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THE RIGHT OF THE UNBORN CHILD NOT TO BE UNJUSTLY KILLED Click
here for printable version
A grass roots/philosophy of rights approach
by Rebecca Wasser-Kiessling, Family Law Attorney
This essay focuses on the controversy between the claimed right
of elective abortion and the asserted right of an unborn child not to be
unjustly killed. An analysis
is done of the writings of several of the advocates of the right of
elective abortion, every one of whom has a unique position which he or
she defends. For each
writer, I examine his or her definition of a "person" or
"human being," depending on which one the author deems to be
morally relevant to this topic. I
then study and evaluate the grounds on which the author relies for
determining whether an unborn child is capable of having rights, whether
an unborn child has a right not to be unjustly killed, and in what types
of instances it may be possible for an unborn child to be justly killed.
During the review of these authors' contentions, I formulate and
detail my own arguments. After
surveying all of the writers, I attempt to decipher what is meant by
"just" and I argue for what it should mean.
Finally, I summarize the bases for my conclusions that an unborn
child is a human being which has the right not to be unjustly killed,
and a pre-birth killing is only just when it is in defense of the
mother's life.
This essay, however, does not include a discussion of any
religious bases because it is my experience that some individuals will
refuse to consider a logical reasoning approach if they perceive the
deliverer of the message to have different religious foundations from
them. This writing is
intended to be relevant for believers and atheists alike.
Thus, everyone can be held accountable for his or her (hopefully)
educated opinions, without being able to readily discredit a source for
lack of personal applicability.
THE SYLLOGISM
The relevance of defining the terms "personhood" or
"human life" has to do with the argument that an unborn child
must be a person or a human being in order to have the fundamental right
not to be unjustly killed. The
syllogism (logical argument) is as follows:
First premise: Every
person has the right not to be unjustly
killed.
Second premise: Every
unborn child is a person.
Conclusion: Every
unborn child has the right not to be
unjustly killed.
Many of the advocates of a right to elective abortion spend a
great deal of time trying to prove that the second premise is false.
As will be seen, there are those who deny the truth of the first
premise by excluding certain groups of individuals who may be seen as
comparable to unborn children -- comatose individuals, for example.
Many of the supporters of the right of unborn children not to be
unjustly killed spend their time verifying the second premise.
JUDITH JARVIS THOMPSON The
slippery slope
Judith Jarvis Thompson, in her renowned essay "A Defense of
Abortion," begins by advising against the use of what she labels
the "slippery slope argument" which dictates: from
the moment of conception the unborn child is a human being and a person
because human development is continuous and line drawing would be
arbitrary. [29] She feels it
is a slippery slope argument because she fears some may say the line
should be drawn before conception and also because she believes that
even after conception, it is questionable whether the unborn child is a
human being. Arbitrary
decision-making
However, if Thompson and others refuse to draw the line beginning
at conception, then they might not draw it until birth, or even some
time after the birth of the child. The
danger lies not in reasoning, but in irrational and arbitrary
decision-making simply out of a desire for convenience.
Where would Thompson and others be willing to draw the
line? Human development is always
continuous. When would it
not be continuous? Without
line drawing, one may arbitrarily be taking a life, leaving no one safe
from a capricious killing. In
other words, not to decide is to decide. Acorns
Thompson compares acorns to oak trees, unborn children to adults,
and concludes: "it does
not follow that" the immature forms are to be considered the same
as the more mature forms. Certainly,
it is true that the immature forms are not identical to the more mature
forms, simply because acorns and fetuses are indeed immature
forms while oak trees and adults are indeed mature forms, thus
making them "different." An
infant is not the same as an octogenarian, but the fact that they
are "different" has nothing to do with whether either of them
does or does not have a right not to be unjustly killed.
Thompson concedes that "we shall probably have to agree that
the fetus has already become a human person well before birth," but
she denies the fetus is a person from the moment of conception. [29]
Nevertheless, in formulating her argument in defense of abortion,
Thompson grants the premise that a person is formed at conception, in an
effort to focus on other issues which she deems to be more crucial. The
famous unconscious violinist
Thompson utilizes a bizarre hypothetical situation to suggest
that a right to decide what to do with one's body outweighs a
"right to life." [30] You
are asked to imagine yourself waking up in a hospital bed and finding a
"famous unconscious violinist" hooked up into your back by a
plug because his kidneys are failing and you are the only person in the
world whose kidneys match his. You
are told that if you unplug him, he will die.
He needs you for only nine months, after which, he can safely be
unplugged. Outrageous
Attempting to draw an analogy in order that she may bolster her
argument for abortion, Thompson says "I imagine you would regard
this as outrageous." Well,
of course it is outrageous -- the hypothetical is outrageous.
If someone really told any of us that this happened to him or
her, the universal reaction would surely not be one of believability.
Pregnancy, on the other hand, is believable and it is far
from being outrageous. After
all, it is the means by which we have all arrived here, and the essence
of reproduction. The
pouch
If Thompson really
wanted to draw a fair and accurate analogy to a mother/unborn child
scenario, the violinist would be the size of the unborn child and tucked
away -- possibly in a pouch. Given
an imaginary scenario which is indeed comparable to that of a normal
pregnancy, I would hold that it is far from outrageous to require the
continuation of life support for up to nine months or so -- whether the
recipient is a famous violinist or a mediocre air-guitarist. Psychological
manipulation
Thompson's creation of an "unconscious famous
violinist" who suffers from kidney failure was surely calculated to
have a certain manipulative/psychological effect on her readers.
