In Glenn Cohen’s first post on this blog, he questioned whether Mitt Romney’s position on abortion was coherent with respect to the rape and incest exception, but did not question the self-defense exception itself. He addressed the self-defense exception briefly: “Through the well-known doctrine of self-defense, the criminal law has long recognized that an individual may be justified in killing to protect his or her own life, or possibly health, and these exceptions merely reflect a similar view as to fetuses.” He is correct to say that this is the established position, one that dates at least as far back as the Talmud. But, assuming one believes that the fetus is a person entitled to the full panoply of rights, is the self-defense exception defensible?
Lethal self-defense is generally legally justified when used to protect your life. This is even true in cases where the attacker is not morally culpable. Judith Jarvis Thompson, in her article entitled “Self Defense,” argues that this is true because they will “otherwise violate your rights that they not kill you.” She then extends the rights of self-defense to third parties arguing that the rights are not personal (agent-relative).
Additionally, in the article “A Defense of Abortion,” Judith Jarvis Thompson argues forcefully against the position that abortion should be impermissible even when the mother’s life is at risk. This position is untenable from the perspective of the mother because “[i]t cannot seriously be said that . . . that she must sit passively by and wait for her death.” In the abortion case, it follows that a third party (doctor) has the right to save the mother’s life as well. I find this to be a convincing argument against the position that abortion should never be allowed. But does it establish that every time the health of the mother is at risk she has the right to abort the fetus, killing a person?
Thompson also claims that the aggressor loses the right not to be killed because he is attacking someone with that right. This is certainly true with a morally culpable attacker, but Thompson argues that it is also true when the attack is faultless. For example, suppose Bill is driving on road within the speed limit and sees Rex crossing an intersection up ahead, but, unbeknownst to either one, the road leading to the intersection is covered in black ice. Bill presses the breaks in a timely manner but the car skids directly at Rex. Thompson would argue that Rex, who carries an anti-tank gun, can blow up the car to save himself, but Bill, seeing Rex aim the gun, does not have the right to use his own gun to kill Rex and save himself. The idea seems to be that if not for Bill, Rex would continue living so Rex can protect himself.
I think though that it is plausible (and to me more intuitive) to argue instead that Bill is in the same moral position that Rex is in. If Rex had not entered the otherwise empty intersection, Bill’s car would have regained traction after the ice and Bill would have continued on his way. Their actions are equally blameless. Instead of looking at it from the perspective of Rex who will be killed if nothing is done, one could also view it as a zero sum game. A situation has arisen where only one of Bill and Rex can live and neither is culpable for the situation. Their rights should be equal and both of them should be justified in taking necessary steps to survive.
If one applies this framework to the abortion context where the life of the mother is at risk but the fetus is considered a person, assuming neither party is culpable, there is again a zero sum game. Under this scenario it would seem unfair to formulate the rule to either extreme: a full abortion ban or a right for the mother to abort whenever her life is at stake. The extremes would not be respecting the rights of either the mother or the fetus/person but would preference one to the other. The situation is further complicated by the fact that it is a third party doctor or legislature, who is theoretically responsible for both of their lives, making the choice. (If this is a conflict for the doctor, should we be appointing a representative to at least argue in favor of the fetus/person’s life?) Potentially a case by case system would work in most circumstances since, as Eugene Volokh wrote in “Medical Self-Defense, Prohibited Experimental Therapies, and Payment for Organs,” the imminence requirement in abortion cases is fulfilled by “requiring a present life-threatening medical condition . . . not as requiring that death be likely within the hour.”
I believe this framework suggests that the belief that a fetus is person with the full complement of rights leads to uncomfortable positions in relation the self-defense exception.
While rereading Roe V. Wade this morning for a Comparative Constitutional Law class, I noticed that Justice Blackmun makes this argument in footnote 54 of his majority opinion:
“When Texas urges that a fetus is entitled to Fourteenth Amendment protection as a person, it faces a dilemma. Neither in Texas nor in any other State are all abortions prohibited. Despite broad proscription, an exception always exists. The exception contained in Art. 1196, for an abortion procured or attempted by medical advice for the purpose of saving the life of the mother, is typical. But if the fetus is a person who is not to be deprived of life without due process of law, and if the mother’s condition is the sole determinant, does not the Texas exception appear to be out of line with the Amendment’s command?”