Spare the Fetus, Execute the Physician
Monday, August 29, 2005
Two Texas laws, a fetal protection law and a law requiring parental consent before unmarried minors receive abortions, can now be used to bring capital murder charges against physicians who perform abortions under certain circumstances. In other words, some abortions are now punishable by death in Texas.
Texas doctors who perform abortions without parental approval or after the third trimester could face capital murder charges because of a new law that takes effect this week, a prosecutors group says.
The Texas District and County Attorneys Association has outlined that scenario in its new book updating the Texas penal code and in public presentations around the state. The group says such charges could occur under the new law because of the 2003 fetal protection law.
Interviews with the Republican sponsors of these bills show two things: (1) that either this legal result is not intentional or, at least, no one feels politically safe admitting that it is, and (2) that there is a serious failure by our legislators to understand what the function of government is.
Both points become evident below.
Rep. Ray Allen, R-Grand Prairie, who sponsored the 2003 bill defining an embryo or fetus as an "individual," said the law may need clearing up in a future legislative session.
"I don't see the Legislature wanting to charge doctors with capital murder based on a technical legal issue over whether parental consent was properly documented," Allen said.
The fetal protection bill was designed to allow for prosecution of a person who harms or kills an embryo or fetus, supporters say. Exceptions were made for legal drug use, action taken by the mother or a "lawful medical procedure."
But legislators this year defined two scenarios that would be "prohibited practice" in medicine: performing an abortion on an unmarried girl under age 18 without proper consent, and performing an abortion in the third trimester that isn't covered by certain exceptions. The law takes effect Thursday.
Oops! You damned well bet the law "may need clearing up"!
The purpose of the government is to protect individual rights. The right to one's own life is the most fundamental. So the essential question with respect to abortion is: "What constitutes a human life?" If a fetus is not a human life, it deserves no protection as an "individual". If it is a human life, it does.
So why the case-by-case treatment of abortion? Neither the pro-choice left nor the "pro-life" right consistently advocates individual rights.
For the left to make a compelling case for legal abortion based on the ideas that (1) a fetus is a collection of cells that is only potentially a human being, and (2) a woman has the right to do with her body as she sees fit, the left would have to recognize other rights -- like the right to property -- consistently. It clearly sees the fruits of productive labor as state property and thus sees human beings as serfs. That is, the left actually opposes individual rights and so doesn't really have the ability to make such a case for abortion without sounding hypocritical.
For the right to make a compelling anti-abortion argument, it would have to make a compelling case that a fetus really is a human being. But there is no rational argument that we have supernatural souls and the medical evidence is overwhelmingly against the idea that a fetus has a rational faculty or is even viable until about the third trimester. (The right wants to ban abortion altogether.) The right relies on faith, not argument, for its position and so ... can't argue for it. And furthermore, with this side's contention that rights come from God, it regards the individual as ultimately belonging to God, rather than his life being an end in itself. The right cannot be said to advocate individual rights because an individual who does not own his own life has no rights.
The best either side can do is try to get away with what it can, which is why, in this story, we see (1) a bunch of Republicans who doubtless regard abortion as murder apologizing for applying the death penalty to a class of citizen they regard as murderers, and (2) a pro-choicer feebly complaining that, "[T]here is always someone who is looking for a political win!" Each side knows that it cannot appeal to reason and so wilts under the glare of the public spotlight: Both sides, not being pro-freedom, are rightfully afraid that the public will see them as "overreaching" if they make a firm stand on this issue, which, despite the effort of each side to play it down, is in fact vitally important.
Individual rights and rule of law have both taken a serious blow thanks to the fact that neither left nor right supports individual rights.
-- CAV
Crossposted to the Egosphere
11 comments:
***So the essential question with respect to abortion is: "What constitutes a human life?***
Maybe you wanted to say "person" or "individual" or "being"; because a fetus or embryo is a human life -- a human life at its earliest stages of developement.
But I think that the question of whether the fetus/embryo is a human person or not, is pretty much immaterial to the legal case of abortion [it might be more relevant to the case of stem-cell research].
