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Friday, June 13, 2014

Court cites Roe v. Wade in support of compelled C-section

[Guest blogger Roni Cairns contributed to today's piece.]

One argument in favor of Roe v. Wade, and for the general argument that bodily autonomy trumps the right to life, is that pro-life logic would dictate in favor of forced cesarean sections. Many pro-lifers would of course disagree. It's true that in some scenarios a C-section is the safer course of action for the baby. But the mother who desires a vaginal birth if at all possible, or who wants a second opinion before submitting to a C-section, probably isn't deliberately trying to kill her kid. The right to life isn't the right to be free from any and all risks. (One of the leading causes of death in young children is vehicular accidents; it would be far safer for children if we walked everywhere instead of driving cars. But parents' reliance on automobiles is not a violation of the right to life.) We're really talking about a negative right, the right not to be murdered.

That said, one of our readers, Roni Cairns, stumbled upon a fascinating court case that sheds some light on the issue. In Jefferson v. Griffin Spalding County Hospital Authority, 274 S.E.2d 457 (Ga. 1981), hospital administrators sought to compel a C-section in a severe case of placenta previa. The cervix was completely covered by the placenta, so had the woman gone forward with a vaginal birth, the placenta would have had to detach from the wall of the uterus in order to deliver the child—causing the mother to hemorrhage, and depriving the child of oxygen well before complete dilation. Doctors provided the court with evidence that without a C-section, the child's chance of death was virtually 100%. The mother had only a 50-50 chance of survival herself.

Clearly this was a situation where a C-section was warranted. So why did the mother refuse in the first place? Because she was "of the view that the Lord has healed her body and that whatever happens to the child will be the Lord's will." (Notably, once a child is born, acting on such a belief can form the basis for a murder charge. And rightfully so.)

While acknowledging the general rule that people have the right to refuse medical treatment, and the right to exercise their religion, the court found an exception here. The child was 39 weeks along, viable, and obviously incapable of making an informed decision about religious matters. The court's decision was unanimous:
The Court finds that the State has an interest in the life of this unborn, living human being. The Court finds that the intrusion involved into the life of Jessie Mae Jefferson and her husband, John W. Jefferson, is outweighed by the duty of the State to protect a living, unborn human being from meeting his or her death before being given the opportunity to live.
Perhaps surprisingly, the opinion cited Roe v. Wade in support of its view:
A viable unborn child has the right under the U. S. Constitution to the protection of the State through such statutes prohibiting the arbitrary termination of the life of an unborn fetus. Roe v. Wade, 410 U.S. 113 (93 S.C. 705, 732, 35 LE2d 147) (1973).
Roni speculates that the court was referring to this passage in Roe: "Although the results are divided, most of these courts have agreed that the right of privacy, however based, is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute, and is subject to some limitations; and that, at some point, the state interests as to protection of health, medical standards, and prenatal life, become dominant. We agree with this approach."

Pro-life disagreement with Roe is really about when the interest in prenatal life becomes dominant. Radical abortion supporters would say never; only born life matters. But that position finds no support in the Supreme Court's seminal abortion rights case.

64 comments:

Janet Susan said...

And so once again, the baby's right to life hinges on nothing more concrete than opinions and the mother's rationale for terminating--or possibly terminating--that child's life. This is profoundly sad to me.

someone45 said...

So what exactly makes the embryos "right to life" supersede the pregnant woman's ( who is not a mother just because she is pregnant) right to control what happens to her body and life?


Why does a pregnant woman suddenly lose any basic human rights that we give to everyone?
For example the right to say what happens to and with our body...

Roni Cairns said...

We do have the right to say what happens to and with our body until we start using our body to harm or kill others, or even attempt to do so.

Giving all human beings basic human rights might limit us in the fact that we may not be allowed to kill them at our discretion, but that does not mean that all human beings should not be allowed basic human rights. The right not to be killed is one of our most essential human rights, perhaps, and no other right can possibly exist without it. If we are expendable, able to be killed legally whenever someone else desires us to be, then how can we claim to have any other right when every single one of them can be so easily taken away at the discretion of another?

someone45 said...

An abortion is not harming another body. An embryo/fetus is not viable at the time 99% of abortions happen so it is not an independent human being.


No actual person can be killed when someone else desires them to be. Murder is illegal. Abortion is legal. Do you see the difference?



The pregnant woman's rights MUST come first because if we start to force unwanted pregnancies

onto women what is there to stop people from forcing people to use their bodies in other ways against their will.

