Abortion as Self-Defence Part I: The Rape Comparison

Abortion as Self-Defence, Part I

The Rape Comparison

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.

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.

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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.

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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.

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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.

Bodily Integrity and Abortion Part III: Consent to Pregnancy

Consent To Pregnancy

(Although this was originally intended to be a three-part series, I will be writing one more post to address Judith Jarvis Thompson’s famous violinist analogy)

“Consent to sex is not consent to pregnancy.”

If you’ve been challenged by the above statement, then I hope you’ll find this blog post helpful.  In it, I’ll discuss why I think consent is not actually a relevant concept in the specific case of pregnancy.

 1. Pregnancy is an outcome, not an action.

Put simply, you are able to consent to actions, but not to outcomes. For example, you may need cataract surgery, which carries a 0.7% risk of retinal detachment. If you give your consent for the surgery to be carried out (the action) and then develop a detached retina (the outcome), it is superfluous to insist that you did not give your consent to this outcome. You cannot sue the surgeon on the grounds that you did not consent to a retinal detachment. Your consent to the surgery indicated your acceptance of the known risks of that surgery. Likewise, consent to sex is not consent to pregnancy, but it is consent to an action where pregnancy is a possible outcome. In essence, you accepted the risk of pregnancy when you consented to place yourself in the situation where pregnancy was forseeable. This acceptance of risk applies equally to men and women, as is seen in the legal obligation of the father to support his offspring.

However, if an unfavourable outcome occurs, we do endeavour to correct that outcome. In the example of retinal detachment following cataract surgery, the patient would have the option of undergoing further treatment in order to correct the problem. So the suggestion could be made that, as laser surgery is to retinal detachment, so abortion is to pregnancy. When pregnancy occurs, it is corrected by undergoing an abortion.

In answer to this, I would say that in correcting the unfavourable outcome, we have an obligation to do so in a manner that results in a minimum of harm, and does not violate the rights of another. In the case of the patient with retinal detachment, they may have laser surgery, but they may not kidnap another person and remove their eyes to use for themselves (imagining that whole-eye transplants were possible). A less fantastical example would be that if I gambled (the action) and lost my money (the outcome), I may not resolve my debt by killing my debtor, no matter how much mental anguish or financial pressure I was under.

Taking responsibility for the outcomes we create by consenting to place ourselves in situations where there is risk of those outcomes, means resolving things in a way that minimises the adverse effects to other people, even if it means taking these effects onto ourselves to some degree. Therefore abortion is not an appropriate resolution of pregnancy, as the harm to the foetus is maximised rather than minimised, and its human rights are undoubtedly violated.

It’s worth noting that if pregnancy was not an interruptible process, consent would likely not even be worth discussing.  For example, we don’t talk about consent for the process of digestion, even though it follows an action that we are able to consent to (the consumption of food).  Also, as with any risk, steps can be taken to minimise that possibility of pregnancy.  Barrier methods, such as condoms or diaphragms, and avoiding sex during the woman’s fertile times, can be used in an effort to prevent conception.  However, as both sides of the abortion debate tend to agree, contraceptive methods are not 100% effective.  So the risk of pregnancy may decrease, but it is still present and still needs to be acknowledged as a possible outcome.

 

2. Requiring pregnancy to have ongoing consent redefines it as assault, with all the implications.

Pregnancy is the use of your body by another person. Unwanted pregnancy is the use of your body by another person without your consent. The normal term given to a situation where your body is used without your consent is assault; in the context of pregnancy, I will refer to it as pregnancy-assault.

Imagine now that we are talking about a man and a woman in a long-term, but rocky relationship. Even though the implication of a long-term relationship is that sex is mutually consensual, there are times when the woman does not wish to have sex. Consider the following situations:

  • The man requests sex and the woman says no. He persists and eventually forces her to have sex.
  • The woman has drunk too much alcohol and is unconscious on the bed. The man has sex with her before she regains consciousness.
  • The woman agrees to have sex and engages in foreplay, but loses consciousness before intercourse commences. The man continues, and has sex with her before she regains consciousness.
  • The woman has not lost consciousness, but is drunk to the point of incoherence. She does not resist when the man begins to have sex with her.

