Thursday, July 25, 2013

A Pro-Choice Dilemma

There are basically two types of rights that you possess: those of a human being and those of a particular government(s) you belong to. These are called natural rights (or basic human rights) and legal rights.

Discussion of rights often gets confused in discussions on abortion so it’s important to keep these terms straight. A natural right is a right that you possess by virtue of being human (belonging to our biological species). These include (but are not limited to) the right to life, the right to self-defense, and the right to liberty. If you’re from the United States, our Bill of Rights is a basic treatise on the natural rights of human beings. These are rights that every human being has and a government that does not recognize them is a corrupt government.

A legal right is a right that is granted by the government and can rightly be taken away or adjusted. They are also acquired due to achieving a certain level of maturity with which to be able to exercise them. These include (but are not limited to) the right to vote and the right to drive. These are rights granted to anyone who is a legal member of a state, country, province, etc. There lies a problem in that people tend to conflate the two types of rights together.

Usually when I argue that a human fetus has certain rights, they’ll argue back that a fetus has no rights because they don’t have a right to drive or vote. The response to this reasoning is obvious: Of course not. The right to drive and to vote are legal rights, obtained when one reaches a certain level of maturity. Toddlers don’t have a right to drive or vote, either, yet they still have natural rights as human beings.

This is actually a dilemma which does not seem resolvable for the pro-choice advocate. You see, natural rights exist when we come into existence. Natural rights are rights we enjoy by virtue of our being human, not by virtue of obtaining a certain level of development or maturity. So are the rights to life and bodily autonomy/integrity [1] natural rights? If no, then they are legal rights-- meaning that the government grants those rights and can rightfully take them away. I don’t think the pro-choice advocate wants to make this concession. So if the answer is yes, then the unborn actually do have a right to life and bodily autonomy/integrity. It follows, then, that abortion is actually a violation of not just the unborn’s right to life, but the unborn’s right to bodily integrity, as well.

So the discussion usually moves to: which right takes precedence? The argument is usually made by the pro-choice crowd that the right to bodily autonomy trumps the right to life. [2] But many people in the pro-life crowd argue that the right to life trumps the right to bodily integrity. First, it should be pointed out that abortion can be seen as the greater violation than preventing a woman from aborting since in the case of abortion, you’re violating two rights that the unborn has, the right to life and bodily autonomy (to say nothing of robbing them of their future), whereas if you prevent a woman from aborting, you’re only “violating” one, the right to bodily integrity (I put violating in quotes because if a woman willingly engages in sexual intercourse, knowing that pregnancy is always a possibility, she arguably waives her right to bodily autonomy).

Aside from that, the right to life is the most fundamental right anyone has. That’s why it is mentioned first in our pursuit of life, liberty, and the pursuit of happiness. Without the right to life no other rights makes sense. It is incoherent to speak of my having a right to free speech if I don’t have a right to live in the first place. The right to life trumps the right to bodily autonomy/integrity because it encompasses and affects the whole person, "mind, body, and (if you believe in it) soul." Bodily autonomy/integrity only encompasses what can or can’t be done to your own body. If you don’t have a right to live, you don’t have a right to your own body (which is why people don’t give animals a choice on if they want to become someone’s next meal -- obviously this is debatable, I’m just using it as an example for clarity of understanding). If you do have a right to live, only then do you have the right to determine what can be done to or with your own body.

So now that we’ve seen that the right to life is more fundamental than the right to bodily autonomy/integrity (though it, of course, is also a fundamental right), the objection is usually brought up that if the right to life trumps the right to bodily integrity, then we should force blood transfusions, kidney donations, bone marrow donations, etc., since a dying cancer patient’s right to life is more important than a healthy person’s right to bodily integrity. However, this objection doesn’t stand up.

The right to life, properly understood, is a right not to be intentionally killed without strong justification. If I refuse to donate blood or an organ, no one’s rights are being violated. So since forcing a blood transfusion or organ donation would be a violation of someone’s right to bodily integrity, and no one’s rights are being violated by a healthy person not being forced to donate an organ or blood, then it would be blatantly immoral to force someone to donate blood or an organ.

So with a proper understanding of rights, it seems that granting a “right” to abortion simply cannot be justified.

