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.