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March 25, 2005

Keeping abortion and prenatal injury distinct

Jeff McMahan: March 25, 2005

One point on which conservatives and liberals ought to be able to achieve consensus is the wrongfulness of inflicting prenatal injury.  Prenatal injury raises issues quite different from those raised by abortion because nothing about the morality of inflicting prenatal injury hinges on the controversial matter of the moral status of the fetus.  This is because the real victim of prenatal injury is not the fetus but the person into whom the fetus, if it survives, will develop.  Prenatal injury typically inflicts lasting damage that may affect an individual’s entire life for the worse.  For this reason, to injure a fetus in a certain way is little different morally from painlessly inflicting the same injury on a small child.

It is, of course, difficult to formulate legislation that will help deter pregnant women from injuring their own fetuses.  Liberals will resist such legislation because it would  impose substantial burdens on women not shared by men and would be difficult to enforce without violating women’s rights to privacy.  Conservatives who are averse to governmental intrusions into people’s private lives ought to share many of these same reservations.  And conservatives who oppose abortion have a further reason to object to legislation that would penalize women for giving birth to infants with defects traceable to maternal recklessness or negligence – namely, that in a society in which abortion is legal, such legislation would give a pregnant woman who fears that she may have injured her fetus an incentive to have an abortion rather than to bring the pregnancy to term.

Despite these obstacles, liberals and conservatives ought to be able to unite on this issue; but they will succeed in doing so only if they keep it separate from the issue of abortion.  And it is a very different issue, for the reason suggested in the first paragraph.  Suppose it’s true, as many liberals believe, that the moral status of a fetus is lower than that of a person and, as virtually everyone believes, that death isn’t tragic for a fetus in the way it is for an older child or adult.  In that case one may believe that a pregnant woman’s interests can sometimes, or even often, make it permissible for her to have an abortion.  For abortion would affect only the weak interests of a being of comparatively low moral status.  But the woman’s interests may not be sufficient to justify her doing what would inflict a nonlethal prenatal injury, for that would affect the interests of a person throughout the whole of his or her life.  In short, prenatal injury may be substantially more objectionable morally than abortion is.

There is, however, a serious pragmatic problem, which is to formulate any legislation that would criminalize prenatal injury in such a way as to distinguish between lethal and nonlethal injuries. Legislation that was passed not too long ago in both the House and the Senate that makes it possible to treat an assault on a pregnant woman as having two victims doesn’t recognize this important distinction. It seems to me that an assault that injures a pregnant woman and inflicts a nonlethal but lasting injury on her fetus does indeed have two victims. But an assault that injures or kills the pregnant woman and also kills her fetus does not have two victims – or at least not two victims of equivalent status. If a fetus has a lower moral status than that of a person and is not harmed by death in the way an older child or adult is, then the killing of the fetus may be a crime only, or primarily, because of its effects on the woman and any other persons who cared about the fetus. The woman in such a case is of course doubly victimized: she suffers not only the physical assault but also the loss of her future child.

Yet, as I noted, it would be very difficult to design legislation that would criminalize certain instances of prenatal injury for reasons independent of the effects on the pregnant woman, but only if the injury is nonlethal rather than lethal. Among other things, such legislation would give third party injurers an incentive to ensure that their assault would prove fatal to the fetus. If, for example, a man has assaulted a pregnant woman in anger, such legislation might make it in his interest later to assault her again to make sure he kills rather than merely injures her fetus. It would be crazy for the law to offer such an incentive. Yet a law, such as that which the House and Senate recently approved, that collapses the distinction between killing a fetus and injuring it in a way that causes lasting harm to a person is both morally untenable and inconsistent with constitutional protections of abortion.

If conservatives and liberals are to cooperate to try to overcome these obstacles to protecting fetuses from prenatal injury, liberals mustn’t allow their justifiable concern for the rights of pregnant women to prevent them from recognizing that the infliction of prenatal injury is just as grave a matter as the infliction of a comparable injury on a child. And conservatives must resist the temptation – which was clearly among the motivations behind the legislation to which I’ve referred – to use the issue of prenatal injury as a means of advancing an anti-abortion agenda.


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Posted by: Thomas

Of course, the most common arguments in favor of an abortion right assert that they don't rely on any particular view of the moral status of the fetus.

Posted by: Thomas | Mar 25, 2005 5:32:17 PM

Posted by: D.A. Ridgely

Mr. McMahan writes, “the real victim of prenatal injury is not the fetus but the person into whom the fetus, if it survives, will develop.”

