Tuesday, March 08, 2005

Every Abortion Analogy Fails

In the course of far too many abortion discussions, I’ve made numerous analogies and heard many more (from partisans of both sides). Analogies are often useful because they help to transfer our intuitions from easy and familiar cases to difficult and unusual cases. But the strength of an analogy depends on the similarity of the characteristic features of the cases compared. I’ve gradually reached the conclusion, however, that abortion is sui generis; there simply does not exist any other situation that duplicates all its relevant features. Analogies can help us to understand the interests involved, but no single analogy will dispose of the question. In short, all abortion analogies fail. Here’s the rundown on several such analogies:

The Unwelcome Houseguest. A woman’s body is like a house. She has the right to decide who stays there and who doesn’t. If she’s not happy with her guest, she is free to kick him out. This is the analogy I implicitly made in last week’s post (wherein I constructed a constitutional argument for reproductive choice based on the self-ownership implied by the 13th Amendment and the takings clause of the 5th Amendment). This analogy gets at the important notion that a woman has a strong property interest in her body, and that interest persists even if the fetus has individual rights. But the analogy has two problems, each of which leads to another analogy. First, forcing the fetus to leave results in its death, which is not generally true if you ask a houseguest to leave. And second, unlike the houseguest, the fetus didn’t voluntarily enter the womb in the first place.

The Necessity Case. The common law recognizes situations in which a person in dire need can use another person’s property without consent and then pay later. The classic case involves a boat captain who ties his boat to a dock (even though the dock’s owner is absent or unwilling to consent) in order to avoid losing his boat in a storm. The dock owner cannot legally refuse, and he’ll even be held liable if he deliberately unties the boat from his dock. But the boat captain must pay the dock owner compensation for his use of the dock, including any damage done. Similarly, one might argue, a fetus can command the use of the mother’s womb (possibly paying compensation later). The analogy’s usefulness lies in identifying the dire nature of the fetus’s situation. But the analogy fails for at least three reasons. First, the amount of time involved in necessity cases is typically short (the length of a storm, for instance), whereas the fetus demands nine months of feeding and shelter. Second, the nature of the sacrifice differs dramatically. There’s a substantial difference between letting someone tie their boat to your dock and letting someone live inside your body. Third, compensation is typically not paid, at least not by the fetus; indeed, giving birth often incurs even greater future obligations, unless the baby is given up for adoption.

The Invited Houseguest. This analogy is similar to the Unwelcome Houseguest, except that it recognizes the “invited” character of the visit. Like a homeowner who has invited guests to come over for dinner, the woman might be said to have invited (at least the possibility of) a fetus into her womb. But what’s an invitation? The mother may not have laid out the welcome mat – indeed, she may have specifically laid out “NOT welcome” mats in the form of condoms, diaphragms, spermicides, and chemical alterations of her body chemistry. This hardly constitutes an invitation. And setting that objection aside, does an invitation create an obligation? Are you obligated, legally as well as morally, to serve your dinner guests the promised food? In general, the answer is no, unless some kind of implicit contract has been formed. Absent a binding promise, you can oust your guests at any time. So for this analogy to work, it has to be transformed into…

The Bed & Breakfast, a.k.a. The Implicit Contract. Suppose a traveler makes a reservation to stay in your bed & breakfast. Don’t you have a contractual obligation to provide him a place to stay when he shows up (and some food in the morning)? Let’s also suppose that yours is the only hostel in town, so the traveler has no viable alternative. This analogy, like the previous one, emphasizes the invited character of the situation. And like the previous analogy, it suffers from the absence of a true invitation. The mother may not have consented, and she may even have taken positive measures indicating her lack of consent. (Yes, she took a risk, but taking a risk does not necessarily mean consenting to all consequences thereof. A person who ventures into a dark alley at night risks being assaulted, but that doesn’t imply consent to the assault.) For the analogy to fit, we would have to suppose that the B&B owner didn’t accept a reservation, but instead locked the doors and put up a “no vacancy” sign. If we think the traveler’s need for shelter trumps such objections, then we’re back to the Necessity Case.

In addition to lacking robust consent, the alleged contract with the fetus lacks something else. A valid contract requires consideration, meaning some form of compensation received by each party in exchange for its burden. What consideration does the mother receive? The pleasure of sex, one might say. But the fetus does not provide that consideration, because the pleasure occurs before the fetus even exists. This is the Achilles’ heel of the Bed & Breakfast analogy: a contract presumes the existence of two parties who both consent beforehand in exchange for promises. The act of sex cannot be likened to the signing of a contract, because an entity that does not exist can neither consent nor make promises. And the fetus’s lack of consent points to yet another analogy…

