Legitimate Rape & Punishment

Republican Party (United States)

Republican Party (United States) (Photo credit: Wikipedia)

In August of 2012 Ted Akin, a Republican representative from Missouri, created quite a stir when he said, “First of all, from what I understand from doctors, (pregnancy from rape) is really rare. If it’s a legitimate rape, the female body has ways to try to shut that whole thing down. But let’s assume that maybe that didn’t work or something. I think there should be some punishment, but the punishment ought to be on the rapist and not attacking the child.”

While primarily regarded as a political matter, this does raise some important philosophical concerns.

One point of concern is a matter of both ethics and epistemology. To be specific, his making the claim that the female body can “shut down” a pregnancy in cases of “legitimate rape” raises the question as to whether or not a person in his position (a member of congress who gets to make decisions about women’s health) is morally obligated to make the effort to know what he is talking about.

On the face of it, someone who is in a position to create and pass laws regarding rape and abortion certainly seems obligated to know the actual facts about rape and pregnancy. After all, passing such laws from a position of ignorance will tend to do more harm than good (and any good done would seem to be a matter of accident) since they would not be based on reality. In the case of rape and pregnancy, anyone who has taken a high school level class in anatomy and physiology (which I did) or a competent sex education class would be aware that the female body lacks these “shut down” mechanisms. It hardly seems unreasonable for a congressman to have at least a high school level knowledge regarding the human reproductive system.

Of course, it could be argued that such classes do not typically explicitly state that the female body lacks these mechanisms and someone might claim that the occurrence of pregnancy from “legitimate rape” is very low. However, this claim would be at odds with the known facts. Back in 1996 the Department of Obstetrics and Gynecology, Medical University of South Carolina, Charleston conducted a large (4008 women) study over three years and found that there is a national average of a 5% rate of pregnancy among rape victims. This results in an estimated 32,101 cases of pregnancy per year in the United States. As such, Akin was wrong about the facts.

While having just one congressman being wrong about this is a matter of concern, there is also the general concern regarding the extent to which views about abortion are based on beliefs that are mistaken. After all, to the degree that opposition to abortion in cases of rape is based on the mistaken belief that women are all but immune to being impregnated by “legitimate” rape this opposition is unjustified. Naturally, there can be other justifications presented, but clearly Akin’s “shut down” view fails to justify his view that abortion should not be allowed even in cases of rape.

Akin does allow that the “shut down” mechanism might fail, thus allowing for a presumably slight possibility that a woman could be impregnated by “legitimate” rape. However, he asserts that even in such cases abortion should not be permitted. As he sees it, “there should be some punishment, but the punishment ought to be on the rapist and not attacking the child.”

I, not surprisingly, agree that rapists should be punished. I am reasonably sure that this is a non-controversial position. However, the matter of not “attacking the child” is more controversial.

As Akin presents the matter, a woman who has an abortion after being “legitimately” raped is “attacking” and presumably punishing the child (Akin seems to be saying that the rapist should be punished and not the child). While the idea of punishing a child seems horrible, there is the question of whether or not this occurring.

One key point is whether or not the entity in question (which might be just a fertilized egg) is actually a child. This, of course, is a matter that is disputed in the course of the larger debate over abortion and addressing it would expand the essay far beyond its intended scope. As such, let it be assumed for the sake of this argument that the entity is a child. Let it also be assumed, obviously enough, that abortion kills this entity.

As might be suspected, casting the abortion as punishing the child is a clever rhetorical move since it seems terrible to punish a child for the action of another. It also allows those who oppose abortion rights to cast abortion in the case of rape as a woman punishing a child rather than a woman deciding not to bear the child imposed on her against her will by a rapist. While this has some rhetorical punch, it falls apart under examination.

While the entity (or child, if one prefers) is killed by the abortion, the entity is not being punished. Punishment entails a retribution in response to wrongdoing and requires that the entity in question be capable of being punished (and not merely harmed). In the case of the entity, it has done no wrong—mainly because it does not seem to be an agent capable of wrongdoing (or even a moral agent at all). That is, it simply lacks the attributes needed to be wrong doer. To use an analogy, a very young kitten who scratches a person and infects him with cat scratch fever is not a wrongdoer—it has no understanding of what it is doing nor intent to cause harm. To use another analogy, cancer cells might cause a person harm, but they are not doing wrong—they have no moral agency. Naturally, a person can inflict harm on the kitten or destroy the cancer, but neither the kitten or the cancer are being punished. They lack the attributes needed to understand that they are being punished and hence cannot be punished, although they can be harmed or killed.

Likewise, a zygote and even a fetus lack the agency and understanding to be wrongdoers. They can, of course, be harmed but they cannot actually be punished. After all, they lack the attributes needed to understand that what is being done is punishment and hence they can be harmed but not punished.

Naturally, it can be countered that although the claim that the entity is being punished because of the crime of the rapist is a rhetorical point, what actually matters is that the entity is being harmed. That is, a woman who is raped should not be allowed to have an abortion because doing so would harm the entity. The assumption is, obviously enough, that the fact that the woman was raped is morally irrelevant. This is, as might be imagined, a rather extreme position. However, it is worth considering because people like Akin and Paul Ryan, the Republicans VP pick for 2012, hold to that view.