But that presumes the sort of psychological theory of personhood and personal identity which, however common among contemporary philosophers, is far from having reached the status of a given.

Thus, whether it is possible in principle for those who oppose abortion to separate what they view to be the highly interconnected moral issues involved in the intentional infliction of non-lethal fetal injuries and the intentional infliction of lethal injury is highly problematic. Nonetheless, insofar as it might be possible to address the former in ways that do not violate their position regarding the latter, abortion opponents should indeed be open to whatever consensus with abortion rights advocates is possible in that regard.

Posted by: D.A. Ridgely | Mar 25, 2005 6:44:21 PM

Posted by: Untenured Republican


This may seem a quibble, but I'm confused about why you think that such legislation is difficult to craft to achieve the result you describe. I can see how making feticide an aggravation of assault is inadequate, and I understand why you don't want simply two counts of murder in the case that the woman dies. But isn't the solution easy and obvious, that is, make feticide a criminal offense simpliciter, independent of homicide? We may never succeed in defining "person" but surely we can define "fetus."

My impression was that some states had such statutes already.

Posted by: Untenured Republican | Mar 26, 2005 2:58:28 PM

Posted by: Untenured Republican

Incidentally, this illustrates what I think is an important feature of the law, as opposed to philosophy: though the law cares about coherence within categories, it cares very very little about coherence between categories. This seems to me an expression of a sensible pragmatism.

Of course, you'll still want to be able to have, say, civil suits against people who injure fetuses where the fetus survives to become a person with some disability. But that's no problem, since the person is a person when they suffer the injury, even if the chain of causation (arguably) precedes the existence of personhood. And if I set a bomb to go off next week, and in the meantime, someone is born, and is subsequently killed in the blast, that's another count of homicide too.

Posted by: Untenured Republican | Mar 26, 2005 3:03:37 PM

Posted by: David Sobel

Initially I was not seeing why you seemed to be supposing that we could not point to the harm to the person who would have developed, had the fetus lived and developed into a person (just granting the premise that a fetus has at least a lower moral status while a fetus). The supposed harm here would be to be deprived of existence.

I imagine there might be several stories one might want to tell here, but the one that occurs to me is that one must exist at time t to be harmed at time t (and one must be harmed at some time t or other in order to count as being harmed). The person that the destroyed fetus would have become does not live to be harmed whereas the damaged but undestroyed fetus survives to be harmed by the damage. Would you accept/do you need some such principle?

If we accept such a principle, then, even if we are pro-life, we should see the kind of big distinction you see between fetal damage and destroying a fetus for in the former case there is lots more time during which the former exists to be harmed by the damage. But then, I guess we have some explaining to do about why damaging an infant (or child or adult) is less morally bad than killing one.

Posted by: David Sobel | Mar 26, 2005 3:14:22 PM

Posted by: D.A. Ridgely

Stretching just a bit Untenured Republican's useful insight about coherence within as opposed to between categories, we've never had any difficulty in law explaining why intentionally killing an infant is a greater crime than intentionally injuring it but that from the point of view of tort law a negligent tortfeasor is better off negligantly causing an infant's wrongful death than permanently injuring an infant through the same negligence.

Generally, however, the notion of according a fetus some special legal status (less than a person, more than property) strikes me as, well, at the very least problematic. Then again, as I am not invested in preserving abortion rights or denying personhood to the unborn, it is difficult for me to appreciate whether the advantages might outweigh the further legal reification of what I take to be bad ontology.

Posted by: D.A. Ridgely | Mar 26, 2005 3:28:04 PM

Posted by: stick

I agree with this. The pregnant mother who drinks more than, say, one glass of wine every few days few (or gods forbid, uses drugs) at any point in her pregnancy should be held criminally liable. There are special ed classes in the Central Valley full of kids who were born to idiot trashy mothers who were alcoholic or drug-addicted during their pregnancy. The moms (and the boyfriend or husband who allowed it to happen without saying something) should be in prison for years for that.

I think the fetus does reach personhood at some early point--9-10 weeks--when it can feel pain, begins to develop nervous system etc. Perhaps it does not have the same rights as an infant, but it is not without rights. Any decision of the mother to end a fetus' life should be subject to review by a physician and psychologist. It is not unreasonable that the unplanned pregnancy be viewed as a type of criminal act and that biomom (and possible biodad) be fined or incarcerated for that act, though the abortion itself might be permissable.

