Erstwhile roomie Glen Whitman has a good, thoughtful post up on why most analogies used in abortion debates don’t really work. Now, I don’t often find myself reaching argument of this kind. I don’t think fetuses are persons or that they have any rights, and you don’t need elaborate thought experiments to explain why you’re not obligated to play host to a tapeworm under any circumstances. Still, plenty of interesting debate proceeds on the assumption that, if not from the instant of conception then at any rate sometime well before birth, the fetus is person-like enough to have either full blown rights or close enough to create a realmoral issue. For the sake of the rest of the post, I’ll assume that counterfactual. Suppose that at some point the fetus does become sufficiently personlike that we want to attribute rights to it, and we want to know how to regard abortion past that point: What then?
The key reason most analogies offered fail—and if you’ve spent any time following abortion threads on chat boards, they’re typically appallingly poorly thought out—is, I think, that (as Glen observes) there’s at least one salient way in which pregnancy is unlike any of the other cases Glen considers. That is: One of the parties involved in this case doesn’t exist at the outset (when one has sex), and then comes into being.
Now, to back up for a moment, we can imagine a principle for opposing abortion that would make this irrelevant. One might just say there’s a general obligation to provide lifesaving sustenance to anyone who needs it if you’re in a position to do so, even if this requires significant personal sacrifice. There are plenty of fine arguments for that position, but most abortion opponents don’t appear to believe it. It would, after all, require one to spend most of one’s income beyond the sustenance level on providing food and medicine to, say, starving children in the developing world. Plenty of abortion opponents will, of course, say one ought to (or perhaps must) do something to help the very needy—especially needy children whose condition is clearly not to any extent of their making. But most will not, I think, argue that anyone who fails to provide further aid—so long as there exist more children to help and another dollar the provider doesn’t need to live—commits a wrong equivalent to abortion.
So, returning to Glen’s analogies, the mother’s obligation must be regarded as being a specific obligation arising from her relation to that specific fetus. Now, recalling the argument of the last paragraph, it can’t only be that the mother is uniquely situated to provide nutrients. True, in the developing world case, many other people could potentially feed those same children, in a way that any other person could not (yet) house that particular fetus. But for practical purposes, given that there are starving or sick children that nobody else is helping, the situations are similar: If you don’t provide aid and nutrition for that child, it won’t be forthcoming from some other source.
So it’s got to be something else. This is where it’s relevant that, as many abortion opponents will somewhat confusedly say, the mother “accepted the risk” of pregnancy when she had sex. (Leaving aside, for the moment, cases of rape or incest, on which anti-abortionists split.)
Now, again, as Glen points out, on face this makes no sense. Even if you go out without a scarf in the cold, you’re not forbidden to use antibiotics because you “accepted the risk” of getting sick. Another, equally confused, locution has it that the mother “implicitly agreed” to the risk of pregnancy, though that won’t quite work either: Who is the agreement supposed to be with? Not the fetus, surely: It doesn’t exist yet. (One of Glen’s commenters implausibly suggests it’s the sexual partner; I’ll assume that one doesn’t need to be argued against.)
As Glen suggests, the only way it makes sense to introduce the mother’s voluntarily engaging in sex, knowing that pregnancy might result, is if we think of it as a kind of tort. And, still following Glen, that seems like a promising analogy. You’re not generally required (we’re supposing) to aid anyone who finds themselves in a dependent condition. But if you brought it about that the person was in that condition, then we tend to think you certainly are obligated.
Now, in tort law, we have different standards of liability—sometimes we have a negligence standard, where you’re only obligated if you failed to take reasonable precautions against your actions harming someone (in this case, birth control), whereas under strict liability, you’re responsible no matter what.
Interestingly, we don’t typically see anyone arguing for a negligence-standard type approach to abortion, wherein you’re free of obligation to the fetus provided you were taking precautions to prevent pregnancy. So let’s leave that aside and suppose a strict liability standard is applicable.
Here, as Glen points out, the prior non-existence makes things tricky. I’ve been talking loosely about “placing someone in a condition of dependence”, but in ordinary cases, what we mean is “relative to how they were before.” You’re normally not obligated if you leave someone in a dependent state because you’ve helped them from a still-worse condition, but not enough to leave them independent. Rather, it’s when you’ve left them in the lurch relative to their status quo ante—how they were before. That’s the baseline to which you’re obligated to return them, to “make them whole,” as the law puts it.
Glen suggests, then, that if the special obligation to the fetus is the product of an intentional tort—conception—then the remedy can only be to return the fetus to the status quo ante, non-existence. Which abortion accomplishes handily.
That is, of course, too clever by half. The problem, I think, is that it treats the relevant baseline as “non-existence” (to which one can be returned) and “never having existed” (which, absent a time machine, one can’t). But it does bring out how weird a case this presents, where our normal intuitions, which are bound up with baselines in assessing how we affect others, founder.
