Have we gone too far?

Abortion does end the life of something. The fight, of course, is over what that something is — an embryo, a baby, God’s creation, a blob of cells — and who has dominion over it and the fully formed human being carrying that something inside her body. Manohla Dargis, New York Times, October 3, 2007.

This quote, taken from a review of a controversial movie about the American "abortion wars" entitled Lake of Fire, captures the essence of the pro-life vs. pro-abortion debate. It has come to the fore in Canada again this week as the fallout of a grisly murder of a pregnant woman by her husband. The dead woman's body was rushed to the hospital and an attempt was made to save the baby via Cesarean section, but the child was stillborn. The woman was seven months pregnant.

The dead woman's parents want the perpetrator to be charged with two murders (see the full story in today's on-line editions of the Toronto Star and National Post or yesterday's on-line news from CBC Toronto). Unlike thirty-five states in the U.S. that would recognize the fetus as a crime victim in the murder mentioned above, however, in Canada no such charge would be contemplated, as the unborn child is not a legal person until it has completely emerged alive from the mother's body. Some would like to see this state of legal affairs changed.

One of these is Margaret Somerville, a medical ethicist at McGill University. She notes that:

Canadian law states that "you're not a human being for the law of homicide until you've been delivered from the body of your mother in a living state."

According to reports, Aysun Sesen's fetus still had a heartbeat on the way into the operating room at St. Michael's Hospital. Doctors working on Sesen performed an emergency caesarean section, but the fetus was stillborn. The fetus apparently succumbed to a lack of blood.

In 1981, Manitoba resident Bernice Daniels was stabbed in the abdomen, resulting in the premature birth of her child who lived for 19 minutes before dying from injuries suffered during the attack. Sandra Prince was eventually convicted of the child's manslaughter.

"It's pretty bizarre that as long as you make sure the baby is dead in utero there's absolutely no criminal charge, but if you deliver the baby alive then it's murder," said Somerville. (source: The Toronto Star, October 4, 2007).

Somerville was asked what she would do if she could change the current law:

"I'd change the law, not so much that I think these cases are frequent, I'd change it because we're being ostriches with our head in the sand, pretending that the baby doesn't exist," she said.

"It's a separate question in terms of what we'll do in protecting it, where we'll draw the lines in terms of protection as opposed to a woman's right to what she wants to do. Not to draw any lines, which is the case at the moment, or to draw the lines pretending we're not dealing with a human life, warps our moral intuitions." (source: The National Post, October 4, 2007).

By way of contrast, Toronto law professor Martha Shaffer argues the current ideology with respect to women's reproductive rights:

"If we take the position that the fetus is a separate person at viability, then we open up all sorts of issues. All of a sudden, the woman is two separate persons. Her liberty and autonomy can be greatly curtailed in the interests of the fetus within her.

"If she's doing something that somebody decides to be contrary to the fetus's interests -- which could be eating too much sugar, exercising too hard, smoking or drinking -- it's very dangerous to go down that route to say a woman is no longer a separate, independent person at a certain stage of pregnancy.

"I can understand why not being able to charge the husband with two murders as somehow not reflecting the severity of what he did," Prof. Shaffer said.

"On the other hand, viewing this pregnant woman as two separate persons is potentially more dangerous than saying he can be prosecuted with the murder of the woman here, and that will be a sufficient punishment for what he has done." (source: The National Post, October 4, 2007).

This line of reasoning is problematical along several lines:

1. If we take the position that the fetus is a separate person at viability, then we open up all sorts of issues. All of a sudden, the woman is two separate persons. Her liberty and autonomy can be greatly curtailed in the interests of the fetus within her.

I would have thought that the personhood of a fetus (or, in another day, an African-American, a Jew, a woman, a member of the First Nations) would be argued separately from the rights of others. A right is a right on its own moral, ethical, theological or legal merits, not on whether it might be inconvenient to someone else.

Black slaves were denied personhood by the U.S. Supreme Court, in part because such recognition would end slavery and potentially harm the livelihood of slave-owners. Jews were denied personhood by Hitler in part because he feared their influence and its consequences for his own ambitions. Was a African-American a person only if it could be proved that granting him/her personhood (and the concomitant freedom) would not harm their former owners in some way? Is a fetus to be viewed as a person only if it can be demonstrated that the mother is in no way inconvenienced by her/his independence?

2. If she's doing something that somebody decides to be contrary to the fetus's interests -- which could be eating too much sugar, exercising too hard, smoking or drinking -- it's very dangerous to go down that route to say a woman is no longer a separate, independent person at a certain stage of pregnancy.

This is a classic straw man argument. Pick something that is fairly silly, such as eating too much sugar, and make that an exemplar for all arguments that might be mounted. There are established and accepted laws governing when the state might intervene in a family's life to seize children for their protection. It is not a big leap to assume that something similar could be done for unborn children as well. Dr. Somerville certainly thinks that this is possible.

3. On the other hand, viewing this pregnant woman as two separate persons is potentially more dangerous than saying he can be prosecuted with the murder of the woman here, and that will be a sufficient punishment for what he has done.

Granting a fetus personhood is worse than murder? I don't think I need to comment on the logic here.

Years ago, when I was living north of Chicago, a bunch of Neo-Nazis planned a march through the Chicago suburb of Skokie, where 5000 survivors of the Holocaust lived at the time. When the mayor tried to stop this exercise in free speech, the American Civil Liberties Union defended the march. The Jewish lawyer who spoke for the ACLU pointed to the fact that these deplorable people had the right to exercise their free speech in this manner, regardless of how loathsome people found them, a decision with which the courts agreed.

I recount this event because it illustrates the approach that North Americans have always taken to the issue of rights--that when their exercise is inconvenient, even revolting and potentially traumatic, we allow it while trying to balance this exercise with another set of rights which might be affronted. But courts and governments bend over backwards trying to avoid the subjugation of one set of rights for another.

But to argue that an unborn baby should be denied rights because doing so might be at odds with another set of rights is what Prof. Shaffer sees as appropriate in this case.

Prof. Shaffer would no doubt argue (as did slave-owners, white Canadian politicians, Hitler, and so on) that the unborn do not possess the right to personhood, and all that goes with it. That is true. But should the arguments for and against personhood turn on the issue of convenience or inconvenience to others? It didn't work for the slave-owners. It no longer applies to Jews, or women, or native Canadians.

Make your arguments, Prof. Shaffer. But not on such grounds as you have utilized up to now. They are an edifice built on sinking sand.

P.s. Since writing this post last week, I came across the following information in a column by Toronto Star writer Antonis Zerbisias:

Last week, an unscientific poll on the Star's website asked if a 7-month-old fetus should have legal rights. The reaction was almost evenly divided. Fifty per cent said yes, 49 per cent said no. (source: The Star, October 10, 2007).