Posted by: stick | Mar 26, 2005 5:42:25 PM

Posted by: Pablo Stafforini

Mr. Ridgely, you object to Professor McMahan that his distinction between the foetus and the person into whom the foetus will develop presumes a "psychological theory of personhood and personal identity which [...] is far from having reached the status of a given." Yet, although I'm sure McMahan subscribes to one variety of such a theory, nothing in his argument depends on it. Rather, it rests on the belief "that death isn’t tragic for a foetus in the way it is for an older child or adult," which according to McMahan "virtually everyone believes." You may, of course, object to McMahan's generalisations about what people do and do not believe; but then you would be contesting his empirical claims, not his metaphysical ones. Since what makes the abortion debate problematic is at least partly a metaphysical dispute about the status of the foetus, the fact that in McMahan’s view the debate over foetal harm can dispense with it supports his claim that we shouldn’t confuse the two -–precisely the point that he was trying to make in the first place.

Posted by: Pablo Stafforini | Mar 27, 2005 10:09:19 AM

Posted by: D.A. Ridgely

Mr. Stafforini:

You may be right. We do tend to grieve less, perhaps, even at the death of an infant than we do at the death of an only slightly older child. I suspect some of the reasons behind this empirical phenomemon are better than others, but I consider it an intellectually defensible position that a person's life is of varying value to others over the course of that life. I am less sanguine about claims that it is of varying value to the individual, himself.

My complaint, however, went to the fact that Mr. McMahan presented his ontological distinction as a given and that is relevant to his objective precisely because that belief is not shared by many abortion opponents. Thus it will not be nearly as easy to reach the sort of consensus on fetal rights he seeks, at least between those with strong but opposing views on abortion. Just as abortion advocates astutely fear slippery-slope efforts to curtail late-term abortions, etc., abortion opponents would correctly be reluctant to agree to any compromises which further the notion that human fetuses are not persons. In short, both sides properly need to do political risk assessment over unintended consequences even when they might nonetheless or otherwise have common interests in such issues as fetal injury.

Posted by: D.A. Ridgely | Mar 27, 2005 11:33:48 AM

Posted by: stick

D.A. Ridgley: Up for Windbag Equivocator of the year award.

Lawyer: One trained in the circumvention of the law.

Posted by: stick | Mar 27, 2005 1:04:07 PM

Posted by: D.A. Ridgely

stick, the next time you misquote Ambrose Bierce, you might trouble to credit him (even if you misspell his name, too) lest others less familiar with you suspect you of original wit.

Posted by: D.A. Ridgely | Mar 27, 2005 1:23:44 PM

Posted by: stick

Ouchie! Better some derivative wit than none at all. Instead of correcting spelling, I suggest you put Bierce's message to heart. Wasting paragraphs addressing both the proabortion and antiabortion sides without really put fotth an assertion about either is about as close to lawyerly circumvention as it comes.

Posted by: stick | Mar 27, 2005 2:39:26 PM

Posted by: paul w

This an issue of carrots and sticks. Rather than criminalizing prenatal injury, with the apparent focus on the pregnant woman, why not make it easier to behave appropriately? The stylized fact familiar to me is that carrots are generally more effective than sticks in eliciting desired behavior. One possibility might be well funded pre-natal medical treatment, combined with education for the mother-to-be - on nutrition, exercise, difficulties to expect, etc? Oh, I forgot: that would cost up front, rater than down the road, and would be just another manifestation of the nanny state. Better to manifest the police state.

My maternal grandparents emigrated from Eastern Europe nearly a century ago, ending up in Chicago. My mother tells me that when my grandmother was pregnant with her first two children, there was no good prenatal program available to her, then a poor, poorly educated immigrant struggling along side my grandfather to keep food on the table, clothes on the children, a roof overhead, and to help various brother and sisters with their families and their own parents.

Both of my mother's sisters were about 5 feet tall, similar to their mother (who was 4'11) and several inches shorter than my grandfather (5'6 at his peak). My mother was about 10 lbs at birth, and topped out at 5'8, both of which she attributes largely to the her mother's better diet while pregnant with her: much more fruit and vegetables. And this diet she credits to the program of prenatal check ups and education available, I think as part of the public health program in Chicago in the late 20s. My mother was born a couple of years before the beginning of the Depression and her family's economic position was, if anything, worse for most of her childhood than during my aunts' (11 and 13 years older than my mother), so it seems unlikely that the size difference was due to improvements on that score.

I guess the ultimate question is what the goal is: improved infant health, or an inexpensive statement of public sentiment.

Posted by: paul w | Mar 28, 2005 10:12:35 AM

Posted by: Untenured Republican

Paul W.:

And this would help us with *assaults* how? Perhaps we should, like some parents, give *everyone* a cookie if they come home from school without getting into trouble? I'll have to check, but I don't think I have enough cookies.

