15-Defense of Others and Defenseless Others .pdf (original) (raw)

Defense of Others and Defenseless "Others

2005

When the Unborn Victims of Violence Act (UVVA) was signed into law on April 1, 2004, [FN1][FN1] the federal government dishonored nothing less pedigreed than its founding philosophy. The UVVA criminalizes harm to the fetus and sanctions such harm with the punishment that would have befallen the accused had the woman carrying the fetus been the one to sustain the injuries instead. [FN2][FN2] This Article argues that recent efforts at fetal protection, like the UVVA, defy liberalism, the political theory underpinning this nation's constitution, [FN3][FN3] and conduce to the subordination of women. [FN4][FN4] *329 Liberalism makes central commitments to neutrality and equality, [FN5][FN5] both of which serve liberalism's most fundamental liberty-the liberty of citizens to pursue their life plans and construct their value systems. [FN6][FN6] To secure this liberty, neutrality mandates a government that forebears from favoring some life plans over others, or from adopting or acting upon values not shared by all. [FN7][FN7] This commitment to governmental restraint finds support in the Constitution, for example, in the First Amendment's Establishment Clause. [FN8][FN8] Equality requires that all citizens receive equal treatment before the law. This principle is embodied most transparently in the Privileges and Immunities Clause, [FN9][FN9] and the Equal Protection Clause. [FN10][FN10] A statutory regime protecting fetuses from harm would seem straightforwardly to violate liberalism's twin commitments to neutrality and *330 equality. Laws criminalizing harm to the fetus tend to presuppose its personhood and, when they do, contravene neutrality's requirement that liberal governments abstain from staking controversial moral or metaphysical positions. [FN11][FN11] And, since protection of fetuses is often wrought at the expense of the women who carry them, fetal protection laws (at least as they have recently been promulgated) [FN12][FN12] threaten to introduce inequality between mothers and their unborn children. Yet criminal punishment for harm to the unborn is not the only kind of fetal protection currently threatening liberalism's fundamental commitments. The logical extension of fetal protection statutes was drawn out in People v. Kurr, [FN13][FN13] a 2002 Michigan case that held, for the first time at the state or federal level, that these statutes justified a woman's use of deadly force against an attacker who threatened the life of her fetus. This novel interpretation of the doctrine of defense of others violates commitments to neutrality and equality insofar as it, like the fetal protection statute grounding it, [FN14][FN14] presupposes the personhood of the fetus and confers more protection on fetuses than on the women who carry them. This Article advances a liberal critique of existing attempts at fetal protection. The Article also argues, however, that a regime that ignored harm to fetuses would no better serve liberalism's commitments to neutrality and equality.

Defense of Others and Defensless Others

2005

When the Unborn Victims of Violence Act (UVVA) was signed into law on April 1, 2004,1 the federal government dishonored nothing less pedigreed than its founding philosophy. The UVVA criminalizes harm to the fetus and sanctions such harm with the punishment that would have befallen the accused had the women carrying the fetus been the one to sustain the injuries instead.2 This Article argues that recent efforts at fetal protection, like the UVVA, defy and defile liberalism, the political theory underpinning this nation\u27s constitution,3 and thereby conduce to the subordination of women.

'Wrongful Life and Abortion', Res Publica, 2010

According to theories of wrongful life (WL), the imposition upon a child of an existence of poor quality can constitute an act of harming, and a violation of the child’s rights. The idea that there can be WLs may seem intuitively compelling. But, as this paper argues, liberals who commit themselves to WL theories may have to compromise some of their other beliefs. For they will thereby become committed to the claim that some women are under a stringent moral duty to have an abortion: a duty that could, without injustice, at least sometimes be enforced by the state. WL theories in other words imply that some women will lack a right to choose, under which both the decision to abort, and the decision to carry the fetus to term, are protected against interference. The paper exposes a dilemma, then, for liberals who are committed both to (a) the rights of future people not to be subjected to a harmful existence, and (b) the rights of women to refuse an abortion.

