The Unborn Identity: why accepting limited choice is compatible with voting “No” in this referendum

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A dear friend in a US college was raped. I believe I offered to drive her to an abortion clinic if needed. Privately, I was probably even ready to pay for it. And yet, I will be voting “no” in this referendum.

Perhaps more surprising: I have not had a radical change of heart, either.

A useful test for the moral legitimacy of a law is this: would you personally be willing to enforce a law you approve of?

I could not personally prevent a woman seeking an abortion in certain circumstances – such as that as rape. The reasons were most famously articulated by Judith Jarvis Thomson, in her thought experiment on “the famous violinist“: one ought to have the power to disconnect even a conscious adult of world renown, if someone had surreptitiously connected you, as their human life support machine. As goes for a fully formed adult, goes for a pre-mature human.

In this, Thomson’s argument is sound. One might make an ethical appeal to hang on until the patient has recovered in several months, but surely we could not use legal sanction to coerce it.

Thomson is on shakier ground extending the argument further into the field of personal autonomy. Were we to follow this argument through to its libertarian conclusion, it could seem to forbid even redistributive taxation.

There are a great number of areas where the state – as an imperfect avatar of community – interferes with our personal autonomy and limits our individual action, on a daily basis.

Of course there is much room for critique of what is necessary – or even that such critique should bear a “presumption of liberty” on behalf of the citizen and against the state. This is particularly acute in the case of pregnancy, which represents a unique re-ordering on personal autonomy for half the population.

However: if as part of a shared ethical framework, we as a community mandate state oversight and intervention to prevent cruelty and death to non-human creatures, it is not actually necessary to prove full humanity for the unborn entities – let alone personhood – to require their protection.

Furthermore, whereas for some creatures we argue protection on the basis of perceived sentience (most basically: the capacity to suffer); for many others lacking even this quality, we argue on the basis of an inherent value – such as biodiversity. This extends even to the categories of non-living entities – in matters of heritage, for example.

Many sincere campaigners for Repeal state that they wish to respect the feelings of those on the other side. Thank you, but my feelings are irrelevant. What is relevant, are the following questions – which remain unanswered by Repealers:

Do the unborn qualify as sentient – in at least as verifiable manner as other creatures whose welfare is safeguarded by law?
As organisms rapidly evolving to a recognisably fully-human state, don’t these entities have any inherent value worthy of protection, even absent full sentience or personhood?

In other words: ought the unborn really be of less matter to the state, than the humane disposal of grey squirrels; penalty-point sanctions on commercial fishermen; and the preservation of sash-windows on old houses?

This vote is unavoidably and equally about what replaces the 8th. That means that it is possible to want to some latitude for exceptional circumstances, and still vote “no”.

The Dáil – who will legislate in the absence of the amendment’s power – has not collectively demonstrated that they take protection of the unborn seriously: as a guiding legal and ethical concept in itself, not simply as a political genuflection to get around a temporary obstacle.

I’m voting “No” because the unborn – whatever they are, ultimately – will have no voice or power over laws that determine their very existence otherwise. A legal and ethical framework that places a default value of zero on them, is not something one should be required to support – morally, intellectually, or politically – even in the face of an imperfect alternative.

This article was originally posted on Oisín’s website and republished here with the kind permission of the author.

Oisín O’Connell

About the Author:

Oisín O’Connell is an MA student in philosophy, and a Wexford County Councillor. He writes this in a personal capacity.
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