So you want to outlaw abortion, eh?

I’ve been listening to them there folks over in the States.  It would seem they have a bit of an issue with abortion. Their arguments seem to base themselves around the rights of potential persons.  Perhaps before we look to upholding the rights of potential persons, we should first look at the rights of actual persons.  Maybes, just maybes, rather than looking at whether the person has the right to unhook themselves from a violinist, we should be focusing more on who hooked them up to that violinist in the first place.

The termination of a pregnancy is not something people actively choose.  No-one becomes pregnant in order to terminate.  The termination of a pregnancy occurs when a pregnant woman wishes not to be in a pregnant state.  In any case of unintended pregnancy, it is the woman who is entirely affected.  Either to undergo a medical procedure to terminate the pregnancy or to change lifeplans to accommodate the pregnancy and and the associated consequential responsibilities.

If you consider abortion a morally indefensible act, you must look to the core of its cause.

Unwanted impregnation.

In many cases of unintentional pregnancy, even where abortion is relatively legal, safe and accessible many women choose to continue with the pregnancy despite it being unplanned.  That is not to say that this decision does not have physical and emotional consequences, but those consequences are consented to in making the decision to continue.  Where abortion is sought, it is a restorative procedure to restore the recipient of an unwanted impregnation to their previous autonomous state.  An unwanted medical intervention is required to counter the consequences of a previous harm.  So an unintended pregnancy, accidental or not, is an injury from a man to a woman which has an impact on her health. A terminated unwanted pregnancy is a distinctive injury, which involves entirely unconsensual harm.

If we look at other cases of accidental injury – say road traffic, its not only intention but also recklessness which is considered when causing another party injury. So if you hit a pedestrian, you are liable regardless of whether you meant to hit the pedestrian or not. In this case there is a connection between the parties…so more like sport, where you might clunk someone with your tennis racket, even although they’ve agreed to play tennis with you. If they ended up brain damaged from a clunk, it would be reasonable so suggest that you shouldn’t have behaved recklessly around them and would be liable to be charged with assault.

Alternatively compare with other forms of sexual injury.  We already have the crime of rape (much to the chagrin of many a republican senator), which criminalises those who penetrate those who do not wish to be penetrated, but what of those who are impregnated who do not wish to be.  An unwanted penetration is a violation of bodily autonomy which can have severe health impacts, both physical and emotional.  An unwanted impregnation is a similar violation with associated physical and emotional trauma.

Or other forms of sexual activity which have an impact on health, such as STI transmission, which are similarly criminalised.

There are two scenarios here:

Wilful or reckless impregnation

Where the consent for impregnation is not explicitly granted, it should be assumed that there is no such consent, here there is a clear violation.  To willfully or recklessly impregnate someone without their consent invokes bodily and emotional trauma directly associated with their actions.  It is the reproductive equivalent of rape, where someone has disregarded consent for penetration.

Accidental impregnation

Where the consent for impregnation is not explicitly granted and where all reasonable steps have been taken to prevent such impregnation, the consequences are unforeseen.  To accidentally impregnate someone without their consent invokes bodily and emotional trauma which is related to but not caused by actions that they can be held accountable for.  The reproductive equivalent of accidental injury.

Outlawing unconsensual impregnation would have the effect of reducing the number of women facing unintentional pregnancy and consequently the need for abortion.  Defense would rest on the validity of the consent for impregnation or the reasonable steps taken to prevent it.  Adequate use of contraception or reasonable belief of infertility may be considered as defense, as would a belief that the impregnation was consensual.

There are, of course, terminations which take place where the impregnation was entirely consensual, but where life changes or the unanticipated consequences of the impregnation have led to a decision not to continue, such as in the case of foetal abnormalities or maternal health issues, while harm is done as a result of impregnation in such a scenario, the consequences were the result of a consensual undertaking.

The criminalisation of unconsensual impregnation would uphold the rights of actual persons to reproductive integrity, while reducing the numbers of potential persons in unwilling hosts.

Seems like a win-win all round.

 

 

 

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Beckwith introduces rape in the context of an unconscious woman with the following scenario. Suppose you enter the hospital room with the same comatose woman and find “a man having sex” with her and “you correctly intervene to stop the ugly violation.” He contends that the quickness with which a person would stop the sex in this example compared to the way a person might allow the comatose woman to continue to be pregnant by refraining from intervening proves that “pregnancy is in fact a prima facie good” (p.177). In fact, that scenario proves nothing of the sort. The reason a person would stop a man from having sexual intercourse with a comatose woman is because, by definition, we would assume that this form of sexual intercourse is occurring without the woman’s consent, as defined by her comatose state. Without consent, that form of sexual intercourse is serious injury (rape), and that is why people would be morally and legally correct to stop it.

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