Fortunately, my trip to Norway meant that I missed the abortion section of my Constitutional law class. Unfortunately, I've had to review the material as I prepare for the exam.
My disagreement with Roe and Casey's guarantee of a limited fundamental right to abortion has been grounded in the Pentateuch, not legal precendent. The Bible is my rule of life, but it doesn't carry much weight in the classroom. I have been challenged to support my beliefs with current law and logic.
The Supreme Court has refused to say when life begins, so it's dodged the conflict between the right to privacy and the right to life, but it's current jurisprudence (in the abortion context) favors the former. Oddly enough, Tort law has been expanding, and now recognizes a limited duty of care towards unborn children.
Torts law is based on the duty of care. Basically, everyone has a duty to exercise reasonable good sense in all their actions. Banks can lock and bar their doors, and even put up electrified barbed wire fences (if they post obvious warning signs), but can't set up hidden traps that kill bank robbers the moment they step into the safe. Butchers keep dogs from getting into their shops and gobbling the meat, but can't let them in, cut off their heads, and add them to the salable goods.
Tort law applies a higher standard of care in fiduciary relationships involving disproportionate power, information, or bargaining power, such as Dr. Patient, Attorney Client, and day care child.
If Banks have a duty of care towards bank robbers, and butchers have a duty of care toward marauding dogs, why don't mom's and dad's have a duty of care towards their unborn children?
If Attorney's are supposed to be extra careful with their legally helpless clients, why shouldn't mom's and dad's have to be extra careful with their unborn kids?
Abortion proponents often use cases of rape, incest, or likely death of the mother to justify current law, but this extremism has scant legal foundation. Willfully killing another person is murder or wrongful death--unless you are acting in self defense. Grabbing a stranger, pounding their chest, and going lip to lip is assault and battery--unless they aren't breathing and you are doing CPR. Civil and criminal law impose no duties or requirements in these areas, leaving them solely to the conscience of the individual. Abortions should be illegal, with appropriate exceptions for personal morality.
Subscribe to:
Post Comments (Atom)
26 comments:
whew! That's a lot to chew on at this time of night. The CPR example was particularly startling. Good writing. I'll sleep on it and leave you a better comment next time. :-)
Is there really a concrete fiduciary relationship between an unborn child and its parents? This is interesting.
There is no concrete fiduciary relationship between unborn children and their parents, but their ought to be--based on the traditional elements/origins of the duty
An old issue from a new angle. Well done.
john, thanks for reading my post. I know you're busy in Peru. cheers and greetings from me to you.
Alright, now that I'm a little more awake I'll leave you a better comment: kudos to the butchers who adhere to Tort's law and don't abuse marauding dogs. I can see how this same guiding statute should be applied by parents to their unborn children. After all, it's their responsibiltiy that a human life entered the picture. However, how far should we carry this principle? Ought we to check ourselves the next time we're tempted to slap a marauding mosquito? After all, it's our responsiblity to wear protective bug spray when we venture out of doors.
Good point. but I think your slippery slope argument has two flaws (1) I think it is (or should be) generally accepted that unborn childern have more social and economic potential and utility (and therefore value) then members of the Culicidae family (2) the marauding skeeter at least gets the chance to dodge your swat--while the unborn kid is totally helpless. No one has a feduciary relationship to biting bugs
The abortion rights problem, whether in a legal or moral context can be a complex undertaking. One could argue that with all the political, legal, moral and religious bruhaha that has surrounded the history of the issue, it's nearly impossible to approach it objectively.
I applaud your decision to attempt a justification for your views that leans on arguments outside those of Moses. However, I feel that in this particular piece I come away knowing more about Tort Law then I do about your argument against the right to have an abortion. Are you implying that the expansion of Tort Law lends weight to your position, if so why?