Thompson is likely to want her readers to believe the violinist
is: (1) a man (to feminist
readers, this is an automatic negative);
(2) full-grown (this gives the visual effect of a huge burden);
(3) fairly old (for younger and discriminating generations he may
elicit less sympathy, with possible notions that he has already had
enough years to enjoy his life); (4)
already dying because his kidneys are failing (some may conclude that he
must not have too many years ahead of him to live and in some readers'
minds, unplugging him may be more akin to euthanasia);
(5) wealthy and a
world traveler because he is famous (and so is likely to have had
a "better life" with more opportunities than most of us ever
will); and (6) stuffy,
boring, and pompous. Therefore
(Thompson would like for us to conclude), his life could not be worth
more than our desire to be rid of him.
Fortunately, not all of her readers allow themselves to be
misdirected by the prejudices and emotions of the intolerant and selfish
elements of our society; rather,
logical reasoning with consistency is to be the guide for analysis and
judgment. Rape
In Thompson's violinist hypothetical, the kidney donor is not
voluntary -- he or she was kidnapped.
Thus, the author has made her illustration analogous to a
rape-conception pregnancy. In
addressing our issue in the confines of pregnancy through rape, I agree
with Thompson when she states: "Surely
the question of whether you have a right to life at all, or how much of
it you have, shouldn't turn on the question of whether or not you are
the product of a rape." [31] This
statement is true for a couple of reasons.
First of all, a retaliatory strike, whether in self-defense or as
a punishment, must be against a victimizer.
In Thompson's outlandish sketch, the kidney kidnapper is the
victimizer -- not the violinist, and in a sexual assault, the rapist is
the victimizer -- not the unborn child.
The unborn child did not cause the harm, which was the rape
and not the pregnancy. Any
attempts to declare the right to life of the blameless unborn child as
suspended because of the rape are tragically misdirected.
Go punish the guilty rapist, but leave the innocent unborn child
alone. Additionally, in many
states, while the rapist's parental rights will be terminated, child
support may be collected from him by the state for the support of the
child. Qualifying
Characteristics
Secondly, in comparing an unborn child of a non-rape-conception
to an unborn child of a rape-conception, the two unborn children have
done nothing different and have no differing characteristics from
one-another to warrant the false conclusion that one's right to life is
greater than the other's. This
is abundantly clear when one compares a child who was conceived out of a
rape to a child who was not, or even adults for that matter.
Their basic human characteristics are the same, and the right to
life, or not to be unjustly killed, remains equal. The
nine year "miracle"
In a sympathetic appeal for an exception to be made where a
pregnant mother must spend the full nine months in bed, Thompson argues
that the mother's interest in avoiding the pregnancy should outweigh an
unborn child's right to life. She
suggests a consideration of the possibility that "miraculously
enough, the pregnancy went on for nine years, or even the rest of the
mother's life." [31] Perhaps
this would be a pleasant "miracle" to Thompson, just so she
could attempt to support her theory that a continued pregnancy is an
outrageous burden to impose on a woman; however, we are not dealing with
nine-year pregnancies, and it is inappropriate when balancing interests
and rights to give weight to total impossibilities.
In other words, there is no possibility for Thompson's
readers to consider, no matter how much Thompson might like for there to
be. This balancing of
interests and rights goes to the issue of what is "just" and
is later addressed in depth. Life
vs. Life + Choice
The author next discusses the theories and implications
surrounding the issue of whether abortion is permissible to save a
mother's life. Again, I
agree with Thompson when she says that the mother and the unborn child
"(p)resumably . . . have an equal right to life." [31]
She sees this as presenting a dilemma and rhetorically asks
whether we should "flip a coin" or "add to the mother's
right to life her right to decide what happens in and to her body . . .
(with) the sum of her rights now outweighing the fetus' right to
life?" [31] Flipping a
coin is certainly not a morally sound solution, but the second
suggestion is absolutely the appropriate resolution.
Except, no one is "adding" on an extra right.
The mother's right not to be killed, as well as her (qualified)
right of autonomy (deciding what can happen in and to her own body) are
already existent, but they are not absolute because the potential effect
on others' rights must be considered as well.
As will be discussed in detail below, one cannot legally and
morally kill someone else in order to prevent that person from stepping
on one's toe. The
"extreme view"
According to
Thompson, the "extreme view" (not permitting abortion to save
the mother's life) maintains that "directly killing an innocent
person is always and absolutely impermissible." [32]
Now using the violinist example in a sensible manner, Thompson
demonstrates the truth that one should not consider it to be murder for
a woman to abort her unborn child when it is absolutely medically
necessary to save her own life, and that it is untenable to require the
woman to passively refrain from any defense and await her death.
Clearly, a killing which takes place in order to defend one's own
life as against a deadly aggressor cannot be considered to be murder.
The common law definition of murder is "the killing of a
human being by another human being with malice aforethought."
