An Ambivalent Outlook on the Right To Bodily Autonomy

I tried to compose a twitter post expressing a thought that I have had chasing around in my mind, but the brevity required in twitter simply did not do it justice. Therefore, this will be a short post on that single thought.

My thought started with this: in pro-choice arguments, the right of the pregnant woman to bodily autonomy is considered of higher importance than the right of the unborn child to his or her bodily autonomy (also their right not to be arbitrarily killed, but a straight comparison serves my purposes better).

Nowadays, most pro-choicers will concede to the humanity of the unborn child. My somewhat uncharitable thought is that this is a reluctant concession based on the undeniability of advances in modern medicine, such as ultrasound and the survival of very premature infants.

I’ve previously made the argument that human rights are granted on the virtue of our humanity; hence the unborn child is as deserving of these rights as their pregnant mother (read more about the Equal Rights argument here).

Yet.the pro-choicer might agree that the unborn is human (and thereby intrinsically deserving of rights), but still argue that the pregnant woman is justified in killing it. So we have the situation that I described above, where there are two human beings with competing rights, and the rights of one human being is seen to supersede the rights of the other human being.

(Here is a point where I could potentially diverge into an in-depth discussion on why I think the unborn child’s rights supersede almost any justification for abortion. But I have discussed such things before (e.g. here), and so I’ll move on.)

To lay it out simply:
Right of pregnant woman > right of unborn child

Let’s follow this pregnant woman back a bit. Back a while, actually. Let’s follow her right back to before she was born, when she was residing in the uterus of her mother. If we accept that her humanity remains unchanged, then it follows that her rights also remain unchanged. But the pro-choice argument is that the rights of her mother now outweigh her own;

Right of pregnant woman’s mother > right of pregnant woman > right of unborn child

So the right that is in the present time considered sacred enough to justify killing another human being, was previously considered insignificant enough that it could be over-ridden at the expense of the holder’s very life. The importance of the same right held by the same person has changed so extremely over time that it could once be violated on a whim, but now they can kill their own child on the basis of it.

Yes, the way our rights are considered can be altered according to the situation. But this is such a marked alteration in how we might perceive the importance of the right to bodily autonomy that I feel there is a significant disconnect in thinking here.

The only way that I can see to resolve this ambivalent outlook on the right of bodily autonomy is to argue that the unborn child meets some definition of human being that excludes it from being deserving of rights. But tread carefully! for such a definition must specifically exclude the unborn child whilst being sure to include every other living human being.

Is this a discussion you want to pursue? Email me at my contact page.

Why No Comments?

The observant will notice that I disallow comments on my posts, although this has not always been the case. The reason for this arises from my past experience with comment sections as forums for discussion. I have found them neither productive nor helpful, and much prefer to communicate with those who wish to discuss aspects of my position in a one-on-one format, such as email. Hence I have a contact page as part of my blog, for those who wish to avail themselves of the opportunity.

Thank you to all those who are readers of this blog, both regular and otherwise. I value your readership greatly.

Elizabeth

Abortion as Self-Defence Part III: General Thoughts

Abortion as Self-Defence, Part III

General Thoughts

Unwanted Pregnancy & Self-Defence: Part I

Unwanted Pregnancy & Self-Defence: Part II

The Punitive Nature of Self-Defence

The South Australian law on self-defence has an interesting section under ‘Reasonable Proportionality’:

“A requirement under this Division that the defendant’s conduct be (objectively) reasonably proportionate to the threat that the defendant genuinely believed to exist does not imply that the force used by the defendant cannot exceed the force used against him or her.”
(Emphasis mine)

To come back to the example of lethal self-defence against rape, rape is usually considered a lesser crime than murder. However, it is acceptable to kill someone to defend one’s self from rape. One way this can be deemed to be acceptable is due to the concept of punishment and just consequences that is intertwined with the concept of self-defence. In short, we are able to accept the injury caused to an offender through self-defence because ‘they deserved it’. Their injuries were a just consequence of their actions. In an ideal situation of self-defence, the antagonist will always be at least somewhat deserving of the response they receive from the defender. Obviously this cannot always be the case; most clearly in a situation where the defender has mistaken the nature of someone else’s actions and responds with force to protect themself from a non-existent threat. But this can hardly be said to be the case in pregnancy, as the unborn child does not possess any intent and the physiological processes of pregnancy are well-known.

So what force is used in an abortion? Needless, to say, it results in the death of the unborn child and is therefore significant. Early abortions can be medical or surgical; medical involves the detachment of the unborn child from the uterine wall and its expulsion from the uterus; surgical involves the removal of the unborn child from the uterus through a suction tube. In later pregnancy, the unborn child may be removed through the cervix piece by piece using surgical instruments. In intact dilation and extraction – a procedure illegal in the U.S.A, but not Australia – the infant is delivered in breech position and the base of the skull is punctured with a sharp instrument while the head remains in the birth canal. Induction abortions involve the delivery of a whole infant; it is difficult to discover how commonly foeticidal injections (such as digoxin and potassium chloride) are used prior to induction abortions, but the injections themselves are problematic, due to the potential for pain (for comparison, condemned criminals are anaesthetised prior to the lethal injection, and the American Veterinary Medical Association considers the use of potassium chloride for euthanasia “unacceptable and condemned” on non-anaesthetised animals).

In abortion, the unborn child is subjected to forces sufficient to cause its death, often in a violent and potentially painful manner. In the vast majority of cases, this exceeds any potential injury that the unborn child is likely to cause the pregnant woman. This excess cannot be found acceptable on the grounds of punishment because the unborn child lacks any culpability for its actions, and so other excuses must be found to justify such processes.

Proportionality

“It will be a partial defence to murder, reducing the offence to manslaughter, if, despite the defendant believing his or her actions were necessary, the conduct was not reasonably proportionate to the threat that the defendant believed existed.”
South Australian Law on self-defence

It is true that no means exist to end a pregnancy – prior to foetal ex-utero viability – that do not entail the death of the unborn child. It is then necessary to consider the concept of proportionality. Are the actions (and consequences thereof) of the unborn child sufficient to justify its life being ended in order to cease them.