As I don't think I really understand your argument I'll probably be just stomping my foot, but for what it's worth here are a few comments:
Citing cases of rape, or death of the mother as conditions for thought experiments dealing with the issue is clearly not an 'extremist' strategy. These cases are entirely relevant and any respectable theory on the subject must engage with them. If a mother did not choose to become pregnant or has a 100% chance of death in childbirth is it not at least possible to make reasonable pro-choice arguments? Also, just because someone may argue that one should have the legal right to an abortion does not make them an 'abortion proponent' they may think abortion morally reprehensible but still argue for it as a woman's right. Your final sentence is ambiguous. What concessions do you allow for personal morality if abortion is illegal?
I think your proposed critique of abortion should prove interesting and I'll be interested to read further arguments. If you havn't already read the seminal paper 'A Defense of Abortion' by Judith Jarvis Thomson, you should. Though it's an ethical rather than legal discussion, it's a good overview of major themes in the debate. If you can refute her paper you'll be well on your way. (full-text at www.jstor.org.)
England Prevails.
pardon my lack of clarity. I wrote this post during a boring con law class.
I see a large gap between cases of rape, incest, and likely mothers death and those of failed birth control--similar to that between self defense and murder. The former seems justified, while the latter does not.
The tort example is aimed at a number of my classmates, who are bent on expanding the right to an abortion and the duty of care.
I have read J.J. Thomson's piece, but that's a subject for another day...
Nobody has had the courage to address a rather obvious question:
Is the fetus a full-fledged individual with the same rights as the mother and father?
The answers are
1) Always has full rights at every stage
2) Never has rights at any stage
3)Has varying degrees of rights at various stages of development
This question is fundamental. Considering hypothetical rape and incest questions without adressing the rights of the fetus is utter nonsense. From a purely biological standpoint, there is absolutly nothing that makes the fertilized egg less of a person than a healthy five year old. The gentic information is all there, and aside from highly unusual environmental factors, development is controlled by the genes. Howeverr, if you will argue that developmental processess are more important, then I ask "what values give meaning to this claim?" You must explain what makes a 5 year old child more of a person than a fertilized egg. In order to make this arguement, you are bound to appeal to developmental concepts of personhood, character, and soul. Unfortunalty, these concepts have very traditional roots. Defining, comparing, and prioitizing the many, (and often conflicting) traditional maxims on this subject leads to impotent word-play.
I understand that this debate addresses far more than the rights of the fetus. I also understand that all traditional sources must necessarily be addressed for a satisfying answer to be reached. However, if the fetus has no rights, abortion is not a debatable topic. Of all the facets of this debate, development of the fetus is the most concrete. Why not start with something that can be argued from at least a partly scientific basis?
tough question. I tried to dodge it by including the butcher/dog example. most folks say that a fetus doesn't have the equal rights to a post birth child. But I think they would be willing to admit that a fetus should have some rights. Maybe as many as bank robbers and dogs...
you're the biology dude, I'm just a law student. I'll leave that ball in your court.
Barry makes a good case for what is a "given" condition of the debate. It is true that if a fetus has no rights, there is nothing to talk about: this is a necessary assumption.
What is equally important is the question of what gives a fetus "a right" to a mothers body, especially in particular situations. Whether or not this case can be made biologically is question for my right honorable cousin barry.
At a later date I hope to show by Derridean analysis why 'impotent word-play' is a linguistic tautology!.....but back to Nozick.
Right. But sometimes, when people disagree wildly on the givens, you have to reason by analogy and work backwards toward the givens or warrants.
I look forward to reading your philosopical expositions. If only I was assigned Rawls and Mill instead of Scalia and Kennedy...
Is the phrase "impotent wordplay" a tautology, or is it my actual analaysis? If the former, then I apologize to all devoted E.B White deciples. I was using the reduntant phrase to drive home an important point, not to scrawl silly logical circles.
On the other hand, if my argument itself is a tautology, I expect the claim to be backed up with explicit reasoning.
"Reasoning backwards" may be an appropriate technique to draw conclusions about the givens, but, (depending on what paul meant), it is less direct. If you systimatically deal with the basic assumptions first, then you are forced to explicitly state your source of authority. If I claim that the fetus has certain rights, I must appeal to some tradition that says this is so.