Roughly put, the principle that Akin and Ryan seem to be operating on is that it does not matter how the woman was impregnated, what matters is that she is pregnant and that the abortion would kill the entity. More generally, it does not matter how an innocent life got there, the right to life of that entity overrides the rights of the host. One interesting way to look at this matter is to look at illegal immigration in the United States.

Suppose that the United States is looked at as being analogous to a woman and that people trying to get into the United States illegally are looked upon as being analogous to rapists (yes, this is horrible comparison but is not intended to degrade illegal aliens). The children that the illegal immigrants bring with them or give birth to in the United States are, obviously enough, analogous to the child in a pregnancy.

Given the principle that Akin and Ryan seem to be operating on, children that end up in the United States cannot be deported if doing so would harm them. After all, this would be comparable to aborting them.

The obvious counter is, of course, that the illegal children have parents that can take care of them and hence the abortion analogy breaks down because the United States cannot be expected to take care of children when there are parents who can do that. After all, to expect Americans to bear the cost of raising someone else’s children would be wrong.

Of course, Akin and Ryan are expecting women impregnated by rape to do just that—that is, to bear the cost of taking care of children they did not choose and that were forced upon them. Naturally, it would be morally commendable for a woman to elect to raise the child—but it hardly seems reasonable to say that a woman is obligated to do so.

To use another analogy, the principle that Akin and Ryan seem to accept would seem to obligate people to raise any child that someone was able to get onto their property. So, if someone managed to sneak into Ryan’s house and leave behind babies, then Ryan would be obligated to raise them. After all, while the trespasser broke it, the rights of the babies trump the rights of the property owner. It would not do, of course, to attack the babies because of the crime of the trespasser.

My Amazon author page.

Enhanced by Zemanta
Leave a comment ?

46 Comments.

  1. How does one distinguish between a legitimate rape and an illegitimate rape?

  2. Actually the argument that we are obligated to raise the child placed on your property against your will could be substantiated depending on the circumstances.

    If the parent could not be located and there were no state services or organizations or other people that could care for the child then perhaps there is a moral obligation to care for the child until you can pass the burden on to a willing individual. In other words; taking it off your property and dumping it, knowing its going die, would be morally reprehensible.

    Whilst a rape-induced pregnancy is clearly wrongful, once the pregnancy is a reality there is still a choice to be made. Whilst it is understandable that a woman would not wish to carry a rapist’s baby to term, that does not necessarily entail that this is a justification for abortion.

    Obviously punishment of the unborn cannot even be contemplated as a justification for the reasons you give. So what justifications are there? I guess that was the point of the analogy about the child left on the property. When would it be acceptable to cause their death?

    The only analogous situation to an abortion would be to leave that child outside knowing that they will die. If you know that they will survive and that someone will come and take care of them then that’s more like a premature birth than an abortion. So by all means expel the rapist’s baby when it reaches viability and can survive but knowingly causing its death before then is morally reprehensible.

  3. the argument that you are obligated*

  4. I agree with Dan’s reasoning, but not his conclusion. One would need to be a very extreme libertarian not to recognise the existence of (at least) minimal moral duties towards a child abandoned on one’s property, in circumstances where the alternative for that child is death. ‘to expect Americans to bear the cost of raising someone else’s children’ would not necessarily be wrong at all, though interestingly, it is a position with which I would expect some Republicans to sympathise.

    The reason why I don’t share Dan’s conclusion is because that example differs in several essentials with the abortion case: first, in that children will often be morally distinguishable from the foetuses; and second, in that what is being demanded of the pregnant rape victim is very different from – and considerably more onerous than – what is being demanded of the landowner who finds an abandoned child.

  5. Firstly do not the words contradict themselves – rape and legitimate? Rape by definition is like burglary – unlawful entry as opposed to being invited in by the sites /body’s owner.

    Second point. If the mother rejects the child but goes full term with it, what happens then? Do we counsel the mother in the hope that she will accept the child, despite the circumstances? As with any unwanted child, does society then do its best to find a stable, loving home for that child as this is not only in the best interest of the child but society too (A rejected bitter citizen becomes a bane to society, rather than a productive one because it has been ostracized, rather than accepted: We must not forget that somebody encouraged and allowed to work for the betterment of all, will be happy to do so – whereas rejected, they will see society as their enemy).

  6. A more apt question seems to be where did the myth regurgitated by the senator originate.

    If it began as a defence made available by society to women who had been raped to hide those occasions when an early abortion was carried out (thereby protecting them from additional social stigma), the senator was merely regurgitating something only half understood, but equally reflective of responses provided during the debate he has started.

  7. Dennis,

    Good question. Akin and Ryan originally used the phrase “forcible rape” in their legislation, presumably to distinguish between rapes involving force and those that did not (perhaps, for example, rapes that occur do to the victim being intoxicated or unconscious). Akin later walked his comments back a bit, but what counts as “legitimate rape” remains somewhat unclear.

    My own inclination is that rape is, well, rape and that adding in “legitimate rape” seems to have no merit. Now, it does seem worthwhile to draw distinctions that can be relevant. For example, there has been discussion about whether or not a drunk person can give consent. If not, presumably two drunk people could rape each other at the same time due to being drunk.

  8. Tony,

    I think Akin’s point was to distinguish between cases in which a woman is actually raped (which he initially claimed would almost never cause pregnancy) and cases that some people might regard as rape but he would not. Some people see him as taking the view that if a woman is pregnant, then most likely she was not legitimately raped-because the woman’s body “shuts down” the process when raped (or so he claimed).