Even if the fetus were to be somehow awarded all the RIGHTS of independent human beings, there is still no way on earth it could possess such a non-existing thing as "the right to live unwelcomed and unwanted at the expense -- and within the body -- of another person." If no independent human being has such a right, on what basis do anti-abortionists get off claiming it for a fetus or embryo?!? That ought to make the bigotry of these alleged advocates of "rights" be quite obvious.
The only thing that should to be taken into serious consideration here is that the mother has the inalienable right to her own life, specifically here, to her own body; and therefore by extension, she has the absolute right to "expel" any unwanted domestic or foreign entity growing on or within her body to the extent possible -- whether it be an arm, or a fetus, or any other deadly virus. The nature of the entity is totally irrelevant -- a woman's rights are still being violated when she is forced to provide for the life of another entity, literally at the price of her own blood.
First, a quick clarification. I am pro-choice as I explain below. In discussing the two dominant and false positions on the question of abortion, I did not make that clear, focussed as I was on what was wrong w/ each position.
Second, I differ with you on a couple of points.
(1) The question remains, "What constitutes a human life?" A fertilized egg, an embryo, a (nonviable) fetus, and even certain stem cells are all potentially human lives. Only actual human beings have rights.
Of course, the most problematic part of the abortion debate is whether/when we legally regard a fetus as a human being with rights. I am not personally comfortable with using childbirth as the line given that the fetus is viable for some time before that. I believe Ayn Rand used "third trimester" as a "line", and I regard that as a reasonable point at which we can regard a fetus as a human being.
(2) You correctly pojnt out that there is no right to exist as a parasite. The third trimester demarcation is also useful here. A woman will know whether she is preganant by then and will have had ample opportunity to terminate her pregancy. I would regard remaining pregnant this long as practically giving birth, with no more right to abort than to kill an infant, with ONE exception: when an emergency abortion is necessary to save the pregnant woman's life.
Infants and near-birth fetuses are by nature unable to care for themselves. Like children, they are also not fully responsible and so do not have the full array of rights that adults do. But they do have the right to their own lives. A mother who finds herself unable to care for her children cannot kill them, and yet they must be supported. She puts the up for adoption or otherwise arranges for their care.
In any case, thanks for your thought-provoking comment.
Gus
Yo, Gus, you write: "First, a quick clarification. I am pro-choice as I explain below. In discussing the two dominant and false positions on the question of abortion, I did not make that clear, focussed as I was on what was wrong w/ each position." Hmm, maybe it's just because I know you, but it seemed self-evidently a pro-choice posting. For you to be against abortion while writing it...well, you'd be quite a philosophical basket-case.
Heh!
On looking back over it, I conclude that you're right.
Guilty as charged of gilding the lily.
Gus
"...there is no right to exist as a parasite."
Now there's an interesting comment when made by a lawyer!
Gus, do you think children have a right to support if their mother does not want them and there is no one else willing to take them?
Megan,
This is a very interesting question. Considering it first from the more straightforward case of a full-grown adult, certainly, no one has the "right to [be] support[ed]" as this amounts to a "right to enslave (the supporter)".
But children are not full-grown adults and, for a long time, cannot support themselves. I would argue that it is incumbent on their parents to support them or arrange for their support. This is clear-cut morally. Legally, failure to do so would fall under the category of criminal neglect. One of the penalties for this would be forfeiture of any parental rights and the assignment of the care of such children by the courts to someone willing to accept this responsibility, if someone was available to do so.
Because a woman is in the unique position of being able to decide whether to give birth or not, she and, if she is married to the biological father, he, would be the only ones the state could penalize for failing to support a child. (Her/their decision created this dependent individual, making herself/themselves responsible for his care.) and The state, however, cannot compel others to care for children. This would be work for private individuals and charities to perform as they wish.