The Negligent Driver. When you negligently or deliberately cause harm to another person, the law requires you to provide compensation, either with money or some kind of action. If your negligent driving puts a pedestrian in the hospital, you are liable for his medical bills. Likewise, one might argue, your sexual behavior creates the risk of placing a fetus in a very precarious situation. If so, you are liable for the fetus’s care during that time. This analogy emphasizes the responsibility of people for the risks they create, thereby dodging the previous analogy’s “no invitation” problem. The difficulty with this analogy comes from the definition of “harm.” Harm doesn’t mean being in a difficult situation – it means being in a worse situation than you would have been otherwise. Were it not for your reckless driving, the pedestrian would (in all likelihood) still be walking around, safe and sound. Were it not for the act of sex, the fetus would not exist at all. To sustain the claim that the act of sex creates a risk of harm to the fetus, you have to insist that existence in a dependent state is worse than sheer non-existence. If the act of sex constitutes a tort, it is the only tort I can think of that creates the very person it victimizes.

So in my opinion, all the analogies fail. They can still be of use, however, because they highlight all the relevant considerations. A woman does have a property interest in her body, but property interests are sometimes defeasible (as the necessity cases demonstrate). A woman does create the risk of pregnancy (at least if the sex is consensual), but creation of a risk does not imply consent to all possible consequences. Pregnancy does put a fetus in a precarious situation, but not a situation that can sensibly be characterized as harm relative to the alternative of non-existence. A reasonable answer to the abortion question has to take all of the above into account. (And I should emphasize, again, that all of these analogies assume for the sake of argument that the life in question is a legally relevant one.) In a later post, I’ll talk about an answer that makes sense to me.

29 comments:

JB said...

Every Analogy? Well, I actually don't disagree with that point, most any situation is different in some specific way from any analogous situation, but like you point out analogies help us to better explain and perhaps understand our positions...to ourselves and others.

In any event, I would like to throw out one analogy that I've come to like, though undoubtably imprecise. That is the analogy of the enlisted soldier.

For example, when one enlists, they sign a contract with the government, the government agrees to pay them, and the individual is enlisted for a term. Which in the ordinary course of events, ends without incident, the enlistee leaves the military and rejoins civilian life, having gained something from his/her enlistment. Like so, is the ordinary woman...don't like it? I'll try to explain.

Like the soldier, the woman has engaged in a contract with a second party, the government/male to be provided some benefit compensation/[pleasure/companionship/whatever]. However, often enough it is not the government or the man who should call upon the contract entered into, instead, it is a third part who receives the benefit the citizen who would have been drafted if their were insufficient enlistments/the now conceived fetus. The likely case, is that the compensation/pleasure will be provided, and the soldier/woman will not be deployed/become pregnant. However, once deployed/pregnant the soldier/woman can not escape their respective obligation. And, as in both cases, in the case of a deployment/pregnancy one can find their "tours/terms" extended. In both cases the risks are minimal that deployment/pregnancy will occur, but they do exist, to enlist/have sex one puts themselves at risk. In fact, the analogy works even when the woman attempts to do all she can to avoid the risk of pregnancy through contraceptive. Though a soldier may only enlist in times of relative peace, should an extremely unexpected event (e.g. 9/11) occur, the but I only enlisted because the risks were low, is not a defense to the contract. This comment is getting long so I'll close it up. Analogies aren't meant to be perfect, they just help move the ball forward, and hopefully they do!

Glen Whitman said...

I think that analogy fails as well. If a soldier makes a contract with his government, only that government is in a position to require his performance. The government may do so on *behalf* of a third party -- say, an allied country -- but the third party has no direct claim to the service. For instance, the U.S. used its soldiers to free France, but the soldiers did not owe a duty to France. They owed a duty to the U.S. government, which duty the government chose to use for the purposes of assisting France. (I leave aside the point that many soldiers are drafted.)

So if we follow your analogy, in which the contract is with the biological father, at best it proves that the father can command the mother to bear the child, not that the fetus or the government can command her to do so. And I suspect that this is a contract that many potential fathers would happily give up at the time of coitus (when the contract is allegedly formed). The woman could simply say, "By having sex with you, I am not thereby agreeing to carry a child to term. If you don't like those terms, we're not having sex." If he agrees to have sex anyway, no contract is formed.

Jacqueline Mackie Paisley Passey said...

You forgot the self defense against an assault by a mentally retarded or ill person. The person assaulting you may not intend you any harm, but they sure as hell are going to cause you a lot of harm if you don't use force, including deadly force, in self defense.

Consider the damage done to a woman's body by pregnancy and childbirth. Most rapes do far less damage, and most of us consider women within their rights to use lethal force in self defense against rape.

Andrew Bailey said...

Thompson's violinist case seems to differ enough from the intuition pumps already discussed to deserve independent discussion. It's closest to the Unwelcome Houseguest case, but seems to avoid the two conditions you believe disqualify that case. That is, it does involve the death of the guest if expelled, and it does not imply any voluntary action on the part of the guest.