This is truly a matter of personal perspective, as what one person will consider reasonably proportionate will differ from what another person believes is reasonably proportionate. However, it is important to remember that there can be imagined inescapable and yet time-limited situations in which lethal self-defence would be entirely inappropriate. For example, being gently prodded by someone with the knowledge that this will continue for nine months if the person is not killed (to further the example, imagine the person doing the prodding has no choice in the matter, or even that they are a small child). This is not to compare pregnancy to gentle prodding, but rather to point that that the inescapability of a situation does not automatically justify the use of any force necessary to end it. The important question to consider is whether or not the circumstances of pregnancy justifies the death of a child in order to end it.

The Importance of the Defender’s Perspective

I’m going to come back to the criteria for self-defence, as outlined in the South Australian Criminal Consolidation Act 1935 and summarised by the Legal Services Commission of South Australia:

“A person is entitled to use such conduct as he or she genuinely believes is necessary for a ‘defensive purpose’ (that is, in self-defence or in defence of another, or to prevent or end an unlawful imprisonment) under s 15 Criminal Law Consolidation Act 1935. This will be a complete defence to an offence, including murder, as long as the force used was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat the defendant genuinely believed to exist”
(Emphasis mine)

There is both a subjective and an objective component to self-defence. The subjective perspective is that of the defender, who must genuinely believe there to be a threat against which they must defend themselves. The objective component, in the case of murder, is that the conduct of the defender must be proportionate to the threat that they believed existed. The proportionality of the conduct is not determined by the defender, but by the criminal justice system.

So the nature of the threat that was believed to exist is important. The Guttmacher Institute reports on the most common reasons why women have abortions (here and here). They are listed (in no specific order) below:

Felt too young to have a child
Felt they had finished having children
Unable to afford a child
To avoid disruption of employment or education
Concern over impact upon care of already born children
Lack of partner support
Relationship difficulties
Desire not to be a single mother

Take these reasons, and consider if they constitute valid grounds for lethal self-defence. It is interesting to note that these reasons, for the most part, relate to circumstances once the child is already born. So if these reasons might be considered to be justifiable ground for lethal self-defence against the unborn child, is it not logical to likewise consider them justifiable grounds for lethal self-defence against the born child- who is, after all, having a much greater impact upon these circumstances than the unborn child? And if we cannot accept these reasons as justifying lethal self-defence against the born child, it follows that the only way to justify them being applicable to the unborn child is by considering the unborn child as less human than the born child (see The Embryo as a Living Human Person).

(In Australia, at least, a pregnant woman is protected in her employment or education by anti-discrimination laws , and medical care is free.)

One might argue that the circumstance of the pregnancy, i.e. the particular use of the woman’s body by the unborn child, constitutes grounds for self-defence regardless of whether or not this is what the pregnant woman is basing her decision to have abortion upon. However, the legitimacy of self-defence rests on the belief of the defender. An (somewhat frivolous) analogy might be that a Porsche driver shoots someone in a pick-up truck in order to prevent them pulling in next to their car and scratching it. Unbeknownst to them, the pick-up driver had a handgun in the glove compartment and was planning to shoot them after they had parked. However, this was not what the Porsche driver was defending against; it was not the threat they perceived. Ergo, I would argue, the nature of the act is changed and it cannot considered legal self-defence. Likewise, a woman who has an abortion because she believes that a child will damage her career prospects does not have legitimate grounds for self-defence, because she is defending her career rather than her body.

My conclusion would be that lethal self-defence cannot be justified by the reasons that the majority of women give for having an abortion. The exception would be the situation where the mother is unable to survive if her pregnancy continues; but this defence of life – which does not always necessitate the death of the unborn child – is a far cry from defending an economic, social or educational situation. The argument for self-defence is also rendered inapplicable in the case of an unborn child who is aborted because they have a disability.

Next post will sum up the topic of Pregnancy & Self-Defence, and will pose a challenge to the reader that I will hope will stimulate some serious thought on the topic.

Abortion as Self-Defence Part II: The Rape Comparison (Continued)

Abortion as Self-Defence, Part II

The Rape Comparison (continued)

Unwanted Pregnancy & Self-Defence: Part I

Content warning: I extensively discuss aspects of rape in the following post. It may cause distress to some people. If you or someone you know has been the victim of sexual assault, you can find a listing of Australian services here.

Comparison 3: The Strong Versus The Weak

In rape, a stronger individual enforces their will over a (physically) weaker individual by means of strength.
In unwanted pregnancy, the unborn child is the weaker individual, and acts involuntarily by means of biology – not strength; an act which is reciprocated by the women’s biology.

Circumstances under which we accept that it is good and moral for a stronger individual to enforce their will over that of a weaker individual are those in which the weaker individual is benefited. For example, I doubt my children would choose to have a vaccination if they were consulted. Should their will be the deciding factor, they would no doubt go without vaccinations. I enforce my will over theirs because the ultimate benefit of vaccination far outweighs the deprivation of their decision-making abilities. In rape, there is no benefit for the victim. The enforcement of will by means of strength cannot be justified by these means.

The unborn child, on the other hand, is one of the weakest elements of our society. They are unable to defend themselves in any fashion or form. Their ability to implant in the uterus and develop rests wholly in their biology and the biology of the man and woman who conceived them – or the ability of the scientist who manipulates them. They have no will to enforce and no strength to ensure their survival. They cannot be considered in the same light as a rapist, ergo the pregnancy cannot be considered in the same light as a rape.

Comparison 4: Desire Versus Rights

In rape, the rapist seeks to fulfil their desire – for sexual release, control, power etc. – resulting in the violation of another’s rights.
In unwanted pregnancy, the unborn child is fulfilling a biological imperative resulting – it could be argued – in the violation of the mother’s rights.

Rape violates the victim’s right to security of person, bodily autonomy and their right not to be subjected to ‘cruel, inhuman or degrading treatment’. There is no question in the mind of a reasonable person that the benefit that the rapist gains from the act of rape – the fulfillment of their desire – is not sufficient to justify the violation visited upon the victim. Any claims that the rapist is exercising their right to use their body as they please can be summarily dismissed by pointing out the incredibly detrimental effect that such an application of rights has upon the rape victim.

In an unwanted pregnancy, the embryo first implants into the lining of the woman’s uterus, in what might be considered in technical terms to be a physical invasion. The growing embryo, and then foetus, subsists upon nutrients and oxygen drawn from the woman’s circulation, while depositing their waste products of carbon dioxide and other metabolites back into this circulation. This use of the woman’s body can be considered a violation of her bodily autonomy, just as we would consider it to be in some other circumstance where one’s body is non-consensually used to sustain another.

