Date: Sat, 24 Jan 98 10:46:23 EST From: boddhisatva <kbevans-AT-panix.com> Subject: Re: M-TH: Britain's abortion row To whom...., I find that it is best, when parsing up an ethical question, to separate out the negative and positive obligations that pertain. A negative obligation I understand to be that harm one must not do before one does the good demanded by a positive obligation. In a just ethical order, negative obligations must be fulfilled before positive obligations - to avoid oppression. Rights express those negative obligations the society has towards a member of it. One might ask whether we have to parse up the question of abortion rights. I would say that we do, especially if we then intend to recombine the separate issues. To start with, there is no such thing as the right to abortion. I, being a man, have no right to abortion. The society in general, as represented by the state, (despite what the Chinese may think) has no right to abortion. The right to abortion is a complex of rights enjoyed by a pregnant woman. Those rights are in the context of many positive and negative obligations among society (persons and the state), the woman (as individual, pregnant, and as sex partner), her lover, and even the fetus. Does Society have a positive obligation to protect a fetus? : Yes. If we have an obligation to prevent cruelty to animals, we have an obligation to protect a human fetus from deliberate destruction. We ban thalidomide, not because it harms adult women, but because it harms fetuses. This is the product of simple compassion. Practically, however, we must recognize that attempts to benefit the fetus not only affect the woman - for all practical purposes woman and fetus are two souls in the same body. We cannot, therefore, abridge any negative obligation to interfere with the woman in an effort to help the fetus. Does a woman have a positive obligation to protect the fetus? : Yes, by the same reasoning although she, as sole possessor of her body, has the privilege to benefit the fetus to her detriment if she wishes and to confer that privilege to others in a medical context. Does a sexual couple have a positive obligation towards a fetus? : Yes, they should take care not to put a fetus into harm's way. Does society have a negative obligation to harm a fetus? : Yes, it is not our place to harm anything human, even if it is not sentient, unless we are fulfilling a greater human obligation. Does a woman have a negative obligation to harm a fetus? : Yes, but this cannot be presumed. A woman is the sole legitimate possessor of her body and she has primacy in determining its course. Because whatever she does with her body affects the fetus, her actions must be somehow separated into those which are independent of her relationship with the fetus and those which are not. While this is a difficult question, I will define those actions of a pregnant woman informed by her negative obligation towards the fetus to be: those actions that through negligence, indifference or ill intent towards the fetus might harm it. Does a couple having sex have a negative obligation towards fetus? : The relationship between having sex and harming a fetus is distant enough in causality and likelihood that it really amounts to a strengthened positive obligation. However, they do have a negative obligation to treat the possibility of an aborted or harmed fetus with negligence, indifference or ill intent. Does society have a positive obligation towards a pregnant woman? : Yes, and more so. Since a pregnant woman and her fetus are not separable in terms of most actions, the positive obligation towards a woman is increased by the presence of the fetal passenger. Also, because a pregnant woman is more vulnerable to pain and poverty, our obligation is increased. Does a fetus have a positive obligation towards a a woman? : No, it is impossible and therefore moot. Does a man have a positive obligation to his sex partner? : Of course, and more so because he knows that the possibility of her getting pregnant wil increase his responsibility. Does society have a negative obligation towards a pregnant woman? : Yes, All the negative obligations that society has towards a woman : not to restrain her behavior, harm her in any way, or invade her privacy clearly pertain. These obligations can only be abridged after legal process (a time when a society, understanding there may be a real and imminent danger of a citizen's infringing the rights of others - ignoring his negative obligations - demands time for deliberation) or unless she poses an immediate, wrongful threat to another. Does a woman have a negative obligation towards herself? : Yes and very important. A person has a *presumed* right and intent not to harm herself or be exposed to harm. It is a negative obligation, not because she is not free to harm herself, but because an ethical order assumes that the participants are looking for freedom from the threat of harm. This is the reason for the primacy of negative obligations. People participate in an ethical order so that they will not be harmed and, with that assurance in place, may maximize the compassion with which they act. Essentially, the negative obligation a person has towards himself is not to enter the ethical order with the intent of upsetting it through self-destructive behavior. Does a fetus have a negative obligation towards a woman? : Strange to hear, but the answer must be "Yes". All that can do harm to a human being has a negative obligation, in a human system of ethics, not to do that harm. This sounds odd, but practically it means that one can shoot a tiger about to eat another human being even though that tiger doesn't know any better. In human ethics, the tiger has the responsibility not to eat a human. That responsibility is more important than our positive responsibility to the tiger (compassion) or our negative responsibility not to kill the tiger. First, the tiger is not fully sentient or human, thereby reducing all negative obligations towards him below those towards sentient humans. Second, and most important, the tiger is acting. This does not imply volition on the tiger's part or blame. It only means that the tiger is the thing prompting the moral decision. If a person was falling from a tree, thereby threatening to kill a baby, one could rightfully knock him away even if the tree was on the edge of a cliff and he then fell to his death. The fact that he had no intent to land on the baby is immaterial. That is because the thing acting first must have its responsibility judged first - that which causes the moral decision should be acted upon. The reason that this last example is confusing is that we always have a strong positive obligation to save the life of another human being. Take the case of a pregnant woman brought in from a car wreck. The doctor sees her losing blood and miscarrying. He decides to abort the fetus because the blood loss from delivery will kill the woman. In