The case, as formulated by Thompson: "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. The director of the hospital now tells you, "Look, we're sorry the Society of Music Lovers did this to you--we would never have permitted it if we had known. But still, they did it, and the violinist is now plugged into you. To unplug you would be to kill him. But never mind, it's only for nine months. By then he will have recovered from his ailment, and can safely be unplugged from you." Is it morally incumbent on you to accede to this situation? No doubt it would be very nice of you if you did, a great kindness. But do you have to accede to it? What if it were not nine months, but nine years? Or longer still? What if the director of the hospital says. 'Tough luck. I agree. but now you've got to stay in bed, with the violinist plugged into you, for the rest of your life. Because remember this. All persons have a right to life, and violinists are persons. Granted you have a right to decide what happens in and to your body, but a person's right to life outweighs your right to decide what happens in and to your body. So you cannot ever be unplugged from him.'"

JB said...

Glen, that is the weakest part of my analogy, but I think it still fits, and this is why:

The benefiting third party is not France or some foreign government, instead the benefiting thrid party is the single marginal citizen who, would have been drafted if there were insufficient enlistments. Of course, no one knows who that marginal citizen is, and no drafted citizen could bring a claim against the deserting soldier. However, because the risk of being drafted is diffuse, the community as a whole decided to make desertion a crime. In other words to hold the enlistee to their contract. In the same way, the risk of being aborted is diffuse, no one know who would have been or would be aborted, so almost all communities made abortion illegal, in other words, holding the woman to their contract.

Perhaps the largest problem with this analogy is that in the case of the abortion, once one is born the risk of abortion no longer exists. So, for voters to desire to enforce such a contract is not logical; however, even that I do not think defeats the analogy, as the vast majority of voters are not subject to the draft (women and those over 25). (Heck just think of the parellels there...not subject to pregnancy: men and women over 45(generally)). I don't mean to say this analogy is perfect, but I like it.

JB said...

And another though, don't mean to be too difficult, but I do like a challenge so hey, they main complaint that you, Glen, had with the analogy was that the woman could disclaim the contract with the man...stating that he agrees not to force her to carry the child to term. Even in this case, my analogy has a parellel.

Say for example, a person enlists in Jan of 2000 reading the tea leaves of Clinton's peace policies. In fact, let's say that Bill Clinton explicitly states that as long as you are enlisted, I promise not to deploy you to any hot military zone. However, when the subsequent government is elected, that of George W. Bush, the argument that, but Bill Clinton disclaimed that part of my enlistment is not going to hold. Bill Clinton's administration may be the one who made promises or not, but it's any successor in interest or potential successor in interest who will call upon that contract esp. if the contract is for any term greater than 4 years.

Julian said...

I'm pretty sure any analogy that relies on an *explicit* contract is a whole lot worse than any of the others under discussion

JB said...

Why the explicit/implicit distinction is relevant, I don't know, I'm not given a basis for the distinction; so, I don't know how to respond. Unless, one can honestly say that the parties were unaware of what they were "agreeing to." Importantly, the you may get deployed into a combat zone part of the enlistment contract is probably implicit like the "whoops I'm pregnant situation." The "explicit" part is sign here and you'll get paid, and the have sex and you'll have a good time or feel emotionally cared for or whatever.

But, lets accept that a woman says "I really didn't know that having sex could result in pregnancy," but that's about as acceptable an answer as I didn't know that being enlisted meant I could actually being deployed. And probably about as common a complaint.

Anonymous said...

I think you breakdown the analogies rather creatively but I wish you would use your vast skills in economics to analyze the abortion issue for us. For example, you could consider the negative externalities of forcing poor, ignorant women to have babies. In China, they have a one child per family law because of overpopulation. I think this focus on killing an embryo or fetus or baby or blob or who's imposing what duty on whom has gotten use almost nowhere. It's time for Glen to muster up his courage or whatever he needs to tackle this issue from a purely socio-economic viewpoint. Take the world view and apply cost-benefit analysis or the Coarse theorem etc. to the abortion "dilemma"; help us truly understand...or go for a walk in the crisp night air and listen to Joe Cocker!

Glen Whitman said...

JB, I'm still not seeing it. Even if the third-party beneficiary is the marginal citizen who could have been drafted otherwise, it's still the government that's an actual party to the contract and is calling on the soldier to fulfill his part.

As for the notion that a soldier might enlist in the belief that Clinton won't start a war, and then be surprised when W does: this doesn't matter if the terms of the contract specify that the soldier must fight regardless of the president (which assuredly they do). If the army actually included a clause specifying Clintonian foreign policy in the contract, then the soldier would have legitimate grounds for complaint -- but no such clause is included, to my knowledge.