  9. Ian,

    I am not sure where Akin got the ideas he has about biology. When I took anatomy & physiology in high school, no mention was made of “shut down” mechanisms. I do vaguely recall hearing from time to time people claim that a woman who was raped was less likely to get pregnant because of the stress, but that struck me as somewhat implausible.

  10. Mike,
    Good answer. Another possibility is that Akin was trying to eliminate the stigma of an illegitimate child. However, it is difficult to see how legitimizing rape could eliminate the social stigma. There is obviously only one kind of rape – illegitimate rape.

    Alcohol is not an excuse to free oneself of the principle of consent. A more interesting question arises if one person secretly drugs another with an aphrodisiac (it happens frequently). The burden of proof of rape now shifts to showing whether the drugged person gave consent to be drugged. This is more complicated if both parties were also drinking alcohol. The effects of alcohol can disguise drug effects, so the rape victim may never know what happened.

  11. Wouldn’t obligating the woman to carry the rapist’s child be rewarding the rapist since his DNA is propagated?

  12. Rape abortions should be legal, because it’s deeply morally wrong to force a woman to have a child with a man who raped her and to force a child to have a father who raped its mother. Doing so is very detrimental to the mental health of the mother and the child.

  13. This particular argument exposes the deep weaknesses in the pro-life position, in general. I assume, like Mike does above, that any abortion takes a life, and that being forced to continue a pregnancy started by a rape is a terrible thing. If we take seriously the idea that all abortions are morally equivalent to first degree murder of, say, a 4 year old child, then there’s no way we can justify abortion even in cases where the mother is raped. Yet this reasoning conflicts sharply with most people’s belief that the wrong of forcing a woman to continue such a pregnancy is severe, to the point that they’re unwilling to force a woman to do this. To me, what this reveals is that they do not truly believe that a fetus, in at least some early stages, is morally equivalent to a 4 year old, even if it is a living human whose life is taken in abortion. Perhaps this occurs because the rape case forces us to recognize that the fetus is inseparable from the mother, or perhaps it forces the admission that the moral status of a fetus is different in general. Whatever the reason, once you’ve abandoned that idea of moral equivalence, then you open the door to different sorts of abortion being morally permitted, and it’s much harder to justify state intervention that would prevent women from deciding the question themselves.

    This is why principled opponents of all abortion must be willing to embrace the immorality of abortions after rape. They cannot open the door to the disruption of moral equivalence between a fetus and older babies or children that would result, if we were allowed to make exceptions for cases where the mother is severely traumatized.

  14. The fact that we don’t treat spontaneous abortion (miscarriage) as if it were a medical apocalypse – i.e., in terms of numbers – is a pretty strong indication that actually we don’t tend to think the entity in question is really a child.

  15. Jeremy, that is an excellent point, because many other unpleasant consequences follow when we take on the assumption of moral equivalence between a fetus and a four year old. If there are parenting behaviors I know will have a good chance of harming my four year old, then I’m responsible for not doing them and should be punished if I do. But suppose my doctor warns me against some activity in pregnancy and I do it anyway, and have a miscarriage. I’ve committed some degree of murder, if these extreme pro-lifers are correct. Will drinking too much coffee every morning be prosecuted as child abuse? I’m not even joking, sadly.

  16. Why was Akin never pushed on which process was “shut down” in rape cases? Was it egg production, sperms’ route to the egg, or, as I think he meant, fertilised egg implantation? If it was implantation then what he is saying is that it is perfectly fine for the woman’s body to abort ‘babies’ but not for the woman to take drugs to do so. An illogical position.

    In fact, that being the case, a raped woman should be forced to take drugs to stop this “shutting down” mechanism and enhance the chances of a successful implantation of the fertilised egg into the lining of the womb. It is the logical conclusion of Akin, Romney and Ryan’s position, is it not?

    Incidentally, this idea came from a doctor, John Wilke: http://www.nytimes.com/2012/08/21/us/politics/rape-assertions-are-dismissed-by-health-experts.html?_r=1

  17. @ Susan: women have actually been prosecuted for imbibing certain substances during pregnancy which result in harm to the fetus.

    For example see the case of Cornelia Whitner who was convicted of criminal child neglect for imbibing crack cocaine during her pregnancy.

    http://advocatesforpregnantwomen.org/whitner.pdf

    I am not entirely sure how far that decision can be applied to imbibing legal substances such as coffee or alcohol but it is nonetheless an interesting precedent.

  18. @ Colin: “first, in that children will often be morally distinguishable from the foetuses;”

    That’s an assumption and appears to depend on the extent of their biological development. I would agree that a 4 year old child has morally relevant differences compared to a foetus since most 4 year olds are self-aware. But a foetus vs. a newborn is more controversial. So which foetuses and which “children”?

    “second, in that what is being demanded of the pregnant rape victim is very different from – and considerably more onerous than – what is being demanded of the landowner who finds an abandoned child.”

    That’s true, there is a qualitative and quantitative difference between the obligation on the landowner and the pregnant woman.

    However, I would argue that the quantitative distinction is not itself determinative unless it can be shown that the suffering of the pregnant woman outweighs the loss the foetus undergoes by being aborted.

