"If abortion is made illegal, the rich will still be able to get an abortion, for example by traveling to another country where it is legal, while the poor will be unable to. This is unfair discrimination."
The first point to stress is that the difference involved here is not a matter of discrimination, of being unfair. That applies when the law itself discriminates. But when the law applies equally to all persons it is not discriminatory, even though compliance is unequal. Generally, the rich can often evade a law that the poor cannot evade (e.g., by hiring expensive lawyers who can find loopholes in the law). That is a defect in law enforcement, not in the content of the law. The issue here is the content of the law: should it recognize and protect all persons? That question is not answered by pointing to something quite general, namely, that, whatever the law says, whatever its content, the rich are often in a position to evade it in a way that the poor are not. This is an injustice perpetrated by the rich. It has nothing to do with the question of what the law should say, what it should allow or forbid. Sexual exploitation of children, for example, must be prohibited, as a matter of principle, because it violates their rights, rights the state is required to uphold and defend. That a rich person can evade the law prohibiting this in a way a poor person cannot is completely beside the point. Neither should be allowed to do it. If there is a discrepancy, the rich person should be brought to where the poor person is: prevented from committing such a crime. Not the other way around: allowing the poor person to do what the rich person already manages to do.
This is what applies to abortion. If abortion is the horrible crime that it has been shown to be, then neither rich nor poor women should be allowed to perpetrate it. They should be made equal, not by allowing the poor to kill their preborn babies but by more vigorous enforcement to prevent the rich from doing so.
Discrimination means the denial of a right that one really has. Poor women (and all women) have no right to kill their preborn babies. The real discrimination is against the child when killing him is allowed by law. This is the discrimination that must be prohibited - the discrimination that means the denial of his most fundamental right, the right to live.
Illegal Abortion Would Create Havoc
"Making abortion illegal would create havoc with existing laws and systems; e.g., the census, apportionment of legislatures or services based on population, tax law."30
This is simply not true. Many of these items would be unaffected by the enactment of a law recognizing preborn persons and upholding their right to live. An example is apportionment of legislatures, which can continue to be based on the number of born persons. Generally, we can legitimately make legal distinctions between born and preborn persons in some respects, without condemning preborn persons to the status of non-persons who may be legally destroyed. We legitimately distinguish between minors who cannot vote and adults who can, without declaring minors to be non-persons who may be legally destroyed. Precisely the same thing applies to a sub-class of minors: preborn babies.
Some of these, and possibly other similar items may be affected by enactment of the legal recognition that is due to preborn persons. So be it. If we owe them a service let us give it to them. Making the necessary adjustment would not create havoc, but would be a requirement of justice.
Above all, the reciting of such a list should not obscure the elementary point, that we owe the child in the womb recognition as a person, and the equal protection of law that flows from it.
Legal Status of Unborn Would Limit Women's Freedom
"If the fetus is granted legal status equal to other persons, would pregnant women be forbidden to smoke, since that has a harmful effect on the fetus? Would they be forbidden to do other things that might have harmful side effects on the fetus? Such prohibitions are absurd, an invasion of a woman's privacy. In any case, they are impossible to enforce."
It is true, as the objection assumes, that it is morally wrong to do things like smoking that adversely affect the child. The child has a right that such things not be done to him. It is a new question whether this right can be, and should be, enshrined in the law. Perhaps it should not be, and cannot be, because of the privacy factor. If so, that hardly means that another right the child has should not be enshrined in law, namely the right to live, the right not to be murdered. From the unfeasibility of protecting the first right, nothing whatever follows regarding the second right. Not all rights can be given the protection of law, but some surely can, especially the right not to be murdered.
A born child has a right to good health care, proper diet, protection from harmful effects. To some extent this right can be enshrined in law, to a large extent it cannot. We cannot have police at the family dinner table ensuring that the child gets all the nourishing food and vitamins he needs. Nor can he be protected from all harmful effects in the home, parallel to the harmful effects for the preborn child from his mother's smoking. But surely the born child's right to live must be enshrined in the law, and given the same legal protection the rest of us enjoy. Exactly the same applies to that child before he is born.
It is interesting that this objection argues equally against the pro-abortion view that the being in the womb is only a potential person and not an actual person. For the harm done to the "fetus" by the pregnant woman's smoking will be manifest, and will be suffered, when that being is a person after birth. Even if he is not a person before birth, as this position holds, he is surely a person after birth, and suffers then because of the adverse effects of his mother's smoking before his birth. So the wrongness of smoking while pregnant is in no way removed, or even mitigated, by adopting the view that no person is present in the womb. Correspondingly, if smoking is already wrong on the assumption that the "fetus" is merely a potential person, nothing significant is changed or added when we come to realize that he is already a real person, an actual person. Hence the objection is not peculiar to the position defended here, that the being in the womb is a real person, entitled to the same legal status and protection as the rest of us.