On the one hand, I think it’s coherent to say something like: “My life is so awful, it’d be better if I’d never existed.” And, similarly, I think it’s coherent (even plausible) to say that existing briefly, then being killed, is worse than not having existed in the first place. But there remains something very weird in comparing different imaginable states of being to non existence. The problem is that “never having existed” doesn’t fit in the ordinary scale of evaluation. It’s not like zero—like you get less and less happy until you get to the non-existence level, and then if you keep going you get to more and more suffering, so non-existence ends up being just like feeling sort of mezzo-mezzo.
Normally when we evaluate the badness of death, after all, it’s not really the “disutility of nonexistence” (which is incoherent) we’re actually thinking about. We don’t think: “Oh, yeah, being dead, that must suck.” You’re not there to mind, after all. Instead we look at it, as usual, from the perpsective of a baseline—the continuation of that person. But this is where it becomes hard to stick with that initial presumption of personhood, because it becomes hard to disentangle the value of life from people’s concrete desires, hopes, projects, and so on. The death of a young person, we usually say, is especially tragic because we see the erasure of an at least partially determinate trajectory. We’ll find it less sad when someone dies after a long, productive life having achieved many of their major aims—”now I can die happy,” someone who’s succeeded in one of their core goals might say.
Anyway, I think what this does is underscore, perhaps in a needlessly circuitous way, Glen’s point: Our ordinary analogies won’t work for abortion. Not just because a houseguest isn’t like a fetus in the womb, but because the ordinary concepts we fall back on when thinking about obligation—agreement (whether implicit or explicit) or harm (defined relative to some baseline)—aren’t applicable. Intuitively, creating a rights-bearing entity entails some kind of obligation to the creative being, but our intuitive categories of obligation don’t fit the case well.
17 responses so far ↓
1 Grant Gould // Mar 11, 2005 at 6:41 am
If our scale of utility cannot account for existance-versus-nonexistance, it’s a sign that we’ve pretty much screwed the pooch on this whole utility-measurement problem, isn’t it? I mean, surely associating some sort of different value with the presence versus absence of a particular phenomenon, entity, person, etc. is a necessary prerequisite to the whole utility-measuring process.
It’s reasons like this that I find all of those fine little utility-maximizing moral schema so utterly suspect. If you can’t get the simple problems right, but have glib and precise answers to the complex and interconnected ones, all you have is an elaborate preconception-validating machine, not an evaluative framework at all.
I don’t think that a scheme of utility that can’t answer simple questions like, “what is the value of this versus not-this,” really has much depth or range to it.
2 digamma // Mar 11, 2005 at 12:48 pm
“One might just say there’s a general obligation to provide lifesaving sustenance to anyone who needs it if you’re in a position to do so, even if this requires significant personal sacrifice.”
I see a sleight-of-hand here. You just went from your obligations to YOUR kid to your obligations to ALL kids. Clearly, the obligations differ in the two cases.
3 Julian Sanchez // Mar 11, 2005 at 12:53 pm
“Sleight of hand” implies it’s somehow a hidden move. It’s explicit. I’m trying to get at exactly why “the obligations differ,” if they do.
4 brooke // Mar 11, 2005 at 1:34 pm
“Even if you go out without a scarf in the cold, you’re not forbidden to use antibiotics because you “accepted the risk” of getting sick.”
This is just silly. You don’t create the virus that makes you sick through a willing act–in invades you and multiplies and is dependent on you, but its existence isn’t traced to you. You can be as careful as you want to be and still catch a cold through no fault of your own; the same can’t at all be said of getting pregnant.
5 Julian Sanchez // Mar 11, 2005 at 1:50 pm
Brooke:
Well, the whole rest of the post is about exploring how having sex might create an obligation, but the distinction you’re making seems irrelevant. Make it an STD instead of a cold, if you like.
6 Arthur // Mar 12, 2005 at 11:16 am
Julian,
Well, how about this slightly different use of the tort analogy? Non-existence is a less beneficial state (compared to existence), so once a woman’s gotten pregnant, she’s begun assisting the fetus. Tort law generally imputes a heightened obligation to those who begin to give aid, so returning the injured party to its baseline state is often insufficient (as, one might argue, it would be in this case). It’s sort of an odd tort standard, as it has little to do with the usual goal of making a victim whole (indeed, it seems a lot more like granting the victim a right to be benefited), but it is the law.
The only problem I can see is that the aid (if we assume sex assuming the risk of conception is the beginnig of the aid process) is given to a cell which pretty clearly lacks personhood or identity. What we might conceptualize as the implicit contract formed at the beginning of the aid-giving process doesn’t happen here, because there’s no person to be aided. This does provide a rationale for setting the bar at viability (assuming that personhood would come at that point), and distinguishing it from a second before or a second after, since only at that point is there another entity with whom that implicit contract can be formed.
