Category Archives: Rights of the Fetus

The Nature Of Rights And The Alleged Conflict In Rights Between The Fetus And The Mother Carrying It

If You Hold That The Fetus Is A Person, You Must Decide Whose Rights Trumps Whose

A right can be thought of as like armor:  it protects the person who has that right.

By ‘fetus’ I will mean, principally, the just-fertilized egg and the fetus as it exists one day after.

It is also in the nature of a right that it trumps another interest or even another right. Something is a right BECAUSE it trumps another interest or right.  A right is always a right against the background of some interest or other right that it overrides.  Although I am not always a fan of ‘it would be odd to say x‘ type arguments, there is something just a little bit on the strange side, after all, to say something like ‘I have a right to touch the walls inside my apartment at any time,’ without there being something against which I assert that right — for example, some bizarre religious proscription against touching the walls of one’s domicile before 10:00 in the morning that some sect has an interest in trying to impose upon us all.

Here are some examples.  The first few of these should be, I think, plain to all.

A) If a smoker is poisoning my airspace, I will tell them ‘your rights end where my lungs begin.’  My right to breath and not get cancer or emphysema trumps their right to damage their own lungs.

B) If a woman is carrying a baby with Down’s Syndrome, her right to control her own body trumps any interest the state may have in not having to expend resources dealing with people with Down’s Syndrome. The state cannot justifiably force the woman to have an abortion. Her right to control her own body trumps the state’s interest in preventing the birth of another baby with Down’s Syndrome.

C) Likewise, Morgenstern’s right to life and his right to self-defense trumps Smith’s right to life should Smith attempt to murder Morgenstern. Morgenstern can, in certain circumstances, justifiably kill Smith to preserve his own life.

(Nota bene:  for this reason, the mother is within her rights to abort a fetus which is threatening her life.  But, of course, this reason applies only to the case in which carrying the fetus puts the mother’s life in danger.)

D) Again, If Jones wakes up in the hospital and finds that, without her consent, a famous musician has been hooked up to her circulatory system in order to preserve his life, Jones’ right to control her own body would trump the musician’s right to life. Jones would be perfectly justified in having the musician removed from her circulatory system if she so desired, resulting in the end of his life.

(Nota bene:  for this reason, the mother is within her rights to abort a fetus that was the product of a rape. But, of course, this reason applies only to the rape case.)

I do not think that the fetus is a person. But I also think one may be able to construct a plausible argument that the fact that the fetus is in development and on the way towards becoming a person with duties and rights and interacting with other members of a community suffices to make it a person, and therefore an entity with a right to life. In that case there would be a conflict between this unnamed person’s right to life and the woman’s right to control her own body.

If the fetus is not a person, then there is no conflict of rights, since the fetus does not have rights that would conflict with the woman’s.  But for the sake of argument, let us suppose for a moment that the fetus is a person with rights.  Since this (alleged) person is likely not to have a name (one sign by the way that an entity is a person), I will refer to is as an unnamed fetal person.

Whose rights, then, should trump whose?  Clearly, the woman’s right to control her own body would trump the unnamed fetal person’s right to life in the case of the fetal-person’s putting the woman’s life in danger, or in the case in which the woman was raped (see above). But what about the more normal case in which the woman does not want to carry the unnamed fetal person to term — say, she is financially or emotionally unprepared to care for a child? If the aforementioned examples are any guide, one right would have to trump the other right.  Either the fetal person’s right to life would trump the woman’s right to control her own body, or the latter right would trump the former.  How would we decide?

If we say that the unnamed fetal person’s right to life overrides the mother’s right to control her own body, we would be faced with a certain awkward consequence.  For killing the unnamed fetal person would, id we are to genuinely regard it as a person, would have incur essentially the same penalties (given the same relevant circumstances — the killing was a blameless accident, was accidental but reckless, was done in the heat of the moment, was done after much pondering, planning, and reflection, that is to say, in cold blood).  If the penalty for killing a person after much pondering, planning, and reflection, that is to say, in cold blood, is, say, death by  hanging in a particular state, say, South Carolina, then the woman who aborts the fetus she is carrying must suffer — at least approximately — the same penalty.  Doubtlessly trials are as stochastic as most other things, so that different trials may result in different punishments.  But any consistently large difference (the woman gets one month for aborting the fetus, the murderer of an adult gets hanged) would be a clear indication that the law was not truly regarding the fetus as a person deserving the equal protection of its natural rights as any other person, and therefore does not really regard the fetus as a person at all.

And certainly in the case of the just-fertilized egg, at least, it is difficult for anyone to regard this entity as a person.  Insisting that the just-fertilized egg be given a name, or baptized, or given a funeral should it die, is, after all, a bit strange.  That (generally) we do not engage in these particular practices is evidence that we do not (generally) regard the just-fertilized egg as a person.