In which of these situations did assault take place? I hope you will agree with me in saying that assault took place in every situation. It should be clear that in a situation where consent is either withheld or unable to be given, any actions that proceed are non-consensual and are assault. Imagine again that any of the above situations are taking place, but you have the opportunity and the capacity to intervene. Should you? I would argue that you have an obligation to intervene; that to stand by would be morally untenable.

Now consider the following situations:

  • A woman is pregnant. She does not wish to be.
  • A woman is pregnant and unconscious. Her attitude towards the pregnancy is unknown.
  • A woman is pregnant and unconscious. Prior to falling unconscious, she had expressed her willingness to be pregnant.
  • A woman is pregnant and hospitalised after suffering an adverse reaction to medication. She is incoherent and does not appear to understand what is happening around her.

If pregnancy requires ongoing consent that may be withdrawn at any time, then a woman in any of the above situations is experiencing an assault. If a doctor has the opportunity and the capacity to intervene by performing an abortion, should he? The logical conclusion is that he should, however counter-intuitive this may seem.

Perhaps the idea of pregnancy as assault seems too extreme to be concerned about.  But this is exactly what Elaine McDonagh argues in her book (emphasis mine):

“Even in a medically normal pregnancy, the fetus massively intrudes on a woman’s body and expropriates her liberty. If a woman does not consent to this transformation and use of her body, the fetus’s imposition constitutes injuries sufficient to justify the use of deadly force to stop it. While it is not usual to think of pregnancy as an injury, that is exactly how the law already defines it when it is imposed on a woman without her consent. For example, when men or physicians expose women to the risk of pregnancy by means of rape or incompetent sterilization, and a pregnancy follows, the law clearly establishes that women have been seriously injured. The term the law uses for such a coerced pregnancy is wrongful pregnancy, and the law holds the perpetrators responsible for the injuries entailed by it. This book expands the concept of wrongful pregnancy to include what the fertilized ovum does to a woman when it makes her pregnant without her consent. It is the only entity that can make a woman pregnant, and when it does so without her consent, it imposes the  serious injuries of wrongful pregnancy even if the pregnancy in question is medically normal. . . . [T]o the extent that the law protects the fetus as human life, the law must hold the fetus accountable for what it does.”

(Quote taken from Beckworth & Thomas 2003)

I considered some arguments that dispute the comparison I have made between sexual assault and the condition of pregnancy, should ongoing consent be required.

It probably wouldn’t cause the woman any harm to remain pregnant until her consent is ascertained.

If this were true, the doctor is not under an obligation to immediately intervene.  However, if we accept this, we could also be argue that it probably wouldn’t cause the woman in the first set of scenarios any harm to let her partner have sex with her, and then ascertain her consent after the fact.  Since this is clearly unacceptable, it should also be unacceptable not to intervene in the case of a pregnancy-assault.

Aborting a wanted pregnancy would cause considerable trauma.

To be on the safe side and avoid this possibility, the doctor should not intervene.  But when we go back and consider this in the context of the first set of scenarios (and here we might add to them, and state that your intervention would result in considerable harm to the man – say he becomes extremely aggressive and rushes at you, requiring you to defend yourself and grievously injure him in the process) considerable trauma could also be caused to the woman in these cases, depending on the manner and outcome of the intervention.  Would this justify standing by and potentially allowing a rape to take place?  If not, then it would not justify standing by and potentially allowing a pregnancy-assault to take place.

An unwanted abortion would violate a woman’s bodily integrity.

Intervening in a potential rape would also likely involve violating the bodily integrity of the woman.  If it eventuated that the sex was actually consensual, you would have prevented her from doing with her body what she would have chosen, and therefore you have violated her bodily integrity.  If it was indeed rape, then the intervention was justified, but cessation of the act of rape could still have required violation of the woman’s bodily integrity, i.e. the need to touch her in order to prevent the assault.  If this is not a sufficient reason for not intervening in the potential rape, it is not a sufficient reason for not intervening in a potential pregnancy-assault.

Clearly, our intuition in this should be that we should certainly not perform abortions on unconscious pregnant women.  But if we are to construe pregnancy as assault, this seems an inescapable conclusion.  I hope, therefore, that you can see the problem with requiring ongoing consent to pregnancy.

 

To conclude, and to paraphrase my opening statement: “Consent to sex is consent to accept the risk of pregnancy”, or – even more specifically – “consent to sex acknowledges the possibility of pregnancy and accepts responsibility should it occur.”  It is not practical or relevant to require explicit consent to pregnancy.