The difference between the violation of rights committed by the unborn child and that committed by the rapist is that, (a) the unborn commits such a violation completely involuntarily; indeed they are compelled by physiological processes and are as much at the mercy of their biology as is the woman, and (b) the unborn child commits the violation for the continuance of their survival – the ending of which constitutes a violation of their right not to be arbitrarily killed, assuming you are willing to ascribe human rights to the unborn. So rather than a desire versus rights situation (rape), where it should be abundantly clear that the desires of one individual do not outweigh the rights of another individual, unwanted pregnancy is a matter of a rights versus rights situation, where the conclusion is not so clear-cut (for a discussion of balancing conflicting human rights, see my earlier post here).

In Unwanted Pregnancy & Self-Defence: Part III, I will be discussing some general thoughts regarding self-defence, and how these relate to unwanted pregnancy.

Abortion as Self-Defence Part I: The Rape Comparison

Abortion as Self-Defence, Part I

The Rape Comparison

The Argument:

Unwanted pregnancy is the non-consensual of someone’s body which can only be ceased through lethal force towards the unborn child. This can be considered self-defence, just as lethal force towards the perpetrator of a rape is self-defence against non-consensual use of someone’s body (and is considered justifiable).

Self-Defence

Self-defence is generally taken to be defending oneself, one’s property or another person from injury. The criteria for self-defence is outlined in the South Australian Criminal Consolidation Act 1935, and summarised by the Legal Services Commission of South Australia:

“A person is entitled to use such conduct as he or she genuinely believes is necessary for a ‘defensive purpose’ (that is, in self-defence or in defence of another, or to prevent or end an unlawful imprisonment) under s 15 Criminal Law Consolidation Act 1935. This will be a complete defence to an offence, including murder, as long as the force used was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat the defendant genuinely believed to exist (for example, see Zecevic v DPP (1987) 162 CLR 645).

It will be a partial defence to murder, reducing the offence to manslaughter, if, despite the defendant believing his or her actions were necessary, the conduct was not reasonably proportionate to the threat that the defendant believed existed.”
[Emphasis mine]

The question to ask, therefore, is whether or not abortion – the killing of the unborn child – is a reasonably proportionate response to the ‘threat’ of pregnancy. To advance the concept that it is, unwanted pregnancy is often compared to rape, where self-defence using lethal force is considered by many to be justifiable.

The concept of reasonable proportionately can be explored from many angles, but given the above, I have chosen to look at it be comparing and contrasting unwanted pregnancy to rape, and therefore hopefully showing that they are not analogous and an argument for lethal self-defence in the case of one cannot be equally applied to the other.

Comparison 1: Basic Premise of Non-Consensual Use

Rape involves non-consensual use of someone’s body (by the rapist).
Unwanted pregnancy involves non-consensual use of someone’s body (by the unborn child).

This is a fair comparison, although it is worth having a look at the issue of consent and unwanted pregnancy, which I explored in an earlier post. What is not a given, however, is that non-consensual use of someone’s body is sufficient grounds for lethal self-defence. It is not difficult to think of instances where non-consensual use of someone’s body does not provide sufficient grounds. For example, if a child seizes my hand on a train platform, and cannot be persuaded or forced to relinquish their grip unless I push them into the path of an oncoming train, this is yet unacceptable – at least, I hope you find it so – even though it falls into the category of lethal self-defence in response to non-consensual use of my body. If a stranger on a balcony trips and grabs my arm in order to prevent a fall to their death, and cannot be persuaded or forced to let go (and plummet to their death) unless I kill or severely injure them, this is yet unacceptable – again, I hope you find it so – even with the lesser concept of non-lethal self-defence.

Thus we cannot consider the basic premise of non-consensual use of someone’s body as sufficient ground for lethal self-defence in and of itself. Hence there must be other nuances present that enable us to judge the reasonableness of the response.

Comparison 2: Legal Definition

To be legally rape, the action of the perpetrator must fulfil the conditions of mens rea and voluntariness.
In unwanted pregnancy, the unborn child exhibits neither mens rea nor voluntariness.

Mens rea is Latin for ‘guilty mind’ and refers to the intentions of the perpetrator. According to South Australian law:

“(1) A person (the offender) is guilty of the offence of rape if he or she engages, or continues to engage, in sexual intercourse with another person who—
(a) does not consent to engaging in the sexual intercourse; or
(b) has withdrawn consent to the sexual intercourse,
and the offender knows, or is recklessly indifferent to, the fact that the other person does not so consent or has so withdrawn consent (as the case may be).”
[Emphasis mine]

The South Australian law is expanded upon by the Australian Institute of Family Studies, an Australian government research body, which says that:

“The defendant intended to do the physical act, and the defendant was aware that the victim was not consenting, or was reckless towards whether or not the victim was consenting. It is not enough for the complainant to know in themselves that they do not consent – the defendant must have knowledge of this non-consent to be considered legally guilty.”
[Emphasis mine]

It should be abundantly clear, should it not have been already, that the unborn child is incapable of mens rea and therefore unable to be considered guilty of illegal action in implanting within the uterus.

The Australian Institute of Family Studies states the following regarding voluntariness:

“The defendant’s actions cannot have been involuntary. Involuntary actions may include: reflex actions; sleep walking; or being in a state of altered consciousness.”
[Emphasis mine]

Again, it should be very clear that the unborn is not causing the unwanted pregnancy voluntarily, and therefore this differs again from what would legally be considered rape.

Self-defence is judged on “the threat the defendant genuinely believed to exist”, and therefore cases of rape that would not necessarily fit the legal definition may still be sufficient grounds for lethal self-defence. However, there can be no mistaking the involuntary and unintentional nature of the actions of the unborn child. In other words, given our knowledge of the prenatal development, and also the process that a woman needs to go through in order to obtain an abortion, there is no ‘heat of moment’ excuse in which she could claim that she misunderstood the intent and purpose of the unborn child. Unlike rape, unwanted pregnancy would need to be justified as a ‘threat’ apart from criminal grounds.

In the next post, I will be looking at further comparisons that will highlight the differences between unwanted pregnancy and rape, and exploring the implications for self-defence.

Absence

It’s been many months since I last looked at this blog. It was not a planned absence; in fact, I have two unfinished blog posts waiting in my document files for me to return to them. But without being able to pinpoint when it happened, two things occurred.