[1] I separate bodily autonomy/integrity for this reason: in philosophical discussion, it’s important to make your terms as clear as possible. Autonomy is usually understood as the right to do what you want. For example, an autonomous state is one that is not subject to a higher government and can make whatever laws it feels is best. So it seems to be the best way to understand bodily autonomy is the positive right to do whatever you want with or to your own body, within reason. The right to bodily integrity is the negative right not to have your body infringed upon for any reason against your will (such as being forced to donate blood). 
[2] Pro-life people who believe that abortion should be illegal except in the case of rape make this same argument (the Responsibility Objection explains why abortion should be illegal in all cases except for rape). I didn’t include them in the body of the article because explaining the exact position would have detracted from the flow of the article itself. This also explains why I say “many” pro-life people, since the pro-life people who believe abortion should be legal in the case of rape don’t argue this position.


Annie Howard said...

It seems like this definition - "The right to life, properly understood, is a right not to be intentionally killed without strong justification" - is also helpful when comparing abortion to miscarriage.

I think there is a fear - hopefully unnecessary, but legitimate at heart - among pro-choicers that if legal measures such as "personhood amendments" pass which recognize fetuses as legal persons, it will criminalize miscarriage as tantamount to manslaughter and lead to harassment and even imprisonment of mothers who miscarry.

Even as a pro-lifer, it is challenging to hold two facts in a single worldview: that embryos and fetuses are unique human beings, and that at least 31% of pregnancies naturally end in miscarriage, usually in the first few weeks and often due to fetal anomalies.

Should we be working to save these lives? How far should we go in that pursuit? Should we dictate what mothers can and can't do? I am extremely hesitant to do anything other than educate, as is currently being done. Most miscarriages happen before the mother even realizes she's pregnant, and the rest are usually painful and tragic experiences. We cannot establish enough causation between most maternal behaviors and miscarriage to justly give even minor punishment, even if we thought it would serve as a deterrent to negligence or intentional measures. And any positive medical treatment - a vitamin, or drug - that would help prevent miscarriage would have to be voluntary too, given that people are all so different and may react differently. It makes me shudder just to think of and write down these inhumane and insensitive measures. I would consider them wrong, even if the result would be some lives saved.

This question is at heart: is letting die ethically equivalent to killing? I haven't studied ethics formally enough to summarize what others have concluded, but for the purposes of the pro-life movement, I think we can, and should, consider them not equivalent. So then, "The right to life, properly understood, is a right not to be intentionally killed without strong justification." The right to life is not a right to be saved from natural death, e.g. miscarriage. This is especially relevant if being saved from natural death were to come at the cost of violating the rights of others, as it would in the examples of involuntary organ donation or oppressive measures intended to prevent miscarriage.

Clinton said...

Hi, Annie:

Thank you for your comment. I had actually never considered miscarriages in light of it not violating a right to life. I've just always seen it as a natural thing -- people die of natural causes, yet that doesn't justify murder. So why would unborn children dying through miscarriage justify intentionally killing them through abortion? And I think you're right. The two situations are different because abortion is an active killing whereas when a woman miscarriages, no one is the active agent in the child's death (unless, of course, she was engaging in dangerous activity unsafe for the children).

To be honest, I don't think the concern you mentioned (about if the personhood of the unborn is recognized, it will lead to criminalizing miscarriage) is a legitimate one. Here's why: Because before Roe v. Wade passed in 1973, the unborn *were* actually considered persons in the United States, legally protected by the 14th Amendment of our Constitution. This is a fact either overlooked by pro-choice people, or they just have no idea that they were considered persons. And no one was taking women in who miscarried en masse to throw them in prison or try them in court. If the unborn are officially recognized as persons (say, through a 28th Amendment), then miscarriage will not be criminalized. As they do now, law enforcement would have to have probable cause before they even begin to suspect a woman might have miscarried intentionally.

I think there is definitely a difference between letting die and actively killing, but I think either one can be justified at times (e.g. it's not wrong to kill in self-defense). But intent is usually the important factor. If you intend the death of someone, then it matters not whether or kill them or let them die by neglecting to act, since either way they will die.

Coyote said...

I'll respond to the rest a little later, but I strongly agree with your point about miscarriages. As a side note, I have no problem prosecuting a woman who, for instance, asked someone to punch her in the stomach and then miscarried afterwards as a result of this if an abortion ban was already put in place.

As for intent, the problem with that is that it could be used to justify, for instance, throwing a stowaway off of your boat if you did not intend to kill this stowaway, only to remove him/her from your property (from your boat).

Clinton said...

Well, you can get around just about anything with trying to find a loophole behind it. But whether or not you actually intended to kill the stowaway, the only way to remove the stowaway was to throw him overboard to his death. So I think it can still be shown that you, however indirectly, still intended the death of the stowaway (since the only way to remove him is to kill him). But I think it goes to show that there are other factors besides intent, but intent is an important factor in determining whether someone is responsible for someone else's death.

