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Mar 13 2013

Fetal Pain and Maternal Rights

I don’t usually do reposts this quickly, but this is timely. The post was written about fetal viability, but you can generally change “viability” to “pain” in the argument section of the post, shift the lines on the graph a bit to the left, and walk out exactly the same. Even granting the best argument possible to abortion opponents, something that our current best understanding of fetal development makes very problematic, the flaw in this argument is in its premises. 

That makes me sad. We should really be able to put this argument and all the others like it to rest simply by remembering that women don’t lose their rights by becoming–or staying–pregnant.

A couple of months ago, I said something about abortion on Dogma Debate that I wanted to repeat and expand upon here. I’d just written a couple of posts about abortion, and David Smalley thought that would be a good controversial topic. As a challenge to my position (basically, make abortion cheap and easy to get), fetal viability was brought up. It turned out we didn’t have much to argue about. In fact, the matter seemed so straightforward to me that I’m surprised I don’t see it presented this way more often.

The fetal viability question is one of when human life begins. It recognizes that, no, human life does not start at conception, that a fertilized egg is not a human being. Jean Kazez had an amusing take on that argument today.

At conception, what exists is a single-celled zygote. That zygote contains the makings of not just the embryo (fetus, etc.), but of all the structures that will support the embryo (fetus, etc.)–the placenta, amniotic fluid, etc. Imagine (only somewhat analogously) a very full box you take off the shelf at Ikea (with great effort!). The box contains the makings of a bed, but also instructions, tools, packaging, styrofoam, etc. You take it home and put together the bed, discarding everything else. Would you say the bed started its lifespan as the full box? No, of course not. There is no bed until a bed has started to take form and become separate from everything else that was in the box. And at the point, it really makes no sense to say “the bed was once the full box.”

Those concerned with fetal viability also don’t feel it’s reasonable to declare that human life begins at birth. I don’t know anyone who does believe that, no matter their position on abortion, but maybe there are a few. Or maybe it’s an anti-abortion strawman.

Either way, the viability position notes that, at some point, a fetus becomes capable of existing outside the womb, even if it currently resides, much more safely and cheaply, still inside the womb. At that point, it should be considered a fully human life and be accorded the rights of any other human being.

I understand that position. It is at least as logically compelling as any other and far more compelling than many. However, accepting this position is not an argument for outlawing abortion of a viable fetus. It is an argument for when a fetus achieves rights as a human being.

It is not an argument for when a pregnant person loses their rights.

Let me show you a couple of graphs. This one shows (roughly) the rights of the pregnant person and the rights of the fetus throughout a pregnancy based on a period of time during which the fetus can be considered to grow more likely to be viable outside the womb, based on the argument from viability.

Line graph of 0% to 100% of human rights. Pregnant person's line remains at 100% throughout pregnancy. Fetus's line grows from 0% to 100% during the 6th and 7th months of pregnancy.

Now let me show you another graph.

Line graph of 0% to 100% of human rights. Fetus's line grows from 0% to 100% during the 6th and 7th months of pregnancy. Pregnant person's rights drop from 100% to 0% over the same period.

This graph is the argument from viability as it is used politically. It is the argument that once the fetus has rights, the pregnant person no longer does. They no longer have any say in how their body is used. They no longer have any right to say that pregnancy is not in their interests–medical, emotional, social, or financial. They have no rights at all in the matter.

That’s what a law banning third-trimester abortions does. It assigns 100% of the rights to the fetus, not 50%.

So how do we protect the rights that a fetus does have in these situations? That’s a good question, but frankly, it’s a medical question. The fetus may be theoretically independent of the pregnant person, but that doesn’t mean they’re actually independent. It’s still inside the womb, and every means of getting it out carries risks to both parties. What risks vary greatly from pregnancy to pregnancy.

Consider also that the reason many people stop wanting to be pregnant at this point is that the fetus is less than healthy, which may translate into less than viable. Balancing rights and risks of both parties simply isn’t something that can be done in the general case. If we are truly interested in protecting everyone’s rights, this stays a private, medical matter informed by the conscience and situation of the pregnant person making the decision.

The abortion can’t happen without a consultation with medical personnel who have a strong interest in making sure any decision is informed and considered. There is no basis for us to intrude.