Women, the unborn, the common law and the state

2001

Moral philosophers and legal academics have extensively argued the claim that the in vivo embryo and foetus have no rights. Historically, the debate was limited to resolving conflict between the right of the woman to life and personal liberty (including the right to bodily integrity and individual autonomy) and the interests of the unborn in life. In general, the Common Law stated that the unborn had no legal personality and therefore no legal rights. Yet, in truth the law has always been ambivalent toward the in vivo foetus. Even before the passing of the first English statute regulating abortion in 1803, Lord Ellenborough’s Act1, the English Common Law was ambivalent toward the in vivo foetus. Under the early English Common Law it was not a crime to procure an abortion before the event of “quickening”, however, it was after that time.2

Worth and Welfare in the Controversy over Abortion

Palgrave Macmillan UK eBooks, 2006

Any person who does any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages. Preface Many books, I suppose, come about by accident. This is certainly one of them. I had simply set out to write some notes for our students here at The University of Leeds. One day a week, these students take a break from their work in the community and follow our course of Health Care Ethics. Year on year, they have impressed me with their enthusiasm, their friendliness and their willingness to walk in the strange ways of our subject. It has always been a privilege to write for them, and I think about them affectionately now, as once again I set about it. Abortion tends to take over the lives of those who write about it. Yet this is no bad thing, for without a certain amount of 'taking over' one would not succeed. Abortion is an important public issue, so our attention is not misplaced. It also raises theoretical diffi culties in philosophy, many of which are not in ethics at all-as this book will show. Even those interested neither in the issue nor in the philosophical diffi culties could still become fascinated by abortion as a controversy simply because of the extraordinary curiosities of the public debate. But being 'taken over' has its dangers. We who write about abortion and who think that there is a public issue of great moment should not lose sight of the fact that there are so many equally important problems faced by the world. Some of these naturally have to do with children. I have a good friend, a paediatrician, who in her professional life has been able to do far more to ensure a respect for young human individuals than a philosopher writing about abortion could hope to do. My views about this subject have changed greatly over the years. I cannot pretend that they have changed as a result of anything very sophisticated by way of argument-at least in regard to argument closely related to the topic. In fact my current thoughts about abortion are somewhat naive. I do not think of this as a defect. I am inclined to follow Berkeley in this matter: thinking that so often in philosophy we fi rst raise a dust and then complain we cannot see. A simple argument justifying the exposure of infants on the grounds that 'The Tok went in for it and they were not such a bad lot', ishowever unsatisfactory it may be-more to be trusted than a justifi cation of the same on the basis of the latest extravagance of academic philosophy. There are times when it is better to believe a peasant than a pedant. Despite all the talk of the sanctity of life, I do not regard the issue as particularly 'religious'. But I am not so sure that our underlying and uncontroversial beliefs about homicide, beliefs which people are just not prepared to give up (or rather, are not yet prepared to give up) can deeply be understood without religious beliefs which I and many others have been, perhaps understandably, reluctant to adopt. Nietzsche, I imagine, saw this only too viii 10.1057/9780230509139preview-Worth and Welfare in the Controversy over Abortion, Christopher Coope

Personhood, Property Rights, and the Permissibility of Abortion

Law and Philosophy, 1983

The purpose of this paper is to argue that the tactic of granting a fetus the legal status of a person will not, contrary to the expectations of opponents of abortion, provide grounds for a general prohibition on abortions. I begin by examining two arguments, one moral (J. J. Thomson's 'A Defense of Abortion') and the other legal (D. Regan's 'Rewriting Roe v. Wade'), which grant the assumption that a fetus is a person and yet argue to the conclusion that abortion is permissible. However, both Thomson and Regan rely on the so-called bad samaritan principle. This principle states that a person has a right to refuse to give aid. Their reliance on this principle creates problems, both in the moral and the legal contexts, since the bad samaritan principle is intended to apply to passive refusals to aid; abortion, however, does not look like any such passive denial of aid, and so it does not seem like the sort of action covered by the bad samazitan principle. In defense of the positions outlined by Thomson and Regan, I argue that the apparent asymmetry between abortion and the usual type of case covered by the bad samaritan principle is only apparent and not a genuine problem for their analyses. I conclude with a defense of the morality of the bad samaritan principle.