Roni Cairns said...

Do you believe that the fetus has no body? What do you think it takes to have a body? What makes up a body?



I never once mentioned murder or persons. I don't understand why you did. I said human beings. I believe all living human beings are persons. Do you?

Can you tell me how I suggested that we force women to become unwillingly pregnant? I don't see Pro-Lifers forcing women to *become* pregnant, just as I don't see them forcing people to parent children post-birth. The pregnancy is already there. Nature "forces" women to become pregnant. All I am saying is that it is generally wrong to kill a human being.

I am guessing that you disagree with this ruling? If so, I must ask why, particularly when you were so keen to justify abortion prior to viability but did not mention it afterward.

someone45 said...

The embryo/fetus has a body but it does not have a viable independent life. It requires the use of the woman's body to sustain its existence.


Therefore she MUST be able to decide if it is allowed to use her body or not. Otherwise women become nothing but weak and inferior and have no human rights.


I don't believe an embryo/fetus is a human being with person hood rights.

Roni Cairns said...

How would a woman have "no human rights" if she was not allowed to kill preborn humans? How is that keeping her from owning property? Speaking? Voting?

I would be willing to discuss personhood with you if you would be willing to discuss it as well. At what point do you think that it is wrong to kill a human being with regards to abortion? Note that I'm not saying murder here. I'm using more simple terms that I'm sure we can both agree on in the sense that killing refers to terminating a life and the fetus is certainly alive, and I also use human being but do not say person.

someone45 said...

Well if she is forced to carry an unwanted pregnancy to term she no longer has control of her life and her body. She is reduced an inferior incubator.


I would say that abortion should be allowed for any reason up until viability. After that I would say it should be allowed if the woman's health is at risk or if there is a severe fetal defect.

Simon Jm said...

Viability doesn't ground personhood rights either. If you are going to ague that personhood cognitive abilities is what grounds full moral value, babies and many infants lack that as well.



Plus even many PC's think a pregnant woman cannot do what she wants to her body during pregnancy e.g. smoking taking harmful drugs.


Nor are we restricted to prohibiting abortions; we could hold her accountable and still allow the abortion in the same way if a woman drugged a guy at a bar and he went nuts many would allow her lethal force to protect her life or bodily integrity.

Roni Cairns said...

S45: In saying this:

"I would say that abortion should be allowed for any reason up until viability. After that I would say it should be allowed if the woman's health is at risk or if there is a severe fetal defect."

You have already placed a limit on her bodily autonomy. Let's say, for the sake of argument, a woman wants to kill the fetus inside of her even though there are no health reasons or fetal deformities. Should she be allowed to do that on a whim? If not, what would you say if such a woman accused you of reducing her to an "inferior incubator?"


I honestly think it is very sad that you think that preventing humans from being killed equates to reducing the status of women. That's like saying that when we barred men from killing their wives (who were seen as property at the time, not persons), we reduced these men to being inferior because they didn't have "equal rights" (even though if we had left it the same, the women would not have had an equal right to life at all). One has every single right to swing their fist. They lose that right the second it comes into contact with another human. That isn't reducing them to an inferior class--it's raising another group of humans up to equality.

You never answered my questions regarding the rights to vote, own property, etc. If she would still retain these rights, then she would not be without human rights. And during the pregnancy she would still retain all human rights--just not the right to kill without just cause (self-defense, etc.), which is a right that no one else has with regard to preborn humans, and a right that no one should have.

purrtriarchy said...

Have wives ever lived inside their husband's bodies?

someone45 said...

She would be without the basic right of life, liberty, and the pursuit of happiness if she was forced to carry an unwanted pregnancy to term.

Roni Cairns said...

You have deliberately ignored the analogy. My point (that you did not address) stands: Preventing people from killing other humans does not mean that we are dehumanizing or reducing their status. It means that we are raising the status of the group of human who should not be killed to an equal par with everyone else, including those who would rather kill them.

Roni Cairns said...

She would lose one simple liberty--the freedom to kill a human who has done no wrong. We limited other people from doing this. Everyone should be limited from killing innocent humans.

someone45 said...

She would lose her right to happiness, her right to live her life and pursue her dreams, her right to liberty (the state or condition of people who are able to act and speak freely). She wouldn't be able to act freely because she would be suffering from the misery of pregnancy and its side effects.

purrtriarchy said...

