Monday, June 12, 2006

Fetal Personhood by Backward Induction

A couple of weeks ago, I noted that analytical thinkers typically proceed from moral to political philosophy by asking the following two questions in order:
1. What beings (adults, children, fetuses, animals, aliens, etc.) are deserving of moral consideration? Call this the question of moral personhood.

2. What political rights, privileges, and powers should beings with moral personhood have? Call this the question of political status.
But in real-world political discussions, people seem to apply a kind of backward induction to these questions: they first ask what rights and privileges persons will be accorded in the political system, and then take that answer as given when deciding to whom they will grant the status of personhood (and to what extent).

In the earlier post, I applied the logic to immigration; now I’ll apply it to abortion. Intellectuals addressing the issue will typically start by asking whether a fetus constitutes a rights-bearing person. This question is treated as either prior to or independent of the question of what rights a person actually has. But I suspect that many people start by asking what political rights fetal personhood would imply if granted. The usual presumption is that if the fetus were a person, by virtue of that fact alone it would be entitled to shelter and sustenance inside the womb for a full term of pregnancy. This potential burden on the mother then influences how people answer the question of whether fetuses should be regarded as persons. As a result, pro-choicers spend a great deal of time insisting that a fetus is not human life in the relevant sense. If they grant fetuses moral personhood, they believe they’ll open the door to large burdens being placed on pregnant women.

But what if fetal personhood did not imply a legal entitlement to stay in the womb? What if, instead, the political system adopted the position of Judith Jarvis Thomson, who says even a rights-bearing person doesn’t have a right to continue living inside another person? (See here for my constitutional version of Thomson’s argument.) According to this position, a pregnant woman could use the minimum force necessary to remove an unwanted fetus from her body. Or, perhaps, she could be forced to carry it to term but would be paid compensation for doing so. Given this kind of answer to the question of fetuses’ political status, I suspect many people would be more receptive to the notion that fetuses do, in fact, possess moral personhood.

(I am not, by the way, endorsing Thomson’s entire position. Here’s my discussion of why every abortion analogy fails. Thomson’s position is pretty close to what I refer to as “The Unwelcome Houseguest.”)


Serge said...

Hi Glen,

There are many problems with the bodily autonomy argument of JJT. For example, if a mother is allowed to kill a human person as an unwanted house guest, is it also permissible for her to:

1. Take thalidomide for her intractable nausea? After all, the fetus has no right to a safe environment right?

2. Take accutane for her acne?

In these cases she may very well not cause the death of her offspring, but would almost certainly cause severe harm to her child. Is there any precedent in law that would allow one to kill a human person but would not allow one to harm the same?

Glen Whitman said...

Serge -- true, those are difficulties with JJT's approach, which are part of the reason I said (at the end of the post) that I didn't entirely endorse her position. All abortion analogies fail!

However, in answer to your question, "Is there any precedent in law that would allow one to kill a human person but would not allow one to harm the same?", I think the answer is YES. If someone invaded my home, I could repel him using deadly force, or I could detain him until the authorities arrived, but I could not torture him in the meantime.

OMF Serge said...

Thanks for the response Glen.

Your torture analogy is not quite accurate, but it is the best answer to the question that I have encountered. Unlike torture, a mother who takes thalidomide or accutane is not taking pleasure in the harm of her child, or even taking the drug in order to harm her child, but is taking the drug for some positive effect on her. Thalidomide was very effective in treating pregnancy nausea, and there has been no good replacement. The harm to the child is an unfortunate consequence. This differs greatly from torture.

There is also a significant difference in that you can kill the home invader only if he is an eminent threat to yourself or family (I'm a physician, not a lawyer, so please correct me on this if I'm wrong). The case of torture assumes that the invader is no longer a threat. Removing this important distinction, and thus making the scenarios appropriate, to me I don't see the law allowing the killing of a human person when harming the same is prohibited. If one is confronting a threat that poses a danger, they may either kill or harm the attacker (in fact, harming the invader would be considered better). If one is not facing a threat (say the invader is safely detained), one may neither kill or harm him. It is the threat of danger which makes the difference in this case.

Going back to abortion, this analogy seems to support the pro-life view. Abortion is permissible for a mother who faces an eminent threat to her life (say an ectopic pregnancy)by the presence of the fetus.