A woman who wishes to preserve her own life does not necessarily
have malice for the unborn child. Further,
such a killing is not even an "unjust" killing so long as the
killing was not performed in such a way to merely secure the death of
the unborn child. From a
religious viewpoint, however, one may believe that we are called to lay
down our own lives in order to save others', but such a discussion is
outside the scope of this essay. As
a society, we have traditionally recognized that the preservation of
one's own life is a basic human instinct.
When we choose not to punish people for killing in self-defense
in cases when they had no other recourse but to kill or be killed, we
are not condoning what they did or saying we believe it was right thing
to do. Instead, we merely
recognize that they made a life or death decision and we do not hold
them criminally liable. The
innocent aggressor
Thompson alludes to
the right of self-defense, but she fails to refer to other areas of the
law and the philosophy of rights in which the right of self-defense as
against an innocent aggressor is supported.
For example, where an innocent child is pointing a loaded gun at
another innocent person, and the child believes the gun to be a toy and
is about to shoot that person, it is not considered to be unjust under
the current state of the law for the innocent potential victim to kill
the child. The child is the
innocent aggressor and is not "unjustly" killed in such a
scenario. The ramifications
of choosing not to label such a killing as being "unjust"
simply means that society will not punish this person who acted in
self-defense, because of our understanding that survival is one of our
most basic human instincts. Justice
would not be served if the person were punished.
However, this right of self-defense is limited so that it may
only be invoked against aggressors.
As Thompson points out, "(i)f someone threatens you with
death unless you torture someone else to death, . . . you have
not the right, even to save your life, to do so." [33]
This is because, in such a scenario, the innocent person whom you
are directed to kill is not an aggressor, and such a killing
would therefore be unjust. Third-party
defense
Another concern of Thompson's is whether a third party may
intervene in a conflicting-lives situation by selecting an individual to
help. In the abortion realm,
the third party would most likely be a doctor.
Again, the question of which individual is the aggressor, whether
innocent or not, is crucial to the balance and the just determination of
the outcome. Clearly, a
doctor may be permitted to defend the life of an innocent mother.
Third-party defenses are nothing new in the law and the
philosophy of rights. Thompson
supports the right of a doctor to intervene when a woman's life is at
stake by suggesting the mother owns her body, and that third
parties are allowed to recognize and respect ownership.
However, Thompson also recognizes "that one has a right to
refuse to lay hands on people, even where it would be just and fair to
do so . . ." [34] Therefore,
if a doctor does not wish to assist in aborting an unborn child when the
pregnancy is innocently placing the mother's life in jeopardy, the
doctor must not be punished for choosing not to personally intervene --
even if it is medical necessary in order to save the mother's life. Qualified
autonomy
Thompson says "the arguments against abortion we are looking
at do grant that the woman has a right to decide what happens in and to
her body." [34] I also
concede that there is a right of autonomy over one's body, but such a
right is not absolute. The
right to decide what happens in and to one's own body is qualified when
it affects what happens in and to others' bodies.
For example, the right we all have to defend ourselves is limited
by the law. Our society
utilizes the law to impose what we have collectively deemed to be just
under a cultivated philosophy of rights approach -- what some legal
scholars call "natural law."
These rights and theories have been developed and refined over
many centuries and through many great minds in order to achieve the
basic foundations which we now have.
A discussion of natural law concepts is much too broad for
purposes of this essay. Self-defense
The right of self-defense is derived from the right of a person
to decide what can happen in and to his or her own body.
However, the right of self-defense is confined to reasonably
necessary measures to prevent a harm, and is limited to the use of a
similar amount of force as an aggressor is using.
The use of deadly force is morally and legally impermissible when
someone is not threatened with death or serious bodily injury.
To use lethal force would be unjust because when balanced, the
right to life, as well as the right to be free from serious bodily
injury, are more valuable than a right to be free from minor bodily
injury. For example, a human
life is worth more than an interest in being free from a poke in the
belly. Accordingly, a
pregnant woman may not abort when there is no danger to her life or
threat of great bodily injury. Deadly
force is impermissible merely to prevent an attack which is not
life-threatening, whether the attack is innocent or intentional, and
even when it may very well be certain to cause pain, tremendous
inconvenience, and even monetary difficulties.
Judith Jarvis Thompson, however, strikes the balance differently
and disagrees. She feels
very strongly about owning her own body.
(The thought of accidentally bumping into her alarms me.) The
famous actor's hand
Instead of addressing the thesis which is the topic of this essay
-- that all persons, including unborn children, have a right "not
to be unjustly killed" -- Thompson first focusses on the
"pro-life" position that all persons, including unborn
children, have a right "to life."
Although, Thompson does later emphasize that "the right to
life consists not in the right not to be killed, but rather in the right
not to be killed unjustly." [36]
According to Thompson, the pro-life view "includes having a
right to be given at least the bare minimum one needs for continued
life," and she counters this notion by illustrating how one does
not possess the right to have some famous actor place his hand on one's
forehead, despite the hypothetical fiction that one will surely die
without the magic hand. (Although
such a thing obviously does not exist, for the sake of argument it is
addressed.) Essentially,
Thompson claims there is no right to have someone save your life, even
when there is no risk to the potential rescuer's own life, but only some
possible degree of inconvenience for the desired rescuer. Act
vs. Omission
In analyzing her assertion, first consider the difference between
an act and an omission. An
act could cause a death, whereas an omission could allow
it to happen. An omission
would involve simply refraining from saving someone's life.
