Month: February 2008

Plato and I had a discussion on Monday at dinner on abortion and I made a podcast where I talked about it. I received an email further carrying out our debate and have posted it below to get other feedback. What do you guys think?

NOTICE: This represents an attempt to justify abortion from a purely societal standpoint and does not address the possibility of a higher morality or God which would by necessity change the entire nature of this discussion.

PLATO:

Hey, I was just thinking about the conversation we were having at Ian’s the other night about abortion, killing the elderly and such, and I think I figured out why I support abortion, but am not a fan of killing 3-year-olds. What it comes down to is that I think you are right that society does have an interest in new members being brought into the world, after all the people who are old now would probably have done things differently if they didn’t think there would be more young people to take care of them when they get old. However, I don’t believe that society’s interest in new members overrides the individuals choice to have a child or not. I don’t think society should be able to force a woman to carry a kid to term. Once a woman has chosen to do so, however, she has produced a new potential societal member, and if she doesn’t want to care for it, or can’t care for it, society would be better off by taking the child’s care on itself than allowing the parents to end the child’s life. The parents cannot complain about being denied their right to end the child’s life in the same way they could complain about being forced to have the child in the first place because the rights are respectively positive and negative rights. I believe that negative rights(the right to not have to do something) generally supersede positive rights (the right to get to do something). This especially in the light of the fact that theoretically what the parents want in being able to kill the child is the right not to have to care for it, which they would obtain equally when society takes the child away and rears it apart from the mother. In short society can’t say “You have to produce us a new member” but it can say “You can’t take away a member that can survive without you.”

So for me I suppose the age at which abortion should not be allowed would be when the fetus is viable outside the womb, and when I say viable I mean would be more likely than not to grow up and lead a relatively normal and productive right. (Society has no interest in ensuring the survival of something that will be so fundamentally underdeveloped that it cannot possibly contribute.)

Now I know this could potentially mean that everyone would be having children and saying “Nope changed my mind, society take care of this for me.” While I doubt this would be the case based on the vast majority of the population wanting to have their own children and raising them, I think society would be better off creating a new mechanism for raising those children, group homes and such, than it would be by discarding them. Personally I doubt that the number of people that would get rid of their children would rise greatly from the number that we already experience, and as such the system already in place of group homes, foster care, and adoption, flawed though it is, would probably suffice to handle those children that were abandoned. This problem could be greatly alleviated, however, by requiring prospective parents to care for any offspring they produce until the children reach a certain age, 18 seems to work, unless of course the parents die/lose their minds, whatever. Such a regulation would simply place more weight on the parents choice to have a child in the first place, and would not be altogether different from child care laws we already have in place.

So there you go. My rationale for why we shouldn’t kill the elderly and why abortion should be legal until the age of viability.

JOEL:

Interesting argument- mind if I/you post it as a comment underneath of my abortion blog/video? (under plato of course)

I think that viability is not a good legal standard for determining when a child should be aborted. What are you going to do in 30 years when a child is viable outside of the womb all the way from insemination? What happens when we no longer need a womb to raise children? Do those children become human at the moment of insemination or do they never become human because they are the property of corporations?

Also, your theory on negative rights (not doing something) superseding positive rights (the right to do) has holes. What about the good/bad samaritan situations… A man is standing next to a pool with a drowning man begging him for a life preserver. He turns and walks away and the man dies. Is the man responsible for the drowning? Most laws say yes at least as far as negligence or manslaughter. Under your scenario, the man would have the legal defense of negative rights superseding positive rights.

It seems inherently silly to me to say that someone’s right not to do something always is more important than even another human being’s right to life. For another extreme case, consider if a man heard prior news that a deadly new virus was about to be released, but he chose to tell no one. A third of humanity was killed. Is that man guilty of no crime? I think that even you would say he should face murder trials. It is not in humanity or society’s best interests to follow that logic.

I like your societal contract far better than these two theories. Can you give me stronger defense?

PLATO RESPONSE:

If medical science progresses to the point where a fetus is viable as say 1 or 2 months, the time frame when a woman usually discovers she is pregnant I would say that the woman should still get the chance on learning of her pregnancy to decide if she wants to carry it out. Remember I was using viability as the point when society has some interest in the child, but I that interest does not override the woman’s right to choice. I set my term of viability to match the point when the fetus might theoretically be born pre-maturally and survive and thrive. Of course medical technology continues to advance so I will concede that if a fetus could be removed from a woman at an earlier point than has previously been feasible, without causing the woman significantly more discomfort than she would experience in an abortion, then society might be well justified in requiring that procedure instead. Of course society would have to run a balancing test, if it were phenomenally expensive to gestate a fetus removed at 6 weeks, society would probably not want to maintain such a fetus. (Unless of course everyone was having abortions and it looked like few or no new people would be born, which I expect would be unlikely.)

If it comes to the point that humans can be grown without the necessity of the womb at all, then society will have no claim whatsoever to tell a woman she can’t have an abortion when she gets pregnant because society no longer requires the participation of its members in creating new members. Society’s interest in the fetus would be negligible, because it could be readily and easily replaced. I know you might reply to this, “Wouldn’t all of society’s members then be replaceable?” I would reply that no they are not. As I noted before under this social contract theory, a fetus is only a potential member of society, as such they are not entitled to the rights and protections of actual societal members. Fetus A is the same to society as Fetus B provided there are no identifiable health conditions present in either. However, once you have a societal member the so-called social contract is in place, and society agrees to defend the individual because the individual contributes to society. This is like the example of businesses I gave you before, a corporation doesn’t have any duty to a prospective business partner, but once a partnership is formed a business has the duty to fulfill the contract it agreed to.

