As noted by Steven Pinker in his introduction to the 2007 Edge Question, there are some topics that one ventures into at one’s own risk. Here’s one:
The police in Canton, Ohio, have just arrested one Bobby Cutts, Jr., for the foul and gruesome murder of Jessie Davis, who was due to give birth in two weeks or so. The case captured the nation’s attention over the past few days, in part because of the horrifying eyewitness testimony of Davis’s son, a mere toddler, who told the police that “Mommy was crying”, and “Mommy’s in the rug”.
The news services are now reporting that Cutts, himself a police officer, is to be charged with two murders: the unfortunate woman herself, and the fetus she was carrying. And it is this legal construction that I am curious about.
What is murder? It is the malicious and unjustified killing of one person by another. There are, of course, situations where homicide is considered justified in the eyes of the law: in defense of self or property, on battlefields of war, and, of course, in cases where the law itself commands that a person be executed.
But the definition of murder rests on another, namely what we mean by a “person”. For there to be a murder, there must be a person who is the victim. But is the fetus in a pregnant woman’s womb a person? It seems there is rather a spread of opinions about this.
When the Supreme Court upheld the Partial-Birth Abortion Ban Act this past April, many on the more distant Left saw the decision as, if you will forgive me, a miscarriage of justice. The editors of the New York Times, for example, called the result “atrocious”, and saw it as the thin end of the wedge, the beginning of the end for abortion rights in the USA.
But there are many others, including your humble correspondent, who see the matter in less absolute terms. Abortion is one of the most difficult of all legal issues; the need to impose discontinuous legal distinctions upon a gradual and entirely continuous transition from one life to two is painful indeed. A great many people (I’m one of them) see a qualitative distinction between a week-old blastocyst — an unconscious, undifferentiated cluster of cells — and a full-term fetus. But there are those who regard any representation of the fetus, at any stage prior to birth, as a legal “person” — that is to say, someone who has interests that ought to be defended, and, in particular, someone whose killing can be reasonably regarded as murder — to be an impermissible diminution of the rights of the woman whose womb the fetus inhabits.
We should assume, then, that the Times, and abortion-rights hardliners generally, would object to the charging of Bobby Cutts with two counts of murder. I suspect, though, that we will see no such editorials, no blogospheric howls of outrage. Why?
I can imagine two reasons. First, all good people will certainly agree that this is a most despicable crime, just about as bad as we can conceive: Mr. Cutts stands accused of brutally murdering a cheerful and attractive young mother — in fact, the mother of his own son — while their little boy watched. To make matters worse, Ms. Davis was in the last stages of pregnancy, most likely with Mr. Cutts’s own child. Finally, Mr. Cutts was himself a policeman; one of those in whom we trust (conceding, as well, the power to use violence in our name) to uphold the law, and to defend us against just such crimes as he is alleged to have committed. So it is understandable that anyone, even the Times editorial board, would want to throw the book at him.
The other reason is that, although there are many for whom a fetus is fair game for terminal procedures, at the mother’s discretion, right up to the time it is born, the killer of a pregnant woman usurps the woman’s right to carry her fetus to term. It is as if the woman is granted not only the sovereignty of her own body, but further is given the right to bestow legal personhood upon the fetus. In other words, if a woman in her eighth month of pregnancy decides to abort her fetus, the fetus is not being murdered, because it has not yet been granted personhood. But in cases where the fetus is killed against the mother’s wishes, the fetus gets an implicit promotion, and a murder has been committed.
This has an intuitive moral correctness, perhaps, and I think is indeed the reason why we will see no conspicuous objection to the charging of Cutts with a double murder — but it does seem, in a purely philosophical sense, rather muddled to have the legal personhood of a fetus depend upon the caprice of its mother’s attitude. What this means is that we can have two different fetuses, at the same stage of development and viability, with one being a person, defended from murder by the full power of the law, and the other merely a prehuman subsystem of the mother’s body, subject to annihilation at her whim.
There is also the question of when in fetal development such personhood is to be assumed. If some brute strikes a woman who is three weeks pregnant, causing a miscarriage, shall he be charged with murder? If so, who is murdered? Why is the abortion of the same fetus by its mother, then, not murder? How is the situation different the the pregnancy is in its last stages?
I do not presume to have answers to these questions; I am only trying to illustrate how vexatious they are. In my own opinion there is indeed a qualitative moral distinction between aborting a fetus in its earliest stages and doing so when it is nearly at term — but it is the job of the law to define exact conceptual boundaries, and it is difficult indeed to see where this one ought to be drawn. I cannot agree with either of the extreme positions (while they are both philosophically consistent, I find neither morally compelling): one defines the beginning of personhood as the moment of conception, and the other the moment of birth — but finding a suitable watershed in the continuum of fetal development simply baffles me. Is it ex-utero viability? But that is merely a matter of technology: improvements in the care of premature babies continue apace, and it is not hard to imagine that babies might be fertilized and gestated entirely outside the womb before long. (This does seem to be the most popular criterion, however: New York and Ohio, for example, limit ordinary legal abortions to 24 weeks.) Is it the awakening of consciousness? That might do, as it is the imputation of conscious self-awareness that underlies the general intuition we have about what entities do and don’t deserve moral consideration — but how are we to determine when that happens? What if it turns out that even newborns aren’t yet conscious? There are enormous moral and philosophical conundrums along that road.
But this is enough for tonight. To sum up, the consistent positions are:
A) all fetuses are persons, and therefore all feticide is murder;
B) no fetuses are persons, and therefore no feticide is murder;
C) there is a point in fetal development at which fetuses become persons, and at that point feticide becomes murder.
But to assign personhood to fetuses based on the mother’s whim, or the actions of a third party, is not fair to the fetuses, whose situations may differ through no choice of their own.
One thing we can all agree on, anyway, I expect: that anyone who could commit a crime so unspeakably vile deserves the harshest retribution a civilized society can provide.