Interesting argument

Ann Furedi, the chief executive of the British Pregnancy Advisory Service, said that pregnant women and doctors actively “pretend” that the women’s mental health is at risk so that they can sign off abortions without questions being asked.

And the chairman of the Royal College of General Practitioners said a woman simply saying that she did not want to be pregnant now counted as enough evidence to justify an abortion.

Opponents of abortion said the arrangement amounted to widespread “perjury” by doctors in defiance of the law. But pro-choice campaigners said it showed that Britain’s abortion laws were out of date and in urgent need of reform.

We\’re breaking the law so change the law so that we aren\’t.

And I can\’t reject the argument out of hand: I use the very same argument to shout about the necessity of legalising drugs (and in favour of flat out legalising of prostitution as well). It\’s all going to happen anyway, the damage and danger is in the illegality so yes, it should be legal.

But I will admit that I find the argument unpersuasive here. For the usual reason that puts me out of step with everyone on this basic question anyway. The two (and many more) cases where I use it concern the activities of consenting adults. None of whom end up in pieces in a bucket. We are talking about those consenting adults exercising their rights of freedom and liberty.

In the abortion case (and it is this that makes me out of step, I do realise this) we have one person asserting their right to deprive another of their rights to life, liberty and freedom.

So, from my point of view, \”abortions like this are going to happen so let\’s make them legal\” would be closer to \”child abuse is going to happen so let\’s make it legal\”. Rather closer to NAMBLA\’s position than many \”pro-choice\” campaigners might feel comfortable with.

Of course, if you don\’t believe that an embryo, fetus, blastocyst, is a person with rights then none of the above makes any sense at all.

18 thoughts on “Interesting argument”

  1. “Of course, if you don’t believe that an embryo, fetus, blastocyst, is a person with rights then none of the above makes any sense at all.”

    But Tim, how, as a sane and sensible person, can you possible believe anything else? You’re as entitled as anyone else to hold an irrational religious view of the moral issues here, but in a purely pragmatic sense it’s plainly a sorites-paradox. We have a firmly established legal principle that rights do not accrue from birth, let alone gestation, but rather may be withheld until the age of 18, 21, or even later; there is a sliding scale from no-rights, not-a-person to fully-entitled-adult, the existence of which cannot be disputed.

    Clinging to the idea that something is either ‘alive’ or not is unhelpful, even if its comforting not to challenge the preconceived notions instilled by childhood religion.

    Tim adds: Of course it’s a Sorites. I’ve used exactly that explanation myself many a time. I’m just arguing that the “right not to be killed because someone else doesn’t want you to be around” kicks in rather earlier than a lot of other people do.

  2. Dave’s point.

    From my point of view, believing that the mother’s rights over-ride the embryo’s, with some qualifications, isn’t the same as saying that the embryo has no rights.

    You’ll find few even on the “abortion on demand” extreme suggesting that if a pregnant woman was attacked, resulting in a miscarriage, then the attacker should not be charged with causing that miscarriage.

  3. If a pregnant woman is attacked the day before she is due to give birth, with the almost-baby stabbed and killed, then the attacker will be charged with attacking the woman. The almost-baby gets no legal recognition.

    Even if someone performs an illegal abortion they are charged for the illegal performance, not for harming the fetus. Any rights an embryo has are so indirect and third party that its a stretch to say it has rights.

  4. Actually, PJF appears to be wrong wrt to England and Wales. The “Infant Life (Preservation) Act 1929” is still in force:

    Punishment for child destruction.

    (1) Subject as hereinafter in this subsection provided, any person who, with intent to destroy the life of a child capable of being born alive, by any wilful act causes a child to die before it has an existence independent of its mother, shall be guilty of felony, to wit, of child destruction, and shall be liable on conviction thereof on indictment to penal servitude for life:

    Provided that no person shall be found guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother.

    (2) For the purposes of this Act, evidence that a woman had at any material time been pregnant for a period of twenty-eight weeks or more shall be primâ facie proof that she was at that time pregnant of a child capable of being born alive.

    And is quoted on the CPS Homicide, Murder etc page.

  5. But if it is still on the books, it only applies to a pregnancy beyond 28 weeks, which means that PJF is literally wrong, but is also an interesting thing rather distinct from Tim’s view.

    Effectively we’re saying that personhood kicks in at that point, that abortion before that point is a medical procedure (that may or may not be legal for separate reasons), not the destruction of a person, and only after that point do we need to worry about the trade-off.