Coyote said...

" So I think it can still be shown that you, however indirectly, still
intended the death of the stowaway (since the only way to remove him is
to kill him)."

This isn't entirely true, though, considering that theoretically someone in an extremely fast boat could have arrived in time and saved the stowaway from drowning to death after you threw him overboard.

The Nun said...

Clinton, this was a great article. well thought out and presented.

Thank you.

Max said...

I don't think this does justice to actual PC concerns about autonomy. It may be that that argument fails, and that the right to life of the fetus right trumps whatever liberty concerns pregnant women might have, but the description above of what PCers argue seems to have some straw poking out of it.

The actual PC argument has a far more expansive view of autonomy and sees carrying a child to term to have serious, unwanted implications for women who would, if legal, terminate their pregnancy. And that fetuses, especially earlier in pregnancy, do not (and are not able to) have the same concerns regarding autonomy; and, therefore, because of the significant of the autonomy concerns fetuses do not have the right to force a woman (i,e,, impinge upon her bodily integrity) to carry the fetus to term.

Characterizing autonomy as "doing what you want" certainly makes it easier to dismiss PC concerns, but it seems to me that doing so has very little value other than firing up the troops.

Autonomy is more than just doing what you want. Its also deciding what is valuable to you, deciding what sacrifices you're willing to make to obtain what you think is valuable, deciding whom to be friends with and whom to love, etc. All of these individual things we do, thoughts we think, and relationships we form make us who we are. We are autonomous only if we freely choose to do these things.

Carrying a pregnancy to term and giving birth to a child is a big deal. This is a point that Plers and PCers ought to agree upon, even if for different reasons. Carrying a child to term effects women in profound ways, not just physically, but emotionally. This point should be obvious to anyone whose ever spent time around a new mother with her son or daughter.

PCers argue that being forced to carry a pregnancy to term forces a woman to form a deep physical and emotional connection to another living person against her will. And that the force of this unwanted connection plays significant role in what ends she chooses to pursue and, most importantly, the person she will become.

Its not just, "oh but I can't do what I want for the next couple months' and "oh the fetus is going to stay in body for a while," rather it is all of the potential goals and experiences that are foreclosed not just because of financial or temporal reasons as discussed in the article, but, more importantly, because of concern and love for the child. That is, concern for that child's well being will displace many of the ends that the women would have (and perhaps did) choose for herself.

PCers concerns about autonomy aren't just that you can't do what you want but that you can't be who you want to be.

And PCers ague that the same concerns about autonomy, particularly early in the pregnancy, aren't shared by fetus because they are not capable of autonomy, either physically or cognitively.

Of course, that doesn't mean that the PC argument carries the day. Perhaps concerns about the fetus's life trump the actual concerns women have, even if it means that entails that many women won't be autonomous in a meaningful sense.

But regardless, there is more to the pro-choice argument from autonomy than mere bodily autonomy or integrity.

Kelsey said...

I think if your definition of autonomy is that broad, there's no principled reason to stop at birth. Take the rare example of women who don't know they're pregnant until they're ready to deliver. Are they deprived of their autonomy, their freedom to refuse to form a bond with a child, if infanticide is not a legal option?

That's why the leading pro-choicers stick with "oh the fetus is going to stay in my body for a while."

Max said...

I don't think that is the implication of my argument.

The problem for PCers is that carrying the child to term was not the woman's choice-- and that choosing to have sex does not mean that she is choosing to be pregnant (especially if contraception was used) since that would mean that consent simply means assumption of risk (which could justify almost anything). And the harm is that it means that woman are defined by emotional and physical bonds they haven't chosen. Or, perhaps more accurately, they have actively chosen they do not want that relationship and, therefore, it is being forced upon them.

Personally, I think the argument has far more moral force the earlier in pregnancy it is asserted. To me, the longer a woman waits the more reasonable it is to infer that she actually consents to being pregnant and, therefore, we should, out of respect for her decision to continue her pregnancy, hold her to it. Or, at a minimum, I think its reasonable to assume that at some point if the pregnancy has gone on long enough that the woman has tacitly consented.

Perhaps this is one of many reasons why most people are more troubled by late term abortions than by abortions very early in the pregnancy?

As for the "rare example of women who don't know they're pregnant until they're ready to deliver," it seems to me that some of the autonomy concerns that, say, zygotes don't have, nine month fetuses or infants do have.