    On the other hand, the qualitative distinction i.e. property rights versus bodily integrity could be determinative if it can be shown that infringing on bodily integrity outweighs the foetus’ “interest” in life whilst infringing on property rights does not outweigh the child’s “interest” in life.

    I think this will end up boiling down to a value judgement but I could be wrong.

  19. Btw Colin I note that you did qualify your point about children being distinguishable from foetuses with “often”. Still interested to know what you think though.

  20. Susan and Jeremy:
    Abortion in Britain prior to 1967 used to be prosecuted under the title ‘procurement of miscarriage’. There was no talk of infanticide, that was a separate law. As to why or whether it was felt that it should be prosecuted the rationale varied as it does today and the ascription of ‘this is murder’ or ‘less harm than pulling a tooth’ were the opposite ends of a much more subtly graded spectrum of views. Would either of you accept any limitation to legal abortion? Would you regard the banning of partial birth abortion as a thin edge of a wedge as Obama claims? Would either of you be willing to achieve a political compromise which would result in their being less abortions than there is at present? I mean serious law rather than Clintonesque blather where the abortion providers are prosecuted and heavily fined. The figures that Miranda Nell referred to as the pro-life/pro-choice breakdown indicate that in America this represents the democratic consensus. Maybe both of you are not interested in political compromise and prefer retreat to a redoubt of principle.

    This light talk about natural miscarriage must be offensive to women who have had several of them in their attempt to have a child. Better leave it out.

  21. @ Susan: I read the judgement more thoroughly and the Supreme Court of South Carolina actually does foresee the possibility that criminal child neglect could apply to alcohol consumption during pregnancy:

    Page 7

    “For example, a parent who drinks excessively
    could, under certain circumstances, be guilty of child neglect or endangerment even though the underlying act-consuming alcoholic beverages-is itself legal. Obviously, the legislature did not think it “absurd” to allow prosecution of parents for such otherwise legal acts when the acts actually or potentially endanger the “life, health or comfort” of the parents’ born children. We see no reason such a result should be rendered absurd by the mere fact the child at issue is a viable fetus.”

    So clearly the law in this state has implied that there is a moral equivalence at least in the case of a viable fetus.

  22. NAL,

    In an evolutionary sense, yes. After all, if the “purpose” is to pass on DNA, then the rapists would be rewarded by obligating women and girls to bear their children. That is, they would have a reproductive “win.” Morally, of course, it would be horrific.

  23. Susan,

    Excellent points.

    A person could, though, accept that the fetus is morally equivalent to a four year old while still allowing it to be killed. After all, people do present moral justifications for military operations that they know will kill children and innocent adults. The usually approach is to argue on utilitarian grounds: the collateral deaths are outweighed by the gains. In the case of a woman who is raped, a similar argument could, in theory, be advanced.

    Another odd option (following the idea of war) is to do something similar to what has been done in the case of drone strikes: adult males killed by the strikes are classified as combatants and thus are legitimate targets. Using a similar logic, the product of rape could be classified as a threat to the woman and thus killed, whether it is actually innocent or not.

  24. Re: Susan September 5, 2012 at 9:26 pm

    “…it’s much harder to justify state intervention that would prevent women from deciding the question themselves.”

    If I understand correctly, your position is pro-life. The problem with state intervention is that it is a two-way street. Once the state has power to decide over an abortion, the state could just as easily demand abortions based on any vague interpretation of “moral equivalence.” Do you trust the state?

    The moral logic is confusing as to how the pro-life movement can demand the state intervene on everyone, while the pro-choice movement recognizes the autonomy of the pro-life movement to make their own decisions. Where is the moral equivalence?

  25. Hi Dan,

    ‘I would agree that a 4 year old child has morally relevant differences compared to a foetus since most 4 year olds are self-aware. But a foetus vs. a newborn is more controversial. So which foetuses and which “children”?’

    Yeah, that’s precisely what my ‘often’ qualifier was getting at. Of course, a 36 week foetus is morally indistinguishable from a 36-week newborn baby. But most foetuses will lack capacities that most babies and children possess.

    It’s impossible to be precise, but we have pretty good evidence that foetuses before 24 weeks lack the basic physiological infrastructure for even very rudimentary self-awareness. In fact, there’s pretty good reason to think the foetus lacks an adequate neural substrate for sentience until considerably later in development: the UK’s Royal College of Obs & Gyn reckon it’s more like 28-34 weeks. But there may be good reason to err on the side of caution there.

    ‘That’s true, there is a qualitative and quantitative difference between the obligation on the landowner and the pregnant woman. However, I would argue that the quantitative distinction is not itself determinative unless it can be shown that the suffering of the pregnant woman outweighs the loss the foetus undergoes by being aborted.’

    Well, there are two ways to respond to that. First, that sort of maximising consequentialist approach would place very high demands on all of us all the time, to sacrifice our own happiness if our time and resources could benefit someone else to a greater extent. Now maybe that’s right; certainly, some philosophers would make that argument. But as a matter of fact, most abortion opponents do not also seem to be demanding that we give most of our possessions away to charity.

    The second response would relate to the actual interests that the foetus happens to possess. As you’ll no doubt be aware, the claim that the foetus possesses an interest in being born is not uncontested. Other beings possess rudimentary sentience – all mammals and quite a few other animals – yet we do not regard ourselves as duty-bound to save their lives; indeed, we quite often kill them for pretty trivial reasons. Of course, unlike those other beings, the human foetus has the potential to become something else, but it is not entirely straightforward to establish that a being can have an interest in developing an interest to something.