 

I welcome feedback. If you have any comments or questions, whether you agree or disagree, I would be delighted to hear from you.

 

 

 

Bodily Integrity and Abortion Part II: Sovereign Zone Argument

The Sovereign Zone Argument
Part 2 of my series on bodily integrity and abortion

This argument states that the boundaries of a person’s body form the boundaries of a ‘sovereign zone’, within which a person is free to take any action that they wish. For example, if a person decided to have an operation to split their tongue , the Sovereign Zone argument says that they have a right to have this done, as their tongue is within the sovereign zone of their body and is therefore theirs to do with as they please.

It’s easy to see how this applies to abortion. The unborn child, even though it is not a part of the pregnant woman’s body, is still within the pregnant woman’s body, and therefore encompassed by her sovereign zone. Thus – according to the argument – she has the right to do with the unborn child as she pleases.

I’d like to start with a few examples that show how our bodily integrity can be limited in a way that shows that the reach of the sovereign zone is not absolute, and that our bodies are not inviolable.

  1. Involuntary patients with a mental illness may be medicated against their will.
  2. Smoking is banned whilst driving with children.
  3. Recreational use of cocaine is illegal.
  4. Anorexic patients may be involuntarily hospitalised and treated.
  5. Female genital mutilation (FGM) is illegal, even with the consent of the prospective patient.

The important thing to think about with these examples is the reason why bodily integrity has been limited.  In all circumstances, it is for the protection of the individual, the protection of others, or both. To be specific:

1. The detainment and treatment of an individual with mental illness protects against self-harm and protects others against violent actions of that individual:

“because of the mental illness, the person requires treatment for the person’s own protection from harm (including harm involved in the continuation or deterioration of the person’s condition) or for the protection of others from harm”

Mental Health Legislation on Involuntary Treatment

South Australia Mental Health Act 2009

2. The smoking ban protects children from the harmful effects of the adult’s second-hand smoke.

3. The illegality of recreational drugs protects the individual from the harmful effects of the drugs.

4. Involuntary treatment protects the individual from the adverse health consequences of being severely underweight.

Consider how these limitations on bodily integrity shows that the sovereign zone can be breached with sufficient justification. Furthermore, consider the similarity between the goals of the limitations listed above and the goal of limiting bodily integrity in the case of abortion; primarily for the protection of the unborn child.

I’d like to give special attention to FGM, because I think this is the one that is most akin to abortion, in that most pro-choice arguments could also be used to argue in favour of allowing FGM. Firstly, I do need to say that I consider FGM to be a completely unnecessary and often horrific practice.  I firmly believe that it should be illegal, as it is in South Australia.  As I’ve stated, it is illegal even if the prospective patient has requested it. I want to stress that last part, to make it clear that we have a situation in which a woman may make an informed choice to have a procedure carried out on her own body, and yet have that choice denied. So why are women denied the opportunity to make this choice for themselves, even if that denial entails severe social and emotional consequences? It’s not medically necessary, this is true, but neither are numerous cosmetic surgeries.

Illegality of FGM

The (very valid) reasons for banning FGM are the same as the other examples; for the protection of the individual and the protection of others. The illegality of this procedure protects the woman from (a) being coerced into making a decision that she is not comfortable with, and (b) suffering the health consequences and risks resulting from FGM. It protects others, as the majority of FGM procedures are carried out on underage girls, and so a ban prevents them being subjected to such a procedure against their will (which would be a very real possibility if the law were changed to allow for FGM for consenting adults). It furthermore protects these women and girls by attempting to prevent the propagation of a sexually discriminate cultural ideal.

So once again, we see that bodily integrity can be legitimately limited, if the justification is sufficient. Therefore the Sovereign Zone argument is not sufficient grounds for abortion, provided that justification can be made for its limitation in this case. To parallel the examples given, the justification offered would be:

  1. For the protection of the individual from the harmful effects of abortion, from being coerced into making a decision, and from the risks of a medically unnecessary procedure.
  2. For the protection of the unborn child.
  3. To avoid propagating a societal discrimination against women and the inescapable biological fact that we bear children.