As to your example of corporations growing humans, I would say again what you have is a question of choice. I personally have no compunction against stem cell research, and if a company were growing a fetus simply to harvest stem cells I see no issue raised herein, because such a fetus was never intended to grow to fruition, society is not losing a potential member. If the company couldn’t grow the fetus for the stem cells it would never have grown it in the first place, therefore society is not losing anything it would have had otherwise. This parallels the right women have to terminate an undesired pregnancy.

I’m glad you raised the question about negative rights versus positive rights. You’ll note that in my initial argument I used the word, generally, because as with almost everything, exceptions do apply. Also I want to point out that the hypotheticals you posed are not examples of negative versus positive rights, but are rather examples of negative rights versus positive duties.This is the difference between saying you can do something, and you have to do something. It is inherently different when I say a woman does not have the right to kill her 3 year old than it is to say a woman must run into a burning building to save her 3 year old.

As your friendly neighborhood law student, I’m happy to take this opportunity to provide a crash course on tort law that you may find depressing. It’s much simpler in law to tell people they cannot do something than it is to tell them they have to do something. Criminal law in particular consists almost entirely of restrictions on what individuals can do, and where it is a criminal offense to not do something it is almost always a result of a citizen undertaking some kind of responsibility. For example: you want to drive a car, you have to take a test do demonstrate you know how. If you never wanted to drive a car you’d never have to take that test. The law in the US, in general, does not place a duty on citizens to assist other citizens. “Good Samaritan” laws don’t usually do what people think they do, for the most part, they function to protect doctors who happen to be on the scene and do help. They don’t require bystanders to run into a burning building or face down a gun holding robber.

In situations where law does place a burden to help, it recognizes a balancing of interests. In the legal world this is called the “Reasonable Person” standard. And the reasonable person is not who you may think. The reasonable person is not the average guy on the street, but rather the person that considers and balances risks and takes the absolute safest course. You are never required to risk your own life to save another, so in your example about the guy drowning and you’re on a boat with a life preserver, the law would recognize that you have a duty to throw the life preserver, but you would not have a duty to dive in and try to pull him out. Likewise, while the man with foreknowledge of an impending epidemic has the duty to call somebody, he does not have the duty to wage a one man war Bruce Willis style to destroy the organization responsible for the virus.

Also, I would like to note that while the law recognizes a duty in these situations, the duty is only a civil law duty. This means that the family of the drowning man might have a claim against you for negligence and they could receive monetary damages from you, but the government would not have a criminal case against you unless you had actually pushed the guy in the water. Your assertion that this would be manslaughter is wrong. So to your apparently rhetorical question of “Is this man guilty of no crime?” the answer according to the criminal legal system in place is a resounding “Not guilty.” I would no more put such a man to death than I would every German that knew the holocaust was going on but did nothing. However distasteful you may find an individuals lack of action, doing nothing to prevent a tragedy is not the same thing as causing a tragedy to happen, such people have some civil liability, but not the same criminal liability that actual negative actors do.

This is particularly important in the abortion discussion because there is no one that would be in a position to raise a civil law claim on behalf of a fetus if its parents don’t wish to have it. If the government doesn’t make it a criminal offense to not save a life, and there is no one to make a civil claim, what is left to discourage abortion?

My point in this is that society acknowledges that while the random individual member has some duty to another member that duty is minimal. You should help someone if you can, but you don’t have to if so doing will put yourself in a bad position. You have to throw a man a life preserver if you have one, but you don’t have to fly to New Orleans, get a boat and go a rescuing, even if you have the money to do so, this for the reason that it is burdensome. We clearly all accept this based on the evidence that when we see a tragedy in the news we don’t do a damn thing. Based on this same logic I would say that society requiring a woman to carry a child to term when she doesn’t want to would be placing an enormous burden on her when the only interest at stake is a single potential societal member I discussed above. It would be different if a woman could carry a child to term by making a phone call, as is all we would require of the hypothetical man that is in position to save us all from the plague.

Also, a woman deciding not to have child is inherently different from someone choosing not to save half the world population based again on the social contract theory, as I noted above, society and its members have a duty, and a self-interest in protecting its members that by far supersedes its duty and self-interest in protecting potential members. The difference hinges on valuing the freedom of choice versus the cost of that choice, you can choose not to bring a new person in the world with barely any impact on society, but choosing to allow half the population to die has a massive impact on society. It is reasonable then for society to allow one but not the other.

As far as society’s self interest goes; take this hypothetical for example, a woman has decided she is going to have 1 child in her life, she gets pregnant at 20 has no education, job, or money. She decides to have an abortion, finishes school, gets a good job and at 30 has another child which she nurtures and raises. Isn’t society’s interest better served by having a new member brought into the world by someone that can and desires to care for the child, and will nurture it in such a way as to make it much more likely to be a productive societal member? Especially in a case like that where the woman would not have had more than one child no matter what?

In this way I hope you see that the theories I have proposed are an extension of my notion of the social contract, and based upon it and not on a separate arbitrary standard.

I know this has gone incredibly long and I’ve doubtless raised many more questions, but in order to fully describe my theory I would have to write a several hundred page dissertation.

You can post these if you want, though i haven’t looked at your podcast yet. I do ask that at the top you place a notice saying that this represents an attempt to justify abortion from a purely societal standpoint and does not address the possibility of a higher morality or God which would by necessity change the entire nature of this discussion. This is an attempt at logic in a vacuum, please don’t consider this an attack on whatever religious beliefs you may hold. And as always as anonymous as possible