While I am sure children suffering from the kind of neglect you ask about would almost always receive such care, there is no such guarantee. Aside from giving a woman control over her own body and her own future, we thus see that abortion can also reduce the frequency with which children face the uncertainty of being brought into the world by immature or irresponsible parents.
-- CAV
I don't think there should be a penalty (above having the child removed from your custody) for failure to support a child unless said failure was malicious: this would be criminal neglect, yes?
Philosophically, the issue of child abuse/neglect is really rather marginal. I personally had reached the conclusion that children don't have a right to be supported, but they do have the right to not be denied support that is offered.
Megan,
Well, this is uncharted territory for me, but I'll give it a stab.
Again, let's start by considering this angle from the perspective of two adults.
(1) If two adults form a contract and one fails to live up to its terms, the other can sue for breach of contract.
And
(2) No adult can simply claim the property of another (or live as a parasite off another's effort).
But the relationship between a parent and a child differs from a contract in that the child did not choose to enter the relationship (contrtary to 1) and cannot support himself (contrary to 2). The mother (and, if she is married, the father) holds all the cards here.
I would hold that since a woman can abort a child (i.e., She chooses to give birth or not.) she enters a de facto contract with her child by the very act of giving birth. At that point, for her to just say, "Oh, I guess I don't want kids, so I won't support them." Would amount to a breach of contract of which she had months to consider all the ramifications.
I am no legal scholar, but I would regard a pregnancy taken to term without either the honest intention and belief that she could support the child or some standing arrangement to hand over the care of the child to someone else as at least a breach of contract and probably even a criminal act.
Such a woman has indeed victimized another human being, and a defenseless one at that.
So that covers (1) pretty well, I believe. What of (2)? The child cannot support himself, so it is unreasonable to demand that he do so. And the child is not responsible for the fact that he exists. So who is? His mother or parents. She or they (or someone who agrees to take the responsibility) are responsible for his support until he reaches adulthood. In fact, your initial question over whether a child has a "right to [be] support[ed]" is really, "Does a parent have the right to make someone else support his children?" The answer is, of course, no.
This has some interesting implications, including, I would think, making lots of things careless people routinely do into criminal offenses. I think that would cut down quite a bit on unwanted pregnancies for one thing.
The time to decide whether or not to have children is at least three months before giving birth.
Thanks for your interesting questions.
And for any legal eagles out there, your thoughts are welcome.
Gus
Gus, as a aethist conservative who is definitely pro-life, I call "BS" that the right relies on faith to form their positions on abortion. I was raised Catholic and believe many of the fundamentals of the religion, but only because it seems to create a better society than other beliefs/conventions. I don't believe in God, but I believe in responsibility. That rambling opening sets up my stance on abortion-A fetus deserves protection from the moment of conception. Not because it would destroy some God-given "soul," but because it would be the willful ending of the process of life. I equate abortion with murder. It's funny, but I'm pro-choice as well...that is two people have chosen to have sex. At that point the choice is over. You don't get to kill your kids because they are an inconvienience. I realize there are cases of rape and incest that are not a womans choice. It is terrible for the women in those situations, but killing the innocent child is not the answer.
I have to run. Just wanted to put out there that people can't so convieniently dismiss conservative pro-lifers by chanting "religion, religion, religion"!
Brainy435,
Hmmm. Blogger failed to report your comment to me via email and I just read it now by chance.
You say, "[Abortion] would be the willful ending of the process of life. I equate abortion with murder." But why? What makes the death of a fertilized egg or a small clump of cells "murder"? And why would a tonsilectomy not also be "murder". Those cells all have the full human genome as DNA and based on what I know about stem cells versus other cell lines, it should only be a matter of time before science figures out how an entire human being can be cloned from such cells.
But anyway, what I said was, "The right relies on faith, not argument, for its position and so ... can't argue for it."
(1) You have made no argument for why I should consider a fetus a human life. (2) Your argument only appears to differ from the standard religious one in that you don't base it on standard religious dogma. (3) At root, religious faith and arbitrary assertions are one and the same: Beliefs proclaimed as true without one shred of evidence.
Try again.
Gus
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