continued...
The Legal Issue
Basis for Criminalization
Personal choices about behavior should never be legislated, unless and until they infringe the equal rights of other persons. The old saying goes, "My right to swing my fist ends where your nose begins." Persons have the right to make any choices they want about their behavior, including moral choices, up to the point that someone else's rights come into play. A person has the right to wear whatever they want, choose the color of their house, or even choose sexual behavior (alone or with others who have the capacity to consent to free and voluntary participation) and, however else someone else may disapprove of their taste or moral beliefs, they have the right to make those choices as long as they do not infringe the other person's right to the moral or aesthetic choices THEY believe to be appropriate.
Rights of Woman vs. Rights of Embryo
The problem in the case of abortion is that the disagreement about abortion is partially about differing moral beliefs, but also a disagreement about whose rights are being infringed. Those opposed to abortion claim that they are protecting the rights of the zygote/embryo/fetus from the infringement of having its life terminated.
If the zygote/embryo/fetus is not yet a person, as argued in the moral argument for the right to choose [see "moral issue"] then of course it has no moral standing nor the capacity to have rights that can be infringed, and so the issue becomes moot. Since that issue is covered in the separate discussion of the moral issue," we will not duplicate that discussion here.
But even if the zygote/embryo/fetus were a fully-endowed human person, with all the rights of personhood, all the way back to the moment of fertilization, the crux of the LEGAL question becomes, "Who has the right to control the body: the zygote/embryo/fetus or the woman?"
Bodily Sovereignty
If the zygote/embryo/fetus is a person from the moment of fertilization, then we are dealing with two bodies of two persons: the body of the zygote/embryo/fetus and the body of the woman in which it resides throughout pregnancy. Presumably, then, both the woman and the fetus would each maintain a separate and equal right to the sovereignty and integrity of their own bodies. The zygote/embryo/fetus would have the right not to have its body invaded or infringed, and so would the woman!
So, we must consider where the infringement occurs. If the woman is the owner of her own body (as the zygote/embryo/fetus is of its tiny, embryonic body), then her rights to control that body and protect its integrity would certainly not be less than that of the zygote/embryo/fetus.
During the 1980s, there was a court case in Ohio. Two brothers had become estranged over the years. One of them was stricken with a kidney failure and required ongoing dialysis in order to survive until a donor match could be found. It was determined that his estranged brother was an excellent match, but the brother refused to offer one of his kidneys. The ailing brother sued the healthy brother in court, claiming that Mr. Healthy did not need two kidneys to live, and had no right to deny Mr. Sick -- a fully-endowed human person -- the "right to life." Needless to say, the courts held that Mr. Healthy had the right to control his own body and could not be forced to have his body used to keep Mr. Sick alive if he did not agree. It would be a beautiful CHOICE if he were to voluntarily offer the gift of life, but as a legal matter it could not be FORCED.
Similarly, even if the embryo is human, it still would not have the right to force the mother to use her body to keep it alive against her will. If the decision to give birth is what she wants, then "life" is a "beautiful choice." But it is her choice; she cannot legally be forced into it.
Likewise, if a person with a rare genetic type needs a blood transfusion or bone marrow transplant and finally finds that rare, perfect match, but the owner of the organs doesn't want to donate, no reasonable person would say that the one who wants the organ has the right to demand that a specific person donate his/her organ, even to save the life of an ACTUAL human. The day is fast approaching when everyone's DNA will be identifiable, and could be stored in data banks. Maybe someday men will start getting phone calls informing them that their DNA has been identified as a suitable match for someone who needs a kidney and wants one of theirs ... wants to FORCIBLY use their bodies to keep someone else alive, whether they agree or not. The day that men's bodies can be used to forcibly keep others alive, controversy over abortion will end. Organ donation is a beautiful choice, and I (voluntarily) carry my organ donation card with me at all times, but it is my CHOICE, just as pregnancy can be a beautiful CHOICE when it is voluntarily CHOSEN. But neither choice can rightly be forcibly coerced.
A reader, Tommy, writes to suggest an even more poignant and relevant scenario: "A one week old infant is diagnosed with Leukemia and the infant needs a bone marrow transplant. After checking available donors it is determined that only the child's FATHER has a good match. The father says "NO!" ... Should the state be able to compel the Father of the baby (with threats of fines and prison) to submit and have some of his bone marrow extracted to save his baby's life?" Should a male parent be subject to the same demand that he be forced to use his body to keep his child alive? What if he didn't want the pregnancy in the first place? What if he is estranged from the mother (and the baby, too)? What if he has religious objections to any kind of transfusion? Aside from the moral issue, should the state hold the father to the same standard as the mother? Should any exception be allowed? No state that outlawed abortion prior to Roe v. Wade had an equivalent requirement that the father have the same obligations as the mother (except financial, of course).