Posted by: Untenured Republican | Mar 28, 2005 12:53:22 PM

Posted by: Achillea

Where is it written that the use of sticks precludes the use of carrots, or vice-versa? Sometimes one works, sometimes the other, and some people are going to choose to be irresponsible no matter what you offer or threaten.

Choices come with responsibilities and responsibility is the issue. Now more than at any time in history, whether to bring a life into the world is a woman's choice, not foisted upon her by ignorance or force or lack of technology. If she chooses to do so, IMNSHO, then she takes responsibility for that life, for seeing to its protection and nurture to the best of her ability. Legislating that, however, as you correctly note, would be a nightmare.

When that choice becomes morally irrevocable is the basic bone of contention between the anti-abortion people and their opponents. The former see it as conception and the latter run all through the trimester spectrum. Since this is when they view the fetus as morally becoming a person in its own right (thus should mean making its injury or death a criminal matter) it underpins both the abortion and fetal injury debates.

Helping protect children from pre-natal injury is going to mean neither side getting everything it wants via a one-size-fits-all arbitrary declaration of a legal breakpoint. My suggestion is to let it be the mother's decision. Whatever trimester she may be in, if she's chosen to have the baby, then she may -- or the state may on her behalf -- bring charges against any third party who inflicts injury upon the fetus. This preserves freedom of choice while enabling prosecution of those who cripple or kill a child in the womb.

Posted by: Achillea | Mar 28, 2005 6:37:00 PM

Posted by: stick

Quote: "My suggestion is to let it be the mother's decision. Whatever trimester she may be in, if she's chosen to have the baby, then she may -- or the state may on her behalf -- bring charges against any third party who inflicts injury upon the fetus."

That would be rather difficult and unlikely if any prenatal damages were due to the pregnant mama's alcohol or drug abuse right? A mother who is pregnant may or may not be fit for motherhood. Yes, that sounds a bit too social-realist or primitive for many academics or feminists, but I suspect anyone who has taught in a rural area and seen the walking-wounded and the DD kids of drug-addicted or alcoholic parents, realizes some criminal penalties should be handed down to those women (and any boyfriends or husbands) who abuse their own child-to-be by drinking or drugs (or even nicotine and poor nutrition.

Posted by: stick | Mar 28, 2005 7:51:15 PM

Posted by: Achillea

That would be rather difficult and unlikely if any prenatal damages were due to the pregnant mama's alcohol or drug abuse right?

Yes, as Prof. McMahon pointed out in his post, and I agreed in my comment, formulating legislation to prevent mothers from injuring their fetuses is problematic. That's why I specified any third party in my suggestion.

A mother who is pregnant may or may not be fit for motherhood.

Politically incorrect or not, I agree. And you don't have to go to a rural area for illustrations -- I work in an inner-city high school, believe me, you can find plenty of it in urban settings, too. Physiological capability does not automatically confer intellectual or emotional capability. The moral, legal, and political third rail arises in attempts to arrogate the authority to determine that fitness to the government or its delegate. Requiring a 'license to bear children' is the stuff of apocalyptic sci-fi (and China). Lawsuits brought by/on behalf of children injured by prenatal parental abuse might be doable, but the abusers' solution to that would logically be abortion. It would be an effective, albeit rather ruthless, means of reducing the number of children born with teratogenic injuries caused by parental negligence, but I don't see conservatives ever getting on board with it.

Posted by: Achillea | Mar 29, 2005 1:27:41 PM

Posted by: marsha

Where are the women to speak on this? Most of these comments look like men talking about my body. Have you ever had something growing inside you?

The reason it is a woman's choice whether to abort or carry to term is because I know whether that new life can be supported in my world or not. I'm the one that has to feed, clothe, raise. I am the one while fathers can leave quickly, easily and usually do. Even if it's just dissappearing into the work world.

I also know that the women I know who've harmed their fetus (usually through alcohol and drug abuse) had nowhere else to turn. Rapes, abuse, no money for abortion, and no ability to see a future were their general conditions.

This isn't just law, this is about human beings going through horrendous times. Some are mentally ill. Hormonal depression while pregnant is not talked about.

And creating a new statue to make sure someone gets their just punishment doesn't work. It simply creates more damage. More abandoned babies. More backyard late term abortions when a desperate woman begins to understand how soon her possibly damaged child will be born.

Posted by: marsha | Apr 18, 2005 8:05:37 PM

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