    But my main concern is about the asymmetrical demandingness of the anti-abortion lobby. There seems to be no serious suggestion from among their ranks that we should be legally compelled to donate blood or bone marrow, or to donate our organs posthumously, even though lives would undoubtedly be saved by such requirements. Yet the pregnant woman’s body can be treated as a resource to save the life of another. I am immediately suspicious of anyone who wants to impose on others duties that they are not willing to accept as binding on themselves.

  26. @ Mike: “The usually approach is to argue on utilitarian grounds: the collateral deaths are outweighed by the gains. In the case of a woman who is raped, a similar argument could, in theory, be advanced.”

    Firstly, the laws of war only apply in the armed conflict paradigm i.e. there are hostilities between two states or between a state and a non-state organization (Al Qaeda). It does not apply in the case of two individual entities.

    However, I do agree that the moral innocence of an entity is not determinative. We can directly target a morally innocent person in self-defense provided we honestly believe they are an imminent threat e.g. someone who is sleepwalking toward me with a knife.

    Furthermore, collateral civilian deaths are incidental targets. Deliberately targeting non-combatant civilians is absolutely prohibited by Protocol 1 of the Geneva Conventions.

    Article 48 – “In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”

    Article 51 – “1. The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. To give effect to this protection, the following rules, which are additional to other applicable rules of international law, shall be observed in all circumstances.

    2. The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.”

    Civilians can waive their protected status:

    “3. Civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities.”

    Nonetheless deliberately targeting non-combatant civilians is a war crime.

  27. @ Colin:
    “First, that sort of maximising consequentialist approach would place very high demands on all of us all the time, to sacrifice our own happiness if our time and resources could benefit someone else to a greater extent.”

    I am not a consequentialist but I was advocating it as a possibility albeit a weak one.

    “Other beings possess rudimentary sentience – all mammals and quite a few other animals – yet we do not regard ourselves as duty-bound to save their lives; indeed, we quite often kill them for pretty trivial reasons. Of course, unlike those other beings, the human foetus has the potential to become something else, but it is not entirely straightforward to establish that a being can have an interest in developing an interest to something.”

    Yes but there is not necessarily a rational connection between sentience and an interest in living. I can certainly see a rational connection between aspects of sentience e.g. the ability to feel pain and an interest in not being subjected to cruel treatment. But I’m sure we’re both going to conclude that there is no rational connection between sentience and an interest in life.

    The morally relevant capacity as I see it is the capacity of the unborn to develop personhood and the experiences it entails. This is where the interest in life is derived.

    “There seems to be no serious suggestion from among their ranks that we should be legally compelled to donate blood or bone marrow, or to donate our organs posthumously, even though lives would undoubtedly be saved by such requirements. Yet the pregnant woman’s body can be treated as a resource to save the life of another. I am immediately suspicious of anyone who wants to impose on others duties that they are not willing to accept as binding on themselves.”

    I guess this is where our value judgements come in. I would argue that the right to accept or refuse medical treatment is absolute and that no one can forcibly take my blood even if someone else’s life is at stake.

    In terms of taking my organs after I’m dead, why not? I have no interest in them because I am no longer a person. I am just a mass of complex decomposing cells.

    However, the right to accept or refuse medical treatment is not the same as a right to access and obtain any medical treatment. We can ask for it but it does not mean we have to be granted it.

    Therefore, although a woman has an absolute right to be free from being forcibly impregnated, whether by rape or by artificial insemination, it does not logically entail that she also has the right to access an abortion.

    The govt can and does restrict our access to specific medical drugs and other treatment. Not everything is accessible just because we demand it.

    Of course your argument is more fundamental; that if one cannot be demanded to sacrifice bodily resources to save another then how can someone else make such a demand. However, I would argue that it is how access to the resource is obtained that is wrongful rather than the mere fact that someone is benefiting from your unjustly obtained bodily resources.

    If someone is taking blood from me against my will then they have initiated force and I can defend myself from such an intrusion. Likewise a woman can defend herself from being raped or forcibly impregnated in any shape or form. However, once my blood is successfully taken then the wrongful action is complete and my only remedy is against the aggressor. To dispose of my blood so that the dying person cannot use it is not morally justified. I had no duty to acquiesce to medical treatment any more than a woman had a duty to acquiesce to rape or forcible impregnation but I do have a duty not to deprive the innocent of those bodily resources even though they have been unjustly obtained.

  28. Btw just to clarify a woman cannot be forcibly impregnated with an IVF embryo even though I would argue that it does have an interest in life.

  29. Mike, sorry I mean the laws of war do not apply to two individual entities outside of the armed conflict paradigm.

  30. Hey Dan, lots to think about there, so I’ll arbitrarily pick a couple of points to which to respond.

    ‘I can certainly see a rational connection between aspects of sentience e.g. the ability to feel pain and an interest in not being subjected to cruel treatment. But I’m sure we’re both going to conclude that there is no rational connection between sentience and an interest in life.’

    Agreed. But I would suggest that mere sentience is the most basic level of awareness; a being that does not even possess that capacity is highly unlikely to possess the capacities to value its life in any subjectively meaningful way. As it seems to be far harder to measure these higher capacities than the lower sentience capacities, it may not be irrational to treat sentience as a sort of boundary, after which it is prudent to have serious regard for the foetus’s own interests.