So all killing is dehumanizing? Under every single circumstance?

Roni Cairns said...

You have still yet to address my point that saying or legislating that people cannot kill innocent humans does not mean that being unable to kill humans makes us inferior. She would lose no "right" to pursue happiness (which is not, in fact, a constitutional guarantee but a natural right as stated in the Declaration of Independence, and you will notice there that the right to Life comes first as without that right, no other right can possibly be had, or said to be inalienable.


You act as though a woman cannot possibly do anything ever if she is pregnant. As a woman myself, and a woman who has been pregnant before, I take offense to that because I know that pregnant women are more capable than what you are giving them credit to be. My uterus does not control me. That there is a human within my uterus does not make me less of a human, does not reduce me to such a state that I cannot accomplish anything, that I cannot think or vote or, well, do anything ever. Pregnant women are more capable than you give them credit for and I think you do women a disservice when you act as though they are not.

someone45 said...

I do not consider a embryo/fetus to be a "unborn human being" so I do not see how I need to address your point. It is a developing potential human but it does not have the right to force the woman to remain pregnant against her will.


If forced to stay in an unwanted pregnancy she would lose every right to be happy since she would be trapped in the misery of pregnancy against her will.


I take offense to the fact that you think women should suffer the misery of pregnancy with no choice of their own.


Just because you are a woman and you had a pregnancy that I am assuming you wanted doesn't mean every woman has to submit to your way of thinking.


I actually find it very offensive that you would tell me my life and my happiness mean nothing since I have an unwanted pregnancy.

Elizabeth Doecke said...

I'd really like to hear from your perspective what it is about the foetus post-viability that justifies the limitation of the mother's bodily autonomy, or right to control her own body?

Izak Burger said...

I'm just curious why we consider an incubator to be inferior. Doesn't it betray some serious flaws in our life philosophy when we think that this "reduces" a person?

someone45 said...

Once it no longer needs her body and life to sustain its own
( now this is assuming certain exceptions have been made)
1.health of the woman

2.fetal defect

3.she was raped
it can survive outside her body.


Those three reasons account for 99% of abortions after viability. The other 1% can "get over it". She had 24 weeks and having those bans in place keep some of the anti-choice crowd quiet and keeps them from bothering people who would have their abortion in the first trimester.- at least sometimes.

someone45 said...

Well an incubator has no rights and forcing a woman to carry her to term would take away all her rights.

Izak Burger said...

We could say on a purely descriptive level that the woman does act as an incubator. My question is: Why do we think that makes her inferior?


If we considered her MERELY an incubator we would be reducing her to less than she can be, but as it stands, she can do everything us men can do (possibly with the exception of hard labour on oil drills and deep sea fishing vessels) AND incubate a newborn. That doesn't sound like it reduces her import.

purrtriarchy said...

Can she also run marathons? go mountain climbing? Lift heavy objects in a warehouse? Work as a professional model? For the entire duration of the pregnancy?



And how can one 'incubate a newborn' - newborn = newly born. Explain how that works please.

someone45 said...

It makes her inferior because she has no control over her life and her body. She is forced to act against her will that way.

Izak Burger said...

I'm merely questioning the underlying assumptions. We hear "pregnant" and we think "incubator". Why? We hear "pregnant" and we think inferior. Why? This betrays a lot about the way we see the world, and indeed women. Nobody seems to defend this world view where pregnancy is somehow a devaluing condition.


Perhaps this is best expressed as a question: When you see a pregnant woman, do you think: Poor thing, her life is over, she's doomed to be no more than an incubator now! Or do you think: Wow, that is beautiful.


Isn't it demeaning to women when you consider a beautiful and defining property of who they are (they can get pregnant) as degrading?


I'm saying there is something profoundly wrong in our perception of life.

Simon Jm said...

The idea that is being expressed is that the human becomes a mere object and means to an end, without any say in the situation. This isn't undervaluing motherhood but being consistent on a widely held moral precept. So I understand where they are coming from.





That is why I still allow lethal force to protect bodily autonomy but still hold the consensual sex woman accountable if she decides to exercise that legal right. Granted though, some US states don't allow offenders/victims this legal right if they causes the situation.

Izak Burger said...

I admit that I might be nitpicking a small thing here. But I don't think I'm making straw men here. Point is that he did say that if we refuse her the choice, we reduce her to an inferior incubator.


