25 Pages Posted: 31 Aug 2010 Last revised: 17 Sep 2010
Date Written: August 30, 2010
This paper argues that in the absence of general duties to rescue a woman may, at any time, terminate an unintended pregnancy even if the foetus is a person. However the rights of the foetus restrict the procedures one may use. In particular only an evictionist procedure may be used. Furthermore the argument presented does not rely on any act of balancing the rights of the woman against the rights of the foetus. There is no “clash of rights” involved. This paper also replies to the objection that this line of reasoning leads to the implausible conclusion that one may evict a trespasser even if this causes his death.
In this paper I assume that every person (including, for the sake of argument, the foetus) has an exclusive right to control her own body (Control Self-Ownership, CSO). This right excludes the possibility of general enforceable duties to rescue. However it does not, unlike full self-ownership, prevent the State from taxing individuals to help others.
Firstly I argue that there are two different ways to terminate the pregnancy. The first and most common is an abortion, this will result in the death of the foetus in the process. The second one is an eviction, this merely involves the removal of the foetus from the womb. Depending on the state of the pregnancy the foetus may or may not survive the eviction.
Secondly I argue that, assuming the foetus does not have an acquired to remain within the womb, it would be a violation of the rights CSO of the woman to prohibit her from evicting the foetus, even if this results in its death.
Thirdly I argue that the foetus would not have the right to remain within the womb in case of unintended pregnancy. This is because, to hold otherwise, would impose a non-voluntary positive obligation on the woman, in contravention with her rights to control her body.
Fourthly I argue that to allow the woman to have an abortion, even when an eviction is not possible, would amount to a violation of the rights of the foetus. Hence an eviction is a procedure which respects the rights of both the foetus and the woman. As such this solution does not result in a “clash of rights,” which may have to be resolved on consequentialist grounds.
Finally I argue that the reasoning of this paper does not require us to hold that one may evict a trespasser from one's property if this will result in his death.
Therefore, those who want to prohibit women from having an abortion need to show that the foetus is a person. For those who wish to prohibit women from evicting the foetus the burden is an even greater one: they must in addition show that there are strong (enforceable) positive duties to rescue (this would amount to a denial of CSO). This however raises difficulties for those who would wish to prohibit evictions in countries, like the US and England and Wales, where the law does not normally recognise such duties. By prohibiting only evictions without making failure to assist those in danger (even at great cost to oneself) a crime they would be violating equality before the law.
Keywords: Self-ownership, abortion, famous violinist, duties to rescue, eviction
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