One can certainly distinguish abortion from the famous actor
hypothetical by noting that abortion involves an act, while Thompson's
famous actor's scenario involves an omission.
The omission does not constitute a "killing" per se.
The hypothetical can be properly analogized by supposing that the
famous actor already had his hand on the person's forehead, then removed
it knowing this would cause the person's death.
If the person then dies, this would then be a
"killing." The
only issue to be settled is whether it is unjust, and I am reserving the
discussion of exactly what kind of factors go into the determination of
whether a killing is or is not unjust for later in this essay. The
right "to life"
Now explore whether
there is ever a positive right "to life" and not simply a
right "not to be unjustly killed."
Certainly, there is no unqualified right to life, because the law
provides for instances in which a court or jury may determine that an
aggressor has been justly killed -- such as in a self-defense
scenario when an aggressor, in attempting to kill someone, is killed by
the innocent defender. Thus,
the key question is, can there ever be a right to have someone save
your life, along with a corresponding obligation that a potential
rescuer do so? Is Thompson
wrong to suggest that there can never be such a right or duty? The
snow storm
I assert there are
situations in which such a right and a duty exist.
The morally relevant factors which go into the consideration as
to whether our laws should hold someone accountable for such a duty
include: risk, convenience,
proximity, and unique ability. Suppose
a man enters a friend's home during a snow storm and becomes trapped in
the home with someone else's small child.
The man does not happen to know the small child, and the small
child was already in the home. They
are the only two individuals present when snowbound.
The kitchen cupboards are stocked with food, but this small child
is unable to reach the food or to open any jars in the refrigerator,
etc.. Out of an interest in
having total leisure for himself, the man does not wish to assist the
child in any way. If the man
refrains from supplying the child with the food, and the child dies, the
man has not acted in such a way which caused the death of
the child, but merely omitted acting, thereby allowing the
death. Therefore,
definitionally, he has not, per se, "killed" the child, while
it is true that, but for the omission of this self-serving man, the
child would not have died. Unjustly
deprived
However, the result of the omission in the snow storm scenario
certainly seems unjust. For
this reason, I argue that the child was unjustly deprived of a right
"to life" in this case, despite the fact that this man was not
voluntarily placed in the situation (just as a woman who is pregnant
from a rape.) There was no risk
of harm to the man, it would not have been too inconvenient
for him to have acted -- even if he had been snowbound for nine months,
he was in proximity to the child, and he had a unique ability
because he was the only one who could have saved the child's
life. But-for his omission,
the child would not have died, and he was proximate enough that we may
say he did cause the child's death. Plausibility
Unlike Thompson and others' hypotheticals, this snow storm
scenario is totally plausible -- there is no futuristic technology
requirement or suggestion of some impossible miracle to occur in order
for the fact pattern to be conceivable.
This is an important feature when considering what seems right
and what seems wrong in this world because we are, indeed, dealing with
reality in this world. One
may further apply the example above to the case of an infant who
actually needs to be physically fed and not simply supplied with food.
Also, the facts can be changed so that the food had actually been
purchased by the man. The
outcome remains the same if the child is neglected -- there is clearly a
moral duty to act which must be legally recognized, and, likewise, what
I now refer to as "a right not to be unjustly deprived of one's
life." Safe
harbor
In tort (personal injury) law, we have the long-standing
"necessity doctrine." This
doctrine allows, for example, a boat in a storm to dock in someone
else's "safe harbor." The
right of the individuals on the boat need not be granted or bestowed
by the dock owner -- it exists independently, regardless of whether or
not a sailor in peril has permission to be in the private harbor.
The reasoning here makes sense:
the lives of those on board are valued more than the right of the
dock owner to have his property free from intrusion.
That right, along with any inconvenience the dock owner suffers
(even to the extent that the private dock is thereby destroyed) is
subsidiary to the right to life at stake here.
This remains true even if those on board the boat were in such a
predicament because they had themselves been incredibly irresponsible in
ending up out on the water in a treacherous storm in the first place.
Likewise, an unborn child cannot ever be found to have been
irresponsible in any capacity for ending up in such a vulnerable
position and should, therefore, be granted at least the same
consideration and should be afforded his or her right to life. Invitation
to life
Thompson delays on the issue of whether an unborn child has a
right to life because, she says, a woman cannot really ever be said to
have "invited" an unborn child to use her body for food and
shelter. However, as we have
seen above, an invitation is not necessary for there to be a right not
to be unjustly deprived of one's life.
In other words, the right exists -- it is not merely bestowed by
the one with the duty or the ability to be adversely affected by the
right. For example, you do
not give others the right not to be physically harmed by you, and you do
not invite them to exercise that right.
The right to be free from unjust bodily injury and the right to
self-defense already exist. Therefore,
in the abortion debate, any related issues of consent such as applied in
the case of pregnancy due to rape are irrelevant.
Whether it can be said that there is a lack of consent or a lack
of an invitation from the pregnant woman, the right of the unborn child
to be free from bodily injury is already there and continues to exist.
The general right to be free from bodily injury is based upon
many philosophical and moral rights theories, including utilitarianism
and the like, which have been developed over several millenia.