A little more on that last point: it is inarguable that men and women are biologically different. Any advances in equality need to recognise our differences and adjust our systems to account for them. As long as a woman has an ‘opt out’ option for pregnancy, there will be those with the perspective that concessions shouldn’t be made for pregnant mothers and mothers will young children – because ‘she didn’t need to be pregnant, she could have just got an abortion’. Respect for women and respect for the fact that we bear children and go through the process of pregnancy go hand in hand, and is only diminished by the thought that a pregnancy, once begun, is somehow optional.

Now to a more intuitive challenge to the Sovereign Zone argument. I’ve drawn from a few different sources for the following, but it is most clearly laid out here.

According to the Sovereign Zone argument, a pregnant woman has a right to do anything she pleases within the boundaries of her own body, even as this includes the embryo/foetus. Thus she has the right to abort the unborn child, even though it will result in their death. This may not sound unreasonable at first. But consider that the absolute nature of this argument also gives her the right to mutilate the unborn child. A commonly used example is that she takes thalidomide for morning sickness, knowing that it’s going to result in the deformation of the unborn child. A more direct idea is that she chooses to have the foetus’ arm removed, whilst leaving it alive. It sounds dreadful, but it is a logical conclusion of the Sovereign Zone argument.

Perhaps one could protest that the mutilation is wrong because it then affects the child once it is born. Therefore it is not that the act is wrong in itself, but it is instead wrong because of the impact on the born child. I would answer this objection in two ways:

  1. Consider the impact of a missing limb versus the impact of death. The child with a missing limb may miss out on some experiences in life (for a positive story of such an individual, go here), but the child killed before they were born can experience no life at all. I would argue that the non-living child has suffered the greater impact, and therefore this response to the Sovereign Argument cannot be dismissed on these grounds.
  2. Consider a situation in which a woman pregnant with a 39-week foetus takes the following course of action: she arranges for a number of chemicals to be injected into the amniotic fluid that will cause the foetus to be in extreme pain until, two or three days later, it eventually dies in utero. It distresses me to even write of such a thing, but the Sovereign Zone argument would permit this, even with a qualification that prohibited actions that would impact upon the born child.

It is clear that the Sovereign Zone argument permits abortion on-demand throughout the entire pregnancy. Many people feel uncomfortable with late-term abortions, or even medically unnecessary abortions, and yet the Sovereign Zone argument allows abortion at any time for any reason. The Sovereign Zone argument would also condone the woman who repeatedly and deliberately gets pregnant in order to abort (the reason why someone might do this is irrelevant, as the Sovereign Zone argument requires no justification for abortion). If you hold to the notion that bodily integrity is inviolable and absolute, and yet this scenario makes you uncomfortable, it may be that you realise that there are moral and ethical depths to abortion beyond the simplistic concept that a woman has a right to choose what to do with her own body.

To conclude, the Sovereign Zone argument fails because:

  1. Bodily integrity is not an absolute right and can be limited with the appropriate justifications.
  2. It permits actions that are morally reprehensible.


The next post will be on the Right to Refuse argument, which I personally consider the strongest pro-choice argument.

Faith & Hope: Miracle or Mistake?

Faith and Hope were born on the 8th of May to parents Renee Young and Simon Howie.  The twins share one body and one skull, but have two faces and two brains, a rare condition called diprosopus.  You can read their story here or view the Current Affairs video here.  The rarity of their condition and the fact that they have thus far survived to be seven days old has caused various media outlets and people to give them the title of ‘miracle twins’.  But it seems that many disagree.  Comments on the various news stories range from supportive and encouraging to harsh and judgmental.  Numerous commenters indicated that they thought the couple should have aborted Faith and Hope once the prenatal diagnosis was made.  To give some examples from the story linked above:

“If these parents knew of the condition early on the pregnancy, why did they decide to carry the fetus to term? Is that not more inhumane than an abortion under this circumstance? There are no miracles.  This/these babies will die.”

“They are not blessings.  They are bad prenatal care.  A sonogram could have seen this.  Suffering is not okay.”

“I do believe the best thing for their babies would have been to terminate, as cruel as that sounds.”

“Why anyone would carry these to full term is byond [sic] me”

The more cynical comments on other reports expressed displeasure at the idea that taxpayer money would be spent on the care of the twins.  Others worried about their future should they survive past infant-hood – many thought they would be regarded as freaks and never be able to lead anything approximating to a normal life.

