Mader Blog

Colby Cosh claims that pro-lifers are hypocrites to support life-of-the-mother exceptions to abortion restrictions, on the ground that such exceptions place one life (the mother’s) over another (the fetus’s) — which, he says, is precisely what pro-lifers object to in the first place. I’ve thought about the issue Cosh raises, and I’m pretty sure he’s wrong.
Let’s concede, for the sake of argument, that the question of abortion is a question of competing rights – the rights of the mother and the rights of the fetus. In other words, let’s put aside any free-standing moral consideration – whether, for instance, abortion is prohibited (or compelled) by a religious text; and let’s concede for now that a fetus has standing to claim any rights at all. In a situation of competing rights, the task of the law as neutral arbiter is to consider the rights claimed by each party, and the circumstances surrounding the claims, and to identify the just or equitable result.
Let’s consider a hypothetical mid-second trimester abortion wherein the fetus is developing normally and poses no immediate health risk to the mother. (I use “immediate” to exclude, for instance, the psychological cost of bearing and raising an unwanted child.) We can identify, to a fair degree of certainty, the rights at issue. The mother claims a right to terminate the pregnancy, which might in turn be characterized as a right to determine when and whether to bear a child, or as a right to sexual autonomy, or even simply as a right to choose. The fetus claims a right to live, or at least to continue to develop towards birth.
If we treat the mother and fetus as having equal status to claim rights – as the moralist pro-lifers argue, and as Cosh concedes for purposes of his critique – then we can adjudicate this dispute as we would any dispute between people making similar claims. And taking the strongest rights claim on either side – the mother’s claimed right to determine when and whether to bear a child, and the fetus’s claimed right to live – it seems clear, in the abstract, that the right to live trumps the right to determine the conditions of pregnancy and childbirth. (This assumes that the right to life is paramount – a fair claim in modern democratic nations, I think.)
Now take an alternative hypothetical – a mid-second trimester abortion wherein the fetus is developing normally with regard to its own health but whose development poses a mortal risk to the mother. The claimed rights are now different: the fetus still claims a right to live, or at least to continue to develop, but the mother now also claims a right to live. The two claims are the same, but both cannot be vindicated: if the fetus wins the right to live, the mother dies; if the mother wins the right to live, the fetus dies.
This is where Cosh claims hypocrisy: he says that to prefer the mother in this instance, but not in the prior hypothetical, is inconsistent. After all, he claims, this simply “puts one life above another,” and is therefore no different than the first circumstance – where the pro-lifer would undoubtedly have preferred the fetus.
But I think my presentation of the two hypotheticals illustrates why Cosh is wrong. Put simply, in circumstances where the health of the mother is in jeopardy (or at least in mortal jeopardy), the fetus’s claimed right – to life – is no longer superior to the mother’s claimed right; it is, at best, equal. Of course with an equal right the fetus might still prevail; but there is one strong principle that justifies vindicating the mother’s right to live over the fetus’s right to live in this circumstance. That principle is self defense.
I can’t speak for the state of law in Canada, but as a general proposition common law jurisdictions protect an individual’s right to defend him or herself against immediate harm. This right is a dynamic one, in that the scope of the right depends on the type of harm faced. Faced with ordinary force – a slap or a punch, for instance – a person is justified in using ordinary force to protect himself; but he is not justified in using deadly force. You can’t bring a knife to a fist-fight. Deadly force is justified only to defend against a threat of deadly force (though different jurisdictions place different additional restrictions on this right). But – in at least most common law jurisdictions – deadly force is justified in these narrow circumstances.
And that’s the circumstance presented by my second hypothetical. The mother faces a threat to her life – a threat of deadly force. She is justified in using force – including deadly force – to defeat that threat. So it’s not at all hypocritical for a pro-lifer to support a health of the mother exception, at least in cases of mortal risk; on the contrary, it is solidly libertarian.
There are myriad caveats to my argument, of course. For one thing, I’ve operated on the presumption that the mid-second trimester fetus has rights. That’s controversial, and reasonable people can disagree. Most people agree that a late third-trimester fetus has rights, and most people agree that an early first-trimester fetus does not have rights (or at least has very few, not including a right to life). The abortion “debate,” such as it is, is a disagreement about when, if at all, a fetus attains personhood such that it has a claim to any rights. Moralist pro-lifers generally believe personhood occurs at conception, such that an early first-trimester fetus has a claim to life (which would trump more or less any countervailing right a mother could claim at that stage of the pregnancy); absolutist pro-choicers generally argue that personhood occurs at birth, such that any claim by the mother to any right will trump the fetus’s claims up to the moment of birth itself. So to an absolutist pro-choicer, my entire line of argument is flawed: the mother need never rely on a right of self-defense.
But my purpose here is not to argue for a particular understanding of personhood and a consequent approach to the regulation of abortion; my purpose is simply to rebut Cosh’s claim that pro-lifers are hypocrites to favor health-of-the-mother exceptions to whatever restrictions they favor. That’s wrong, at least where the health risk to the mother is mortal (and possibly even just severe), as long as we recognize a general right to self defense. Cosh may not believe in such a right; he may believe that a person must keep his sidearm holstered, Ghandi-like, no matter how many times an assailant stabs him. But that’s another discussion for another day.
Post Script: Eugene Volokh, law professor and blogger extraordinaire, has published a law review article expanding on this idea of abortion as self-defense, which can be downloaded here. And apologies for the use of the Americanese “defense” rather than the proper Canadian “defence” – my job involves writing in American legalese all day, every day, and it rubs off.