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Tuesday, September 1, 2009

Due to the popularity of my previous post on abortion, I felt a follow-up was necessary. The previous post focused on the question, "If abortion was illegal, what should be done with the women who have illegal abortions?" This post focuses on the legality of abortion and what rights, if any, do a fetus possess.

Before beginning, a clarification is necessary. The abortion issue is not an argument between pro-choice and pro-life. Rather, it is an argument between pro-choice and anti-choice. Many people who are pro-choice are also pro-life. They would not personally condone or perhaps even recommend an abortion, but they also will not impose their morals on others. Therefore, even if you are anti-abortion, you can still be pro-choice. In this post, I will only use the terms pro-choice and anti-choice.

One of the strongest anti-choice arguments was made by Jim Stone in his essays Why Potentiality Matters (1987) and Why Potentiality Still Matters (1994). Russell Blackford responded to Stone's arguments in a 2002 essay, The Supposed Rights of the Fetus. He summarizes Stone's argument as such:

Stone introduces the idea of "strong potentiality", arguing that a fetus is, in a strong sense, "a potential adult human being". Since he believes that no ethical right to life is entailed merely by membership of the species homo sapiens…he emphasises that certain "goods" are typically enjoyed by adult human beings, including self-awareness, social interaction, and the possibility of moral stature. The argument is that a fetus has the capacity to develop into a being which is capable of enjoying these goods, and that this is prevented by abortion.

Stone's concept of a person, borrowed from John Locke, is that of a being which has "reason, reflection and self-awareness"....Stone's argument, then, can be revised, without any material distortion, along the lines that to abort a fetus is to frustrate its potential to develop into a person and enjoy goods typically available to persons living socially with other persons.
Stone defines weak potentiality as an entity, such as sperm or an unfertilized egg, which cannot become an adult human being by itself. Blackford notes that Stone's definition of strong potentiality required him to also define "normal development." Stone defines this by stating an entity "develops normally if it follows to the end the developmental path primarily determined by its nature which leads to the adult stage of members of its kind."

This definition of "normal development" holds the first flaw (albeit, a minor one) in Stone's argument. By his definition, if a fetus's DNA indicates a disorder which will limit its lifespan so drastically that it will never reach adulthood, then it does not possess strong potentiality and can be aborted.

A second flaw is found in Stone's response to Feinstein's argument:
Without awareness, expectation, belief, desire, aim, and purpose, a being can have no interests; without interests he cannot be benefited; without the capacity to be a beneficiary, he can have no rights.
Stone argues that given Feinstein's argument, it would also be permissible to painlessly kill an infant. However, the 14th Amendment states that only born citizens have the rights granted to individuals by the U.S. Constitution.

A stronger argument against Stone's analysis is made by Blackford:
For example, we could imagine that a powerful computer has been developed, and has been programmed in such a way that it will continually upgrade itself and eventually reach self-awareness. Are we now under an ethical obligation to provide it with electrical power until such a time as it becomes self-aware? Perhaps we must ascribe to the computer a right to continue in existence, without being reprogrammed, once it has become a person, but it is not obvious that we are ethically obliged to supply it with a continuous source of electricity prior to that point.

Yet this device seems to have a "nature" in an analogous sense to the genetic program of a fetus. Unless specifically religious considerations are introduced, or some kind of quasi-religious significance is imputed to functional "design" arising from biological evolution, the situations of the fetus and the advanced computer cannot be distinguished.
Apart from potentiality, there is a fundamental different between morality and legality. Wendy McElroy compares abortion to gambling and drug use - activities that some may consider immoral but are not actual violations of rights. This comparison will upset many people, but let's look at her rationale before angrily judging her.

McElroy rests her argument on the sovereignty of the individual and that the fetus is merely a biological aspect of the pregnant woman's body:
The principle of self-ownership states that every human being, simply by being a human being, has moral jurisdiction over his or her own body. Thus, even if the fetus possesses rights, those rights could never include living within and off of the woman's body, for this would be tantamount to asserting that one human being could own the bodily functions of another...that two people can have rights in one body. The word used to describe a system in which one man has property rights in another is slavery [emphasis added].
You cannot compare this situation to a simple case of trespassing. When a person with rights trespasses on your property, you can ask them to leave before shooting them. You cannot ask a fetus to leave your most private of properties - your body.

McElroy makes a most libertarian argument in support of abortion. Yet, there are still libertarians who oppose its legalization. While Libertarians for Life do not base their beliefs on potentiality, they do believe that rights are granted to the fetus at the moment of conception. First, this does not fit with John Locke's definition of a person (previously stated) or the 14th Amendment, but stronger arguments exist.

In response, McElroy refers to Ayn Rand's fallacy of the stolen concept:
In this fallacy, a word is used while the conceptual underpinnings which are necessary to the definition of the word are denied. Thus, the antiabortionists use the concept of 'rights' without regard for the fact that the fetus is not a discrete individual, the alleged rights conflict, and the rights involve two people claiming control of one body. Whatever version of rights is being attributed to the fetus, it is not the natural rights championed by libertarianism.
According to Blackford:
[A fetus] cannot experience any frustration of its desires, because it has no desires. The mere failure to meet this interest does not inflict any pain. It does not experience fear, so the wrongfulness of our action cannot consist in inflicting upon a entity something that it fears. Nor has it begun a life whose coherence or value may be ruined by being cut short. We do not reveal ourselves as cruel if we terminate the development of a merely potential person painlessly, or with minimal pain. It is difficult, in short, to see why the interest is one that must command our respect. It seems to be a totally theoretical interest. It might unkindly be called a contrived one.
I will end with a funny, yet true, story.

In college, a friend and I engaged a Catholic priest in a debate on abortion during a Newman Club meeting. It was a surprisingly civil, academic debate with my friend and I holding opposing viewpoints from the priest. My friend then engaged the priest in the following dialogue:

[Friend]: "When does a fetus receive a soul?"

[Priest]: "At the moment of conception."

[Friend]: "What happens when the fertilized egg splits and becomes identical twins?"

[Priest]: *stunned blank stare*

Posted by Eleutherian

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1 Responses to Legality of Abortion - A Fetus Has No Claim to Rights

  1. Since you're building off of a Lockean position, I'd be intrigued to see what your thoughts are on this post of mine from a while ago,

    Simply put, it takes a Lockean inspired view, accepting the argument that women can have abortions since they have a property claim over their own bodies and therefore the fetus within them as well. However, if we're acknowledging Locke then the father must have some say over the disposition of the child as well since he and the woman (hopefully) equally mixed their labor in creating the child and they both made equal contributions of genetic matter.


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