The first was that I started to experience the feeling of an emotional overload when it came to abortion. The reality of its existence and what is condoned in the name of choice became overwhelming for me, and I felt the need for space from personal engagement with the issue.

The second was that I became incredibly busy and physically worn-out. In October last year, my husband and I announced the upcoming birth of our fourth child. And at the beginning of this year, I started the third year of my medical degree. This year was the first clinical year, with 8:00am starts every day for ward rounds and an intense program of clinics, study, lectures and tutorial. Time for things in my life other than university and my family decreased dramatically, as did my mental and emotional energy.

Five weeks ago our fourth daughter was born, and – with some time off from medical school – I feel like I’m finally able to return to my blog writing and finishing off some of the posts that have been waiting for me.

One thing I will be changing will be to disable comments on my blog posts. I strongly feel that open online discussion forums are not particularly conducive to productive conversation, and that private messages are a much more appropriate way to discuss an issue as emotionally charged as abortion. In light of this, I have added a contact option, where I can be reached by email for anyone who is interested in opening up a conversation about something they have read in my posts.

Thank you for your interest in my thoughts and writing, and I hope to have a new post out soon.

Abortion & Forced Organ Donation

Forced Organ Donation & Abortion

Why I don’t need to agree with forced organ donation in order to believe that abortion is wrong.

The Argument

Forcing a woman to remain pregnant by denying her an abortion is like forcing her to donate all her bodily organs to sustaining another life. Unless you also believe that it’s okay in general to force people to donate their organs to sustain the lives of others, you hold a hypocritical and illogical position and your opinion can be dismissed. If you don’t believe that it’s okay in general to force people to donate their organs to sustain the lives of others, then you have no grounds for then thinking that it’s okay to force the pregnant woman to donate hers to sustain the life of the embryo/foetus.

The Problems with this Argument

1. Firstly, I’m going to take issue with pregnancy being described as organ or tissue donation, when it is nothing of the kind.

The pregnant woman does not donate her uterus to her unborn child. The uterus is designed to house the unborn child, and to say that this means that it is donated to the unborn child is akin to saying that a women’s vagina is donated to a man during sexual intercourse, or that a nursing mother’s breasts are donated to her breastfeeding child. An organ used as it was intended to be used by another human being does not constitute a donation.
Similar to the above, the pregnant woman does not make a tissue donation of her endometrial lining (which would otherwise be discarded during menstruation) to the unborn child, as this is the intended use of the endometrium.
The pregnant woman does not donate her blood to the unborn child. Unlike an actual donation of blood, where the blood is removed from the donor and placed into the recipient, no blood is removed from the mother and no blood is placed into the embryo. Bear with me, because it does get somewhat technical in order to demonstrate this;- Until three weeks after conception, the embryo receives oxygen and nutrients via the trophoblast, which is the precursor to the placenta and forms the outer layer around the embryo. Picture the trophoblast as an eggshell, and and the embryo as the egg yolk. The trophoblast is in contact with lacunae, which are cavities within the endometrium that are filled with maternal blood. Material diffuses from the lacunae through the trophoblast and to the embryo.
– At two weeks after conception, the embryonic circulatory system begins to form. By three weeks after conception, embryonic blood is moving through capillaries (very small blood vessels) within the chorionic villi, which can be pictured as stalks sprouting from the layers surrounding the embryo. These villi project into the lacunae, and material diffuses from the blood in the lacunae into the embryonic blood vessels, where it is circulated via the embryonic cardiovascular system, which – by the end of the third week – includes a beating heart.

– The pregnant woman does not donate her body to the unborn child. Her body systems do work together to provide nutrition and shelter for the unborn child, but to claim that this is akin to organ or tissue donation makes no more sense than claiming that my use of my body to provide nutrition and shelter to my three born children is akin to organ or tissue donation.

2. It doesn’t take into account the relative rights at stake. By this I am saying that it fails to recognise the difference between not acting to save a life (non-organ donation) and acting to end a life (abortion). It is important to realise here that my stance on abortion is based primarily on the concept that the unborn child, as a human being, deserves the same human rights as the rest of us.

The key right here is the right not to be arbitrarily killed. Other rights of the unborn child are also violated by abortion, but this one is the most outstanding. However, refusing to donate an organ does not result in the arbitrary killing of the ill individual. We have a right not to be killed; we do not have a right not to die. The most relevant right for the individual requiring an organ transplant is the right to health, but this only covers a right to ethical treatment, and so does not cover forcing another person to undergo a intervention in order to acquire treatment. Therefore no rights of the would-be organ recipient are violated by a refusal to donate.

3. It minimises and trivialises the bodily autonomy of the unborn child while elevating the bodily autonomy of born human beings, including the pregnant women. Let me illustrate what I mean;

A person dying of kidney disease MAY NOT violate the bodily autonomy of another in order to save their own life, even though death may considered one of the most drastic of consequences.
A pregnant woman MAY violate the bodily autonomy of her unborn child in the most extreme manner in order to avoid the continuation of her state of pregnancy.

So, on one hand we say that bodily autonomy is so important that we may not violate it even to save our own lives. On other hand, we say that bodily autonomy is so unimportant that we can violate it drastically in order to not be pregnant. The only way to escape this illogical conclusion is to argue that the unborn child does not deserve human rights – and I’ve yet to see one convincing argument on this presented to me.

4. It fails to mirror the state of pregnancy in its analogy of forced organ donation. Even if we were to ignore that pregnancy is not organ/tissue donation (see point 1) and pretend instead that it is in some way, it still does not resemble the organ/tissue donation that takes place between born human beings. For example, if I am pregnant, than the embryo or foetus is already using my uterus; the ‘donation’ has already taken place. The only way to stop the foetus using my uterus is to forcibly remove them, at the cost of their life. Likewise, after a kidney donation has taken place, the only to stop a donor recipient from using my kidney is to force them to undergo a surgical procedure and reclaim my kidney from their body. Regardless of how my kidney ended up in their body to begin with – forced, voluntary or as a foreseeable consequence of my own actions – most people would see that this remedy for reclaiming my bodily autonomy is not sufficiently justifiable.

5. It fails to recognise that that granting a right does not grant every remedy to that right. I have a right to bodily autonomy, but I may not pursue any avenue that I feel is appropriate to exercise that right. To give an example, if I overheard a plan to kidnap me and forcibly remove my kidney in order to give it to the child of the main conspirator, and I know that the only way to stop this from taking place was to kill the unknowing and essentially innocent child, am I justified in doing so? I am not, even if this is the only remedy available that will uphold my right to bodily autonomy.

