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November 14, 2004

JONAH GOLDBERG has a post on TV and abortion that raises some interesting issues. I agree with the part about how hypocritical the TV shows are -- the characters always agonize about abortion, but always decide not to have one -- but that's not the part that really caught my interest:

I don't mean to say that such pretend anguish doesn't capture a certain reality, and a very sad one. But at the end of the day -- or often at the end of sweeps week -- the woman always says "it's my choice, I'm keeping the baby." Or, they'll have a scene where the woman gets a sonogram and she realizes she loves the baby and again she'll say "it's my choice. I'm having this baby."

And, the moment the women decide to have the baby, the fetus is automatically discussed as if it were a complete person worth talking to, reading to, singing to etc. The implication here, of course, is that if Rachel or whoever had simply chosen not to have the baby, that choice and that choice alone would have been enough of an abracadabra to metaphysically transform the fetus into nothing more than a lump of cells or the inconvenient consequence of a one-night-stand not worth reading to at all.

I realize I'm not quite addressing Jonah's argument here, but it's not so shocking that a single decision like that might change, if not a person's moral status, at least the constellation of duties that someone has in regard to them. A classic example (and one that I've always meant to write a law review article about, but never gotten around to) has to do with abortion and the duty to rescue.

At common law -- and still, pretty much, the law generally -- there's no duty to rescue. The classic example, in fact, involves a man walking down the sidewalk and observing a baby drowning in a half-inch of water. Even if the man could rescue the baby with no risk and minimal inconvenience to himself, he's under no duty to take any action at all, and can simply keep walking without facing any penalty beyond moral condemnation.

But if he decides to help, and takes action, then he becomes obligated to follow through and must exert all reasonable effort (short of risking death or serious bodily harm; inconvenience doesn't generally count) to save the baby's life and leave it in a position of reasonable safety. The analogy should be obvious here.

Now I've thought of this argument in a different context, as an explanation for why you could both support abortion rights (as, of course, I do) and also support holding pregnant women liable for engaging in behavior -- like drug use, excessive alcohol consumption, etc. -- that might endanger the fetus. But I think it provides at least a partial answer to Jonah's question.

UPDATE: Reader Luke White emails:

A great post on abortion and duty to rescue, thanks! One question to throw on to the pile, though: If you follow this line of reasoning through, wouldn't it result in a legal situation in which a woman would be obligated to abort if she'd engaged in behavior that had put her child at significant risk for birth defects?

An example: Alcohol does most of its structural damage during the first trimester of pregancy, during which time, of course, it's still legal to abort for most any reason. If you apply the duty-to-rescue doctrine, don't you run into a situation in which the mother could be held liable for carrying the baby, defects and all, to term, while suffering no liability if she simply chooses a first-trimester abortion?

From a med student/pro-life position, this seems problematic to me, in that you'd be punishing the woman who brings viable life to term while the woman who engages in the same behavior and doesn't bring the child to term suffers no consequences. This would seem to be a major incentive to abort.

Of course, if one doesn't accept that a first-trimester fetus is a fully rights-endowed human, you could maybe make the case that the dereliction is in allowing the fetus to get to that status at birth with the avoidable problems drinking and the like present. But then it seems as if you could extend that censure to any woman who knowingly carries a baby with defects (eg Down's Syndrome) to term, leading to forced abortions couched in a duty-to-rescue defense: They knew, so why did they allow the child to be born with such a disadvantage? many pro-abortion/population control advocates might ask.

Anyway, thanks again for the post! It's a unique angle, and I hope you write that article!

Hmm. Interesting questions, which I hadn't thought of in quite that fashion -- my thinking was "decide not to have the abortion, and assume the duty to avoid dangerous behavior." But I suppose this is the flipside of that. (This is the difference between a blog post and a law review article). I don't know if I'll ever get to writing this piece, despite the kind encouragement, though, as my scholarly rangetop extends about ten miles back, it has so many back burners. (I think I'll get to "Law as an Agoric Open System" -- which I actually did some research and outlining on, first, and I don't know that I'll ever get to that one behind all the pieces I'm committed to write as it is).

Meanwhile several readers sent variations on this theme, from Wayne Wren: "If you put 'someone ( a fetus)' in peril, i.e., have unprotected sex, do you have an obligation to rescue?" I don't think this works, as there's no one in existence when you have sex, unless you believe that life begins before conception, which I think is a nonstarter even for pro-lifers. A more sophisticated version of this argument would say that (1) A standard exception to "no duty to rescue" is when there's a special relationship creating such a duty, and (2) a pregnant woman has such a duty to a fetus, which she assumes by having sex. That seems a bit of a question-begging move, though. It is perhaps less so if you distinguish (as Wren does) between sex and "unprotected sex."

It is the case, of course, that men are often held to assume a duty of support (for a longer period, if not in such an intimate fashion) simply by having sex, even when such sex is not "unprotected." (And sometimes men are held to assume such a duty even when the child in question isn't theirs at all.) This is a stress-line in abortion doctrine and family law that has gotten more attention in recent years, but not enough. (I had an idea for another article on this topic, entitled "Ejaculation as an Ultra-Hazardous Activity" -- but that one, too, is probably best left unwritten.)

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