There is picturesque language in there: An incubator, a piece of impersonal medical equipment. I understand what is being done here with the language. It betrays how we really see woman, as if her reproductive system occasionally takes her hostage and it is only by giving her a choice -- one tantamount to murder -- that she is restored to her former glory.


How different would the world be if we considered it a negative thing that men are outsiders to the creation process, if instead men were jealous that somehow women were favoured. For some reason we think men are the lucky ones. It is this worldview I am criticising.


But okay, I will see if I can address the main argument without picking on clever uses of language.

Izak Burger said...

I think I'm beginning to understand the idea expressed. But I don't agree that the woman is now "merely" a means to this specific end (bearing that child). There is a kind of all-or-nothing game being played here. We're told, unless we give her that choice, everything else is moot. Nothing else matters anymore. That is a rather negative view to have of women.

Izak Burger said...

Okay, I don't think I have anything to add that Ronny hasn't covered.

purrtriarchy said...

Reproductive objectification + what Simon JM said

purrtriarchy said...

Mere means to an end...
http://en.m.wikipedia.org/wiki/Means_to_an_end

Thr purpose of forced pregnancy is to deliver a baby at the end, regardless of how the woman feels about it.

Thr purpose of forcibly extracting your bone marrow is to save person X's life - and your opinion on the matter does not count.

Thr purpose of slavery is to use people as labour - regardless of how they feel.

The purpose of rapr is to use the body of another for pleasure/power - how they feel is immaterial.

There are many different kinds of objectification.

Simon Jm said...

It is most clearly expressed if we forced a woman to bare a strangers child just because he or society thought it his right. Anytime a moral person becomes just a mere means to an end i.e. like slavery, its wrong. I wouldn't think that uncontroversial.

What if the vilolinist analogy was in fact law the state could force anyone to be attached a sick person to them with no regard to wishes or the effect on the kidnapped person? Treating them like a life support system. Would you grant the point there?

Surely that demeans their humanity apart from the point it wrongs them.

But if the person caused the violinist to be attached to them what then? Again like a woman drugging a man and causing him to seriously threaten her bodily integrity. Even if she caused it I would grant her that legal right to detach, but then still hold her accountable. There is also the matter of unpaid bodily compensation which could also ground the punishment.

Elizabeth Doecke said...

Thanks for answering. I can see where you're coming from (even though I disagree), but would you willing to give me your opinion on another question?


If woman past 24 weeks decided that she no longer wanted to be pregnant, but indicated her willingness to be induced early and deliver a live child (who would then be cared for by others), do you think she should be allowed to?

Izak Burger said...

In the end, all of this assumes that the unborn isn't human (or human enough). All your examples are perfect, except that in the case of pregnancy involves another party. If that party is worth saving, no excuse us adequate. If not, then no excuse is necessary.

purrtriarchy said...

So it would be acceptable for person A to forcibly use your body as a mere means to an end if it would preserve their life?

Izak Burger said...

I've also made the argument before that in over 90% of cases the woman was actually complicit in her pregnancy.


In that context, I argued that this is similar to inviting someone into your home, and then shooting them claiming that they are trespassing. My opponent argued that shooting is a bad analogy, it is more like an eviction. Now though he is right to some extent, the problem with fetuses is that they are rather sticky "home invaders" that have to be killed before you can get them out of the house. (They chain themselves to the wall!)


What is more, for the purposes of the analogy, it is 40 (celsius) below freezing out there and eviction means certain death.


I therefore think that analogy is still valid: It's like inviting someone in, and when it no longer suits you, you claim that property rights have priority and either directly or indirectly kill the imposter.


Of course, this assumes that the "imposter" has personhood. But the violinist analogy concedes personhood.

Izak Burger said...

Is person A related to me?

someone45 said...

I would not see the harm in a woman past 24 weeks being induced early and having someone else care for the child. Especially since if a woman doesn't want to be pregnant she is likely to seek out unsafe and harmful conditions to end her pregnancy if denied access to a safe one.

purrtriarchy said...

Should you be legally obligated to give up an organ, blood or bone marrow to save the life of your biological child? Should this also apply to adoptive parents?

Where would a surrogate fit into this?

And when a woman has sex, how can she have formed a legal contract with something that does not yet exist?

purrtriarchy said...

Consent can always be withdrawn.

Even if you are in the middle of donating blood bone marrow, or even an organ, you can withdraw consent and the life-saving donation at any time.

