Permitting Abortion and Prohibiting Prenatal Harm

I think abortion should be allowed. And I think prenatal harm (especially that caused by ingesting various legal and illegal substances while pregnant) should not be allowed. Some accuse me of hypocrisy or, more accurately, maintaining a contradictory position: either women have the right to control what happens to their bodies or they don’t. No problem. Women, and men, have that right except when it causes harm to someone else: I can move my arms any way I want except straight into your face.

Ah, you may jump up and down, you said ‘someone else!’ So the fetus is a person! That’s why you’re saying prenatal harm is wrong! So that makes abortion wrong too! You can’t have it both ways!

Yes I can. The fetus can be a person and it may still be okay to abort. Killing in self-defence is permissible; killing in mercy is permissible. So if the pregnancy or birth poses a risk to me, I can kill the fetus. Or if the fetus is discovered to have some awful excruciatingly painful genetic disease, I can kill it. (I should kill it.)

Not only does being a person not mean I can’t kill it; not being a person doesn’t mean I can harm it. It’s wrong to hurt a chipmunk, barring extenuating circumstances, because it can feel pain.

And in any case, I would argue that personhood is not all-or-nothing. Sentience, brain activity, the ability to communicate, the capacity for rational thought, consciousness, interests – all of these attributes, typically proposed to determine personhood, exist in degrees. So creatures can be persons in varying degrees.

And since personhood is typically established in order to establish rights, it makes sense then to assign fewer rights to ‘lesser’ persons. While there is cause for concern about the impact of such an argument on ‘disabled’ people, I believe this slippery slope should and can be avoided. For example, if a mentally disabled adult lacks the cognitive competence to vote, that right is justifiably denied. But it doesn’t follow that other rights, such as the right to a livelihood, also be denied.

In fact, we already assign rights according to various capacities and competencies: children, because of their lesser capacity for rational thought, and perhaps also because of their lesser interests, do not have voting rights; only a few adults, because of their superior knowledge and fine motor skills, are awarded operating room rights. The acceptability of aborting a being with minimal personhood would not then contradict the unacceptablility of harming a being with considerably more personhood.

In fact, going back to the matter of the right to control one’s body, it might be reasonable to consider, in the case of pregnancy, the boundaries of one’s body to be somewhat elastic. While the woman generally has the right to control her body, what is considered ‘her body’ changes through the pregnancy parallel to the changes in the personhood of the zygote/embryo/fetus: the less it is a person, the more it is her body; the more it is a person, the less it is just her body. Thus aborting when ‘her body’ is very much just her body may be acceptable, whereas harming when it is not may not be.

In addition to rights and personhood (though personhood ‘reduces’ to rights), there is another, perhaps better, consideration: consequences. Barring the capacity to feel pain, as long as there isn’t going to be a human being who will at some future time suffer from any prenatal harm – that is, if the woman decides to abort the pregnancy – such harm, whether caused by the woman or some third party, isn’t a wrong. In fact, assuming no such capacity, and given that it is has no interests or desires (which might justify pain, making it morally acceptable, as in the case of vaccination), it’s weird to even call it harm. (Do I harm a virus when I take cold medication? Or cancer cells when I receive chemotherapy?)

However, if there is going to be such a human being – that is, if the woman decides to continue the pregnancy and give birth – there will be an infant, a child, an adult who will suffer the consequences, which can range from vomiting, inability to sleep, reluctance to feed, diarrhea leading to shock and death, severe anemia, and excruciating pain, in the newborn, to the more permanent growth retardation, mental retardation, central nervous system abnormalities, and malformations of the kidneys, intestines, head, and spinal cord (Madam Justice Proudfoot, “Judgement Respecting Female Infant ‘D.J.’,” Madam Justice Proudfoot). Add to this the consequences to others, and the wrongdoing increases: the healthcare system (the rest of us) may have to pay (dearly) for newborn intensive care (Mathieu, in Preventing Prenatal Harm: Should the State Intervene?, estimates the average cost of prenatal intensive care to be about $2,000/day); the education system may have to deal with one more ‘special ed’ student; chances are the welfare system will be involved (Oberman, in “Sex, Drugs, Pregnancy, and the Law: Rethinking the Problems of Pregnant Women Who Use Drugs,” estimates the cost of lifelong care for fetal alcohol syndrome to range from $600,000 to $2.6 million ); and so on. Thus there is no contradiction in holding that abortion is morally acceptable and prenatal harm is not: generally speaking, abortion does not lead to morally unacceptable consequences, whereas prenatal harm does.

Of course, consequences to the woman must also be considered. For example eating a well-balanced diet is little to ask to ensure a healthy newborn, and giving up alcohol for nine months is well ‘worth’ a newborn free of mental retardation. But staying in bed for nine months may be too much to ask just to ensure the birth is not a week premature, and giving up life-saving treatment may not be worth the mere possibility of a healthy fetus.

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