And the distinction between implicit and explicit is *extremely* important. The thing about implicit contracts is that they can be explicitly waived. When I buy a service, there's an implicit guarantee that I won't be harmed in the normal course of things. But I can waive that guarantee, such as people do when they go parasailing or bungee-jumping. So if you're claiming a woman, by having sex, is entering a contract with a man to carry a child to term if she becomes pregnant, the woman can explicitly refuse that term, and the man can explicitly waive it. On what grounds can you say that two people have formed a contract with each other when *both* those people deny having done so?

JB said...

JB, I'm still not seeing it. Even if the third-party beneficiary is the marginal citizen who could have been drafted otherwise, it's still the government that's an actual party to the contract and is calling on the soldier to fulfill his part.

But, here's the thing, ordinarily a breach of contract is not a criminal matter correct? In fact, a breach of contract is pretty much never criminal. Even if the breach is with a governmental entity. If Contractor Bill breaches his contract with the DOD, he'll get sued sure, but he won't get thrown in the brig. The enlistment contract then is something different, something like abortion that is pretty unique. The act of enlisting takes you out of the ordinary contract realm, and places you into a situation where breach is criminal.

That is like the situation that under pre-Roe v. Wade most states were like in this country, and why? Because the act of sex is not a normal situation it's not the normal contract agreement. So, like enlistment breach introduces the criminal aspect to it once one engages the act. That's one way the analogies are similar.

So we see here the sovereign acts not as contracting party and sues in civil court, but instead acts as prosecutor and seeks criminal penalties. Now, one can argues that the enlistee explicitly agreed to the accept the UCMJ.

But even that is a special circumstance of the enlistment contract. One could not contract with MBNA to go to debtor's prison if they fail to make their credit card payments no? Heck, Contractor Bill could not contract with the government to be sent to jail for failure to complete his painting of offices 201-401 of the Pentagon could he? I think not. That aspect of the contract would normally be unenforceable. But because it's the interests are so pronounced, desertion is something else, it is...a crime. Like abortion was. After all, one can't contract around the laws of the state.

Look, I thought the idea was to come up with an analogy that reasonably fits the abortion context. The enlisting soldier I think is far better than most precisely because the nature of the three interests are introduced soldier/woman, Army/Man, marginal draftee/Child introducing the Govt/State's interest. It reflects the self-introduced risk that the soldier/woman placed themself into. It reflects the fact that the contract itself is one that provides benefits normally but high risk and possibly undesirable risk in extraordinary circumstances. It reflects the fact that once the contract is entered into...someone else is the chief beneficiary, the potential draftee/child. The fact that some arrangements cannot be explicitly waived.

Additionally as to the explicit/implicit issue, routinely states limit the ability of parties to waive implicit warranties through explicit acts, try waiving almost any implied warranty and you had better say the literal magic words, and in some states no magic words will waive the implicit provisions. In those situations any expression can not waive the implicit obligation. So it is like those contracting to have "sex," explicitly contracting around something cannot waive the implicit obligations. Could we really accept the idea of an administration explicitly providing in an enlistment contract that the contract is only valid so long as that party is in the White House? Of course not. The soldier might have grounds to complain if the different party administration sought to enforce the rest of the contract, or the shopkeeper in the previous scenario, but that and $.35 will buy you a phone call.

Remember, the government does not compel performance from the deserter or seek damages, the government jails them.

And unless we think the terms of the sex act are not explicit, than having an explicit agreement as analogy may be poor, but I'd say the terms of the sex act are about as explicit as you'd get. Have sex...possibly have a good feel emotionally cared for, whatever, risk getting pregnant.

All in all Glen, I guess the situation your analogies lack, is the one where the actor signs up for the non-disclaimable risks associated with the act. Easier said, perhaps your B & B analogy would be better improved by having the innkeeper merely charge a high price as opposed to the No Vacancy when contraceptives are used. And that the consideration is not between the fetus and the mother, but instead is between nature and the mother. Maybe, the fetus did not provide the pleasure or gain itself, but the potentiality of the child did.

Much like the government desires enlistments not for (most of the time at least) fighting war itself, but protecting for the potentiality of war. Of course the ongoing war scenario is like one where someone obtains in vitro fertilization ;-).

JB said...

So if you're claiming a woman, by having sex, is entering a contract with a man to carry a child to term if she becomes pregnant, the woman can explicitly refuse that term, and the man can explicitly waive it. On what grounds can you say that two people have formed a contract with each other when *both* those people deny having done so?

Even this case is pretty easy to resolve, the mere disownment of a contract does not negate the fact that one is present. Imagine a judgment proof tortfeasor (the man) injures you as your minding your own business, fortunately this judgment proof individual has renter's insurance(the womb). It may be in both parties interest to disavow any contract..."0h my policy didn't provide for liability insurance so you're SOL, even if it did." The JP debtor doesn't really care if you sue him, he's up to his neck in debt and filing for BK next week anyway (have to beat the BK bill), and the insurance Co (the woman) sure as heck doesn't want to pay. So both say the contract doesn't exist. Doesn't mean a court would laugh at both of them. And award you a judgment from the ins. co.