6. It doesn’t differentiate between an active violation and a denial of intervention (e.g. operation to remove donor organ versus denial of abortion procedure). A doctor needs to meet a high bar to treat a patient without consent (example here), but a much lower bar to refuse to treat a patient (example here). An example in my own personal experience has been an elderly and demented female patient with a cancerous lesion in her gastrointestinal system. Should the surgical team discover spread of the cancer or other complications, they are well within their rights to refuse to perform surgery on this lady. However, they cannot decide of their own accord to perform surgery on her; not without the consent of the relevant family members.

The Challenge of this Argument

It was put to me that it is immoral to refuse to save a life when it is within your power to do so. I am inclined to agree somewhat with this, so how can I then defend myself from being called hypocritical when I fail to advocate for forced organ donation, but advocate for so-called forced pregnancy?

The answer is that it doesn’t matter if I think refusing to donate an organ is immoral. For the above reasons listed, this argument is as relevant to pregnancy as suggesting that because I think lying is immoral, but don’t advocate for legislation banning it, I don’t have a right to advocate for the banning of abortion.

Conclusion

Consideration of the unique situation of pregnancy, awareness of the affected rights of all individuals involved in both pregnancy and organ donation and recognition of the very significant differences between organ donation and pregnancy have led me to the conclusion that this argument, although seemingly relevant and powerful on the surface, can be refuted when it is thoroughly explored

I found the following links useful:

Debunking the Pro-Choice Argument, Part VI

Standford Students for Life: the Kidney Donation Argument

Information on embryological development came from ‘The Developing Human: Clinically Orientated Embryology, 9th Edition’ Moore et al. 2013

Late-Term Abortion: Are They Only For Medical Reasons?

Late-Term Abortions

As a brief interlude from my series on abortion and legislation, I want to take the time to talk about late-term abortions and the reasons why they occur. In multiple online discussions, I’ve encountered individuals who are firmly convinced that late-term abortions only occur for medical reasons, i.e. the health of the mother or the foetus. I strongly suspect that this may be the result of the film ‘After Tiller’, which attempts to portray the four remaining late-term abortionists in America as sympathetically as possible. There are also those who insist that late-term abortions are in fact early inductions where the life of the foetus is preserved if at all possible. This post will be a sharing of the various resources, articles and interviews that I’ve come across that clearly show that neither of these are the case. Late-term abortions are intended to end the life of the unborn child and are carried for any number of reasons that have nothing to do with health/medical indications. I will add to the list as I get opportunity.

NB: the definition of ‘late-term’ varies, but most sources seem to place abortions after 16-20 weeks gestation in the late-term category.

1. An interview with late-term abortionist Dr Susan Robinson, in which she describes how she will abort healthy foetuses late in pregnancy, and also how a lethal injection is given to the foetus as part of the procedure to ensure death.

2. Another interview with Dr Robinson, where it’s very clear that many of the women who see her are coming for a late-term abortion because they didn’t know they were pregnant or because their circumstances changed (be prepared for some appalling stereotyping of the pro-life movement, if you choose to read through the entire interview).

3. A report on the ‘After Tiller’ documentary (unfortunately, this article no longer seems to be on the site) and the abortionists involved, the relevant quote is a bit buried, so I’ve reproduced it here:
“The hands of Susan Robinson covering her face as she ponders another young woman’s story and whether as a physician of late-term abortions, she says yes or no.
“Who am I to say, ‘No, that’s not a good enough story’? What if you’re just not a good storyteller? The point is,” Robinson says, “she has made this decision. If I’m going to turn down a patient, it’s because it’s not safe and I can’t take care of her.“” (emphasis mine).

4. A combined 5.1% of abortions in the U.S.A are performed at 16+ weeks; that’s 3.8% between 16 and 20 weeks, and 1.3% at 21+ weeks. That’s approximately 35,000 and 12,000 abortions in 2013 respectively.

5. In Victoria, Australia, perinatal deaths at 20+ weeks gestation are recorded in mortality reports (I’ve included page numbers, as this is a lengthy document, and also reproduced the relevant tables).
In 2010:
• 191 foetuses were aborted because of maternal psychosocial conditions (i.e. reasons of mental health or social circumstances). None survived to birth (p159).
• 184 were aborted between 20 and 27 weeks gestation (p164).
• 7 were aborted between 28 and 31 weeks gestation (p164).
• In the same time period, 28 foetuses were aborted at 20+ for maternal conditions, including 6 at 32 to 36 weeks and 3 at 37+ weeks (p164). None survived to birth (p162).

In 2011:
• 183 foetuses were aborted because of maternal psychosocial conditions, again with none surviving to birth (p159).
• 172 of these abortions occurred between 20 and 27 weeks gestation (p162).
• 10 occurred between 28 and 31 weeks gestation (p162).
• 1 occurred at 37+ weeks gestation (full-term) (p162).
• In the same time period, 18 foetuses were aborted for maternal conditions, including 5 at 32 to 36 weeks and 6 at 37+ weeks (p162). None survived to birth (p160).

As you can see, this data gives lie to the idea that late-term abortion is only for health conditions, and that the aim of a late-term abortion is to deliver a live baby whenever possible.

6. Although this article refers specifically to partial-birth abortions (or intact dilation and extraction method), it quotes several abortionists on the reasons why women have late-term abortions.

7. An article on reasons why women present for second trimester (14 to 26 weeks) abortions, citing the main reasons as logistical, not suspecting pregnancy and difficulty in making the decision to abort.

8. Abby Johnson, former clinic director at Planned Parenthood and now pro-life advocate states that the women sent for abortions at 24+ weeks did not have medical reasons for doing so.

9. Another interview with Dr Robinson. I’ve reproduced the relevant quote;

“It’s about these poor desperate women who find out they’re pregnant and they’re already three quarters of the way through pregnancy and a pregnancy will wreck their life. What are they supposed to do? Those are the people we take care of. We take care of people whom pregnancy would wreck their life or who have a baby that’s hugely damaged to the point where the parents who wanted this pregnancy think that perpetrating a life on this kid is unfair.”