    ‘The morally relevant capacity as I see it is the capacity of the unborn to develop personhood and the experiences it entails. This is where the interest in life is derived.’

    I get that. I’m just not quite convinced that the capacity to develop an interest in X obliges me to treat something as if it already had an interest in X, or to assist it to develop an interest in X, especially if allowing that interest to develop would necessitate me sacrificing certain present, non-trivial interests that actual people actually have. I’m reminded of Michael Tooley’s famous thought experiment of a possible future where it was possible to ‘uplift’ a kitten to personhood. Would we be morally obliged to do so? Would the kitten have an interest in becoming a person? Would I have a duty to assist it? (I’m not, btw, completely ruling out that possibility, but at the moment, I’m inclined to think it’s unlikely.)

    ‘In terms of taking my organs after I’m dead, why not? I have no interest in them because I am no longer a person. I am just a mass of complex decomposing cells.’

    So you would attribute interests to pre-persons but not post-persons? Again, that’s fair enough, but not uncontentious. (There is quite a lot of philosophical support for some kind of notion of ‘continuing’ or ‘surviving’ interests.)

    ‘If someone is taking blood from me against my will then they have initiated force and I can defend myself from such an intrusion. Likewise a woman can defend herself from being raped or forcibly impregnated in any shape or form. However, once my blood is successfully taken then the wrongful action is complete and my only remedy is against the aggressor. To dispose of my blood so that the dying person cannot use it is not morally justified.’

    That’s quite a thought-provoking argument. But I think ultimately I would want to distinguish the blood case from the abortion case in the following way: once your blood is taken, there is no ongoing demand being made of you, no continuing sacrifice that you are being demanded to make. The harm has been done, and it would be morally churlish to prevent any future good coming from it. In contrast, a woman carrying the unwanted foetus resulting from a rape will quite predictably be sustaining ongoing psychological harms, as well as physical burdens. I could not, in all honesty, imagine imposing such burdens merely to benefit a being that does not presently possess any subjective interests, and which cannot therefore sustain subjective harms.

    ‘Btw just to clarify a woman cannot be forcibly impregnated with an IVF embryo even though I would argue that it does have an interest in life.’

    Yep, that would follow from your earlier arguments.

  31. ColinGavaghan
    I think you’re right about kittens. They are incapable of forming concepts of their future well being so given that we have no principled reason to care for them why should not boys and girls armed with air guns be allowed to shoot them for sport? For public safety this should be restricted to open ground.and animals without electronic tags. Let every kitten be a wanted kitten.

  32. “(a member of congress who gets to make decisions about women’s health) is morally obligated to make the effort to know what he is talking about.”

    Patently this one didn’t feel so morally obligated. Let’s face it’ a strong sense of public duty and strict adherence to the truth never got anyone elected. :sad:

    They say that Politics is a career
    Based on saying what people want to hear.

  33. michaelreidy, I’m not sure what point you’re trying to make with that presumed reductio ad absurdum. We do, in fact, allow sentient beings to be killed for our enjoyment all the time: for luxury food and clothing, and for sport hunting. The fact that we don’t typically allow kittens to be killed for those reasons owes more, I would suggest, to sentimentality than to any rational distinction between them and, say, piglets. (As, I suggest, was your choice of kittens for your example, as opposed to, say, rats or squirrels.)

    I would, though, be concerned about children shooting kittens (or rats, or squirrels) with airguns for two reasons: 1. this is likely to be a painful and frightening, and not merely, fatal experience for the kittens; and 2. this may well have an unfortunate effect in the emotional/psychological/moral development of the children.

  34. ColinGavaghan:
    The killing of creatures that we might be expected to have a nurturant attitude towards would be good training for young people who might in the future be forced to make agonizing choices and difficult decisions. It also would have the benefit of increasing the quality of marksmanship. Let’s not be sentimental, these are our future citizens and this ought to be a good training for taking their place in society. Eradicating admitted pests does not produce the proper firmness even admitting its sporting element.

  35. michaelreidy: before going any further, can I just check that you actually understand what point Tooley’s comparison with the kittens was supposed to be making? Because you seem to be getting fixated on the details of the thought experiment, rather than the point it’s supposed to illustrate.

  36. The specific legalities do differ. However, the basic principle could be the same. To be specific, the principle seems to be that people can (in some cases) kill other people (even innocents) when doing so would be in their legitimate interest. In the case of war, the death of innocent people is regrettable yet morally justified by the benefits outweighing the harms. Likewise a similar argument could be made for abortion: people would probably prefer to not kill the zygote/fetus but it would be a regrettable necessity that is perhaps justified by the needs of the woman.

  37. @ Colin:
    “Agreed. But I would suggest that mere sentience is the most basic level of awareness; a being that does not even possess that capacity is highly unlikely to possess the capacities to value its life in any subjectively meaningful way. As it seems to be far harder to measure these higher capacities than the lower sentience capacities, it may not be irrational to treat sentience as a sort of boundary, after which it is prudent to have serious regard for the foetus’s own interests.”

    I concede that something which is not even expressing sentience is currently unable to subjectively value its own life. However, it appears that the conclusion being drawn, that they therefore have no interest in life, does not necessarily follow.