Can a pregnant woman undergo medical treatment or take medication that is beneficial to her, but has a harmful side effect on the child? In some cases, yes, in some cases, no. I suggest three principles to help decide such cases: (A) The woman and her child must be treated equally as persons. (B) We must try to benefit both as much as possible. (C) Proportionality must be observed. A harmful side effect for one person must not be caused that is out of proportion to the good effect intended for the other person.
Illegal Abortion Would Make All Miscarriages Suspect
"If abortion were made illegal it would 'perhaps require women who had spontaneous abortions [miscarriages] (and their doctors) to undergo special scrutiny to prove that they were in no way induced.'"31
If there are reasonable grounds for suspecting that the spontaneous abortion was indeed deliberately induced, there should be a special scrutiny; for inducement of abortion means that a small child had been deliberately killed. Deliberately killing him should be treated just like deliberately killing any child. If there are no reasonable grounds for suspecting a deliberate killing, there would be no scrutiny. This is precisely the same situation as the death of a born baby from an accident at home. If there are reasonable grounds for suspecting that the accident was deliberately caused, there will be, and should be, an investigation. If not, there will not be.
Illegal Abortion Would Proscribe Certain Treatments
"If abortion were made illegal, it would mean that treatment for certain medical conditions would be proscribed if the treatment had an abortifacient side effect."32
The force of the objection assumes the pro-abortion position, that women have the right to bring about the death of the child within them. Once this assumption is removed, the objection collapses. A woman does not have the right to a treatment that benefits her while killing the child. One cannot benefit B by killing innocent person A, as has been noted so often already. The objection arises because one does not recognize the reality of the child. Imagine someone suggesting the converse of this: a treatment for certain medical conditions in the child that would have the side effect of killing the woman. The term abortifacient side effect does not sound so bad, until one realizes what it means: a human person is being killed.
The reply to this objection is simply that such medical treatments should be proscribed if they include the killing of the child, just as any treatment, or any action, should be proscribed if it includes the killing of an innocent person.
Illegal Abortion Would Prohibit Certain Contraceptives
"If abortion were made illegal, specifically, if it were declared that human life begins at conception-fertilization, that would make illegal certain kinds of contraception, such as the IUD and some oral contraceptives (such as the Morning After Pill)."
The first point to make is that this formulation of the objection (which is common) confuses two essentially different terms: contraception, which means preventing the coming to be of a new person, and abortion, including abortifacients, which means destroying an already existing person. Outlawing abortion would in no way affect what are really contraceptives. It would outlaw abortifacients such as the IUD and the Morning After Pill, which destroy a tiny human person.
The reply to the objection applying only to abortifacients is that making abortion illegal would indeed outlaw the IUD, the Morning After Pill, and other abortifacients. If the child is recognized as a person from the very beginning - despite his small size, lack of development, and inability to function as a person - his right to live, his right not to be killed should be recognized also. If our right to live is enshrined in law, his right should likewise be enshrined in law. It is very easy, and often very convenient, to kill a preborn child by an IUD, while it is generally difficult, especially psychologically to kill an older person. That is hardly a morally relevant difference. It is unfair to take advantage of a person's small size and inability to defend himself in order to kill him. It is likewise unfair to deny a tiny child the legal protection we enjoy.
Protecting a child from death by IUD or the Morning After Pill is much more difficult than protecting him from death by D & C, saline, and other surgical killings. But the principle is the same: the child must be protected by the law. There must be a legal prohibition on the manufacture, transport, distribution, possession, and use of IUD's, Morning After Pills, and other death-dealing devices. That which has as its sole purpose the destruction of a small person cannot be legally tolerated. That enforcement of such a prohibition will be difficult is no argument against it. Protecting babies from child abuse in the home is also difficult in terms of enforcement, but is of course absolutely imperative.
posted by: lynne (reply)
post date: 02.03.04 (6:39 am)
Oh, I get it. You think abortions should be outlawed because of symbolic reasons. Fair enough. Because, there is no way to enforce a ban on abortions without also severely curtailing women's rights. e.g. if abortion is made illegal, the easiest way to get one would be to travel to a country where they are legal. This might add only a few hundred dollars to the current cost of an abortion so it would still be an option for all the poorest. Therefore the only way to enforce an abortion ban in a way that actually reduces abortions would be to also make it illegal for pregnant women to leave the country. Of course, how would you know that a woman was pregnant?
Personally, I think that if you *really* wanted to prevent actual abortions, you would spend your time and energy doing things that actually do prevent abortions. Like helping pregnant women who want to choose to go through a pregnancy but need some support. Or by making birth control cheap and available. That seems more important that changing a law for symbolic reasons.
posted by: rachel unger (reply)
post date: 04.10.08 (9:47 am)
a very informational passage on the controversies of abortion.
"If abortion is made illegal, the rich will still be able to get an abortion, for example by traveling to another country where it is legal, while the poor will be unable to. This is unfair discrimination."