Unless, of course, you’re one of those people who really don’t think pregnant women should have any rights.

15 comments

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  1. 1
    Brandon

    Maybe I’m reading something wrong in the viability argument, but I don’t think their argument is that the rights of a fetus become greater than the rights of the pregnant woman; I think they’re accepting graph one as accurate, and then stating that one person does not have the right to kill another.

    I don’t buy their argument in this context, as pregnancy is entirely different from two people with competing rights, but I think you may have misconstrued their position.

  2. 2
    Stephanie Zvan

    If you can find people making the viability argument who refer to the rights of the pregnant person late in pregnancy, please let me know.

  3. 3
    SallyStrange

    I think they’re accepting graph one as accurate, and then stating that one person does not have the right to kill another.

    That they state this without making reference to the fact that one person does not have the right to force another person to donate organs, they are indicating that they believe that the fetus has all the rights and the pregnant person has none. If a pregnant person does not have the right to kill a fetus, what about the right to evict the fetus from their body? Generally, in the third trimester, induced labor or caesarian section are common options for terminating a pregnancy, and abortion which kills the fetus is used when the fetus has a severe health defect that renders it unlikely to survive past birth anyway, so the “killing” rhetoric is basically inflammatory hyperbole.

  4. 4
    Brandon

    To be clear, in case I wasn’t, that argument is not my position and I’m not prepared to or interested in defending it; I’m just trying to relay what I thought I recalled hearing from someone who was arguing against the strawabortion boogeyman of elective third term abortions. I’m not interested enough in “pro-life” arguments to go hunt one down that takes that construct, but I’m trying to give the most charitable interpretation possible, as beating an opponent’s best argument is always the best route to take.

    My actual position is effectively the same as Stephanie’s, that the decision is purely the woman’s to make, with input being necessary only from who she chooses to involve.

  5. 5
    Randomfactor

    stating that one person does not have the right to kill another.

    Yet we clearly have a legal concept known as “justifiable homicide.” And most “pro-lifers” are also pro-death-penalty, in my experience.

  6. 6
    Christopher Stephens

    “There is no bed until a bed has started to take form and become separate from everything else that was in the box. And at the point, it really makes no sense to say “the bed was once the full box.”

    I’d go even farther, as an embryo doesn’t even contain the materials that will eventually be assembled into the person. When I talk about abortion with pro-lifers, I wouldn’t even compare an embryo to a box of parts, I think it compares to the blueprint, and nothing more.

    “That’s what a law banning third-trimester abortions does. It assigns 100% of the rights to the fetus, not 50%.”

    My experience confirms Brandon’s; I was pro-life for years, my whole family is vehemently pro-life, and several of my friends were, too (I’ve only been able to ‘convert’ a very few family and friends). When we say that “it’s a woman’s right to choose,” the pro-life response is never “no, actually a woman has no rights when she’s pregnant,” the response is that no one has the right to choose to end another person’s life except in the direst of circumstances.

  7. 7
    Stephanie Zvan

    … the response is that no one has the right to choose to end another person’s life a woman has no right to choose how her body is used by another except in the direst of circumstances.

    As I said before, let me know when you find someone who explicitly mentions any right a woman has in those circumstances.

  8. 8
    besomyka

    Well, I happen to think that both Brandon and SallyStrange are right. My impression having had conversations with people that hold the position Stephanie has laid out, is that the issue of death trumps any and all concerns. I can bring up what Sally does, but the answer is: but death!

    To a certain extent I can understand their position, and when I first encountered the notion it did give me pause. However, something about it still bugged me, and I think it was that trumping nature of the argument. That death trumps all other concerns.

    There was a story I read online, an analogy about being drugged and kidnapped against your will in order to provide biological dialysis for a famous musician. It gets at what SallyStrage mentions about donating organs, and recontextualizes the complicated nature of the situation:

    A Defense of Abortion

    In A Defense of Abortion, Thomson grants for the sake of argument that the fetus has a right to life, but defends the permissibility of abortion by appeal to a thought experiment:

    You wake up in the morning and find yourself back to back in bed with an unconscious violinist. A famous unconscious violinist. He has been found to have a fatal kidney ailment, and the Society of Music Lovers has canvassed all the available medical records and found that you alone have the right blood type to help. They have therefore kidnapped you, and last night the violinist’s circulatory system was plugged into yours, so that your kidneys can be used to extract poisons from his blood as well as your own. [If he is unplugged from you now, he will die; but] in nine months he will have recovered from his ailment, and can safely be unplugged from you.