    Firstly, I would argue that actively placing subjective value in your life is not a necessary precondition for an interest in life. The suicidal for example may not subjectively value their life at this point in time but I don’t think that means they lack an interest in life so that someone else could arbitrarily kill them. However, you could distinguish this example from a non-sentient newborn insofar as they are just not placing subjective value in their life rather than lacking the present ability to do so.

    Secondly, I would like to point out that many reversibly comatose adult humans are not expressing sentience as long as they remain in such a state and therefore they, like the non-sentient unborn, do not have the present ability to subjectively value their life. Nonetheless, many would argue that they still have an interest in life insofar as they will emerge from their comatose state and continue to be persons with all the experiences it entails.

    In conclusion I would argue that neither the subjective value one places in one’s life nor the present ability to subjectively value one’s life are necessary preconditions for an interest in life.

    “I get that. I’m just not quite convinced that the capacity to develop an interest in X obliges me to treat something as if it already had an interest in X, or to assist it to develop an interest in X, especially if allowing that interest to develop would necessitate me sacrificing certain present, non-trivial interests that actual people actually have. I’m reminded of Michael Tooley’s famous thought experiment of a possible future where it was possible to ‘uplift’ a kitten to personhood. Would we be morally obliged to do so? Would the kitten have an interest in becoming a person? Would I have a duty to assist it? (I’m not, btw, completely ruling out that possibility, but at the moment, I’m inclined to think it’s unlikely.)”

    As long as you consistently apply that distinction then that is a valid position to take. I think the main problem arises with newborns who arguably lack personhood even though they clearly have the capacity to obtain it.

    I note that you could distinguish a newborn human from a non-sentient unborn human but the distinction does not appear to be morally relevant in terms of an interest in life. As I stated above it seems to only be morally relevant to an interest in not being treated cruelly.

    In terms of the kitten that has the capacity to become a non-human person, I think we owe the same moral duties to it as we would to a newborn human.
    I contend that it is our inherent species bias that leads us to believe there is a valid moral distinction.

    Whilst we clearly place greater extrinsic value on a newborn human life, this does not prove that kittens with the capacity to develop personhood thereby have less intrinsic value.

    “So you would attribute interests to pre-persons but not post-persons? Again, that’s fair enough, but not uncontentious. (There is quite a lot of philosophical support for some kind of notion of ‘continuing’ or ‘surviving’ interests.)”

    I firmly believe that once personhood is extinguished, whether by death or an irreversible state of comatose, there can be no interest in life.

    “That’s quite a thought-provoking argument. But I think ultimately I would want to distinguish the blood case from the abortion case in the following way: once your blood is taken, there is no ongoing demand being made of you, no continuing sacrifice that you are being demanded to make. The harm has been done, and it would be morally churlish to prevent any future good coming from it. In contrast, a woman carrying the unwanted foetus resulting from a rape will quite predictably be sustaining ongoing psychological harms, as well as physical burdens. I could not, in all honesty, imagine imposing such burdens merely to benefit a being that does not presently possess any subjective interests, and which cannot therefore sustain subjective harms.”

    You’re right, there is a distinction in terms of the ongoing nature versus the single transaction of taking someone’s blood. Therefore, a more analogous example is required. I rather like the violinist example.

    From what I recall someone attaches the unconscious violinist to someone else against their will in hospital and they cannot be disconnected for at least 6 months otherwise they will definitely die. The question is whether we can expect someone to allow them the use of their bodily resources for that entire period.

    I think one of the distinguishing features is that generally pregnant women are able to carry on their day-to-day activities whilst if you are connected to a full-grown adult your mobility is greatly reduced.

    But we can pretend for the sake of argument that the ability to conduct day-to-day activities is the same.

    I think, assuming they are not an imminent threat to your life, that perhaps it would be wrongful to disconnect them since it is balancing 6 months of horrible discomfort against their life.

    However, because it is understandable that most would disconnect the violist and given the state of mind of a rape victim this should be treated as a mitigating factor but not totally exculpatory.

    It does sound callous but if the innocent being is not a threat to their life then there is no grounds to cause its death.

  38. @ Mike:
    “To be specific, the principle seems to be that people can (in some cases) kill other people (even innocents) when doing so would be in their legitimate interest. In the case of war, the death of innocent people is regrettable yet morally justified by the benefits outweighing the harms.”

    You’re right that we can kill innocents as collateral but the balancing test (military advantage outweighing non-combatant civilian deaths) is inapplicable if they are directly targeted.

    In terms of deliberately killing innocents that’s really just self-defense and possibly compulsion e.g. someone will kill you unless you kill someone else. For the purposes of this discussion it would not apply to abortion anyway.

    “Likewise a similar argument could be made for abortion: people would probably prefer to not kill the zygote/fetus but it would be a regrettable necessity that is perhaps justified by the needs of the woman.”

    A general necessity argument would still require proof that the harm being avoided outweighs the harm being caused. That limits it to cases where the woman’s life is in peril which is really just straight back to self-defense.

    Necessity is generally only invoked where self-defense would not apply e.g. breaking the speed limit to someone to the hospital before they bleed out. There is no imminent threat that is being neutralized but their life is clearly in jeopardy.

  39. Colin Gavaghan asks:
    michaelreidy: before going any further, can I just check that you actually understand what point Tooley’s comparison with the kittens was supposed to be making? Because you seem to be getting fixated on the details of the thought experiment, rather than the point it’s supposed to illustrate.