This issue is touchy because it causes certain traditions to clash. Posing the question about the rights of the fetus immeaditly forces the arguement onto these questions of authority. Now, I'm afraid I've repeated myself, failed to follow my own advice, and am in danger of producing some wordplay that is by definition redundant, circular, self-defining, boring, unclear, and utterly impotent!
PS
Evan, excellent point about what right a fetus has to the mother's body! It is clearly another fundamental starting point.
The fetus right to the mothers body is grounded in the feduciary nature of their relationship. I don't think it should be a legal absolute, just a presumptive starting point.
To Barry: Your argument is certainly not tautological. The statement was meant as a joke, albeit an extremely out of context one. Jacques Derrida's poststructuralist ideas about liguistic signification could be interpreted as suggesting that language's only chance at semantic 'potency' arises from the "play" that occurs between the endless swirling cloud of signifiers. This is a much more technical and very different use of "play" than "word-play" in fact I was attempting a pun, a bit of word-play on word-play. Are you bored yet, cause I'm boring myself just writing this!
So yeah, don't be bothered by my obtuse sense of humor, your argument is just fine mate.
To Evan:
--Joke heartily accepted
--apologies for unnecessary
peevishness.
just to bring this up to an even twenty, I want to congratulate paul on posting such an entry so as to generate this volume of comments.
Here's an attempt to address Evan's question about the baby's right to its mother's body.
Working definition of fetus:
--an organism completely dependant on its mother, yet predetermined by its genes to become a fully independant human being.
Let's assume violent rape resulting in pregnancy. Does the baby have a right to inflict physical and emotional suffering on the mother?
The fetus cannot make any choices. Therefore, by definition, it cannot inflict any suffering on the mother. In other words, the fetus cannot be guilty of something it did not cause. The fetus is an effect of sexual intercourse, not a cause of suffering. It is the way in which the fetus was created that causes the pain.
I conclude that a fetus is in a unique class of humanity because it is entirely innocent of any crime. We cannot ask whether the fetus has a right to the mother's body becuase this implies that the fetus made a choice to intrude. Instead, the fetus simply came into being. Although the presence of the fetus is a very real intrusion, the fetus is not responsible.
What right does the fetus have to the mother's body?
The right to life.
In balance, I want to make the following points:
1) The presence of the fetus distrupts the raped mother's life in a terrible way. As the fetus developes, it constantly reminds the mother of the most shameful and degrading crime that can be inflicted on a woman.
2) Like many moral delimmas, the mother's position would be immeasurably improved if she did not carry the fetus to term.
3) I fully recognize the difficulties of points (1) and (2. Adressing them in a humane and fair-minded manner should be the topic of another post.
interesting argument... you couldn't fully address it in another post, you'd need a book, or at least a 3,000 word essay. No one really knows what a fetus is, so most folks try to argue by comparing it to more know objects or organisms.
Barry. you ought to read Judith Jarvis Thomson's take on this issue.
To all who posted: (most of whom I'm related to now or soon) I'm immensely proud of each of you and read your comments with interest. I am certain of the importance in our society of debating the issues surrounding abortion and of creating laws that reflect that debate. Nevertheless, I have no expectation that this debate however prolonged and however thoughtfully pursued will ever result in a satisfactory solution. Your discussion has caused me to reflect on how little I have done during my life to interact with, and attempt to help in some way those members of our society for whom this discussion represents their personal life experience. I hope that in the remaining years of my life I can and will make a difference where "the rubber meets the road".
Paul,
I have read Thomson's argument, and it is very thought provoking. However, I am convinced that the comparison between a sick violinist and a healthy fetus is out of place. I am preparing a complete rebuttal, but it may not appear until after finals.
Ted,
You hit the nail on the head. Compassion should be our primary concern when we face this issue in the real world. However, please indulge my youthful innocence: I still believe that meaningful progress can be made in the debate.
looking forward to your take on JJ Thompson
See my blog for the rebuttal
Post a Comment