10. An undercover video of a young woman at 26 weeks pregnant seeing Dr LeRoy Carhart for an abortion. The relevant moment is at 4:25. It also clearly shows that there is no intention for the foetus to be born alive.

11. An interview with late-term abortionist Willie Parker. He’s never explicit, but reading between the lines it’s fairly clear that he carried out late-term abortions for non-medical reasons:

12. An article about a Los Angeles clinic performing abortions up to 26 weeks. A couple of the relevant quotes;

“It is a private clinic, run by a former general practitioner, that does about 150 abortions a week. It accepts patients 26 weeks into their pregnancies. Asked the obvious question, the administrator sighs and says, “We have kind of gotten out of the habit of asking why they waited so long.””

“The realities that Walshe sees every day, she admits, can be unsettling. “These women know they are pregnant, but not until the 16th or 17th week, when the fetus is kicking and bothering them, do they say, ‘Oh, I have to deal with this,’ ” she says. “It’s not that these women are bad, or they’re wrong. They’re just poor. They don’t lead organized, routine lives.””

13. The Clinic Quotes websites shares a multitude of quotes on abortion from many and varied sources. This page is specific to quotes on late-term abortions.

14. An article on why women seek abortions at 20+ weeks. Medical reasons are only brought up in describing the demographic of the sample; 30% had a substance abuse or mental health issue – although this was associated by the author with delay rather than reasons for abortion.
• “ 43% of women reported that not realizing they were pregnant delayed them in seeking abortion care.”
• “37% of women reported that the process of deciding whether to have an abortion slowed them down.”
• “One in five participants said that disagreement with the man involved in the pregnancy over their decision to have an abortion slowed them down.”
• “Some women had trouble finding a place to go … 38% of these women reported delay for this reason.”
• “Almost two-thirds of the women seeking later abortion … said they were delayed because they were raising money for travel, the procedure and other costs.”
• “Women seeking later abortions were twice as likely as women seeking first-trimester abortions to report delays because of difficulties securing public or private insurance coverage for the abortion.”
(Full-text here if you have access)

15. An article from Pro-Life Obs/Gyns on late-term abortion and medical necessity.

16. An article on Ron Fitzsimmons (then executive director of the National Coalition of Abortion Providers) comments about having lied regarding medical necessity and late-term abortions.

17. A Slate article in the aftermath of the Kermit Gosnell charges talks about elective late-term abortion, amongst other things.

18. An article by late-term abortionist, Lisa Harris. In case you cannot access the full-text, I’ve reproduced the relevant quote below;

“In the US, the known risk factors associated with presenting for second trimester abortion include: adolescence, drug and alcohol addiction, poverty, difficulty obtaining funding for the abortion, and African-American race. Delays in obtaining second trimester abortion come when a woman does not realise she is pregnant (perhaps a surrogate for poor health or lack of education), has logistical delays, experiences denial about the pregnancy, is uncertain about the decision to have an abortion, or has a change in life circumstances or relationships that makes a previously desired pregnancy undesired.”

And because it really stood out to me, here is another comment she made on the difference between the 23-week old foetus she had just aborted, and the 23-week old premature infant who she observed being treated in the neonatal unit. Note how she considers only extrinsic factors in deciding the legitimacy of dismembering one child while striving to save the other;

“Yes, I understand that the vital difference between the fetus I aborted that day in clinic, and the one in the NICU was, crucially, its location inside or outside of the woman’s body, and most importantly, her hopes and wishes for that fetus/baby.”

19. An Australian couple abort their 28-week unborn child in due to a condition called ectrodactyly, which had only been discovered to affect the left hand and is not a lethal condition. From the father:
“”It felt very inhumane, to be honest,” Frank said. “We were being told that our only option was to give birth to a baby that we did not wish to give birth to at all.We felt we have been forgotten and abandoned through the political and judicial uncertainty of the abortion laws”.”

20. Another Australian couple aborted their 32-week unborn child in 2000, due to suspected dwarfism, another non-lethal condition. The mother was reported to be suicidal and the abortion carried out for this reason, but it highlights the fact that this late-term abortion was intended to kill the unborn child. There was absolutely no intention that the child should live, even though its chance of survival would have been extremely high. The prenatal diagnosis of dwarfism was never confirmed.

21. A study by Maria Stopes International UK, “Late Abortion: A Research Study of Women Undergoing Abortion Between 19 and 24 Weeks Gestation” found that:
“For the vast majority of women taking part in this study, the signs and symptoms of pregnancy were not recognised until an advanced stage, making late abortion an inevitability rather than a conscious choice on their part.”
and
“A small minority of women taking part were aware of the pregnancy at an early stage but were either in denial, or subsequently faced a significant change in their circumstances that forced them to re-evaluate their pregnancy.”

22. Descriptions of second and third trimester abortions from Warren Hern’s website. A three to four day procedure is hardly what is necessary for a woman whose life is endangered by her pregnancy.

Back Alley Abortions Part I: Legislating Morality

Legislating Morality

The most prominent argument against criminalising abortion is that such an act would force women to go to the ‘back alley butcher’ – an unlicensed, unskilled abortionist who is likely to leave them injured, if not dead. It can be summed up thusly; criminalising abortion will hurt women. And there are many people, both pro-choice and pro-life, who are concerned about this, and that is a credit to their sense of compassion. As for myself, as someone who cares deeply about justice and protection of the vulnerable – born or unborn – this concerning scenario is not something that I would ever like to see happen. In the following series, I will try to address this and other concerns about criminalising abortion. In this first post, I will be looking at the idea of legislating morality.

Should we legislate morality?

According to certain polls, almost half of Americans describe themselves as pro-life. However, in a NARAL commissioned poll, 45.5% of respondents who were against abortion personally nonetheless responded that they didn’t believe a woman should be prevented from making that decision for herself – and, by implication, legally accessing it. These poll results suggest that a fair percentage of self-described pro-life Americans would be accepting of abortion as a personal choice, along with the 23.2% who responded that abortion is morally acceptable. Only 24.7% responded that they believed abortion was morally wrong and should be illegal.

But the above poll asked very specific questions and lacked a middle ground. The second option, which the 45.5% of respondents selected, is not a middle ground on legislation, since it effectively states that legislative restrictions should not be in place and didn’t leave an option for partial restriction. The next option was that abortion should be illegal, which many would perceive as too much an all-or-nothing hardline approach. In polls that include a middle ground, such as legal under a few circumstances, or illegal in most circumstances, result show that up to 72% of respondents want some restrictions on abortion.

