On Fetal Rights: Killing vs. Letting Die in Abortion Ethics Jenna Lange, Pomona ’23
Managing Editor – Winner of the Issue II Writing Prize Introduction When someone becomes pregnant but does not wish to carry the pregnancy to term, it seems there is a conflict of rights. On the one hand, there are the rights of the pregnant person1—such as the right to decide what happens to their own body, the right to not be killed by the fetus2 (as in when the pregnancy is lifethreatening), and so on. On the other hand, there are the rights of the fetus, such as the right to not be killed. In general, if right P takes precedence over right Q, then we must act in accord with right P—or otherwise we violate a right, which is always morally impermissible. So, with respect to abortion, the three questions to consider are: which rights does the fetus have; do these fetal rights conflict with the rights of the pregnant person; and if they do conflict, which right takes precedence (i.e., overrides the other)? The two rights at issue that the fetus might have are the right to not be killed and the right to not be let die (i.e. to life-sustaining aid). However, to understand the difference between these two rights, one must first understand the difference between killing and letting die—and resolve the question of whether abortion counts as killing the fetus or as letting the fetus die. To this end, in Section IA I describe Philippa Foot’s and Jeff McMahan’s contrasting accounts of the distinction between killing and letting die, and end up siding with not only McMahan’s way of drawing the distinction but also his account of why some withdrawals of aid are killing while others are letting die. In Section IB, I apply McMahan’s account to abortion, showing that most abortions involve letting the fetus die, not killing— roughly because they involve the withdrawal of
life-saving aid whose continuance comes at a cost to the pregnant person. In Section II, I follow in the footsteps of Judith Jarvis Thomson and Phillipa Foot by assuming that the fetus is a person,3 and thus has the right to not be killed. But what about the right to life-sustaining aid? I discuss Thomson’s argument for the claim that most fetuses lack such a right; though fetuses do have the right not to be killed, they do not have the right not to be let die. Focusing only on what McMahan calls “merely extractive abortions,” which are the most common type, I show that in these types of abortions, the pregnant person’s right to decide what happens to their body and the fetus’ right not to be killed are not in conflict. And so, for extractive abortions, we will not have to adjudicate which right—the pregnant person’s or the fetus’—takes precedence. Section IA. Killing vs. Letting Die In Philippa Foot’s view, the difference between killing and letting die is not merely the difference between doing and allowing.4 Her defense begins with the premise that, if there is a case in which one kills by allowing a threatening sequence to continue, then the distinction between killing and letting die does not map onto the distinction between doing and allowing. Foot then presents the following example: Involuntary Donor: A’s body is plugged into B’s, and A is dependent on this arrangement for lifesaving aid. B unplugs A’s body from hers, and A dies.5,6
Since Foot thinks this is a case of killing by allowing, she concludes that not all killings are
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