An in-depth discussion of these theories is much too broad for
this essay, and hopefully, most people will understand the obvious
purposes and needs for such a right. Innocent
and necessary
It follows then, that Thompson is correct when she says "it
would be absurd to say" that a person who opens a window in his or
her house has constructively invited a burglar in and granted him the
right to the use of the house. [38]
This is true because rights and invitations are independent and
wholly unrelated. As we have
seen, if you leave your harbor open, an innocent boat -- out of necessity
-- may still permissibly dock in your "safe harbor" under the
"necessity doctrine." Again,
this is not because the boat was constructively invited into your
harbor, but merely because it needs to and is able to dock there.
The same reasoning readily applies to an unplanned pregnancy.
The unborn child has a right not to be unjustly killed, not
because the unborn child was necessarily constructively invited into the
mother's womb, but merely because the unborn child needs to and is able
to be harbored there. Duty
without assumption
The assumption of a "special responsibility" is
likewise not necessary in order to have a duty owed to someone else or
for the other person to have a corresponding right.
Thompson asserts: "If
a set of parents do not try to prevent pregnancy, do not obtain an
abortion, and then at the time of birth of the child do not put it out
for adoption, but rather take it home with them, then they have assumed
responsibility for it, they have given it rights, and they cannot now
withdraw support from it at the cost of its life because they now find
it difficult to go on providing for it." [43]
As my "snow storm" hypothetical illustrates, the
assumption of responsibility is not a relevant factor for
maintaining that a right not to be unjustly deprived of life exists.
Also, the couple may still have a means of getting out of their
obligation to support the child, but their duty to the child does not
end until they have appropriately transferred the care to someone else
-- through adoption, guardianship, or possible foster care.
The only sense in which assumption of responsibility is pertinent
is that one cannot just leave a child in a vulnerable position in which
that person has created, and where the child is sure to suffer and/or
die. The right of a small
child to be given any form of necessary life-sustaining support exists
as against anyone who is in the immediate position to provide such
support, and not just the parent or parents. Ease
and proximity
Thompson goes on to explain that she is "arguing only that
having a right to life does not guarantee having either a right to be
given the use of or a right to be allowed continued use of another
person's body -- even if one needs it for life itself." [36]
Again, there is a strong morally relevant difference between an
act and an omission, and proximity is a morally pertinent factor when
relating to omissions. Contrarily,
Thompson claims it is "'morally unacceptable' to make the question
of whether or not a man has a right to a thing turn on how easy it is to
provide him with it. . . . (and that it is) rather a shocking idea that
anyone's rights should fade away and disappear as it gets harder and
harder to accord them to him." [39-40]
I disagree. The issue
of ease and burdens properly goes to the determination of what qualifies
as "just" under various circumstances.
For example, under our laws, if someone is confronted with lethal
force (outside of his or her home) and has the opportunity to safely
retreat, that person's right to use deadly force in self-defense
disappears because of the ease with which that person could escape
unharmed from his or her attacker. This
is deemed to be just because our society deems life to be more valued
than mere retaliation or revenge. Tipping
the scales
Whenever rights conflict with other rights, we must always
balance them against one another and decide what is just.
It is just for a pregnant woman to have an abortion to save her
life because in such a scenario, it is much harder for her to facilitate
her unborn child's right to life and it is much harder for her to
fulfill her own duty to her unborn child.
Although the inherent nature of the pregnancy is such that it
results in immediate proximity and a unique ability of the woman to
provide support, the burden of losing her own life is also considered
and weighed against the benefit of the life of her unborn child.
Here, the burden tips the scales.
Justice is served when she is permitted to exercise her right to
defend her life. It would
simply be unjust to punish the woman for following a basic human
instinct to preserve one's own life. Morally
indecent
Contrary to the views of many of the extreme liberal defenders of
abortion, Thompson does admit that "(w)e surely must all grant that
there may be cases in which it would be morally indecent
to detach a person from your body at the cost of his life," but she
still does not acknowledge a moral duty. [38]
She says that in the cases of an hour-long "ordeal"
with a violinist or an hour-long pregnancy, the person ought to
wait it out, but should not be required to do so.
Thompson still bases her argument on the fact that there was no
"invitation" to the use of the violinist's body or a mother's
body who was impregnated from a rape. The
box of chocolates
Thompson warns against the use of the word "ought" as
implying a necessary "duty."
Attempting to demonstrate how "ought" and
"duty" are not dependant upon one another, she deliberates a
case where one brother is given a box of chocolates.
He refuses to share the chocolates, and eats them while the other
brother watches with envy. She
says "it just does not follow from the truth (that he ought
to share) that the (other) brother has any right to any of the
chocolates." [39] Thompson's
statement is certainly true, but an application of this narrow example
to the discussion of abortion rights fails miserably.
In the chocolate scenario, the right to which Thompson alludes as
being improper to claim must be a fictitious right not to experience
envy. The asserted right not
to experience envy is then balanced against the right to the enjoyment
of one's own property. It
simply does not follow from her chocolate illustration that it must,
therefore, also be an improper usage of the word "right" to
say that "an unborn child has a right not to be unjustly
killed" merely because of the fact that one could also say that a
woman "ought" not to abort.