Glen Whitman said...

JB, you're confusing the analogy in two ways. First, you're bringing in a tort (which I addressed separately). Second, you're talking about people disclaiming a contract *after the fact*. But I was pointing out that people can disclaim a contract *before the fact*, thereby causing the contract never to exist in the first place.

JB said...

I don't think I'm confusing the analogy at all. I'm merely pointing out that statements after the fact can't negate a contract especially in the case where a third party is involved. I use the tort to show the inequity in allowing two parties to disclaim their contract after the fact where there is 3rd party reliance.

I recognize that in your scenario that the woman disclaims the contract "before" the fact, but this is about as relevant in my mind as the person who walks up to the recruiter "I will not serve in a war zone." To which the Recruiter responds "sure thing." Then signing the enlistment contract, that is either silent to the issue or says the opposite. The terms of the contract are not changed by the party or parties mere expression before the act is engaged.

Or, as we've all been told, Actions speak louder than words.

The parties lack the authority to negotiate the terms of the contract. Or at least the risk elements (the recruiter can probably promise a bigger bonus or something (I'll love you more or something) but can't disclaim the risk of deployment).

In order to disclaim "before the fact," the actual terms of the contract must change. I do not see that as possible in the sex act. The terms are set, it is an adhesion contract if you will.

One can certainly minimize their exposure to the risks of pregnancy; but that doesn't change the terms that if the risk materializes one is duty bound.

Anonymous said...

Consider The Programming Scenario:

Two programmers, a male and a female, collaborate in the creation of a complex computer program -- the planned design-to-completion time is (you guessed it) nine months. The male programmer's contribution to the completed program, due to time constraints caused by another project, is limited to one night of intensive collaboration (program design) with the female programmer. The next morning, the female programmer is left with the nine-month task of producing a working program. After several months of painful, round-the-clock programming the female programmer has decided that the end product of her work will not be worth the time and labor she is putting into it. Since there is no customer for the program and no other outside interests, the programming project is aborted.

If the program was completed successfully, it would be the sole property of the programmer. If the project is aborted the incomplete program is also the property of the programmer.

In case anyone balks at equating a baby with a "product" consider the manufacturing process that takes place in the womb. Does "product of conception" ring a bell?

Whymrhymer
(http://whymrhymer101.blogspot.com)

Ben said...

JB your analogy fails because saying that getting pregnant because of sex puts you in a contract in which you have to deliver a child is as arbitrary as say... declaring that next time you go out in the forest puts you into a contract where if you encounter a carnivorous animal you should let him eat you. The act of going in the forest brings the risk of an encounter with carnivorous animal. There is no rational reason why you would be made to forfeit your right to defend yourself to the benefit of a starving (baby) bear. There aren’t any more reason to forfeit your right to defend against the side effect of sex than to forfeit your right to defend yourself against the (baby) bear just because “hey you knew it could happen in the forest!”.

The sole reason for the government to enlist you is for you to go on missions if needed. People who go in the military are aware of that.

Most of the time, the point of sex isn't to deliver a child if so needed, but simply enjoyment. People are also aware of that. Your metaphor requires we assume that the sole reason of sex is to deliver a child. An assumption I am not willing to accept.

There is no reason to think that the implicit contract is that you carry the child till birth than there is a reason to think that the implicit contract is the requirement for abortion in the case where a party was clearly not doing this for procreation. In fact, using your flawed rational, I could use your metaphor to promote government control of the rights of men to avoid procreation. I could argue that a woman should be forced to have an abortion because “hey she knew of the possible side effect of sex and can’t force a man to release his valuable genes to the world. It’s a contract!”

JB said...

In society's current set of "fundamental values" I readily concede that my enlisted soldier analogy fails. Perhaps I should make that more clear. Where pregnancy is viewed as a side effect of sex, like vomiting is viewed as a side effect of one's prescription, than yes my analogy fails.

But that's the point isn't it? The analogy of the enlisted soldier is an analogy that represents the opinion of those who do not view pregnancy as a "side effect." For the self-aware human being and for at least 10,000 years of human history pregnancy was the primary effect of sex. The pleasure the enjoyment, that was the side effect. That doesn't mean that one always wanted to get pregnant when having sex or that one always did...much like our fictional enlisted soldier.

But look, in a lot of ways, abortion is a proxy for a lot of other fundamental assumptions. My whole point in introducing the enlisted soldier was to show, that with different fundamental assumptions the enlisted soldier analogy works well.