(It is also interesting to note how results changed according to whether the middle ground question used the word ‘legal’ or ‘illegal’ – with far more respondents likely to support restrictions if it was phrased as ‘few legal’ rather than ‘most illegal’.)

When asked if abortion should have increased restrictions or not be permitted, 50% of respondents answered in the affirmative. When the questions grow more specific and included the option of abortion only available in cases of rape, incest or endangerment of the mother’s life, 52% were in favour of either restricting to only these circumstances or complete restriction. Polls on restrictions according to the length of pregnancy are also revealing; while only 31% of respondents believe that it should be illegal in the first three months, this number grows to 64% for the second three months and 80% for the final three months.

(All the above poll results can be found here.)

So, many people have already answered the question on whether or not we should legislate morality, and it seems that the majority agree that we should – those who believe there should be no restrictions on abortion remain a minority, ranging from 19-27% in various polls. And once you agree that any restriction should be placed upon abortion, you have acknowledged that it is appropriate to legislate upon this issue, even if it is a moral one. If your ideology causes you to disagree with this, you have to accept that such a position will allow abortion for any reason at any point in the pregnancy, even if the woman is 38 weeks pregnant and has merely changed her mind on a whim (and perhaps you are reconciled to this).

Going back to the NARAL poll, what it does show is that there are those who are ‘personally pro-life’ but are not willing to absolutely restrict availability of abortion to others. In other words, they may find an action morally wrong, but are not willing to express their support for legislation upon that moral issue.

Is this a legitimate point of view? In one aspect it is fair enough. A state or country where all individual moral autonomy is suspended would hardly be ideal, and it’s fairly safe to assume that few would choose to live under such conditions. But when we consider that morality is about what is right or wrong, it’s clear to see that we already legislate upon it. Examples would be rape and child abuse. Of course, not all activities with moral aspects are legislated. Minor lies and adultery are examples of this. So what’s the difference? Perhaps one way to consider the applicability of legislation is to look at the impact of the activity, i.e. what is the justification for the limitation of moral choice? Child abuse and rape very clearly have a large impact on the victim. So I suggest that the questions to ask are, who is affected by the action in question, and how are they affected.

Who is affected by abortion?

the unborn child
the pregnant woman
the health system
the people who I guess you could call ‘abortion candidates’, such as individuals with Down Syndrome and consequently their families

How are they affected?

the unborn child is killed
the pregnant woman undergoes a medical procedure with associated risks; furthermore academic research (examples here, here, here and here) and individual anecdotes (such as Voices of Regret: Stories of Loss and Hope) show that there is a real potential for there to be future or ongoing negative effects as a result.
– the health system: abortion is covered by public health insurance in Australia, meaning that there is a financial cost to the public health system. Potential negative consequences of abortion would lead to increased utilisation of the healthcare system and increase the healthcare burden.
– Discrimination towards individuals with disability and their family due to their existence having become a ‘choice’ – either prenatally or postnatally (examples here and here).

Is the impact strong enough to justify legislation?

Is death not a strong impact? I don’t believe that there are any other situations where a human being is killed by deliberate intervention that is not legislated upon. Unless you don’t acknowledge the unborn child as a living human being – and given the serious consequences of this line of thinking, you need to be able to justify why – it is clear that the impact of abortion on the unborn child alone should be sufficient to justify legislation. The fact that abortion also has the potential to injure or cause long-term issues for the pregnant woman is also strong justification.

To be succinct, unless you believe that abortion has no more impact upon the persons involved (including the unborn) than an appendectomy, you have to consider that there is grounds for legislative control.

Conclusion

My thoughts are that once we accept that morality can be and is already legislated upon, and when we acknowledge the impact of abortion, then we can come to the conclusion that it is legitimate and justifiable to legislate on abortion. In many places we have already done so. In South Australia abortion is limited after 28 weeks of pregnancy, i.e. the state of South Australia has determined that the women should not have the moral autonomy to abort their unborn child once they have passed this point. If this is accepted, the question is not whether it is legitimate for legislation on abortion to exist at all, but rather what should be the extent of such legislation.

Bodily Integrity and Abortion Part IV: The Right To Refuse (Violinist Analogy)

The Right to Refuse

This argument is grounded in the idea that you have the right to refuse to let your body be used by others. It thus stems also from bodily integrity, but unlike the Sovereign Zone argument, it does not suggest that you should be free to do with your body whatever you please. Rather, it suggests that other people are not free to do with your body whatever they please; it is an act of defence rather than one of offence. In terms of pregnancy, my understanding is that the argument proceeds along the lines that the embryo or foetus is using the pregnant woman’s body, and she has the right to refuse to let it do so. This right of refusal is exercised through abortion, where the intended outcome is the freeing of the woman’s body from the unwanted usage, and the death of the embryo or foetus is a side-effect.

The most well-known work written on the Right to Refuse is by Judith Jarvis Thompson, in her essay ‘A Defense of Abortion’, where she created the famous violinist analogy. I have reproduced the analogy below:

“I propose that we grant that the fetus is a person from the moment of conception. How does the [pro-life] argument go from here? Something like this. Every person has a right to life. So the fetus has a right to life. No doubt the mother has a right to decide what shall happen in and to her body. But surely a person’s right to life is stronger than the mother’s right to decide what happens in and to her body. So the fetus may not be killed; an abortion may not be performed.

It sounds plausible. But imagine this. You wake up in the morning and find yourself in bed with a famous unconscious violinist. He has a fatal kidney ailment, and the Society of Music Lovers has found that you alone have the right blood type to help. They have therefore kidnapped you, and the violinist’s circulatory system was plugged into yours, so your kidneys can be used to extract poisons from his blood. The director of the hospital tells you, “Look, we’re sorry the Society of Music Lovers did this to you – we would never have permitted it if we had known. But still, they did it, and the violinist now is plugged into you. To unplug you would be to kill him. But it’s only for nine months. By then he will have recovered from his ailment, and can safely be unplugged from you.” Is it morally incumbent on you to accede to this situation? No doubt it would be very nice of you if you did, a great kindness. But do you have to accede to it? What if it were not nine months, but nine years? What if the director says, “Tough luck, but you’ve got to stay in bed, with the violinist plugged into you, for the rest of your life. Because remember this. All persons have a right to life, and violinists are persons. A person’s right to life outweighs your right to decide what happens in and to your body. So you cannot ever be unplugged from him.” I imagine you would regard this as outrageous, which suggests that something is wrong with that plausible-sounding argument I mentioned a moment ago.”

