After a recent discussion of abortion on my OActivists mailing list, a subscriber e-mailed me to suggest that perhaps right apply to the fetus at the point of natural viability, rather than to the baby at birth. (By natural viability, I mean when the fetus can survive outside the womb without any special medical technology such as a respirator or feeding tube.) Some years ago, I found that “natural viability” position quite appealing, but Paul eventually argued me out of it. So in my reply to my correspondent, I offered my own version of Paul’s argument. Here’s what I wrote:
If a woman aborted a late-stage pregnancy just because she felt like it — when she could have just as easily given birth at full term and adopted the baby — I would regard that as morally wrong. That’s not the kind of person that I’d ever wish to have any dealings with, as the action would indicate a serious lack of respect for human life. However, that doesn’t settle the legal question of rights.
The problem with natural viability as a standard for rights comes when a late-stage pregnancy endangers the life of the mother. Let’s imagine that the pregnant woman must end the pregnancy somehow or she will die. If she aborts, she has a 5% risk of serious complication. That’s because the doctor can kill and dismember the fetus in the womb, then extract it. (Sorry, that’s icky.) However, if she attempts to give birth to the fetus, she has a 15% risk of serious complication, with a 5% risk of death. (Such cases do happen. In general, a live birth will always involve greater risk of complications than a late-term abortion.)
If a fetus has rights at the point of natural viability, then either (1) the woman must be obliged to suffer any risk of death — perhaps 99% — in order to respect the rights of the fetus within her or (2) the state must arbitrarily draw a line somewhere specifying the acceptable risk to her life for the sake of a live birth. The first option is morally monstrous: you’re sacrificing a person with an actual life to a fetus with merely a potential life to lead. The second isn’t any more appealing because some arbitrary amount of risk is deemed obligatory for the woman to assume. In either case, women will be forced to die for the sake of the fetus. The only question is whether it’s more women dying or less women dying.
After some unhappy thought about such cases, I decided that the only clear and bright line — the only way that the state would not be forcing pregnant women to sacrifice their own lives and health for the sake of a fetus — was to accept that rights begin after the fetus has left the womb. So my general view is that rights adhere to any and all creatures with the potential for rationality living an biologically independent existence. By “living a biologically independent existence,” I just mean that the creature is not not biologically connected to another person — as is a fetus or the violinist in Judith Thomson’s famous essay on abortion — even if it is dependent on others for sustenance and aid, as are babies and people incapacitated by illness.