It is clear that Thompson has chosen to exercise a manipulative
jump in her logic. Chocolates
and pregnancies
Thompson further compares a boy who refuses to share his
chocolates to a woman who has an abortion with only an hour of her
pregnancy left. She says
both are "self-centered and callous, indecent in fact, but not
unjust." [40] Her
purported comparison is so much more of a contrast, that Thompson makes
clear her total lack of due consideration for the right not to be
unjustly killed. A right not
to be unjustly deprived of one's life should not be likened to a
fictitious and ridiculous right not to be unjustly deprived of someone
else's chocolate. The
comparison is illogical and fails because there are no similarities to
be drawn. It is unbelievable
that someone could think not sharing a box of chocolates is in anyway
remotely similar to the egregious abortion of an unborn child one hour
before he or she is to be born! This
type of drastically warped thought process on Thompson's part simply
goes to her lack of credibility as an open-minded philosopher of rights.
She is far from main-stream, and her followers should be capable
of understanding the ramifications and the extent of what Thompson
really tells us about her way of thinking and her foundations. Trumping
a life
In wrapping up her argument in defense of elective abortion,
Thompson insists "nobody is morally required to make large
sacrifices, of health, of all other interests and concerns, of all other
duties and commitments, for nine . . . months, in order to keep another
person alive." [40] Thompson
is wrong. It would simply be
morally unjust to permit lesser interests to trump a right to life.
Mere inconvenience or trivial desires are not enough to outweigh
a life or at least an undeniable future life. Securing
a death
Thompson does say, however, that she is "not arguing for the
right to secure the death of the unborn child." [43] In
other words, if the child survives the abortion, "should it turn
out to be possible to detach the child alive," and the mother does
not want to keep the child herself, nor does she want anyone else to
have it through adoption, then she is not
entitled to kill the child. For
Thompson then, a newborn does have a right not to be unjustly
killed. The
least drastic means
However, Thompson does not address the issue of whether a woman
seeking an abortion has the duty to use the "least drastic
means" in terms of selecting an abortion procedure.
(I will assume here for my own purposes that the abortion would
be in order to save the pregnant mother's own life.)
By "least drastic means," that is to say, if it is
possible to remove the viable unborn child through a Cesarian section or
by inducing labor in such a way and at such a time that the unborn child
will surely survive afterwards, does the woman have a duty to have the
abortion through this type of procedure?
This would be as opposed to abortion procedures such as the
following: the unborn
child's heart is shocked into stopping, then delivered dead by inducing
labor; partial-birth
abortion; the child is
burned by saline, then delivered dead;
the child is mutilated by dilation and curettage ("D &
C") or dilation and evacuation ("D & E"),
-- all resulting in the certain death of the unborn child.
Surely a woman must have this duty to use the least drastic means
if, as Thompson says, there is no "right to secure the death of the
unborn child." Intuitions
(based on the balancing of interests) make it clear that it would also
be unjust to allow the woman to have the unborn child mutilated when the
child would otherwise surely live. Premature
termination of a pregnancy
The normal delivery of a healthy baby is the termination
of a pregnancy, and inducing labor or a cesarian section is the premature
termination of a pregnancy. One
must ask what is the goal really? Is
it to prematurely terminate the pregnancy to save the life of the
mother, or is it to secure the death of the unborn child and to avoid
liability for the abortionist? With
such analysis, the "true colors" of the abortion advocates
becomes clear, and "pro-abortion" is the accurate description.
If a woman needs an abortion to save her own life, there
philosophically must be a duty not to unjustly kill the unborn child,
and the unborn child has a corresponding right.
If there were no way to remove the unborn child that would
preserve his or her life, then and only then would the killing not be
unjust because the mother has the right to defend her own life.
But if she could remove the unborn child from her womb
while saving her own life and while saving the unborn child's life, and
then does not, then the killing would be unjust, because she is
merely trying to secure the death of the unborn child.
This just further illustrates that unborn children do have
rights, even before they emerge out of the womb as babies.
MICHAEL TOOLEY X
is a person
Michael Tooley's essay entitled "Abortion and
Infanticide" averts the issue of whether an unborn child really
fits into the definition of a person by lunging into and focussing on
the dispute as to whether an unborn child has a "right to
life." He tell his
readers: "the sentence
'X is a person' will be synonymous with the sentence 'X has a (serious)
moral right to life.'" [47] Tooley
disapproves of using the terms "person" and "human
being" interchangeably because, he claims, it confuses the issues.
He concedes a human unborn child is an "organism" which
is a member of the species "homo sapiens." [48]
However, Tooley claims that "(d)ifference in species is not
a morally relevant difference" when he compares the killing of an
unborn human to an unborn kitten, and further insists a "morally
significant property must be identified" which is different between
humans and animals. [53] Apes
vs. unborn children
Tooley compares the
psychological properties of an adult ape to a human unborn child, and he
concludes that the ape is worthier of rights.
Tooley maintains that the physiological differences of a human
unborn child compared to any other animal fetus are not "morally
significant by virtue of their causal consequences." [55]
By "causal consequences," Tooley means that a human
unborn child potentially becomes an adult human, and an ape fetus
potentially becomes an adult ape. He
says these causal consequences lead to later psychological differences
which are morally relevant. Tooley
further claims "the conservative position on abortion is acceptable
if and only if the potentiality principle is acceptable."