Glen's analogies like yours Ben, mostly rely on the fundamental assumptions that pregnancy is an unintended side effect of sex. A fundamental assumption I and many others do not share. Instead, pregnancy is the intended effect of sex. Whether one proclaims it or not or disavows such an intended effect all nature speaks to that intended effect.

Look, I think you're so close to at least understanding (not agreeing) what I'm saying. You basically admit it in saying:

The sole reason for the government to enlist you is for you to go on missions if needed. People who go in the military are aware of that.

Most of the time, the point of sex isn't to deliver a child if so needed, but simply enjoyment. People are also aware of that. Your metaphor requires we assume that the sole reason of sex is to deliver a child. An assumption I am not willing to accept.
I will come back and say this...the primary reason that nature or God, (if you prefer a. evolution or b. creation either is fine) made sex as pleasurable as it is, is for you to procreate and a. pass on your genes/b. fulfill various commands in various religions to fill the Earth with offspring. People who have sex are aware of that.

I will note that my analogy does not require it to be the sole reason people have sex, but it does assume it to be the primary one. A non-negotiable primary one.

I do not ask you to accept my primary assumptions, as a result, you will fundamentally disagree with my analogy, and that is totally fine, but if you did assume into evidence my primary assumption, you'd see the analogy fits, and that...is the point. Much as others have shown different analogies starting with different fundamental assumptions.

Glen-fetus is a legally relevant life whose incidence was accidental

Jacquilene-the fetus may be an innocent actor as far as intent, but is guilty as far as action and thus self-defense is always acceptable.

wrathius-fetus is an unexpected dependent asking for temporary assisstance until it can exist on its own

Whymrhymer-at least until birth the fetus is effectively the complete property of the mother (I guess there is a manumission at birth).

I apologize in that I guess I have done a poor job explaining both my analogy and the position. Hopefully though, it is of some use. I have no problem arguing whether a fundamental assumption is valid or not. That is for society to decide (I'd say through the legislature others desire the courts.), but so much of law is...what are our fundamental assumptions and fundamental expectation in and surrounding certain acts.

Anonymous said...

Until you've performed an abortion for MONEY you don't know what FUN you've been missing out on! I object vehemently to the MONOPOLY that M.D.s have on the procedure. Why not have abortion schools just like cosmetology schools? I bet that JB would be just as accomplist an abortionist as he is a blogger. The high cost of abortions is the real problem. I tired of seeing my medical insurance rates going up on account of those money-hungry hospitals, doctors, and HMOs. Somebody needs to demystify the abortion procedure for us. Sucking an attached fetus out of the womb is no big deal even JB could do it without qualms--if the PRICE is right!

Ben said...

JB, all the other analogies presented in this post were tools to help argue weather abortion is acceptable or not. Your analogy makes the presupposition that abortion is unacceptable on the ground that sex is meant solely for procreation and therefore there is an implicit natural contract based on creation. Then it further extrapolates this implicit contract to equate women with an enlisted solder and which makes women who abort pregnancy equivalent to a deserting solder.

Your analogy, serves no purpose but to demonize women who abort by comparing them to an icon of appalling behaviour: the deserting solder. Your analogy brings almost no useful philosophical argument to the debate about weather abortion is acceptable or not. It is an emotional argument that is offensive to women who had abortion and could easily be used to show how one could (or should) have contempt for these women.

Your analogy shouldn’t be grouped with the others because it is the step that follows the first debate. Only when we have determined that abortion is bad, will your analogy serve the purpose of arguing the details of its badness. It could help argue that even if the women tries hard not to get pregnant once they are pregnant it doesn’t indemnify their decision to abort and maybe argue how society should put strict punishment on abortion not unlike the deserting soldier would be punished.

Your analogy is rhetorical and you are not much different than someone asking a rhetorical question like: “Why is President Bush a war criminal?”. The suggestion that we wouldn’t see past the hidden assumption is insulting our intellect and irritating me. At the very least you should have pointed out clearly that your metaphor presupposes that abortion is bad and is only meant to discuss how bad it is while humiliating aborted women.

Chris said...

I am pro life and do not want to broach the general concept of abortion; however, I do have a specific question.

Can an analogy with any sort of validity be addressed in regards to late term Partial Birth?

After the decision in Roe, the courts ruled that, post-viability, the state has the right to balance the interests involved including the health (life) of the child. I interpret this to mean that if and ONLY IF the life of the women is endangered by caring to full term may the abortion take place.

California has decided that this "balance" of mother v. child rights should include the mother's "mental health". Under wait circumstances should the mental health of the mother outweigh the life of the fetus? The forecasted health of the child is irrelevant; furthermore, a viable fetus is treated (Post Roe) as a human being. This interpretation, regarding the insertion of women's mental health into the equation, has allowed doctors to circumvent the true balance of interest by getting a Psychologist’s diagnosis. Some doctors are timid to such proceedings due to potential scrutiny.

