De minimis curat lex

In an eminently sensible piece, Slate's William Saletan seeks to dispel worries about an act just passed by the US Congress prescribing criminal penalties for killing or injuring a foetus in the course of a criminal act against the mother. This is the thin edge of an anti-choice wedge, think some. Saletan argues that it is not. (Among other things, the law specifically exempts abortion from its remit.) He argues further (and, I would say, argues well) against those who oppose this law out of mere reactive fear of anything that asserts a foetus to be more than 'just a blob of protoplasm'.

The new law defines 'children in utero' as 'members of the species Homo sapiens', as though that had ever been at issue. But then again, who knows? The religious right certainly have some odd notions about science; perhaps some of them think that ontogeny literally recapitulates phylogeny and that early embryos are in fact amphibians. We can all be thankful to Congress for clearing this up.

I shouldn't be surprised, though, if many of the legislators who voted for this thing were concerned less with proper taxonomy than with striking a (perhaps symbolic) blow for the sanctity of unborn life etc. And I don't doubt many of them would, if only they could, strip women of their right to determine whether they will bear a pregnancy to term. There is every reason to distrust the motives of many of these legislators. But there is no reason to reject as illegitimate the concept that, as a general matter, the protection of the law should extend to 'children in utero' even if one specifically believes that the law should also recognise a woman's right to choose whether or not to bear a child.

As Saletan writes:

"If a state can put someone in jail for life because they took the life of an unborn child, then we're clearly saying there is something very valuable there," [Senator] Feinstein warned Thursday. She wasn't endorsing that conclusion. She was reading aloud, with disapproval and alarm, the words of a Nebraska state senator. Guess what: There is something very valuable there. And if you can't see it, we can't hear you.

Again: there is something very valuable there. To assert women's reproductive rights does not require that one pretend a foetus is a hangnail.

At the core of the right to choose is the recognition that a woman's interest in what happens in her own body trumps competing interests, whether these be the interest of society in seeing children born or for that matter the interest of the foetus in being born. Not all of these competing interests are illegitimate (though to be sure some are); it's simply that the woman's interest, as she herself discerns it, takes precedence.

The new law does not disregard this precedence. A woman may have the right to end her pregnancy if she sees fit. Nobody else has the right to end it for her. The foetus's interest in being uninjured is trumped by its mother's interest in her body. Surely one can assert this, and also assert that the foetus's interest trumps that of an assailant who injures it.

I will admit that I am made extremely uneasy by the thought of aborting a child. But then, my uneasiness is neither here nor there to any woman's decision about her own pregnancy. I should hope that every pregnant woman would decide to have her child. But it would be a grave moral wrong to force her to do so against her will. For that reason I oppose all legal restrictions on abortion. But surely the pro-choice cause is not well served by denying that a foetus is what it is - a human being.

NB: readers are welcome as always to comment on the specific idea presented in this post. But if only for the sake of shalom ha-bayit, this is not an invitation for a general debate on whether or not abortion should be legal. If that's what you want to talk about, take it to talk.abortion.