Stephanie Zvan over at Almost Diamonds has just reposted a post about viability and maternal rights, that she’s trying to use against a claim about pain and maternal rights. The underlying argument is that some people are saying that the rights of the foetus don’t start at birth, but start instead at some point before it, and they are using viability or when it can experience pain as that hallmark. Zvan doesn’t want to argue against assigning it there at this point, but wants to argue over rights themselves, mostly, it seems, by using two graphs and then assigning positions based on that. I won’t reproduce the graphs here, but let’s look at her conclusion:
It is the argument that once the fetus has rights, the pregnant person no longer does. They no longer have any say in how their body is used. They no longer have any right to say that pregnancy is not in their interests–medical, emotional, social, or financial. They have no rights at all in the matter.
That’s what a law banning third-trimester abortions does. It assigns 100% of the rights to the fetus, not 50%.
I went back and looked to see where she argues that the political position entails this, as opposed to the viaiblity argument itself which she says — rightly, in my opinion — that at that point both the mother and the foetus have rights. I can’t find an actual argument, so it looks like it’s an argument through producing a graph of your opinion, which is not a good argument. Because the key is that if the mother and the foetus have rights, then we have to figure out how to balance those rights against each other, which Zvan concedes and claims to solve:
So how do we protect the rights that a fetus does have in these situations? That’s a good question, but frankly, it’s a medical question. The fetus may be theoretically independent of the pregnant person, but that doesn’t mean they’re actually independent. It’s still inside the womb, and every means of getting it out carries risks to both parties. What risks vary greatly from pregnancy to pregnancy.
Consider also that the reason many people stop wanting to be pregnant at this point is that the fetus is less than healthy, which may translate into less than viable. Balancing rights and risks of both parties simply isn’t something that can be done in the general case. If we are truly interested in protecting everyone’s rights, this stays a private, medical matter informed by the conscience and situation of the pregnant person making the decision.
Well, so much for all of those laws and court decisions, then, that do indeed try to balance rights and risks of both parties in all the relevant situations, taking into accoung all of the relevant facts, starting from the general principles and working our way down to the specifics. Also note that in cases where rights clash, we generally don’t leave the protection of the rights of one person in the hands of the person whose rights they’re clashing with. As I’ve said before, we generally dont let someone who has a vested interest in someone dying decide if that person should live or die, at least not without a lot of oversight … far more than just a doctor talking to them about it.
The problem here is that while she concedes that at this point there would be rights to balance, she never in fact tries to suss out what the rights are or how to deal with the conflict. We deal with conflicts of rights all of the time, as I just pointed out. It’s odd that in this case she wants to throw her hands up in the air and ignore the issue … which, in fact, ends up treating the situation as if the maternal rights are all that matters.
So, what are the rights involved? Well, on the side of the foetus we clearly have the right to life. Now, the right to life is not a right to be alive, really, but more a right to not have your life taken away from you, or rather for you to not be deprived of life. So no one is obligated to provide you the means to keep you alive, but they can’t directly take your life from you or unreasonably take the means for you to preserve your life away from you. That last part involves a lot of wrangling, but let’s just go with it for now. At any rate, we can see that this is a pretty important right.
Now, the maternal rights involved here are different. The one that is most obviously involved — because it’s the name of the movement — is the right to choice, to be able to choose how to life one’s life as one sees fit. Unfortunately, it seems completely obvious that if the right to life and the right to choose clash, then the right to choose gives way. You don’t get to cite choice very often as a reason to kill someone, although you can use it as a reason to not provide resources to someone so that they can live, but as stated that doesn’t fall under the right to life. So the fallback position is to appeal to the right to bodily autonomy, and control over one’s body. This is a lot stronger position, but it also isn’t obvious that, in general, it would trump someone else’s right to life. The examples given that challenge this — like the “violinist” case — tend to fall into categories where we start talking about someone else using your resources to stay alive, which isn’t covered, but are also controversial precisely because in those cases a direct action is required to stop them from doing that, which does clash with the right to life. Depending on which way you view it, you can come to different conclusions.
Okay, so let’s look at some specific cases, then. Imagine that you are past the point of viability or whatever, and the mother goes to the doctor of a perfectly healthy foetus that isn’t causing her any undue risk — beyond the normal risks of pregnancy — and says that she wants to get an abortion because a child would be bad for her career, or she isn’t ready to raise a child, or they’re too poor to raise a child. These seem to be cases where the primary concern is choice and not integrity, and it would seem that the right to life should trump those cases. Sure, there is a negative impact on her quality of life, but you don’t get to take or ask for a direct taking of someone’s life because it impacts your quality of life.
So the next cases are the major health problems from an abnormal pregnancy. If she is quite likely to die if the abortion is not performed, then what we have is a clash over rights of life: the foetus wuld be killed if the abortion proceeds, but if you don’t allow it you would be depriving the mother of the means to preserve her own life. This is the toughest call in all of the cases, and it is easy to see why, as it relies on balancing the exact same right against itself. Then you have the cases where the foetus has a condition where it likely will not survive the pregnancy or, if it does, will have a greatly decreased quality of life. This is also controversial, but in general on these points we leave these decisions up to the parents or guardians, so then that would be a decision between both parents and the doctor. Then there are cases where there is a great risk to her health but not necessarily to her life. This is the only case where right to bodily autonomy is considered, and we should be able to see the issues here. If it is a great risk — paralyzation would be one prime example — then we would, I think, be intuitively sympathetic to allowing the abortion, but if it was something like not being able to have children again we intuitively would feel less sympathetic. So a tough case, and one that requires much more thought.
But what’s interesting here is that in only one of the cases does it seem that the right to bodily autonomy is involved. When we look at the reasons, we can see that for some of them it seems to be choice that’s in play, not bodily autonomy, or that it is the right to life that is in play, not bodily autonomy. Only in one very special case is bodily autonomy the driving force, and that’s also one that’s heavily debatable. So, then, by parsing out the specific cases and looking at the general rights they address, we seem to be able to come up with some fairly good guidelines on how to balance the rights of both parties without having to leave it up to the mother, informed by the doctor. Which is what Zvan says we can’t do. Funny, that.
Zvan treats the political argument as if it creates a zero sum game of rights, but she gives no reason for thinking that and, as we’ve seen here, treating as a case where both parties have all their rights leads to similar considerations as you’d find in the pro-life arguments. So it’s not a zero sum game at all, and so all Zvan does is distort the situation so that she can accuse her opponents of trying to take away the rights of women. As this post shows, that isn’t what’s happening when one actually works out what balancing rights should mean in the specific cases.