Wednesday, June 19, 2019

The Relevance of Emotion to Abortion

by Sherry F. Colb

In my Verdict column this week, I explore the question of which emotions people associate with self-defense and revenge, respectively. I suggest that we tend to think of fear in connection with self-defense or defense of others and anger with revenge and. I propose that because reality is more complicated, juries may mistake legitimate self-defense for criminal aggression.

In this post, I want to apply the ideas from the column to the distinct area of abortion and, in particular, to the exceptions that pro-life legislation sometimes contains to its prohibition against the procedure.

The universal exception to American pro-life abortion law (and proposed laws) is for the life of the mother. If denying a woman an abortion will result in (or substantially risks) the woman's death, then even the most pro-life organization in the United States will allow her to terminate her pregnancy. One reason for this is straightforward. Being pregnant is a life-threatening condition for the particular (hypothetical) woman, and forcing her to remain pregnant against her will would effectively kill her. Saving her life is worthwhile enough to allow for sacrificing the fetus.

There is another way of thinking about this woman's desire to terminate, and that is to look at her feeling about the fetus and her background motivation. Her wish is to stop being pregnant and thereby save her life. She probably has no negative emotions relative to her fetus. She may even be distraught over having to lose her baby in order to survive. If there were some way to deliver the fetus alive and gestate it in a surrogate or in a high-tech (yet-to-be-invented) incubator, she might be eager to do so. Her emotion, then, regarding the killing of the fetus is sadness or regret. Her goal does not include its death, but death is an unavoidable effect of escaping a life-threatening pregnancy.

Another common--though less universal--allowance among pro-life advocates is for fetuses that are the product or rape or incest. This exception is controversial. Why? Because, as opponents put it, just because a man commits a terrible crime deserving of serious punishment doesn't make it okay to kill that man's child. Another way of thinking about this point is to observe that unlike the woman whose pregnancy threatens her life, the woman who was raped or molested likely has two motivations vis-à-vis her abortion.

First, she may no longer want to be pregnant, because the pregnancy extends the physical fallout and suffering associated with her violation. But second and perhaps equally important, she may oppose the existence of a child in the world who belongs to both her and her attacker. She could, in other words, find unthinkable the linking of her and her rapist's genetic lines. This second motivation--to bring about the death of the fetus because of its paternity--distinguishes this exception from the first.  The woman no longer wishes simply to end her own state of being pregnant (as she did when the condition threatened her life). She experiences a level of aggression toward the fetus itself. If she could transfer it to a surrogate or incubator, she might decline.

Other exceptions are both similar to and different from rape or incest. A common one that most pro-life advocates reject is for a fetus showing signs of Down Syndrome or another genetic condition or trait deemed undesirable by the pregnant woman. As with--and perhaps to a greater extent than--the case of rape or incest, the woman specifically does not want this child to live. And it is no longer because the pregnancy extends the reach of a sexual assault by a separate person. It is the child itself that the woman wants to terminate. If someone offered her a surrogate or a high-tech incubator, she would refuse. Her pregnancy is unwanted only in the sense that the particular fetus is unwanted. For a pro-life advocate, this emotional stance toward the unborn baby might be the most offensive of all.

What does any of this have to do with the way in which people associate self-defense with fear and unjustifiable aggression with anger? Pro-life and pro-choice advocates typically take two diametrically opposed approaches to characterizing what happens during an abortion. One side says that the "abortionist" kills a baby, while the other says that a provider terminates a pregnancy. The difference in emphasis is stark. For the pro-life movement, abortion is about killing; for the pro-choice movement, it is about relieving a woman of a burdensome physical condition. And the reason for an abortion may correspond to one or the other or both of these characterizations. In fact, though, an abortion always does both of these things: it kills a fetus and it ends a woman's condition of being pregnant.

If we focus on the physical burden that a pregnancy imposes, then the woman who terminates is necessarily defending herself against an invasive and parasitic internal takeover of her bodily processes. If this qualifies as self-defense, as many pro-choice advocates believe it does, then the emotional attitude of the woman toward the fetus should not matter, just as the fact that you are angry at your assailant when you kill him in self-defense does not matter. You want to stop being pregnant, and the only way to do that (short of having a baby) is to abort. Whether you feel grieving affection, ambivalence, or aggression toward the fetus should not change whether you have the authority to do what you wish to do.

