Only The Sangfroid

Mark is of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. He does live in an ivory tower.

These are his draft thoughts…

Quick Post: Why I’m pro-choice but okay with Zoe’s Law #auspol

I tend to stick away from conversations involving abortion because it is such a sensitive subject.  It’s a conversation which is routinely trolled and is intensely personal.  I can’t think of a legislative issue which has similar stakes.

As a guy, the subject is at arm’s length and I struggle to know the extent to which I can engage with the subject.  There’s an intellectual, emotional, and lived distance between myself and the subject to which I need to be sensitive.

At the same time, as a piece of public discussion, I find it extremely interesting to explore the issues and what they mean for me and how they accord with my other political views.  As a piece of politics, I find it interesting to see the ways in which the issue is framed and to see the way language is used to control the way we think about the issue.

Take the following four scenarios.

  1. A woman discovers that she is two months pregnant but does not wish to be.
  2. A woman is eight months pregnant and her partner dies.  She does not wish to continue with the pregnancy.
  3. A woman is eight months pregnant.  She and her partner decide to end their relationship.  She does not wish to continue with the pregnancy.
  4. A woman has gone into labour.  During childbirth there is a medical complication.  The doctors inform the parents that the child has been severely brain damaged.

In all four of the above scenarios, I do not consider it ethically wrong to terminate the child.  I believe this qualifies me for the label ‘pro-choice’ (even ‘pro-death’) but various people — including Van Badham — have informed me that I am actually pro-life (and anti-choice).

Why?  Because I also think the principle behind Zoe’s Law is a good one.

I am comfortable with the idea that people can be pro-choice and pro-life for a wide variety of reasons.  For example, I do not think that all people who are pro-choice would be comfortable with terminating the child in scenarios 2, 3, and 4.  Scenario 4 in particular would put a lot of people off.

With that in mind, I can see why Zoe’s Law would upset and worry a lot of pro-choice activists.  The dominant argument in favour of the pro-choice position relies on adopting the language of rights and personhood.  The unborn do not have personhood, it is claimed, and therefore do not have rights.  Because any person should have complete autonomy over their body to the extent that it does not interfere with the rights of another person, women should have complete autonomy over their body to terminate pregnancies.

This gives rise to an alternative pro-life position.  The unborn have personhood and therefore have rights.  They agree that every person should have complete autonomy over their body to the extent that it does not interfere with the rights of another person, but this means that a woman does not have the right to terminate another person.

This characterisation is not meant to create a sharp line around the positions.  Some pro-choice activists might think that late term abortions move into a grey area of personhood, and some pro-life activists might talk about the concept of potential personhood.

Zoe’s Law interferes with this debate in a significant way.  Andrew Tiedt has perhaps the best piece of writing I’ve seen on this subject over at The King’s Tribune:

Zoe’s law is named after Zoe Ball. Her mother was 8 months pregnant when a drug-affected driver ran her down on Christmas Day, 2009. Zoe’s law meant he could be charged for causing grievous bodily harm to Zoe’s mother, but not manslaughter (as her parents wanted). […]

The new section entitled ‘Harming or Destroying a child in utero’ creates specific offences that deal directly with the harm caused. On a purely practical level, it makes more sense than pretending that the death of a foetus is injuring the mother. […]

The expression ‘child in utero’ becomes an expression known to the law. The death of foetuses in violent and dangerous acts will now be punished in a similar way to the death of humans. [Source]

The proposed law links ‘child in utero’ to the concept of the legal person.  The Parliament of NSW is proposing to use legislation to endow the unborn with a satchel of rights to life against people who aren’t the mother or the mother’s medical practitioners.

This, needless to say, is anathema to the dominant pro-choice movement which places emphasis on denying that the unborn have rights.  People who are pro-choice because of their beliefs about rights and personhood should be worried about Zoe’s Law.  I completely get that.

From my perspective, this argument in favour of a pro-choice position is flimsy and relies heavily on assertions that can’t be supported.  It relies on a superstitious — borderline magical — belief in rights and personhood that stem from anywhere other than legislation.  Rights and personhood are the phlogiston of political theory.

The pro-choice activists claim that personhood is something which occurs either at birth or at some point close to birth.  Why should anybody believe them?  Since when is the vagina a magical portal through which a non-person becomes a person?  Further, if I am agnostic on the point of whether or not the unborn have personhood, what argument could either side put to me that would persuade me?  I have two assertions before me and no way of determining between them.

To any reasonable person who doesn’t believe in fairies, goblins, unicorns, or civil liberties, it is strange to hear somebody say that rights exist prior to an act which creates them.  It’s this old fashioned, 1700s view of the world where people are born equal with inalienable rights that cannot be taken away by legislative force (thus the exciting world of the Bill of Rights).  Under this view, rights and personhood are legal fictions created for the purpose of making the legal system function.

Which makes Van Badham’s article today particularly confusing:

One of the strategies employed is the appending of the legal fiction of “foetal personhood” to a fertilised clump of cells glued to the wall of a woman’s cervix. Cells may not be able to breathe or think, nor do they possess any agency, but if there are more than 400g of them or they’ve been there for 20 weeks, their existence within a human body has been enough for NSW politicians to legislate that they’re an entity of equal legal recognition to the breathing, thinking, sentient adult human woman who carries them.

The phrase ‘legal fiction’ is used disparagingly, suggesting the existence of ‘legal truths’.  But if the ontological ground for rights and personhood is not in legislation, where does it rest?