Also, it seems to me that the if a woman doesn't even know that she is pregnant at nine months, then at least some of the concerns about the profound emotional and physical effects of pregnancy (and perhaps child birth) are simply wrong in this case. I suppose its obvious, for example, that her pregnancy itself did not foreclose any choices she might have made since she wasn't even conscious of being pregnant.

Clinton said...

Thank you for reading! I hope it will be helpful in your future conversations.

Clinton said...

Hi, Max:

I've actually spent a lot of time in discussions with pro-choice people and reading the best books and articles from pro-choice philosophers. I don't say that to try and puff myself up, but to say that I think I have attained a pretty good understanding of pro-choice arguments and where they are coming from. Please believe me when I say that I treat pro-choice people and their arguments very seriously, which is why I give them a full-blown philosophical treatment when I write, rather than just resorting to pro-life cliches.

That being said, I think you've misunderstood the general point of the article. As Kelsey pointed out, pro-choice people literally mean "bodily autonomy," that is, the right to do whatever they want to or with their own body and anything inside it. Now that's a very strong claim and almost impossible to justify, so the better pro-choice advocates argue from the "right to refuse," a la Thomson's Violinist thought experiment. That's a weaker claim and a much stronger argument. But it still falls under the umbrella of "bodily autonomy/integrity." So you're confusing bodily autonomy with general freedom. A woman can make the case that she wants to have an abortion because she wants to finish college, but that doesn't justify abortion. We'd never allow her to kill her toddler because the toddler is getting in the way of her ability to finish school. So since the unborn are human beings, we need a strong enough justification to kill them. That's where bodily autonomy/integrity arguments come in.

Also, I mentioned in my article that I have actually spoken to pro-choice people who try to conflate these claims. I don't believe I'm making a strawman argument here, and you've failed to clearly establish that I have. As I tried to make clear, the point of the article is a conversation about what rights are, and what rights are violated in this issue. Also, who has the greater harm in this case. The unborn, clearly, since not just their right to life but their right to bodily autonomy is being violated (as well as a right to their Future of Value). So if we're looking at it clearly from a standpoint of rights, the unborn is clearly harmed the greatest in this issue. Also, if we take into account the Responsibility Objection, which is that since the woman willingly engaged in an act intrinsically ordered toward the creation of new life, she waives her right to bodily autonomy. Obviously this doesn't work in the case of rape, but in the other 98% of abortion cases, it succeeds.

Max said...

I'm not sure how having sex is intrinsically ordered toward procreation if the sex you are having is sex in which birth control is used. Or at least i'm not sure how you would get to that argument from a secular standpoint at least (e.g., I understand how Humanae Vitae gets there).

But one thing I should have made clear is that isn't just pro-lifers (or you specifically) that resort to straw men but that both sides only superficially attempt to deal with what is really at stake-- IMO Thompson's argument is a great example of this. That is, I'm claiming that arguing over "bodily" autonomy is always an impoverished, perhaps disingenuous, debate because there is more at stake than this.

I think the problem of debating this way is that it prevents both pro-choice and pro-life people from making compromises that both ought to want to make. For example, other Western countries (France, Germany, Belgium) have liberal abortion laws and lower (sometimes much lower) abortion rates and even lower late term abortion rates. If you assume that very, very few women get pregnant for the purpose of having an abortion, it seems that pro-choicer should prefer dealing with abortion in the way France et al do. And I think pro-lifers ought to prefer a regime that results in less abortions.

IMO, the reason we don't have that discussion is because neither side wants to really sit down and deal with both sides of the issue. Instead, it seems both sides want to structure the debate around the more superficial issue of "bodily integrity." So all we get is one side simply trying to make barriers to abortion and the other side simply trying to remove them in a political tug-a-war over whose "bodily" integrity ought to be respected.

Or, to put in another way, all we get is a spectacular number of unwanted pregnancies and abortions.

Clinton said...

With all due respect, Max, I think you've fundamentally misunderstood the abortion debate (which is what those with a moderate position tend to do).

First, it's patently obvious that sex is intrinsically ordered toward procreation. I was taught in my elementary school sex ed. class that it only takes one time to get pregnant. Sex is intrinsically ordered toward procreation because it requires one person of each gender to procreate, in an act that releases the sperm into the woman to be caught up by an egg that her body releases. That's very much simplified, of course, But the sex act, itself, is intrinsically ordered toward procreation. That's how our species, and most other species' on Earth, reproduces.