Consent is not a one time thing.

purrtriarchy said...

argued that this is similar to inviting someone into your home, and then shooting them claiming that they are trespassing.



And what if the sickly person you invited into your home forcibly uses your body as life support? In essence, assaulting and mutilating you.


Do you have the right to self-defense or not?

Izak Burger said...

Consent cannot always be withdrawn. I'm a land lord. In this country, unless my tenant misbehaves, I cannot cancel our rental agreement until the lease runs out. I actually cannot withdraw the consent I gave that allows him to stay on my property.

Izak Burger said...

You're moving the goal posts. My argument substitutes a house for your body, and specifically aims to create a situation where an innocent person is allowed on the premises (consent) and where that consent is then later revoked. It aims to show that because of the freezing conditions outside, you actually have a responsibility towards this person now. Property laws will not allow you to kill this person, and "eviction" would not be an excuse if you know that such eviction would kill him (the words Dolus Eventualis comes to mind).


PCers tend to balk at the idea of responsibility though. You did already ask me how it is possible to have a contract with a person who does not yet exist, so you will likely ask me how it is possible to have a responsibility.


Once again, in this country, if I sleep with a hand gun under my pillow, and I shoot a burglar, the fact that I mentally prepared to shoot a person could be used to argue for 1st degree murder. That I didn't prepare to shoot this particular person doesn't matter, if it turns out that my response wasn't proportional and I'm charged with a crime, the crime becomes premeditated.

purrtriarchy said...

So you are saying that 'consent is a one time thing' based on a *legal* contract that was signed by two parties?


And that this somehow applies to the rest of society?


So like, if you're having sex with someone, and you say 'stop' and they continue having sex with you, against your wishes, that is perfectly acceptable because consent cannot be withdrawn?

Izak Burger said...

I'm saying SOMETIMES consent can be a one-time thing. It depends on the stakes. In this case, the states is another life.

purrtriarchy said...

You're moving the goal posts.

Which is all you've been doing. You started out saying 'but if it's a person'...then we moved on to 'ok, but surely organ donation should be forced to save the lives of people' and then you moved it to 'only if related' and then 'only if you put them in such and such a situation' and then finally 'if they are on the verge of death and cannot survive without your body'.

And no, a house is not a substitute for a body. Inviting someone into your house and then keeping them there until the snow goes does not in fact constitute a supererogatory burden on you. But, they can't use your body as life support in any way. That would impose a supererogatory burden on you.

Also, people are thrown out into the street all the time. Even if it's freezing. Homeless people are kicked out of shelters and stores. Even if the weather is -20 below.

You did already ask me how it is possible to have a contract with a person who does not yet exist, so you will likely ask me how it is possible to have a responsibility.

Well? Is it?

That I didn't prepare to shoot this particular person doesn't matter, if
it turns out that my response wasn't proportional and I'm charged with a
crime, the crime becomes premeditated.




In the pro-life state of Texas, you can shoot a person who is attempting to steal your TV.



Do you have the right to kill someone if that person is assaulting you and the *only* way to escape the assault is to use lethal force? yes or no?

purrtriarchy said...

http://www.ucs.louisiana.edu/~ras2777/judpol/mcfall.html

purrtriarchy said...

Is McFall vs. Shimp unreasonable in your opinion?

Simon Jm said...

Or, say a person has garage sale with a blizzard coming and once a customer is there and the storm hits asks them to leave.



OK 1st property rights aren't in general placed in higher regard than innocent human life.



We can also look at it from a bodily compensation and ask a PC if the woman caused the violinist to be there should she still have the right to detach. Arguably she owes the violinist bodily compensation; but the kick is we then start treating the person as a commodity if we enforce it.


Would we as a society be happy with strapping down a mugger and forcing organ transfer who caused the victim to need one of his kidneys?


I'm uncomfortable doing that so offer the compromise; the offender is criminally responsible for causing the existential dependency but isn't forced to pay it. Rather they have an option to do so or face a custodial sentence in line with child destruction laws.


Ofc the prenatals must have moral personhood. Plus unlike most PL's I would make sure that all pregnant women would get the resources to look after the child so financial reasons aren't a justification for an abortion in the first place.

Elizabeth Doecke said...

Can you explain what you mean when you talk about 'harm'?

someone45 said...

If a woman wants an abortion and she is told no by a place where she can have access to a safe one she will find harmful ways to have one.


By this I mean back alleys, people like Gosnell, self induced ones, binge drinking/drugs in hopes that it will end the pregnancy.