It should be noted that Badham is not trying to persuade anybody.  This isn’t an article written for the agnostics to persuade them into opposing the Bill.  This is an article written to the faithful, trying to fire them up for the purpose of winning a very real, very important legislative battle against people who want to criminalise abortion.  This is a rallying call — full of slogans and unsupportable assertions — to assure the people who agree with her that they are right, that they are righteous, and that they are under attack.

The problem with this approach is that it abandons the people who are in the middle of the debate.  ‘No room for fence-sitters’ is the slogan.  ‘You either agree with my assertions about personhood and rights, or you’re in the way and derailing the conversation.  You either agree with my metaphysics or you’re pro-life/anti-choice.’

Which is weird.  I support terminating in each of my four scenarios above, and yet I’m labelled pro-life.

Zoe’s Law corrects what I see to be a flaw in the legal system.  As Andrew Tiedt noted, it seems weird to consider an injury against the foetus to be an injury against the mother.  If the mother is a week away from her due date, the child is basically fully functional.  The relevant person (the mother) has begun to socialise the creature and has bestowed upon it through performance and language acts a particular status.  Imagine that we know for certainty that the child will be born on New Years Day 2014.  It seems incoherent and illogical to suggest that a person recklessly causing the death of the child on 30 December 2013 is less deserving of punishment than a person performing the same act on 2 January 2014.

Using a version of the Sorites Paradox, it only makes sense that, if the mother has bestowed the status upon the unborn through performance and language acts at any point prior to birth, then the person committing a reckless act which causes the death of that child is equally deserving of punishment as the person who performs the same act at any point after birth.  Childbirth is not magical.

Zoe’s Law explicitly excludes medical interventions from its scope.  The problem, then, is not with Zoe’s Law but with the existing legal framework which bestows upon women the right to terminate unwanted pregnancies.  No jurisdiction in Australia allows for a termination in scenario 4 above, thus — in my view — all jurisdictions in Australia are unconscionably restrictive.

On a more pragmatic level, my support of Zoe’s Law makes me more concerned about the existing rights of women to terminate pregnancies and to have access to termination services.  Even in the ACT — which is one of the most liberal jurisdictions with regard to this — it is not unheard of for doctors to inform women that terminating pregnancies is illegal and that they will either need to have the child or go interstate.  In NSW, abortion is illegal (indeed, criminal) unless it is considered ‘necessary’.  Thus, Zoe’s Law sits uncomfortably alongside existing criminal law.

For most people writing on the subject, this has resulted in the conclusion that Zoe’s Law should be scrapped.  Far from it.  If you think losing an unborn child to a stranger’s reckless act is worse than merely losing a kidney, then you should endorse Zoe’s Law with additional clauses which amend the existing right to procure an abortion.

Regardless of whether or not you agree with my framing of personhood and rights — and I happily agree that my position puts me in the minority, outnumbered by people who intuit rights as Real Things That Really Exist — this does show that a person can be pro-choice and supportive of the principle behind Zoe’s Law.  It speaks to our diseased political discourse that discussion of Zoe’s Law has reduced to little more than ‘Boo!/Hooray!’ polemics.


9 responses to “Quick Post: Why I’m pro-choice but okay with Zoe’s Law #auspol”

  1. This is awesome, I really appreciate your nuanced perspective; I think it’s really important to have males engaged on the topic too. I posted a bit of the intro on my blog and then linked back to you!

      • I’m not surprised! It is a complicated issue. I actually really like your perspective. I think there is a lot to be said for differences in the death of a fetus that is wanted and the death of a fetus that is not. Neither are babies, or, to me, people, but someone who kills a wanted fetus has killed your future child. Whereas an unwanted fetus is not a future child, it is a future termination (if that makes sense).

      • To amend my below comment, I don’t support Zoe’s law because I think it opens the door to restricting abortion. But I also get the principle, that killing a wanted fetus is an additional assault beyond just assault an assault on the woman’s body.

  2. I similarly struggle with the degree to which us blokes ought to make the running on this, but I have I think a legitimate question that I wish was answered with respect to this law before we go ahead and do it.

    First I want to say that I’m strongly pro-choice and at the same time strongly in favour of treating the killing of a woman’s unborn foetus in utero as a crime commensurate with manslaughter in cases such as the one that has sponsored the introduction of Zoe’s law.

    I reconcile those two ideas on the basis that a egregious harm beyond the extent of any physical injury done to her is visited upon a pregnant woman whose unborn child loses its chance at life through the act of some third person.

    So my question becomes why not simply add the appropriate penalty to a charge of assault occasioning most severe mental and physical bodily harm to the woman, the definition of assault having already proven itself capable of excluding medical consent.

    The effect would in terms of penalty be equivalent but you’d avoid the discombobulating circumstance of a law with the appearance of making one rule for mothers and another for errant drivers in relation to the same foetus.

    There is an intentional element in what I’m trying to suggest that I think is necessary in terms of reflecting society’s objective perspective on the nature of the callous disregard involved in the commission of any crime that results in such a loss of life, regardless of the mother’s perspective towards the foetus in question. The emphasis in that sense has to rest soundly upon the basis that we’re able to agree the mother is the aggrieved party to the crime in a way that depending upon people’s opinions and religious perspectives we don’t agree upon in the case of foetuses. So that whereas it may be possible that some mothers are less negatively affected than others society always holds this harm to be of a very high degree.

    I hope I got that out somewhat clearly, as I realise it may be a difficult distinction for some who don’t share my perspective to appreciate.

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