To recap, we have rare conjoined twins with an uncertain future.  They have been born to loving parents and, at present, appear to be comfortable and breathing without assistance, while being cared for in neonatal intensive care. I assume from the photographs that they are being fed via an orogastric tube and given intravenous fluids.  Until they develop further, it will be impossible to know how the duplication of the brain has affected their neural functioning.  All other systems appear to be functioning normally, as much as can be taken from the comment of the maternal-foetal medicine specialist quoted in the linked article.

They should be terminated to prevent suffering.

The diagnosis was made at 19 weeks gestation.  At this stage, the unborn child has all the spino-thalamic connections necessary for sensing of pain.  Abortion at this late stage would be by dilation and evacuation or prostaglandin-induced premature delivery, with or without foetal intracardiac lethal injection prior to induction.  A dilation and extraction involves the unborn child being removed from the uterus in pieces, with each piece being torn from the body with forceps.  A prostaglandin-induced abortion involves the death of the foetus either during labour or shortly afterwards.  An intracardiac injection of digoxin or potassium chloride may be given, which causes the foetal heart to stop.  The lack of oxygen delivery to the body causes the accumulation of lactic acid as the cells attempt to create energy using an alternative pathway, which has the potential to cause pain akin to that experienced in a heart attack.  In fact, American Veterinary Medical Association guidelines on euthanasia of animals prohibit the use of potassium chloride injections without first administering a general anaesthetic.

I can only assume that the people making these suggestions are either unaware of the potential for foetal suffering during late-term abortion, or consider the foetus a lower-life form whose pain does not need to be taken into account – even though Australia enforces guidelines to protect adult and foetal animals from pain.

They should be terminated because the taxpayer shouldn’t have to pay for their lives

There’s a word for eliminating people who you don’t think belong in society; who have characteristics that you consider unacceptable.  It’s called eugenics.  Do I really need to explain what is wrong with determining the ‘worthiness’ of children to be born according to have much they will cost the taxpayer?  Disability is not a criterion by which any decent human being should take into account when deciding how to value another.  In fact, there should be no deciding taking place, because we all have equal value, no matter what we have or what we lack – no matter what we are capable of.

Are Faith and Hope a miracle or a mistake?  You know what?  It doesn’t matter.  What matters is that they are human, and thus entitled to have their lives respected by the rest of the human race.


Update
At 19 days of age, Faith and Hope passed away in hospital.  For nearly three weeks, these girls were able to be loved and nurtured by their parents.  No details are available at this point.

 

Pro-Choice/Pro-Abortion Comments: My Responses (Part II)

The following comments are from this post.

“It has been estimated that about half of all human conceptions end in spontaneous abortion, and usually the woman doesn’t even realize she was pregnant. In fact, about 20% of all recognized pregnancies end in a miscarriage. I think there is a rather obvious truth here that cries out for acknowledgement 🙂 If God exists, he is the most prolific abortionist of all…. lol”

The argument is common, and goes as follows:

  1. Pro-life individuals don’t appear to care about the many embryos and foetuses lost through miscarriage and still-birth.
  2. Since pro-lifers don’t care about these unborn children, they must not really care for unborn children at all.
  3. Therefore the pro-life agenda is not to save unborn children, but to repress women (and can therefore be shunned and ignored).

(The religious aspect to this, that God must necessarily be a causative agent for every event that occurs, is a different discussion for another time).

The issues with this are:

  1. The suggestion that pro-lifers don’t care about the unborn who are lost through miscarriage and still-birth is completely baseless.  It requires the assumption that anyone who may be working towards or supporting medical treatment and research to prevent miscarriages must therefore be pro-choice.   It also ignores the possibility of concurrent advocacy; I can both support and actively participate in miscarriage prevention, while concurrently advocating for the right of the unborn not to be unjustly killed.
  2. This is akin to suggesting that an advocate against infanticide doesn’t actually care for infants because they are not doing anything about SIDS.  Or that an advocate against elder abuse doesn’t actually care for the elderly because they’re not doing anything about finding a cure for cancer.  The line of thinking would say that any care for a portion of the population affected by a particular fate is invalidated if all natural causes of harm or death are not also addressed, which is clearly unreasonable.
  3. Given the problems with (1) and (2), this is no longer a logical conclusion.