  6. John,

    No – s5(1) of the original Abortion Act 1967 read:

    Nothing in this Act shall affect the provisions of the Infant Life (Preservation) Act 1929 (protecting the life of the viable foetus).

    This has been subsequent amended by the Human Fertilisation and Embryology Act 1990 to:

    No offence under the Infant Life (Preservation) Act 1929 shall be committed by a registered medical practitioner who terminates a pregnancy in accordance with the provisions of this Act.

  7. But if it is still on the books, it only applies to a pregnancy beyond 28 weeks,

    I’m not sure that is a correct reading. All s2 says is that at the 28th week of pregnancy, the law assumes that the child was capable of being born alive. It doesn’t say that, for newer pregnancies, you couldn’t introduce evidence (including expert testimony) that the child was capable of being born alive.

    Note that it doesn’t say “born alive and surviving for x days”. Just born. I suspect with modern surgical techniques that could apply to seriously prem births.

  8. RE: Sorites paradox.

    Legal abortion has a very strange attribute.

    Liberty is the freedom from arbitrary or despotic government.

    I personally believe that interrupting pregnancy in the first few days from conception should not be illegal. I believe that killing a fetus at 8 months should be criminal.

    Government deciding where the line is, criminal vs. non-criminal, is perforce arbitrary. Legal abortion is a circumstance where arbitrary government should be accepted. Even so, millions could argue for millions of years where the line should be, and millions have started and continue the argument.

  9. I am relieved to be wrong on this point. I must have been getting mixed up with the “progressive” states in the US. Thank you Surreptitious Evil for the correction.

    The Infant Life (Preservation) Act does seem worded to be specifically abortion related. Is there enough in section 1 to nab our stabbing attacker if it can be shown that the unborn child was the target?

    Having said that, “child destruction” is a clear distinction from murder. It looks much more like “destruction of property”, which is an offense that doesn’t imply that property has rights. Does anyone think the Infant Life (Preservation) Act 1929 confers rights to the unborn child?

  10. The Infant Life (Preservation) Act does seem worded to be specifically abortion related. Is there enough in section 1 to nab our stabbing attacker if it can be shown that the unborn child was the target?

    I would have liked to think you didn’t need to know that the child was the target. Just as intent to commit GBH is enough for a murder charge – you don’t need to have actually intended to kill them (I think this is the ‘eggshell skull rule’?)

    That the necessary mens rea can also come from deliberately committing a different criminal act – so intentionally stabbing the mother, criminally negligent (I was going to say ‘heedless’) to the welfare, or wholly ignorant of the existence, of the child would also be prosecutable under this statute. But that’s not the wording. I think that a deliberate stab to the abdomen would meet the “with intent to destroy”, with a possible defence being “i didn’t know she wuz preggers, y’r Honour”. With

    Does anyone think the Infant Life (Preservation) Act 1929 confers rights to the unborn child?

    I’m not sure we can expect an Act written in 1929 and not signficantly amended since to conform to modern prejudices about ‘rights’.

    However, in the event that such a tragedy occurred, I can see a modern jury calmly throwing out the prolix and condescending legal arguments and bending itself into a reverse jury nullification.

  11. Quick history lesson.

    Parliamnent passed the Infant Life (Preservation) Act because it had left a statutory hole in the Offences Against the Person Act 1861 in which terminating a pregnancy before 28 weeks was classified as abortion (and illegal), while killing a baby after it was born was originally classed as homicide, but later changed to infanticide in order to remove the offence from the list for which the death penalty could be applied.

    Until the offence of child destruction was created, there was no offence on the statute books that dealt specifically with the deliberate termination of a pregnancy between 28 weeks gestation and birth.

  12. Until the offence of child destruction was created, there was no offence on the statute book

    Hmm. Okay, but common law offences seem to be doing well enough for the (well deserved) persecution of Huhne …

  13. Of course, if you don’t believe that an embryo, fetus, blastocyst, is a person with rights then none of the above makes any sense at all.

    Quite right; so pro-choice campaigners should prove indisputably that the growing tissue is not a life form in its own right and/or accept a point when it becomes one as the one spelled out in the statutes; most liberal readings of Judeo-Christian texts would accept that “life of every creature is in its blood” (abbreviation of Leviticus 17:14) so we should maybe put the cut–off around the time the foetus develops a blood supply (10 weeks?)

    Alternatively they could do something useful and develop an ex-vitro means of supporting a growing foetus and then the government could set the time frame to removal/tank growth/adoption to the date viability matches that of a baby grown normally at that stage.

    Or is that a little too macabre?

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