This analogy has been argued against on several different points, which I’ve summed up below:

In the majority of cases, the pregnant woman has consented to action that placed the unborn child in its present state of dependence, and therefore has a responsibility to provide for its needs.

The unborn child has a direct relationship with the pregnant woman, and she therefore has a responsibility to provide for its needs, as it is expected that parents provide for their children.

Unplugging from the violinist is a misrepresentation of abortion, which involves active killing of the unborn child, not merely passive withdrawal of care*.

The analogy misrepresents the majority of pregnancies, which do not have as great a physical impact on the life of the woman as being confined to bed for nine months.

(I’ve encountered these arguments in a variety of readings, but they are discussed by Clinton Wilcox in his blog and again at Secular Pro-Life Perspectives. Another critique can be found at Stand To Reason.)

* I will make a quick note on this argument. This concession might be made that medical abortions are analogous to unplugging the violinist, as the process affects only the mother’s body (separation of the uterine lining – and thus placenta and embryo/foetus – from the uterus and then contraction of the uterus to expel the embryo/foetus) and does not directly affect the unborn child. However, in order to make it truly analogous, the violinist scenario would have to be changed to acknowledge that a medical abortion places the unborn child into an environment in which they are not physiologically designed to survive. An analogous outcome would therefore have the violinist being shot into space, or submerged under water upon disconnection.

These arguments can be found in various forms around the internet. But I would like to take another approach; one which takes in the notions of conflicting human rights and justifiable violation of bodily integrity, and attempts to generate a basic underlying principle whereby we can understand the acceptability of disconnecting from the violinist without – by extension – conceding to the acceptability of abortion. When I discussed human rights in conflict, I showed the legitimacy of limiting some human rights in order to preserve others. In my post on the Sovereign Zone argument, I pointed that our bodily integrity can be legally violated for the protection of ourselves AND the protection of other people. These are the two points that I would draw on in the following discussion. In summary:

Human rights can be limited to protect the rights of others.

Bodily integrity can be limited to protect ourselves and others.

It might sound like I’ve got the abortion argument sewn up there. However, Thompson presents a strongly intuitive case with her violinist analogy. Would I personally require that someone remain connected to the violinist? I would admire someone who did, but I don’t think – at this point – that I could require someone to stay connected to the violinist. So how can I require a pregnant woman to stay ‘connected’ to the embryo or foetus against her will?

This is where, based upon the two points that I’ve outlined above, I would like to propose a redefinition of the right to refuse. Thusly;

You have a right to refuse the use of your body by other people.

becomes

You have a right to refuse the use of your body for the treatment of other people.

This hinges on two things:

Any ‘right to treatment’ or ‘right to health’ can be limited.

The usage by the unborn child falls under the category of provision of physiological needs.

To the former, the right to treatment can certainly be limited. In the United States of American, the right to treatment applies only to treatment of an emergency medical conditions, as defined by federal law. In South Australia and Western Australia, the provision of in vitro fertilisation is limited to heterosexual couples – thus excluding singles and homosexual couples. In Australia and New Zealand, liver transplants are not offered to individuals with ongoing alcohol or other substance abuse.

The ‘right to health’ allows that an individual has a right to access to ‘timely and appropriate health care’. Acceptability of the health care is a key component, and rises from the concept of respect for medical ethics. As can be seen in the case of McFall v. Shrimp, it was deemed unacceptable for the bodily integrity of Shrimp to be violated in order to facilitate the treatment of McFall. Put another way, McFall’s right to health could not compel medical treatment that was ethically unacceptable. Similarly, we do not have compulsory organ donations or blood donations. This is because we recognise that treatment of a pathological condition, i.e. prevention of a natural death, is not sufficient to justify violation of bodily integrity.

So why does this not apply to the unborn child? After all, the pregnant woman’s bodily integrity is violated in order for the continuation of the life of the unborn child. I believe that the key to differentiating between pregnancy and the violinist analogy is to recognise that the continued pregnancy does not provide treatment to the child, but rather allows provision of its physiological needs.

We recognise in law the importance of requiring parents to supply for the physiological needs of their children. If parents or caregivers fail to supply the basic needs of the nutrition and shelter to their children (as much as it is within their capability), they are guilty of neglect under the South Australian Children’s Protection Act 1993.

This is not negated even if this provision requires the caregiver to use their body against their will, e.g. if they need to use their body against their will in order to prepare food or construct shelter; or if it infringes upon their right to liberty, e.g. not being able to leave children at home alone or having to interrupt activities that they find enjoyable.

Once born at the appropriate gestational age, these needs are provided to the infant via feeding with breast milk or formula, and environmental control of temperature and shelter. Prior to birth, the physiological delivery of these is through the pregnant woman’s circulation via the placenta. I emphasis ‘physiological’ because I want to make it very clear that supply of these needs does not serve to correct a pathological state in the unborn child, i.e. while the provision of such is essential for health, it does not constitute treatment in and of itself. Hence, while we can uphold the principle of bodily integrity in denying the use of a person’s body to save the dying violinist, we can limit it in the use of a pregnant woman’s body to sustain her unborn child.

As a side-note, it is not only the relationship between a caregiver and a child that makes the provision of basic needs a duty. If a neighbour’s child somehow wandered into my house and became trapped there with me due to a freak snowstorm (not a usual occurrence in Australia), I would certainly then be under a moral obligation to provide for their basic needs, and to refrain from ejecting them from my house into an environment within which they could not survive. I would further speculate that either of these actions would leave me open to being charged with criminally negligent manslaughter. (For a more in-depth discussion of this idea, a .pdf of the De Facto Guardian argument can be downloaded here.)

It’s important to see that pregnancy is not a medical condition that requires treatment, but a physiological condition that is monitored and optimised. If treatment is required during pregnancy, it is because pathology has occurred, such as pregnancy-induced-hypertension. It is akin to way that digestion is not a medical condition that requires treatment, but disorders of digestion are.

In conclusion, I have iterated the ways in which the violinist scenario fails to be analogous, and have introduced a new principle that seeks to balance the rights of the pregnant woman with the rights of the unborn child, while allowing for the intuitive conclusion of allowing disconnection from the violinist.