To put the matter a bit colorfully, if the right to life of the unnamed fetal person were to trump the woman’s right to control her body, the highways and byways of South Carolina would need to be lined with the corpses of hanged women.  Since this is a rather unpalatable prospect, we may be inclined to have the right of the woman to control her own body trump the right of the unnamed fetal person to life.

I have experienced right-to-lifers throw quite a bit of dust in my eyes, and doubtlessly in their own eyes as well, in an attempt to avoid facing what must follow, both logically and morally, if the unnamed fetal person is to be truly regarded as a person whose rights merit a degree of protection equal any other person’s.  A right-wing lawyer may point out that this or that legal technicality would make it unlikely this particular beautification plan of South Carolina’s highways and byways would ever actually occur.  It is a question of standing, he might say.  He will try to intimidate one by attempting to claim that I am venturing on his home turf without his 40-years of experience in the legal field.  But I am talking about natural rights and moral obligations here, not legal technicalities.  The  alleged legal technicalities standing in the way of South Carolina’s beautification program would not remove the fact that one who genuinely believes the unnamed fetus is a person would be obligated morally and logically to try to remove whatever legal obstacles stood in the way.  Otherwise, they would not genuinely regard the unnamed fetus as a person, something that is, as we have just seen, genuinely difficult to do at the earliest stages of the fetus’ development.

The right-wing lawyer may also point out that the law does of course allow for different penalties in different cases — manslaughter vs. murder in cold blood, and so on.  Showing why this point is irrelevant to the argument I am making I will leave as an exercise for the reader.

A certain right-wing lawyer maintains that in this more normal case the conflict in rights should be resolved through a kind of “compromise.”

While ultimately I would conclude that the right of the unborn to life trumps the woman’s right in this case, the fact that there is a conflict of rights allows for a disparity of treatment between the woman and the person hiring the hit man. Thus, my conclusion as to the intent of the legislature who adopted that sort of law which outlawed abortion but did not punish the woman, would not be that they valued unborn life less, but that there was a counter right which, while it could not trump the right to life, could still affect how we treat those who caught in a situation of an unwanted pregnancy.

Right A trumps right B in the sense that the woman no longer has the right to control her own body.  But in the process of “resolving” the conflict of rights this way, right A becomes drastically attenuated.  The protection it affords — the thickness of the armor — has become drastically attenuated.  Some protection for fetuses in general perhaps, but obviously none that this particular fetus will receive.  But why do this?  The mere fact there is a conflict of rights won’t suffice, because in the cases A through D listed above of conflicts of rights one right trumps the other without in any way affording less protection.  One has to look elsewhere for a reason, and I think what this reason is is rather plain — this particular right-wing lawyer does not genuinely believe that the fetus is a person.

But one has to ask why make this dubious sort of “compromise” in the case of abortion but not in the other cases of conflict of rights listed above?  The mere fact there is a conflict won’t do it.

The woman undergoing the abortion does not get the same penalty she would get if she had hired a hit man to kill her husband, even though in both cases the right to life of a person has been arguably violated in cold blood. Instead, she gets, say, just one month in prison. But this way of “resolving” the conflict in rights is a bit strange, since BOTH rights have been violated. The unnamed fetal person is still dead in spite of its (postulated for the sake of argument) right to life. The woman still does not have control over her own body.

However, this “resolution” does have a striking advantage if one is right-winger concerned with maintaining the position of males at the top of the hierarchy:  it lets the state strip women of their right to control their own bodies, at the same time relieving the state of the duty to impose on the woman the same penalties that would be applied to the violation, under the same relevant circumstances, of any other person’s right to life.  But however attractive this “resolution” may be to those wishing to keep women in their “correct” place in the hierarchy, it is by no means a resolution of conflicting rights.  Clearly, to negate both rights is not a resolution.

Since it is in the nature of a right to trump another interest or right, I think it is more plausible to hold that either the unnamed fetal person’s right to life trumps the woman’s right to control her own body (in which case there would be a moral case for giving the woman the same penalty she would get had she hired a hit man, with interesting consequences for the beautification plans for the highways and byways of South Carolina), or the woman’s right to control her own body trumps the unnamed fetal person’s right to life. This is an either or situation. One right trumps another. “Resolution” by way of “compromise” is nonsense.

If You Don’t Hold That The Fetus Is A Person, You Don’t Face The Problem Of Deciding Whose Rights Trumps Whose

Of course, this problem does not arise if one holds that the fetus, lacking duties and responsibilities, also lacks rights and is therefore not a person.

Update October 16, 2018:  Made some changes to tighten the argument.

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