I’m not sure how productive this analogy is, but it seems preferable to treating pregnancy as an intentional tort, which is pretty counterintuitive unless we think of nonexistence as a preferable state, and that’s a bit too Sartrian for 11 in the morning.
7 Joseph // Mar 12, 2005 at 5:41 pm
“Our ordinary analogies won’t work for abortion.”
Such as the grotesque metaphor of babies as “tapeworms”?
8 Tapeworm // Mar 14, 2005 at 4:08 am
The human maternal drive must be squashed; non-human life on earth depends on it! Save the planet. Go kill yourself now!
9 Scott Scheule // Mar 15, 2005 at 5:53 am
“Such as the grotesque metaphor of babies as “tapeworms”?”
I agree. One is of course perfectly free to make whatever metaphors they like, but this one I found repugnant. Though certain abortion analogies may be imperfect, there are some that fit better and some that fit worse. The tapeworm analogy strikes me as being one of the latter.
10 Gil // Mar 15, 2005 at 12:20 pm
I’m not so bothered by the tapeworm metaphor. I’m ok with being provocative.
But, I’m curious when Julian thinks one does become person-like enough to have full blown rights. Is it shortly before birth, shortly after birth, long after birth, is it at the instant of birth?
And, why then?
11 Julian Sanchez // Mar 15, 2005 at 1:19 pm
My position is shortly after birth, though since it’s impossible to tell when the line has been crossed, I think birth’s a fine legal line. I think what’s key in the development of the relevant traits (a sense of self with some degree of reflectiveness, concept formation, the ability to plan and have intentions and desires beyond pure immediate instinct) is interaction with an environment; I doubt a 30-year-old who’d spent his entire existence in a sensory deprivation tank would count as a rights-bearing person either.
12 Gil // Mar 15, 2005 at 2:15 pm
Seems reasonable.
I’m not certain that the fetus’ time and environment in the womb is necessarily insufficient to develop the traits you describe; but I agree that it seems doubtful.
But, if you were convinced (by fetal brain scans or something) that there does seem to have been such development in most fetuses after, say, 6 months what would your position on abortion after that point be?
13 Julian Sanchez // Mar 15, 2005 at 6:05 pm
Well, I’d want fairly clear evidence that we really knew the brainscan was correlated with those relevant features, given how intuitively unlikely it seems, but I certainly can’t rule out the possibility altogether. I suppose I’d have to think about it further; when artificial womb technology is sufficiently advanced, I’d say induced birth or caesarian & transfer to that should be the practice rather than abortion. At present… I’m not sure; under the facts you describe I can imagine opposing elective abortion past the relevant point of development.
14 Marie // Mar 15, 2005 at 7:04 pm
You suggest that contract metaphors are inappropriate here because the presumptive “other party” doesn’t exist at the time that the obligation arises. I’m not so sure. The law recognizes obligations arising from unilateral offers to the general public, accepted by performance. For example, if a company holds a contest, it is obligated to give the prize away to the winner, though there is no “winner” at the time that the offer is made.
Perhaps unprotected sex really is like holding a “womb lottery,” in the legal as well as Rawlsian sense.
15 rea // Mar 16, 2005 at 1:25 pm
“Tort law generally imputes a heightened obligation to those who begin to give aid, so returning the injured party to its baseline state is often insufficient”
No. The volunteer is required to exercise reasoanble care in rendering the voluntary assistance, but not obliged to do more than what he volunteered to do.
Example: a bar has no obligation to protect its customers from third party criminals (at least in my state, with some very limited exceptions). Voluntarily doing SOMETHING to protect customers does not oblige the bar to do EVERTHING: providing a lighted parking lot does not oblige the bar to provide armed security guards in the parking lot.
16 brooke // Mar 17, 2005 at 10:38 am
“Well, the whole rest of the post is about exploring how having sex might create an obligation, but the distinction you’re making seems irrelevant. Make it an STD instead of a cold, if you like.”
Making it an STD or a tapeworm rather than a cold doesn’t really clear up the problem. You still don’t create the STD in the same way you create a fetus. An STD or tapeworm is something that exists independantly of any particular person–a fetus is not. A fetus is created from the (presumably voluntary) act of sex and otherwise doesn’t exist.
17 Arthur // Mar 17, 2005 at 4:30 pm
Rea,
That’s a misapplication of the metaphor. A bar hasn’t begun to give aid in keeping you safe from criminals, for instance – it’s a different standard, closer to an innkeeper than an aidgiver.
But even if we accept your articulation for the purposes of argument, I don’t think it takes you anywhere; having assumed a duty, exercising reasonable care may well mean returning someone to a state better than where they started. Do you really think a non-therapeutic abortion would constitute reasonable care?