A woman desperate to not be pregnant will likely do anything to end the unwanted pregnancy if she is really not wanting to be pregnant.

Izak Burger said...

Perhaps not, but much like the kidney argument so often used, I don't find it to be a good analogy. The purpose of my bone marrow isn't to save another person. The purpose of my kidney isn't to filter someone else's blood. The purpose of a womb on the other hand is to incubate another person. Using my kidneys or bone marrow makes my body function in ways it isn't intended to. But when a woman is pregnant, things are actually functioning correctly. Also, for most of this argument I tried to focus on the 90%+ of cases where rape isn't involved, so that for this analogy to make sense, Mr. Shimp must also have caused Mr. McFall's cancer, which he didn't.


I'm growing a little tired of this, so I'll just attempt to explain why in the big fight between two pretty important rights (live vs choice) I am prepared to let go of choice here.


The way I see it, which might differ somewhat from other pro-life people, is that there is an entire spectrum of possible actions growing gradually more immoral, or actually growing immoral very rapidly as the fetus develops.


I do this simply by reasoning backwards and trying to find a point at which I would be okay with an abortion. Starting with what I consider the most heinous, the woman who murdered her new-born child and managed to get away with it because the umbilical cord was still attached comes to mind.


Partial birth abortions are next, then the string of Gosnellesque induce-and-stab-in-the-neck abortions, born-premature-and-left-to-die (some European states want to push back their cut-off to 20 weeks because this happens too often) or born late-second-trimester and squeeling like a little alien because the vocal cords aren't fully developed yet (there was one such case at 16 weeks). It is a medical fact that at this point the fetus has a complete nervous system, so it is reasonable to conclude that they feel pain by this point, even if they might not be fully conscious.


This means I can conclusively say that I cannot support an abortion after 16 weeks except for the direst of circumstances.


But now I have to ask if there is a substantial difference between 15 and 16 weeks, and continue working backwards and decide at what point I think it becomes "okay". Now I find myself in the strange situation that there is very little difference other than maturity and size all the way back to 12 weeks, and from 12 weeks backwards I end up having to decide based on whether the fetus has ears or not, hands or not, and so on, things that on their own never define a human's personhood later in life.


For myself, I have determined that the most "liberal" answer I can give is 40 days. At 40 days the unborn gains primitive brain function and the first weak heartbeat. We consider people officially dead when the heart stops beating and the brain stops functioning, so it makes sense to consider them officially alive once the heart starts beating and the brain starts working.


Now the thing about a 40-days cut-off is that it is useless as a form of birth control, but it will allow for abortificients and other early abortion-like procedures in cases of rape. It's a practical answer that I can motivate without having to resort to philosophy or religion (well, in a sense I'm still appealing to our common epistemology concerning heartbeats and brain function, which you can argue needs some kind of philosophical grounding).

It isn't perfect however, but I have to resort to philosophy to go back further than 40 days.

Izak Burger said...

Not being American, I'm often astounded by your politics. Where I live we have a welfare system where the state helps unemployed mothers, and the amount of welfare is proportional to how many kids they have. This system is of course abused towards the other end: Young girls have kids in order to gain access to welfare.


In any case, I think your generalisation of "most PLs" is rather American. Things are much different in other parts of the world.

Simon Jm said...

1st I'm from Australia and lean left but find I deal mainly with Americans which I would hazard a guess these take up a fair chunk of western PL's. Sorry I don't speak spanish so while I imagine many would be PL for the sake of the discussion and who would have the most impact the US is still crucial in the debate. & of these most of these are religious with all the baggage that goes with it. But note I'm not saying all.



OFC I could have been more clear and said Western PL's.

Izak Burger said...

Heh, well I'm from South Africa. Over here it is much less of a political issue. Our law is much more pro-life though (though of course there are those who argue that no law is really pro-life unless it abolishes it completely). It acknowledges that both the mother and the unborn child have rights, and it attempts to balance the rights of the mother and the child. This approach is refreshing: it at least acknowledges that there are rights that needs balancing!


By 12 weeks, abortion is illegal. In cases of rape or deformity abortion is allowed up to 18 weeks.


We do however have an interesting landmark court case in this country: State vs. Mshumpa. In this case, a man essentially hired a hitman to murder his unborn child at 37 weeks. He arranged for his girlfriend to be shot in the abdomen with the express purpose of killing the fetus. The entire thing was staged to look like a robbery gone wrong, he even arranged for himself to get shot too.