this case the fetus is "falling out of the tree" and about to kill the woman. Then the woman goes brain dead or awakes, moments before her imminent demise, and demands that the baby be saved. Now her imminent death is falling out of the tree about to squash the fetus, so the doctor fights to deliver the same fetus he would have aborted minutes before. Society has a positive obligation to save the woman's life. The woman has a PRESUMED RIGHT AND INTENT to save her own life and protect her body. That's why the doctor operates to save her first. Not only that, but a doctor has a positive obligation to help her that is so strong, it borders on a negative obligation not to help her. A doctor can abort a fetus morally and must if a woman indicates the fetus is unwanted. His obligation stems from the fact that he knows that the fetus is doing her harm (it will certainly result in injuries of childbirth, for starters) and he presumes her right and intent to defend herself from harm. He has chosen to be the agent by which people defend themselves from the harm that nature causes. We say the fetus is harming her because, as with the tiger and the falling person, it is not a question of volition or blame, only action that prompts the decision. Even if that action is intrinsic to the being or nature of that fetus, it makes no difference. That simply means that the action and the being are not ethically separable. (They are not practically separable either. Even in cases that are not extreme, helping the fetus to be born will certainly harm the woman. They are one in the same act.) Does a man have a negative obligation to his sex partner? : Yes, getting her pregnant is implicitly harmful to her, because the fetus cannot help but harm her. Does a woman have a negative obligation to herself vis-a-vis pregnancy specifically? : Yes, she must not get herself pregnant for the purpose of hurting herself or be negligent of or indifferent to that possibility. Does society have a negative obligation towards a sexual couple? : Yes, it cannot restrain their behavior because they have no clear negative obligation to anyone else, including a possible fetus. The state would have to prove, after the fact, that a couple acted with a specific intent both to produce the fetus and to destroy it before any sanction could even be considered. Does society have a negative obligation towards a woman having an abortion? : The ultimate answer to the $64,000 question is "Yes". Society has a clear negative obligation towards interfering with or punishing a woman who is exercising her rights to self-defense and self-determination through abortion. It also cannot invade her privacy, and must assume her to be acting within her rights. Society *may* decide that its positive obligation to save the woman from the harming fetus is trumped by its negative obligation not to kill the fetus. It makes no difference. If she then finds the help of a person who takes that positive obligation more seriously or even sees for himself a negative obligation *not* to help her (a doctor), society must acknowledge her presumed right and intent to protect herself. It must also acknowledge the fact that the fetus is the actor causing the moral decision to come about. In addition, the fetus is something less than sentient, for some part of the pregnancy, further diminishing the status of obligations to it. Furthermore, because (practically and for society) the fetus and the woman are two souls inhabiting the same body, serving the negative obligation not to harm the fetus is abrogating the negative obligation not to harm the woman. The fetus is by its very existence part of the woman and harmful to her. (This last conclusion makes it seem as though the decision is a medical he one. Yet the fetus is not a tumor, because we have no responsibility to a tumor, either negative or positive.) Can society act to enforce the woman's negative obligation not to harm the fetus? : Because of the primacy of a woman's authority over her own body; because an ethical order relies on a presumed right and intent of the individual to protect herself; because of the negative obligations society towards interfering with a woman's self-defense, towards harming her, towards invading her privacy, and towards restraining her; the answer is "No." That remains, unless the society can make a contrary claim through due process of law and case by case. It must be case by case because of the presumption of innocence, the presumption of a right to self-defense, and the strictures on restraint prior to proof of a material danger to rights - which flows out of the primacy of one's authority over one's own person. In other words, the state must honor its initial negative obligations toward the woman in the process of law. To prove that the woman had abrogated her negative obligation towards the fetus, the state would have to prove that the woman acted with negligence, indifference, or ill intent towards the fetus either throughout the process and/or overwhelmingly so. To assert that it can rightfully treat the woman and the fetus as two individuals, the state would have to prove that the fetus is viable, sentient and can be separated from the mother with such little physical danger that the separation does not constitute an abrogation of the obligation not to harm the woman. Then it would have to bolster its case by proving that a person or state has a strong positive obligation towards the fetus that it can carry out responsibly. Only under these unusual circumstances would the state have a claim that the aborting woman was abrogating her negative obligation towards harming the fetus instead of simply defending herself. At that point, with proof of a strong, positive obligation towards the fetus, and an ability to deal practically and morally with the fetus as a separate individual, the state *might* be able to punish a woman for or restrain her from having an abortion. At that point the state would be balancing its authority to take responsibility for an infant's life with its authority to deliberately do physical harm to a citizen or punish her for protecting herself from that harm. That would be an unusual circumstance. If we analyze the question morally we see that the "innocent" fetus is *doing harm* from the moment of conception. The harm is the key. Politically it is vital that we assure women that this harm they endure for the propagation of the species is freely undertaken and not another example of patriarchy and injustice. That kind of assurance only comes from self-assurance. Women must come to feel that they are in control of these kinds of decisions. That is why feminism is so important to Marxism: Women, as an exploited class, have to engender a revolution against patriarchy so that the *political* mode of production represents the whole proletariat. peace --- from list marxism-thaxis-AT-lists.village.virginia.edu ---
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