Emotion, of course, will always affect how we judge a person. If someone looks happy when witnessing a car accident, we will view the person in a negative light. And similarly, if we know that a woman is aborting because of her fetus's sex or race, we might consider her a bad person. But the legality of conduct depends on the the surrounding circumstances known to the actor and whether those circumstances justify the behavior. How the person feels at the time or what might be motivating her is beside the point. If you hate me because I am Jewish and I am also threatening your life, then you may kill me in self-defense, even if (a) you feel happy about killing me, and (b) what motivates you to kill me (rather than to surrender to my killing you instead) is my ethnicity.

It may be difficult to ignore one person's reason for having an abortion or another person's feelings toward an assailant at the time that he shoved or punched the assailant. But when it comes to abortion and to criminal law defenses, it is very important to do so. People cannot control how they feel, only how they act in the presence of justifying (or non-justifying) circumstances. And the criminal law should hold us accountable only for what we do and whether we intended to do what we did. Our feelings and motivations are ours, and the law generally should not say whether they're right or wrong.


Joe said...

I appreciate this discussion.

If someone has the right to do something, they have the right to have various emotions about it. Some find abortion horrible and want those who have them to in effect feel totally horrible. This is the Will Saletan approach of allowing abortion to be legal but always making it a horrible thing. When you do that, the thing becomes tainted and it is much easier to seriously restrict it. It is allowed in a fashion at sufferance.

Anyway, abortion has a lot of drama over terms. It is at this point somewhat late in the day to worry about terms, but still, I continue to find the term "fetus" problematic. Most abortions occur early in pregnancy when an embryo is involved. "Fetus" often brings to mind a late term fetus and I think colors the conversation. But, the term is standard now, and perhaps there are reasons the abortion rights side uses it a lot too.

Sherry F. Colb said...

Thanks for your comment, Joe. I agree that it would be more accurate to say "embryo or fetus or baby" or something like that, but it can get cumbersome. Also, some of these exceptions--for genetic anomalies--have happened later in pregnancy, because people may be tested late along. Either way, though, you're right that selecting one over the others necessarily perpetrates some distortion.

Coyote said...

Excellent article, Professor Colb!

Anyway, in regards to the rape exception, I want to point something out: I suspect that some pro-lifers support a rape exception in regards to abortion for reasons similar to pro-choicers who support a rape exception in regards to child support. Just like some pro-choicers would presumably feel that it would be unfair to force a rape victims to pay child support in the event that his or her rapist will get custody of their child (AFAIK, it's typically female rapists who get custody of children afterwards; also, Yes, I'm including statutory rape here as well), some pro-lifers feel that it is unfair to force a raped woman to remain pregnant due to the fact that, based on the causation principle, she is not responsible for the resulting pregnancy due to the fact that she never actually consented to the sex that resulted in this pregnancy.

As a side note, though, I wonder if your approach here could also extend to examining the constitutionality of legislation and executive actions. For instance, Trump's Muslim ban or literacy tests in the Jim Crow South. Do you think that, in such cases, courts should determine the constitutionality of such things regardless of the motives of the people who are pushing for these things? Or do you think that motives should be relevant in regards to this?

In addition, in regards to abortion, I figure that I might as well try to articulate the argument that some pro-lifers make (at least in regards to most pregnancies): Basically, I've heard some pro-lifers argue that women should be forced to remain pregnant in cases of consensual sex due to the fact that not only did their willing actions result in pregnancy, but also these women knew ahead of time that if a pregnancy occurred, they themselves are going to be the only people in the world who are going to be able to sustain the lives of their embryos or fetuses. This would differentiate pregnancy from other cases of forced bodily donation because in other cases you are not responsible for a person's need for your body part and even if you were somehow responsible for this, you could not foresee ahead of time that you are going to be the only available body part match in the world for this person.

As for the personhood issue, I've heard some pro-lifers argue it like this: Why exactly should we--legally speaking--treat human infants better than, say, adult pigs if adult pigs are equally smart or even smarter than these human infants are right now? People are going to say that it's because human infants have greater potential than adult pigs even if human infants haven't actually actualized their full potential yet. However, by that logic, one could say the same thing about fetuses, embryos, and even zygotes. In other words, fetuses, embryos, and zygotes should be treated in part based on their potential rather than on their actual abilities right now--which at least some pro-lifers argue justifies giving them legal personhood.

Anyway, I simply wanted to share all of this because I wanted to share my previous interactions with pro-lifers here. I do think that it's a good idea to fully and thoroughly understand the opposing side's arguments even if one strongly disagrees with them.