining characteristic of personhood, falls apart with identical twins. Because there you have two people with identical, non-unique genetic codes, and yet they are not considered the same individual in two bodies, even though monozygotic twins came from a single fertilized ovum — which supposedly gained personhood at the moment of conception, before the moment of separation into two separate twins. But if I marry one twin, I am not simultaneously married to the other; if one commits a capital crime, we do not execute them both. Unique genes are not the standard for personhood. Also, let me note that mothers and children exchange genetic material during pregnancy: and so the mother is a part of the child and the child is a part of the mother on the most basic level. (Also let me note, for the sake of fairness, that this exchange of cells is probably quite beneficial for the mother, much of the time; but it can also lead to serious consequences, including cancer and an increased chance of future miscarriages. The article has more. Microchimerism. Fascinating stuff.)

So if the child is part of the mother and the mother is part of the child, then the pregnancy should be seen as somewhat akin to conjoined twins. There’s a video I watched, from Steven Crowder, in which Mr. Crowder (A pro-life sophist — change my mind.) asks his pro-choice opponent how many hearts a pregnant woman has, how many toes, how many spinal cords and so on. He was trying to get the young man he was debating to accept that the mother and child are two unique, separate individuals: but clearly they are not. This article and this article both show how intertwined the two beings are: the infant relies on the mother for everything, from oxygen to nutrition, and invades the mother’s body via hormones in order to serve its needs to her detriment; at the same time, the mother receives health benefits from the child as part of the gestational process, in order to protect the child. It is not reasonable therefore to call the child a parasite — but neither can they be separated and both live.

Like conjoined twins. And I would ask Mr. Crowder: if conjoined twins share a torso, how many hearts do they have? How many lungs? How many livers? If we imagine a case where two conjoined twins share a single liver– which was indeed the circumstance of Chang and Eng Bunker, the eponymous Siamese twins — then we have two persons, two individuals, with one liver; thus it shouldn’t be any more distressing to accept that twenty fingers and twenty toes and two hearts can very easily be contained in one person, when one person contains a second being. Clearly we define personhood not by number of organs and not by unique genetic code. These are elements, naturally, but not exclusive ones.

The way we define personhood philosophically is through two elements: body and mind. The body must have autonomous viability — in other words, it has to be able to exist on its own — and there must be a unique mind and sentience. If I think of a future where my mind has been destroyed by disease or misfortune, even if my body continues to survive, I would not conceive of myself as the same person I am now. Similarly, if my mind and thoughts were removed from my body and put into a different body, then I would not be the same person I am now. These seem self-evident to me. I am aware that pro-life people do not want them to be: because the only logical conclusion from these two elements of personhood is that an unborn, pre-sentient child, which would not be viable outside of the womb, is not a person. But that’s the problem with logical argument: the conclusions cannot be escaped, even if they are against what we would wish.

Here’s the other side of that: it implies that a sentient unborn infant does have some sort of personhood, at least potential personhood; this means that elective abortion in the last trimester should not be legal, and if sentience in the developing infant is provable prior to that, then abortion should not be legal post sentience. That leaves us with one question: what to do in the case of medical necessity, where the life of the mother is at risk should the pregnancy continue through the third trimester?

But you see, despite what fanatics may argue, this has already been resolved, in the only way that makes any sense: in the case of a viable infant, labor would be induced or (much more likely) an emergency C-section would result in a premature infant who is then cared for in the NICU. In the case of a non-viable infant, one that could not live on its own, late-term abortion may be the safer course for preserving the mother’s life: and since a child that could not live does not have the same right to life that the mother does, not being a full person as it lacks one of the two necessities of personhood, then the law must allow for such a procedure in such an extreme circumstance. This is precisely the legal status of abortion at this very moment in this country: abortion is legal while the child is non-sentient and non-viable, and therefore is not a person; abortion is legal after sentience only when the mother’s life is at risk and the child is not viable. If the child has both viability and sentience, then separation is possible without death, and that is the right solution.  The goal is and should be to find a medical solution to the problem, a way to separate mother and child while preserving the rights of both.

But when that solution is not available, then the mother has the right to abort the child.

There are a last few loose ends: one is whether or not my definition of personhood implies that I would lose the right to exist were I in a vegetative state, whether I am a full person if I am brain dead. The answer is that I would not be a full person without sentience, but first, that sentience is not always detectable and so there should be some benefit of the doubt (This is why abortion is often limited to before 20 weeks of pregnancy, to give the benefit of the doubt to the infant who may be sentient; there is still some debate to be had over this, but it is a particular issue and not what I’m talking about today), and second, that I would retain the right to live only so long as I was not impinging therefore on another person’s unalienable rights. If my survival required that someone else be chained to my bed so that they could provide me with constant CPR, to blow air into my mouth every thirty seconds forever, to constantly push blood through my heart one hundred times a minute, in order to make up for my lungs and heart that could not sustain my life, then clearly I would die, since I have no right to make someone else breathe for me, to make someone else’s heart beat for me. If a machine could do it, well and good; and so for the theoretical artificial womb of the future.

But I have no right to make someone else breathe for me. To make someone else provide me with nutrition straight from their blood stream, to carry my body within their own, to risk certain injury and pain and suffering and damage in order to provide me with a life I could not have on my own.

Another loose end is the question of a woman’s right to bodily sovereignty, and whether or not continuous informed consent is still necessary up to the very end of pregnancy, or if a mother could choose to have an infant removed after, say, eight months of pregnancy simply because she no longer wishes to be pregnant. Logically, I would say that a woman could very well make that choice so long as it would not risk the rights of the child, who if viable and sentient has some right to personhood; but as I understand it, there is an unacceptably high risk to the child if it were to be surgically removed at the mother’s say-so. So there is some gray area when it comes to consent on the mother’s part as well, and at some point– around the point of viability and sentience, around the 6th month of pregnancy and the start of the third trimester — she does in fact lose some of her ability to choose. She can no longer choose not to be pregnant without taking the child into consideration.

But that’s the last point I want to make. If there is anyone who can reasonably be asked to make the decision for the child, it has to be the mother. Who else? Who do we ask to make decisions for born children, including decisions that many people might disagree with? Who, for instance, decides to give a child up for adoption? Despite the fact that such a choice clearly runs counter to the ideal of a nuclear family and the Western adoration of children? Even though the child may absolutely oppose such a choice? We ask parents to make those decisions for their children, because we assume that they are the ones most qualified and most likely to do the right thing for their own children; because children are not capable of making an informed, rational choice. Why would we ever take that choice away from a mother? Who else could possibly make it better?

It is, therefore, not only a woman’s right to choose: it is a woman’s responsibility to choose. Hers before all others’. Even the child’s.

2 thoughts on “This Morning

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