He insists that it is unacceptable because of his own so-called
"self-consciousness requirement," in conjunction with what I
refer to as his "psychologically-differential-property
requirement." Concept
of a self
Tooley's self-consciousness requirement is enunciated as follows:
"An organism possesses a serious right to life only if it
possesses the concept of a self as a continuing subject of experiences
and other mental states, and believes that it is itself such a
continuing entity." [49] Tooley
believes this "cutoff point . . . is at least a morally safe one
(and) any error it involves is on the side of caution." [52]
But, presumably, the morally proper "side of caution"
for Tooley is the opposite side from an innocent life which may be
unjustly killed! Risking
error on the side where one concedes there may possibly be a life is
surely immoral and, therefore, Tooley errs. If
A desires X
Tooley says "'A
has a right to X' is roughly synonymous with 'If A desires X, then
others are under a prima facie obligation to refrain from actions that
would deprive him of it.'" "Desire"
is meant as "something more than behavioral dispositions," and
so, machines would not qualify as being capable of having rights under
Tooley's above criterion. Therefore,
argues Tooley, "'A has a right to X' is roughly synonymous with 'A
is the sort of thing that is a subject of experiences and other mental
states, A is capable of desiring X, and if A does desire X, then others
are under a prima facie obligation to refrain from actions that would
deprive him of it.'" [50] Reprogrammed
brains
Tooley suggests to
his readers that if, by some future technology, an adult human's brain
were to be completely reprogrammed, then the resulting consequences
would be that "an individual is destroyed, (and) an adult human's
right to life is violated, even though no biological organism had been
killed." Therefore, he
says, "the expression 'right to life' is misleading" because
the actual concern "is not just the continued existence of a
biological organism, but the right of a subject of experiences and other
mental states to continue to exist."
Granted, some right has been violated in Tooley's futuristic
hypothetical, but such right is not the right to life.
Of course, a violation of your right to retain your own memory
and brain functions (a right not to have your brain reprogrammed, which
probably stems from a right not to be unjustly caused grievous bodily
injury) may very well be equally as egregious as a violation of a right
not to be unjustly killed; however,
Mr. Tooley is manipulating the concern here in order to further his own
purposes. Keeping rights
separate and giving them there own bases is crucial. Convenient
exceptions
As part of Tooley's formulation, he says "the desires one
can have are limited by the concepts one possesses" and an entity
must believe that it is now "a subject of experiences and other
mental states" in order to be afforded rights. [51]
Nevertheless, he does say three types of situations exist for
"exceptions to the claim that if a person doesn't desire something,
one cannot violate his right to it." Temporary
depression
The first exception which Tooley makes is when "an
individual's desires reflect a state of emotional disturbance" and
a psychiatrist has diagnosed it as temporary depression, so that if the
individual is suicidal, the exception would dictate that his or her
right to life is still capable of being violated.
Tooley maintains that if this doctor were to facilitate the
suicide, then he or she would have violated the individual's right to
life. By the same token,
perhaps a pregnant woman with an unborn child whom she has not planned
and does not want to parent herself, who is likely to be in a state of
emotional disturbance, should be afforded the same caution, as well as
the unborn child within her. After
all, the pregnant mother's desires may very well reflect a temporary
state of emotional disturbance. Temporarily
unconscious
The second exception is made by Tooley when "a previously
conscious individual is temporarily unconscious" whether sleeping,
drugged, or temporarily comatose -- which notably fails to include a
significantly developmentally disabled person who may never have had any
kind of understanding of his or her own existence.
An unborn child is comparable to any temporarily unconscious
individual, but has the most in common with the temporarily comatose
individual, because an unborn child is likely to have similar brain
function, and it is only temporarily an unborn child;
therefore, unborn children should fall into this exception, and
should have their basic human rights recognized, despite the fact that
unborn children may or may not be able to desire to continue their
existence or to have "experiences and other mental states."
Actually, ultrasounds performed of unborn children during
abortions demonstrate that these unborn children resist, struggle, and
"silently scream" out in pain, which is evidence that unborn
children are capable of desiring their existence.
Nevertheless, the same justifications for granting the exception
for the temporarily unconscious individuals apply for unborn children. Conditioning/indoctrination
The third
circumstance for Tooley's exceptions is when "an individual's
desires have been distorted by conditioning or by indoctrination"
such as the "inculcation of irrational beliefs or by direct
conditioning." However,
every member of society certainly has had his or her desires formed
by conditioning or by indoctrination, otherwise known as education,
guidance, training, experience, and positive reinforcement.
There is nothing distorting about individuals' natural life
experiences. If someone is
easily convinced by others, it is only because he or she chooses or
allows themselves to be. A
person "doesn't know any better" until someone tells him or
her "better," and the person chooses whether or not to adopt
those beliefs. People change
their minds throughout their lives.
Furthermore, I suppose "irrational" is to be solely
defined by Tooley here. Otherwise,
a woman with an unwanted pregnancy who desires an abortion can be said
to have such a desire based on the "inculcation of irrational
beliefs" of pro-abortionists, and she ought to be placed into
Tooley's exception as well. After
all, she has been "conditioned to desire the absence of" her
right to pregnancy and to bear children. Custom-tailored
Tooley modifies his rights analysis thus:
"an individual's right to X can be violated not only when he
desires X, but also when he would now desire X were it not for
one of the following: (i) he is in an emotionally unbalanced state; (ii)
he is temporarily unconscious; (iii) he has been conditioned to desire
the absence of X." He
says, one must still "possess the concepts involved in the
desire." It is clear
that Tooley means to target unborn children by causing them to be
excluded in his own concept-of-the-desire requirement, but this would
surely exclude a temporarily comatose individual as well.
