less (legal and moral) light re: abortion

Kyle over at Vogue Republic has a thought-provoking two parter set (Part I and Part II) of reflections responding to Freddie’s post the other day on liberal induction and abortion rights.  Kyle covers a whole lot of ground on a number of various points (legal consistency, all rights having restrictions in our society, the lack of discussion of father’s rights, etc).  I can’t give all that its proper due–I’ll just recommend reading them both in full.

There is one small sub-thread of Kyle’s argument I would however like to discuss.  This comes from Part II.  Kyle is responding to Freddie’s position that rights should begin at birth.

Kyle writes:

I could be wrong on this but I get the sense that there is a degree of legalistic thinking about having the moment of birth represent a clear and easy to use/understand humane law designed to be a consistent guideline. It avoids the messy morality of the clear but perhaps less humane dictates of Blackmun’s Roe v.Wade decision. Even more it addresses the tangle of abortion restrictions upheld or struck down in the name of Sandra Day O’Connor.

So, here’s where my legalistic and plot-hole focused brain kicks into overdrive. What happens when a doctor, for medical reasons relating to the mother, induces early labor? Does he violate her right to abort the fetus up until the day of natural birth? More darkly, if a mother is dying or dead but there is still a chance to save the baby, could doctors, without spousal or parental consent, perform such an operation?  Rare as either of these cases may be, they point out that common sense or decency would likely lead you to answer No and Yes, respectively, even though they might be, in a strict sense, a violation of Freddie’s rule.

My personal take is that viability outside of the womb matters. There may not be a huge difference between weeks 37 and 38 but there is a rather huge one between weeks 13 and 38. Not all fetuses are equal, perhaps we should stop considering them as such.

Now jumping back to the comments to Freddie’s original post, Freddie has this (Comment #17):

To me, here is the crux of the matter: while we will have endless complex religious, philosophical and moral debates, and many of us will come to the same conclusion that there are no bright line answers, to have a law and a functioning civil society, we have to have bright line rules. This is impossible with a doctrine of human-at-viability, and difficult, I would say, with a doctrine of human-at-conception. (And pragmatically, that would have a whole host of consequences for things like in vitro fertilization.)

Defining the beginning of human-ness at birth, meanwhile, gives us the best bright-line rule to enact as a functioning society. And it eliminates the vast angst that forcing every pregnancy to be carried to term causes. That may not be a satisfactory philosophical stance for many, but I think that it’s by far the most pragmatically workable system.

In other words, if I understand him correctly, Freddie would basically agree (in principle) with Kyle that from a philosophical-moral-religious position Freddie’s idea that person-hood (or whatever the preferred term is) begins at birth is in some ways not clear cut.  Perhaps even arbitrary from a moral-philosophical view; or at least open to serious questioning.  Moreover, Kyle has spotted (and Freddie admits to) his real aim being a legalistic one.  And by legalistic I don’t mean narrow-minded or cold amoral.  I just mean related to the law, to a sense of civility.  Though I find it intriguing that quite sincerely, Freddie’s post examines his own inner tension around his rule-seeking aim, his understanding of the history of rules instantiating morality in liberalism, and his own staunchly pro-choice position (again revealing a moral suasion imo).  I’ll return to that point in just a second.

But first, Freddie’s got a point in that viability (Kyle’s preferred locus and mine too more generally speaking) creates its own problems.  ED (in Comment #20) thinks a consensus viability definition is a real option; I’m not so sure.  Either way, the thrust of Kyle’s response I think is that Freddie is not acknowledging the potential murkiness (non-clear/bright lines) of his own position–legal or otherwise.  If the fetus/child (depending on your pov) is halfway out of the mother’s womb–say the head and not the bottom half of the torso–is this a human yet with rights?  Is that birth?  Or would will allow say a partial-birth abortion because the entity in question is not fully born yet?  Does the birth act have to be complete?

And more broadly, is it necessary that we have a bright clear legal line?  I’m trying to nudge Freddie to give an argument as to why the bright legal rule line is so important.  I’m open and interested to hear what he has to say on that point.

Relatedly, even if it is necessary to have such a legal bright line, is it really feasible, especially in this case?  As Freddie’s own meditative post suggests to me the moral dimension of this issue is intrinsically linked up with the legality concerns.  Freddie did as he admits write this at late night.  Contra Br. F, I don’t think his ideas are crack pot, so much as they are letting down his guard a bit and sharing on a more personal level.  This is why I’m questioning the bright line rule assertion.  I’m not sure what Freddie’s opinion on the practicality of his own promotion of a legal line is in this case. Freddie thinks that having such a clear legal line would end the angst of having to carry all pregnancies to term.  But it certainly wouldn’t end (in fact could if anything heat up further) the angst around the issue itself.   That might be a price worth paying, but if anything the history of the pro-life movement is that it grew out of a judicial (and not legislative) act.  i.e.  Imagining a scenario whereby Freddie’s bright line rule is enacted would (if history serves as a guide on this one) likely end up giving more energy/vitality to the pro-life movement.

That latter point, is an argument as to why some murkiness in the legal context might be of benefit.  And it’s certainly possible to imagine a scenario–relative to this specific case–in which such a diffuse or varied legal rule set might work.  If the decision were handled state by state legislatively, states would come up with very different answers.  There might be bright legal lines relating to abortion (pro or con) intra-states in that case, but certainly not in an inter-state context.