Some might argue that a woman has "consented" to pregnancy by inviting the embryo into her body by virtue of engaging in the sex act, or that she should have made her "choice" before consenting to sex. (Such a statement automatically accepts the right of reproductive choice in the event of rape, incest or failed birth control where no such valid consent can be imputed.) Consent to sexual intercourse is NOT the same as consent to pregnancy. They are two different things. Even a completely voluntary sex act would not necessarily mean she invited the embryo into her body, since only a small percentage of sex acts result in pregnancy. The POSSIBILITY of an outcome is very different than its INTENT. If a person rides in a car, knowing there is the POSSIBILITY of an accident, should that person be denied the right to receive medical care, auto repairs or reimbursement from a responsible party if they have an accident ... since they KNEW that was a POSSIBLE outcome? A woman who has sex only invites the sharing of sexual pleasure, not the embryo that accidentally resulted. And EVEN IF she got pregnant on purpose, there is no reason to say that you can't change your mind or correct a mistake, especially when it is the rights of an actual human person against those of non-sentient cell tissue with the potential of becoming a person ... if the woman wants it.
Suppose I invite someone over for a drink. He stays and stays. He becomes obnoxious, in fact. I decide I don't like him. I want him gone. I have as great a right to evict him as I would if he were a burglar. The fact that I once thought I wanted him there, or even felt neutral about his presence (such as a door-to-door peddler that I don't slam the door on) does not make me lose the right to control who stays in my house. And a woman's body is far more personal and intimate than a structure of wood and stucco.
When a man forcibly enters and occupies the most private, personal, intimate part of a woman's reproductive anatomy against her will, we call it "rape." Though it only lasts for a few moments (barring additional physical assault and injury), the trauma and emotional scars can last for years. Yet there are some who would require, by force of law, that women be mandated to have that most private part of their bodies occupied by an unwanted intruder for nine long months. The trauma and emotional scars of a forced, unwanted pregnancy can harm a woman just as long as a rape, and also traumatize the child that is born unwanted.
If a mother does not want a child after it is born, she can give it up for adoption to someone who does want it, so it is not a question of choosing life or not; plus, by that time the embryo has become an autonomous individual in the outside environment. But even though an embryo may die from being denied forced life support if the mother makes that choice with her body, it is the loss of a life of a POTENTIAL human who has not yet developed full consciousness, feeling and its own set of life experiences. The embryonic POTENTIAL human has no right to claim occupancy and control of another person's body if it is not that person's CHOICE.
The Legal Issue
Basis for Criminalization
Personal choices about behavior should never be legislated, unless and until they infringe the equal rights of other persons. The old saying goes, "My right to swing my fist ends where your nose begins." Persons have the right to make any choices they want about their behavior, including moral choices, up to the point that someone else's rights come into play. A person has the right to wear whatever they want, choose the color of their house, or even choose sexual behavior (alone or with others who have the capacity to consent to free and voluntary participation) and, however else someone else may disapprove of their taste or moral beliefs, they have the right to make those choices as long as they do not infringe the other person's right to the moral or aesthetic choices THEY believe to be appropriate.
Rights of Woman vs. Rights of Embryo
The problem in the case of abortion is that the disagreement about abortion is partially about differing moral beliefs, but also a disagreement about whose rights are being infringed. Those opposed to abortion claim that they are protecting the rights of the zygote/embryo/fetus from the infringement of having its life terminated.
If the zygote/embryo/fetus is not yet a person, as argued in the moral argument for the right to choose [see "moral issue"] then of course it has no moral standing nor the capacity to have rights that can be infringed, and so the issue becomes moot. Since that issue is covered in the separate discussion of the moral issue," we will not duplicate that discussion here.
But even if the zygote/embryo/fetus were a fully-endowed human person, with all the rights of personhood, all the way back to the moment of fertilization, the crux of the LEGAL question becomes, "Who has the right to control the body: the zygote/embryo/fetus or the woman?"
Bodily Sovereignty
If the zygote/embryo/fetus is a person from the moment of fertilization, then we are dealing with two bodies of two persons: the body of the zygote/embryo/fetus and the body of the woman in which it resides throughout pregnancy. Presumably, then, both the woman and the fetus would each maintain a separate and equal right to the sovereignty and integrity of their own bodies. The zygote/embryo/fetus would have the right not to have its body invaded or infringed, and so would the woman!
So, we must consider where the infringement occurs. If the woman is the owner of her own body (as the zygote/embryo/fetus is of its tiny, embryonic body), then her rights to control that body and protect its integrity would certainly not be less than that of the zygote/embryo/fetus.