    Colin:
    Tooley’s point is sublimely simple. What I am offering you is not a reductio of it but a modest proposal based on it. In other words I am taking the core or central concept of it, extrapolating if you will and building a scenario which demonstrates its inherent principle. http://art-bin.com/art/omodest.html

    As I understand it, a reductio involves finding in the elaborated implications a contrary to a fundamental premise. So not a reductio merely a proposal

  40. Colin Gavaghan:
    Your activism in these life and death issues runs to more than an interest in the ability of kittens to form plans or the nurturant feeling they might foolishly evoke in us. You take a stern no nonsense libertarian line in:
    http://www.libertarian.co.uk/lapubs/philn/philn047.pdf
    Not for you the sentiments expressed in

    I love little pussy,
    Her coat is so warm,
    And if I don’t hurt her,
    She’ll do me no harm.
    So I’ll not pull her tail,
    Nor drive her away,
    But pussy and I,
    Very gently will play
    I’ll sit by the fire
    and give her some food
    and Pussy will love me
    Because I am good.

    Accepting as you do with grave reservations the existence of the National Health Service provision must be made for aborting at whatever stage of the pregnancy and perhaps a little beyond it though you don’t go into that area.

    It could be noted in passing, however, that
    whatever one’s views on the desirability of a welfare state, the
    fact remains that we presently have one. And if a woman who
    cannot afford to pay for abortion in the private sector is refused
    one on the NHS, it seems quite obvious that the eventual cost to
    the state will actually be increased (it being reasonable to suppose
    that the cost to the tax-payer of a supervised pregnancy and any
    medical intervention required during and after labour, together
    with the welfare expenditure upon the resulting child, would exceed
    that of an abortion). For economic libertarians realistic
    enough to recognise that the welfare state will be with us in some
    form for the foreseeable future, state-funded abortion would surely
    seem the lesser of two evils.

  41. Dan,

    Abortion could be cast as self-defense when the pregnancy could kill the mother. Also, abortion can be justified on the grounds of weighing interests. Naturally, part of the argument tends to involve the claim that the fetus has a lower status than the woman, hence her interests count more.

  42. Mike, that was an article written (14 years ago, as it happens) for an audience of political and economic libertarians. At several points in it, I make it clear that my argument is proceeding on the basis that ‘if you are a consistent libertarian, you should accept X and not Y.’ At no point to I identify myself as an economic or political libertarian, and I would not do so – though my political values have evolved somewhat since that time, I have always shared some libertarian views about some things, but have never shared their opposition to the value of the welfare state or the National Health Service.

    Moreover, might I make my own modest proposal: that we will make more progress if you address the arguments I am advancing here, rather than rooting around online to quote selectively from things I wrote a decade and a half ago?

  43. (Sorry, that last was directed to Michael Reidy not Mike LaB!)

  44. Thank you for this article Mike.

    I am a bit new to all this, so please forgive me if my questions seem a bit naive.

    The responses seem to only address the immediate future. I am a psychology major, so my questions refer to the long-term effects of eliminating a woman’s right to choose (I am speaking only of rape victims here). What are the effects of the rape psychologically to the victim? More importantly; will she be in a position psychologically to raise the child? Or will she opt to place the child in adoptive care?

    So now the child has been brought into the world against the wishes of the mother. The mother may develop resentment and anger. How well will that bode for the development of the child? Or say she decides to give the child up for adoption. What are the psychological effects on a child who doesn’t know who his/her real parents are? How does that seperation affect the mother?

    Understanding that there is an obvious moral dilemma here, have we given any thought to other possible moral dilemmas? Would some consider the abolition of the right to choose for rape victims a moral dillema for the mother? For the child in the long term? Knowing that without proper psychological care, we increase a child’s chance of growing up lacking stability. Are we condemming this child to a life of proverbial hell?

    I don’t pretend to have the answers, but I just thought they were important questions to ask since I have not read, nor heard about these questions.

    Another question that I would love to ask both Akin, and Ryan – If your either of your daughters were raped (legitimately), and for some reason their “shut down devices” failed, and the life of your daughter was in jeopardy as the result of giving birth, would you opt to abort the foetus? Or abort the life of your daughter?

  45. Michael Coen,

    Those are important questions, at least for those who are willing to consider moral consequences when assessing policy.

    There are women who are raped and chose to go through the pregnancy and raise the child. Others chose not to do so.

    Some women have elected to share their experiences, in some cases as a reaction against Akin. For example, Renee Devesty shares the story of her experiences and what she endured.

    I must say that as a person I feel a deep horror and revulsion when I hear the words spoken by those who claim that “legitimate rape” will not cause pregnancy or who say that pregnancy caused by rape is a gift from God.

    Interestingly, Christian Life Resources goes through various calculations and estimations to show that forcible rape rarely results in pregnancy. It is certainly one approach a person might take to the matter of rape.

    Naturally, as a philosopher I am obligated to begin by taking a rational and neutral approach to this matter. Not surprisingly, that approach also leads to horror and revulsion, albeit of the reasoned sort.

    As you note, people often find it difficult to hold to their avowed principles when doing so actually has a cost for them. Principles are cheap when other people bear the price (I have an upcoming post about this).

Leave a Comment


NOTE - You can use these HTML tags and attributes:
<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>