Since a late term (I refer to after the 7th month or so) abortion would entail removing a dead fetus from the womb, I don't understand how such an abortion would save the life of the mother. Essentially, we are saying that removing a dead fetus, at near full size, may save the life of the mother.

It seems as though the only logical, although unreasonable, instance in which late term partial birth abortion could be performed is for the "mental" wellbeing of the mother.

I will adjust my inquiry accordingly: How could an analogy convey a women's right to cancel a child's life late term on the grounds that it could reasonably damage her mental/emotional health?

bob said...

Way back at the beginning of this, the proposal was made that all analogies fail for this subject.

JB has expended a lot of effort to defend his proposal that the "enlisted soldier" analogy is in fact valid.

Students of logic will recall that ALL analogies are false. They are rhetorical devices whose purpose is to illuminate complex or unfamiliar topics by comparing them to more familiar situations. They are NOT in any way rigorous mappings of the familiar situation onto the unfamiliar or complex one.

Any time you have to spend more than about a paragraph explaining why an analogy is relevant, it is likely that it it is not relevant (at least to the folks you have to "explain" it to). When you try to get into the details of the analogy, you are already defeating its purpose (illumination).

Let me, however, mention one detail about the enlistee analogy that is clearly deficient. Sorry if somebody else already pointed it out; I just couldn't read everything.

When you enlist in the armed forces, you SIGN A CONTRACT, and then you TAKE AN OATH. I do not believe that most people do this before having sex.

bob said...

This is a response to Chris, who asked for an analogy that would support late-term abortion. I don't have one, although that doesn't mean there can't be reasons for some late term abortions. Analogies are not reasoning, they are tools for visualization. However, absent analogy, here are some thoughts:

I think that a large fraction of "pro-choice" folks (those people who support the right of a woman to choose whether or not to carry an embryo to birth) have some serious qualms about late-term (post-viability) abortions. At some point in the pregnancy, it seems to me that there are clearly two entities involved. I happen not to believe that a blastula is an independent entity, but a 7 or 8 month fetus is a different story, and I think quite a lot of folks feel the same way.

Nevertheless, life can still get quite complicated. Chris says that the health of the fetus is irrelevant. However, what if it has no brain (a rare but actual condition)? It will die after birth -- what is the point of forcing the mother to carry it to term? There are other less colorful but still always-fatal conditions that can occur. They are rare, but usually cannot be unambiguously diagnosed until later in pregnancy. While I certainly understand that some women (perhaps Chris) would prefer to go through with delivery of a still-born, I can also understand that others might prefer not to.

Chris also suggests that California doctors are rushing to perform late-term abortions based on the mother's mental health, because there couldn't be any real threat to the woman's physical health. I don't think this last assumption is totally accurate. There are a number of ways in which a pregnancy carried to term could affect a woman's health. I don't have an exhaustive list, but a couple of possibilities are cases where the mother is so underweight, or so ill from other reasons that the stress of pregnancy might permanently affect her health. Another possibility would be a woman who has some form of, say, cancer that requires immediate and aggressive chemo or radiation therapy that will probably kill or damage the fetus.

Or, I could cite the case of my late wife, who had primary pulmonary hypertension, and for whom the strain of delivery finally sent her heart into the downward spiral that led to her death a year later.

Now, to be completely clear, we found out about the PPH AFTER she had our boy, and she probably would have gone through with it anyhow (that would have been HER choice).

However, suppose that medical science suddenly was able to say to a future pregnant woman "You have PPH and you will die if you go through childbirth", when she is 7 months pregnant. What do you think her options should be?

I am not suggesting that late-term abortion is a lovable idea. But when I say that there are two entities involved, ONE of those is the mother, who is a fully-formed human being with existing emotional ties to a variety of other human beings. In a situation where the choice is that only one of the two can survive, I don't think the state should make the decision.

Now, on to "mental health". No analogies. Instead, a hypothetical (but not impossible)scenario: A woman becomes pregnant as a result of being raped. She wanted to abort at a much earlier stage (immediately), but was prevented -- maybe by her parents, maybe she lived in South Dakota, who knows -- and has now reached a jurisdiction where the possibility exists, but she is in the seventh month. Her physical ability to deliver is unquestioned, but her mental state is extremely fragile.

Should she be required to give birth to her rapist's child?

Chris said...

Bob, I apologize for my abrupt objective stance on the subject in which your wife had a legitimate choose (I also apologize for your loss). Essentially, modern technology allows us to accurately balance the interest between the mother’s health and that of the yet-to-be-born child. I am in full agreement that when the life of a mother is threatened from carrying the baby to term, the mother should have the right to choose.