The unborn child died. Both his parents very almost died too.


This child was viable. The mother wanted it (the father didn't). Deep inside everyone knows this was murder. The defendents even admitted during the trial that they agree it is murder. Common law says it is murder.


In the end, all they could do was two counts of attempted murder. It gets technical, but essentially the hit man, even though he was hired and this wasn't premeditated, should have known his actions could lead to someone dying. By Dolus Eventualis, that makes him guilty of murder, only his victims survived, so it's attempted murder. The father of the child conspired to murder. There was some more charges of illegal possession of a firearm and illegal possession of ammunition.


In the end, there was no law by which to add a murder charge for the child. Because you cannot make up laws after the fact and convict someone using your new law, and because the murder(s) didn't go unpunished, that is where it ended.

Izak Burger said...

It gets even more technical after that. The problem is that there was no law regulating this until about 1975. Before that we only had common law, as inherited from the Dutch and the Romans. In 1975 the then-apartheid government repealed common law and replaced it with the abortion and sterilization act. In 1996, this was again repealed and replaced with the choice act.


The problem is that it is unclear whether repealing the 1975 law re-institutes common law, and which parts of it is now applicable again and which parts aren't.


As it stands, there is a generic principle that the unborn does have the rights as specified in our constitution, only it is balanced with the rights of the mother through the choice act. There is also the principle that though a child gains legal rights only at birth, where it would benefit that child you are allowed to assign those rights earlier, for example: If the father's last will and testament says that children born out of the union will inherit, and the father dies before a child is born, that unborn child may not be disadvantaged simply because he or she hasn't been born yet.


Interestingly this is precisely what the article we're commenting on is about. Where the state has an interest in regulating the life of the unborn, it must do so.

Elizabeth Doecke said...

So you're talking about harm to the woman. What if it wasn't a case of early induction versus illegal (and potentially unsafe) abortion, but a case of early induction versus carrying the pregnancy to term. Would that change your response?

purrtriarchy said...

"The purpose of a womb is to incubate another person"

Appeal to nature fallacy.

It does not matter what the "purpose" of your various body parts are if thr general principle you are espousing is that the right to life overrides the right to bodily autonomy.

Clearly you are only applying this principle to pregnancy, which = special pleading for prenates, and discrimination against women.

If thr technology exists to force a bone marrow donation we do it because life is precious - we don't say "no, we can't force that person to give up thr tissue cuz it isn't natural".

We override nature all the time. So why can't we in this instance? Why not forced donations to save dying babies? Are they not as innocent and valuable as fetuses? Are they less deserving of life based on location?

someone45 said...

Depends on what the woman would do. Would she willingly carry to term?


Now if she would willingly carry to term I would think that would be what most people would want.
Conservatives already hate their tax money going toward anything to help pregnant women after they give birth so I am pretty sure they would despise the idea of tax money going toward carrying for the preemie.


Although myself I would feel as if she could be induced early and have another person care for it, I would not see what would be wrong with it. I do not think that would be an option though for several reasons.



Most people against abortion would also be against this since to them the "life of the fetus" outweighs the life of the woman.

Izak Burger said...

I may well be guilty of a fallacy or two. That kind of thing usually happens. My argument however isn't that abortion is wrong because it is unnatural. My argument is that the analogy fails because donating a kidney or bone marrow really isn't remotely the same thing as donating a womb. You're saying that staying pregnant is just as bad as donating a kidney. The analogy just doesn't work. Well, it doesn't work for me. For the two named procedures you have to go to a hospital. For a pregnancy, many people make do with a midwife.


You may also be right that I only apply this to pregnancy. You are however doing the same thing. We don't normally allow mothers to kill their children. Special pleading for women and discriminating against the unborn.

Elizabeth Doecke said...

What are the reasons why you don't think it would be an option?

someone45 said...

1. Financial cost- who would pay for this since it would cost a lot of money.

2. Preemies don't have a 100% chance of survival so I would think that the "pro-life" crowd would be against it since if the woman carried to term the chance of survival would increase

3. If women are allowed to do this I would think that some people would view it as too much of a slippery slope to where it could lead to them being allowed to do other things.

Simon Jm said...

We had something similar but it was a drunk driver so there was a push for child destruction laws. Trouble is its hard to have it both ways especially since with consensual sex,for it being there. Like male child support women shouldn't be able to have it both ways.