Therefore, Tooley is inconsistent and is found to contradict
himself for the sake of his own theories and goals.
As opposed to formulating an argument around a universal truth,
Tooley is obviously attempting to custom-tailor his argument and its
exceptions in his desire that unborn children would be excluded from any
right to life. The
injected cat
Tooley further argues against the "potentiality
principle," which was earlier discussed, through the use of a
hypothetical in which his readers are asked to suppose that a future,
highly-technological chemical is injected into the brain of a kitten,
which causes it to develop "into a cat having all the psychological
capabilities characteristic of adult humans" so that the cat can
think, use language, etc.. [58] He
then asserts that it would be "morally indefensible" to
deprive the cat of "a serious right to life, (because) there would
be no morally significant differences" from adult humans! Causal
process
Tooley also argues that it would be permissible to kill the
newborn kitten, instead of injecting it, because "the fact that one
could initiate a causal process" that would afford it a right to
life, does not mean it has the right beforehand.
In other words, there is merely the possibility of transforming
it. He says refraining from
initiating the process, then, is "not seriously wrong."
Therefore, according to Tooley, interfering with the process is
not wrong either, such as when a kitten is accidently injected, but has
not yet developed the morally relevant "properties."
He says one could either kill the kitten or inject it with a
"neutralizing" chemical. Tooley's
trip
The analogy which Tooley is attempting to draw is that the
potentialities are the same whether you are dealing with a human unborn
child or his injected kitten. Tooley
maintains "the only difference" is that the
potentialities have been present in the human unborn child from the
beginning of its development, but insists it "is a morally
irrelevant difference." [57] Even
though his kitten hypothetical is obviously totally unrealistic, it does
result in Tooley tripping himself up.
If you will recall, in Tooley's first hypothetical, where
futuristic technology reprograms the adult human's brain, he tells us
that the concern "is not just the continued existence of a
biological organism, but the right of a subject of experiences and other
mental states to continue to exist."
There, he is not at all concerned with the life of the
reprogrammed individual. Yet,
in his second hypothetical about the kitten, Tooley is concerned
with the life of the reprogrammed cat! Just as he acknowledges that a
machine's desires are artificial, and therefore, do not serve to afford
it a human's right to life, the chemically-reprogrammed cat's desires
are artificial, and so it does not have a human's right to life either.
(That is not to say it does not have a cat's right to life --
whatever that may be -- but the definition of what amounts to an
"unjust killing" certainly changes.)
Therefore, the potentialities really are not the same for
a kitten or an unborn child, and the "potentiality principle"
of the "pro-life" position stands. Torture
vs. killing
Another appeal of Tooley's in support of his
"self-consciousness requirement" is his suggestion that most
people consider it worse to torture a newborn kitten for an hour than to
kill it, and that the opposite is true as applied to adult humans. [57]
According to Tooley, although a newborn kitten does not have a
serious right to life, the kitten does have a right not to be tortured
because of its desire not to suffer pain.
He claims this is true even though it lacks a self-concept and a
"desire that a self not suffer, (but) it can desire that a given
sensation not exist." [58] Certainly,
a sentience requirement (not to feel pain) is necessary in order to have
a right not to be tortured. However,
Tooley is again confusing issues. Both
are morally wrong -- killing and torture -- but just because most people
may consider it worse to kill an adult human than to torture him or her
for an hour and the opposite may (or may not) be true for kittens, it
does not mean that one must have self-consciousness in order to have a
right to life. The issues
are wholly unrelated. Infanticide
and the need to know
Tooley averts the issue as to when an organism fulfills its
"self-consciousness requirement" by delegating this
determination as "obviously a matter for detailed psychological
investigation." He goes further and tragically errs in committing
himself to the notion that infanticide within a short time after birth
"must be morally acceptable" because, he says, a newborn baby
clearly does not meet his standard for self-consciousness! [58]
Tooley believes that line-drawing for infanticide "is not
troubling because there is no serious need to know the exact point at which a human infant acquires
a right to life." [59] Under
this theory of Tooley's, a human infant who has acquired a right to life
under Tooley's own standards could be killed, and Tooley would have no
problem with it because he refuses to draw lines.
Tooley is obviously not a man of morals, and surely most people
would differ with his obscure and deranged philosophies.
(However, Tooley has somehow found his way into acceptance by
pro-abortion supporters and into pro-abortion literature.)
Justice requires the balance to be made in favor of the infant's
life because there is a serious need to know if persons who have
or may have admittedly attained a right to life may be killed.
Life is our most valued and protected right.
Tooley's "side of caution" is clearly not the side
which has a concern about erring and potentially killing a human life.
"Desirable"
infanticide Tooley also believes "infanticide is morally permissible in most cases where it is otherwise desirable." [59] "Otherwise desirable" could mean anything! It is difficult to even argue with Tooley on this issue. The immorality of elective infanticide -- and for trivial reasons even -- is so clear that one can realize we are dealing with an irrational person who is weighing the balance of rights and intere |