Two other points detrimental to this argument are:

  • The difference in dealing with natural and anthropogenic (man-made) causes of death.  As Scott Klusendorf has put it, “Does it follow that because nature kills people we may deliberately do so?”  Does embryonic and foetal death through natural miscarriage then justify the intentional killing of embryos and foetuses through induced abortion?  As with any analogous situation that you can imagine, the answer has to be ‘no’.
  • The suggestion that there exists a difference between the wanted unborn child and the unwanted unborn child.  A crux of the pro-life stance is that every unborn child, regardless of how much they are desired or, conversely, despised, has the right not to be unjustly killed.  What this argument regarding miscarriage seems to be trying to suggest is that pro-lifers should focus their attention on preserving the lives of wanted unborn children who would otherwise be lost – as if the lives of these unborn were somehow more important than the lives of those who are aborted.  This is an attitude that belongs to the pro-choice crowd, and has no place in the pro-life movement.  Thus to criticise pro-lifers for standing against abortion while unborn children are lost through miscarriage is to criticise them for being consistent with their own beliefs.

So the two questions I would ask someone who challenges the pro-life stance with this argument would be:

1. Does natural death justify a lack of action against intentional killing?

2. Is a wanted unborn child more worthy of being saved than an unwanted unborn child?  (The response may be ‘yes’, in which case they need to justify how it is acceptable to determine the worth of one being based on the attitude of another.)

Another point to this is the undue emphasis that can be placed on the feelings of the women experiencing a miscarriage.  So that what I am about to write it is not misinterpreted, let me be clear that every embryo or foetus lost through miscarriage is a child, and every woman who experiences a miscarriage – no matter how early – has the right to mourn the loss of a child.  That being said, it is important to recognise that the fact that some women feel that they have lost a child is not what determines the status of the embryo or foetus.  Equally, the fact that other women do not feel that they have lost a child when they miscarry – with many explaining their sense of loss as stemming from having lost the potentiality of a child (see here for an article written from this perspective) – does not determine the status of the embryo or foetus either. Emotions do not necessarily equate with facts.

 

“Finally, the primary opposition to abortion is from Christian religious groups.

“Well, the whole bunch of literal bible-humpers who can’t say a sentence without invoking ‘god’ or ‘jesus’ annoy me. I usually find that those who shriek “abortion is murder!” the loudest are creationist types, who think the earth is 6,000 years old, that fossils were laid down in a Genesis Flood, and that dinosaurs romped with Adam and Eve in Eden.”

It’s amazing how people love to cling to their stereotypes.  I believe this is because it makes it easier for them to dismiss the arguments of the pro-life side.  Unfortunately, they’re (a) basing this on a logical fallacy, and (b) wrong.

A. The logical fallacy at play is known as ad hominem, or attacking the speaker.  The content of the argument is ignored in favour of attacking the source of the argument. The author of the second comment above is committing this fallacy in suggesting that because the source of an argument against abortion is held by a creationist, the argument itself can be dismissed.  The author of the first does a similar thing, broadening the field to include all Christians.  This side-steps all discussion of the issue at hand, in a way that suggests that there is an unwillingness or inability to engage in the argument (one might question why).  It ignores the obvious fact that truth does not depend on its source, but is a stand-alone concept.  It is also extremely unproductive, as it shuts down what might otherwise be a worthwhile discussion.

B. They’re also wrong.  Secular, non-religious groups are becoming more and more prominent in the pro-life movement.  I’ve linked a few examples below;
Secular Pro-Life Perspectives
Atheist & Agnostic Pro-Life League
Pro-Life Humanists
Pr0-Life Pagans

A 2004-2005 Gallup poll aggregate shows the two ‘extreme’ viewpoints on abortion (‘legal under any’ circumstances, and ‘illegal in all’ circumstances) according to religion.  From this, you can see that although the ‘illegal in all’ stance is more common among Christians, 10% of those who were classified as ‘no religion’ also held this view.  Also worthy of note is that the percentages of Christians with viewpoints at either end of the spectrum were nearly identical: 20% for ‘legal under any’ versus 22% for ‘illegal in all’.  It’s a pity that the two intervening viewpoints (‘legal in most’ circumstances, and legal in ‘only a few’ circumstances) were not shown, as this would have conveyed more information than merely including the two diametrically opposed viewpoints.

 

Religions & Abortion Views