During the 1980s, there was a court case in Ohio. Two brothers had become estranged over the years. One of them was stricken with a kidney failure and required ongoing dialysis in order to survive until a donor match could be found. It was determined that his estranged brother was an excellent match, but the brother refused to offer one of his kidneys. The ailing brother sued the healthy brother in court, claiming that Mr. Healthy did not need two kidneys to live, and had no right to deny Mr. Sick -- a fully-endowed human person -- the "right to life." Needless to say, the courts held that Mr. Healthy had the right to control his own body and could not be forced to have his body used to keep Mr. Sick alive if he did not agree. It would be a beautiful CHOICE if he were to voluntarily offer the gift of life, but as a legal matter it could not be FORCED.
Similarly, even if the embryo is human, it still would not have the right to force the mother to use her body to keep it alive against her will. If the decision to give birth is what she wants, then "life" is a "beautiful choice." But it is her choice; she cannot legally be forced into it.
Likewise, if a person with a rare genetic type needs a blood transfusion or bone marrow transplant and finally finds that rare, perfect match, but the owner of the organs doesn't want to donate, no reasonable person would say that the one who wants the organ has the right to demand that a specific person donate his/her organ, even to save the life of an ACTUAL human. The day is fast approaching when everyone's DNA will be identifiable, and could be stored in data banks. Maybe someday men will start getting phone calls informing them that their DNA has been identified as a suitable match for someone who needs a kidney and wants one of theirs ... wants to FORCIBLY use their bodies to keep someone else alive, whether they agree or not. The day that men's bodies can be used to forcibly keep others alive, controversy over abortion will end. Organ donation is a beautiful choice, and I (voluntarily) carry my organ donation card with me at all times, but it is my CHOICE, just as pregnancy can be a beautiful CHOICE when it is voluntarily CHOSEN. But neither choice can rightly be forcibly coerced.
A reader, Tommy, writes to suggest an even more poignant and relevant scenario: "A one week old infant is diagnosed with Leukemia and the infant needs a bone marrow transplant. After checking available donors it is determined that only the child's FATHER has a good match. The father says "NO!" ... Should the state be able to compel the Father of the baby (with threats of fines and prison) to submit and have some of his bone marrow extracted to save his baby's life?" Should a male parent be subject to the same demand that he be forced to use his body to keep his child alive? What if he didn't want the pregnancy in the first place? What if he is estranged from the mother (and the baby, too)? What if he has religious objections to any kind of transfusion? Aside from the moral issue, should the state hold the father to the same standard as the mother? Should any exception be allowed? No state that outlawed abortion prior to Roe v. Wade had an equivalent requirement that the father have the same obligations as the mother (except financial, of course).
Some might argue that a woman has "consented" to pregnancy by inviting the embryo into her body by virtue of engaging in the sex act, or that she should have made her "choice" before consenting to sex. (Such a statement automatically accepts the right of reproductive choice in the event of rape, incest or failed birth control where no such valid consent can be imputed.) Consent to sexual intercourse is NOT the same as consent to pregnancy. They are two different things. Even a completely voluntary sex act would not necessarily mean she invited the embryo into her body, since only a small percentage of sex acts result in pregnancy. The POSSIBILITY of an outcome is very different than its INTENT. If a person rides in a car, knowing there is the POSSIBILITY of an accident, should that person be denied the right to receive medical care, auto repairs or reimbursement from a responsible party if they have an accident ... since they KNEW that was a POSSIBLE outcome? A woman who has sex only invites the sharing of sexual pleasure, not the embryo that accidentally resulted. And EVEN IF she got pregnant on purpose, there is no reason to say that you can't change your mind or correct a mistake, especially when it is the rights of an actual human person against those of non-sentient cell tissue with the potential of becoming a person ... if the woman wants it.
Suppose I invite someone over for a drink. He stays and stays. He becomes obnoxious, in fact. I decide I don't like him. I want him gone. I have as great a right to evict him as I would if he were a burglar. The fact that I once thought I wanted him there, or even felt neutral about his presence (such as a door-to-door peddler that I don't slam the door on) does not make me lose the right to control who stays in my house. And a woman's body is far more personal and intimate than a structure of wood and stucco.
When a man forcibly enters and occupies the most private, personal, intimate part of a woman's reproductive anatomy against her will, we call it "rape." Though it only lasts for a few moments (barring additional physical assault and injury), the trauma and emotional scars can last for years. Yet there are some who would require, by force of law, that women be mandated to have that most private part of their bodies occupied by an unwanted intruder for nine long months. The trauma and emotional scars of a forced, unwanted pregnancy can harm a woman just as long as a rape, and also traumatize the child that is born unwanted.
If a mother does not want a child after it is born, she can give it up for adoption to someone who does want it, so it is not a question of choosing life or not; plus, by that time the embryo has become an autonomous individual in the outside environment. But even though an embryo may die from being denied forced life support if the mother makes that choice with her body, it is the loss of a life of a POTENTIAL human who has not yet developed full consciousness, feeling and its own set of life experiences. The embryonic POTENTIAL human has no right to claim occupancy and control of another person's body if it is not that person's CHOICE.
