Tuesday, January 28, 2014

What Liberals Get Wrong About Abortion

The liberal case for wide access to abortion is both simple and persuasive. A woman's right to bodily autonomy and to choose how, when, and if she reproduces are extremely important. This is a right that should be protected by the state, and the state cannot force her to carry embryos or fetuses to term, just as the state cannot force her to donate organs or any other use of her body (even if this means that another individual will die as a consequence). Whether we think this would grant the state so much intrusive power such that the benefits do not outweigh the costs, or we think that there is a fundamental right to bodily autonomy that cannot be overridden by positive consequences, this is a persuasive argument.

Curiously, though, what gives this argument its force is absent in the most recent high-profile case surrounding these issues. A Texas hospital decided to use extensive measures to keep the body of Marlise Munoz alive in order to allow her fetus to come to term. This woman is brain dead due to a blood clot in her lung. Her husband has been fighting for the hospital to let her body (and the fetus) die, but the hospital claims to have a legal obligation to continue life support on any pregnant patient. The legal grounding of these claims is a matter of dispute, with a judge recently ruling in the husband's favor.

Slate's Emily Bazelon argued a passionate moral case for ending any measures to prolong Munoz's life. Unfortunately for Bazelon, however, she cannot rely on the persuasive argument liberals usually use that I summarized above. This is because the central right in question, a woman's right to bodily autonomy, is absent in this case; dead people have no bodily autonomy.

We certainly have reason to respect the wishes of those who have died regarding their own bodies. But it is difficult to argue that these claims have as much strength as the claims to bodily autonomy of the living. The interest we have in what happens to our remains is far less significant than our interest in personal security. One need only consider how much physical hardship one would endure to guarantee appropriate treatment of one's corpse to see this.

The family is admitting that she is dead, which is why they want to remove all life support. The question is whether her and her family's wishes about what happens to her body, in this particular condition, override concerns about what happens to the fetus. I think it is far from obvious what the answer should be.

Other arguments about the status of the fetus come into play here. Many liberals, myself included, believe that the fetus makes few moral claims upon us in the early months of pregnancy. This is because the fetus doesn't develop its own mental life, or a capacity for subjective experience, until later on in pre-natal development (it is this important capacity that Munoz has lost in becoming brain dead). It is only once an individual develops subjective experiences about the world that it can have an interest in what happens to it and in continuing to live.

In the context of the argument I started out with, these considerations are essentially irrelevant. Regardless of whether or not the fetus has an interest in continuing to live, a woman has a right not to be forced to carry someone to term if she does not wish to do so. But in the case of Munoz, she is not being forced to do anything. As everyone can stipulate to, she is dead. Her remains are being used to support the life of her fetus, who, at over 20 weeks into development, plausibly possesses morally relevant interests.

One point the family's lawyer argued in support of letting Munoz and the fetus die is that the fetus appears to be significantly disabled (the lawyer used the indelicate phrase "distinctively abnormal"). But I do not think liberals should be too comfortable with offering this as a strong justification for terminating the pregnancy. While a living woman may choose what happens to her body, we should not be casually implying that the life of a disabled fetus or infant is not worth living.

Bazelon rests her moral case, ultimately, on the doctor-patient relationship. In this case, Erick Munoz serves as an appropriate proxy for his wife, and Bazelon urges us that "No state, and no hospital, should invade this deeply personal sphere of heartbreak."

This is a heartbreaking case, and the doctor-patient relationship is very important. But this argument is misapplied. With the mother dead, the most significant thing to consider are the fetus' interests. And if we think these interests are important, we should treat them as we would a child's interests. And both the state and hospitals may, in some cases, act against a parent's wishes to protect a child.

If liberals want to argue that this child has no legitimate interests, they should make that case. Or if they really think the right to choose what happens to one's remains is more important than another's interest in living, they should argue for that (though I find this proposition very doubtful). The problem is that liberals are so used to having a strong argument against the claims of pro-lifers that they fail to recognize when that argument does not apply. And they are terrified of giving pro-lifers any kind of victory at all, because the dangers pro-lifers pose to women's rights are very real. But if we are going to make any progress on this issue, and if we want to show that we're taking it seriously, we have to recognize what our arguments show and what they don't. And it would appear that our arguments are not as decisive as they usually are in this case.

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