    Thomson takes it that you may now permissibly unplug yourself from the violinist even though this will cause his death: the right to life, Thomson says, does not entail the right to use another person’s body, and so by unplugging the violinist you do not violate his right to life but merely deprive him of something—the use of your body—to which he has no right. “[I]f you do allow him to go on using your kidneys, this is a kindness on your part, and not something he can claim from you as his due.”

  9. 9
    Giliell, professional cynic -Ilk-

    It is telling that Dawkins muses on in the typical forced-birther pro female-slavery fashion:
    He goes on and on and on about pigs and fetuses, carefully not mentioning the one person whose ability to feel pain, but physical as well as emotional we very well know: the pregnant woman.
    Doesn’t appear except as incubator.
    I have some news for Dawkins: I can feel pain, too. Being pregnant, giving birth causes a terrible amount of pain, not to mention the risks.
    Dawkins opened his privileged mouth and put in his privileged foot.
    Let me guess, the usual suspects are crying “witch hunt” again…

  10. 10
    Jackie

    Gillel, anyone criticizing his forced birth stance is being called “emotional” and “absolutest”.
    Also, those critics just aren’t thinking logically. *eyeroll*

    Yeah, I pretty much think I absolutely have the right to decide what happens with my body. I’m not clear on either why I should not be emotionally attached to that right or why believing I have it is illogical.

    Hmmm…people supporting women’s rights being called emotional and illogical…Now where have I heard that before?

  11. 11
    SallyStrange

    To be clear, in case I wasn’t, that argument is not my position and I’m not prepared to or interested in defending it; I’m just trying to relay what I thought I recalled hearing from someone who was arguing against the strawabortion boogeyman of elective third term abortions

    *shrug*

    The response is the same whether the argument is offered sincerely or in the capacity of “devil’s advocate.”

    And may I just say how much I hate the concept of “devil’s advocate” when applied to questions of human rights, which is what the issue of abortion is? There is a surfeit of devils advocating for themselves, and anyone who has spent more than, oh, say, 24 hours speaking in a public or semi-public forum has encountered most, if not all, of the arguments anti-choicers have to offer.

  12. 12
    D. C. Sessions

    Grant arguendo that the fetus has all the rights of an adult human being. Now let us consider a State such as Alabama, Texas, Georgia, or any other that has a “stand your ground” law. The makes it perfectly legal to use lethal force first against someone who you perceive as a threat, rather than as a last resort. The threat need not be mortal.

    Thus we are left with only two legal alternatives:
    1) Pregnant women are as legally justified in defending themselves against a fetus as they are against a potential rapist, or
    2) A fetus not only has more rights than an adult woman, but more rights than an adult of either gender who only appears to be a non-lethal threat.

    Then there’s the landlord/tenant question of eviction …

  13. 13
    eric

    D.C., that’s evil. Use a gun-rights law to support abortion and make conservatives pick which issue they care about more. Heh.
    Sadly, I doubt it would work past the first case. The moment some woman wins such a court case, the legislature will simply amend their ‘stand your ground’ law to specifically exclude pregnancy from it, or exclude foetuses from the ‘people’ you can defend yourself from, or something else like that.

  14. 14
    D. C. Sessions

    The moment some woman wins such a court case, the legislature will simply amend their ‘stand your ground’ law to specifically exclude pregnancy from it, or exclude foetuses from the ‘people’ you can defend yourself from, or something else like that.

    Ex Post Facto — it wouldn’t apply except to cases following the change of law.

    And then there’s the question of a woman evicting the tenant or otherwise going for a Cease and Desist on all of the harm it’s doing her. Would anyone have standing under the Constitution to intervene or would the case go by default?

  15. 15
    PatrickG

    @ eric/D.C.

    Sadly, Rush Limbaugh beat you to it:

    You know how to stop abortion? Require that each one occur with a gun.

    I somehow think that people of this ilk would be quite happy to see women desperate enough to shoot themselves as a form of abortion. Perhaps that’s because I consider them sociopaths (in the actual medical sense).

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