Pro-life and pro-choice advocates don't resort to strawmen unless they're specifically taking someone's argument and attacking a weaker version of it. You may think that both sides are making the wrong arguments in the abortion issue, but that's not attacking a strawman.

I'm very much pro-life, but I would encourage you to actually read Thomson's article. If you read and understand Thomson's argument, then if it succeeds it works to justify most abortions (because a woman should not be legally compelled, even if she's morally obligated, to keep someone attached to her, even if detaching will kill the person). So bodily rights is actually the strongest argument you can make to support abortion. Another strong argument is to try to argue that the unborn are not valuable in the sense that we are, which would also justify killing them. I don't see how those two arguments are misguided at all. I don't think they succeed, but I don't think they're off-base, either.

Now pro-life arguments argue that since the unborn are valuable human beings, it is wrong to kill them for any reason it would be wrong to kill us. If the pro-life argument succeeds, then it succeeds in justifying why abortion should be illegal. If the unborn are just as human as you or I are, then how can we justify killing them just because a woman wants to fly to Europe, or because she doesn't have enough money, or because she wants to go to college, if we can't justify allowing her to kill her toddler for that same reason?

So can you tell me how one can justify abortion without resorting to bodily rights or lack of personhood arguments?

I do think that pro-life and pro-choice people do sit down and take the time to understand the other side. I do that, and my pro-life mentors do that. We make a point of taking the pro-choice side seriously and their arguments seriously.

You can't just justify abortion because of the needs of the woman, if she has a moral obligation and should be legally compelled not to abort in that situation. You need actual reasons to justify abortion, and that's where the debate comes in.

Max said...

I’m not sure I’m following you about “intrinsic ordering,”
whatever that means in a secular context. Yes, copulation leads to procreation. That’s why I wear a condom and my fiancĂ© uses orthotricylcine—so that she does not get pregnant. There is, of
course, some non-zero risk of pregnancy still happening but the same goes for me
getting in a hit by a drunk driver on my walk to work. Is
walking to work intrinsically ordered to getting hit by drunk drivers? If not, then what is it about having sex with two forms of birth control that is intrinsically ordered to getting pregnant? Whatever it is, I assure you that it isn’t working. Which we should
agree is a good thing since no pregnancy means no abortion, right?

So I am not claiming that you don’t understand both sides of the current abortion issue. And I do not consider myself a moderate on this issue.
What I’m claiming is that the current abortion debate only superficially addresses the full scope of interests at stake. In other words, I’m claiming that personhood and bodily integrity are at stake but that there is more to it. To be clear I think the best way for me to illustrate this is to explain what pro-choice people get wrong, since I think you’ll be more likely to agree with me on that.

Pro-choicers think that location of the fetus is the only relevant issue. That is, the fact that the fetus lives in the woman’s uterus means that she can do whatever she wants with it. There is something to this argument in that generally people don’t have rights to other people’s uteruses. And this helps to distinguish infanticide
from abortion: what the women objects to is the fetus being alive inside HER not just being alive. Where pro-choicers get wrong is that it’s not just what’s INSIDE her but WHAT is inside her. And WHAT is inside her is a human life, not just a clump of cells. And more importantly it is a human life
that, if she gives birth to the baby, will need care that she will most likely give,
sometimes in place of pursuing the ends she has chosen for her own life. And it is THAT fact that makes most women not
want to have a baby at a particular time and the underlying motivation for most abortions. Women have abortions because
they aren’t ready or don’t want the commitment of motherhood (at least this is the motivation in cases that are not the exception, e.g. incest). Pro-choicers who try to skirt the value of
fetus do so at the expense of trivializing their own concerns.

Of course, pro-choicers can never make this argument in the current climate
because it means taking seriously all of the things that
pro-lifers believe entails making all, or allmost all, abortions illegal. And IMO the unfortunate effect, from the
pro-choice position, is that pro-choicers have no vocabulary to address their
deeper concerns, which all seem to stem from the degree of commitment and
sacrifice motherhood demands and the fantastically high rate at which American women get pregnant who do not want to be. And this,
to me, is why pro-choice people cannot really advocate for a legal and social regime that governs how people thing about a range of issues in a place like Belgium in which there are far less unwanted/unplanned even though Belgium seems to have come up with a
better (even if imperfect) solution to the whole range of issues pro-choicers care about because there are more restrictions on abortion (legal on demand
to the 12th week only after six days of counseling or later for a much
narrower set of reasons).

And I think that pro-lifers fixation on personhood as the only thing at stake is similarly superficial and counterproductive for reasons I think should be clear from my criticism of my own “side.”