In my analysis, I am approaching the issue with a suspect eye insomuch as I see the possibility for the laws to help a selfish woman circumvent a pregnancy. I believe that a rule implemented to the extreme left will allow such a situation; whereas, a rule implemented to the extreme right may affect the rights of women with a justifiable right to have an abortion. I believe we must find a common ground; consequently, not recognizing the fetus as civilly important until a date of viability is not said equilibrium.

When I discussed the California doctor’s ability to perform PB abortions based on the mother’s mental health, I did not exclude the possibility that there are cases in which there exists an interrelated detriment between the physical and mental health of the woman. Once again, I am stating that it is possible (in CA) to perform an abortion at a late term in the pregnancy in which there are no foreseeable physical drawbacks (in light of progressed technology). I believe, in this case, that a solely the mother’s mental health is not of significant interest as opposed to the assumed fully-functioning child. The statute implemented in CA is of the extreme left nature; thus, I see a distinct possibility for such occurrences to arise.

I dissent, in part, and agree, in part, with your hypothetical situation presented about the girl that has faced an undue barrier (via rape + parents) to having an abortion until the later stages of pregnancy. Although I am a large believer in God’s big plan (we need not digress onto the topic of religion), I find it reasonable that a rape victim’s emotional stress from such an occurrence is a sufficient grounds to have a significant interest in the abortion civil rights equation. I understand that the whole entire process is emotionally crippling to the young woman; however, what is the essential difference in emotional stress purported through an inhuman late term abortion versus a non-life-threatening pregnancy after which she has the opportunity to bless a family (through adoption) that cannot bear children. I have not been raped or pregnant (and do not have the genetic makeup for this combination); but I find it more emotionally fulfilling, in the long term, to shed light on a traumatic experience and let God shine through sin than to kill the child and have dwell on the occurrence emotionally. Once again, I am not a woman and I do agree that women do have a significantly weighted right to choose in this situation. I merely question that a woman making such a decision truly understands the long term implications of such a decision.

I appreciate your comments Bob; feel free to respond to my clarifications and dissents regarding your post.

Chris said...
This comment has been removed by a blog administrator.
Anonymous said...

This is kinda late to the game, but what the hey.

In regard to the explicit vs. implicit contract, I think the soldier analogy still works. See parasailing: I can explicitly disclaim any responsibility for the consequences ahead of time, but no disclaimer can protect me from actually getting hurt in the act of parasailing, because the act is not subject to negotiation - it's separate.

The enlistment contract (at least for a prospective volunteer) is essentially immutable in the same way. Enlistees as far as I know can't cross out lines in their own contracts, or reword their own oaths according to what they desire or are willing to risk. They can try to sign up as above in anticipation of peaceful times, or with the knowledge that their own personal skills will keep them off of the front line, but everyone signs the same contract.

It's one of the characteristics that make enlistment sui generis in the world of contracts in general, and it's also one of the characteristics that makes it more closely analogous to sex than other potentional analogies.

The only big difference that I see here is that it requires only a single individual to enlist, whereas it takes a male and a female to "enlist" in the sexual reproductive contract. Biology provides negligible consequences for males in sex, and passes pretty much all of it on to the female involved.

Such a one-sided contract provides a rather lot of incentive to the male gender to "enlist" as frequently as possible. Most societies attempt to correct this with laws prohibiting rape, and, to a lesser extent, punishing male "enlistees" who "desert", as it were.

That's all I have (if anyone's listening).

Anonymous said...

I disagree with JB's statement:

"For the self-aware human being and for at least 10,000 years of human history pregnancy was the primary effect of sex. The pleasure the enjoyment, that was the side effect."

The primary effect of sex is to resolve the drive to copulate.

Regardless of whether enjoyment is experienced or pregnancy results, regardless of whether there is knowledge or expectation of either, there is a sexual drive that compels physical behavior.

Silver Surfer said...

The baby in the womb is a person regardless of how that baby got there.

A baby born through rape carries none of the civil guilt attached to anti-rape legislation. The baby is not an accomplice to the act.

Therefore, the baby should not be murdered for being in the wrong place at the wrong time. Let us show respect and mercy for the innocent.

For those who argue that the baby could be a danger to the mother's health one would wonder to which degree. Recently we have seen where a mother delivered 8 babies and survives without problems.

It appears that childbirth is a natural course for women.

The baby is not consciously committing a crime against its mother and therefore is not the party of a guilt worthy of being put to death which includes a sentence without a trial.

The baby finds itself an innocent victim in a perilous position. It is very unjust to help a non co-operating mother who refuses to render aid.

Hunter said...

All angles and analogy?! That sounds absurd to me - the issue on abortion is not entirely about morality rather it is a web of highly inter-related factors that requires more than a sound mind to decide on. Options must be drawn from a variety of things and it should be.

Lucyfur said...

Wow, this thread makes me want to carve my ovaries out with a grapefruit spoon.