Sunday, November 14, 2004

Cause not Harm

Jonah Goldberg of the Corner discussing how abortion is portrayed on television programs asks why

”And, the moment the women decide to have the baby, the fetus is automatically discussed as if it were a complete person worth talking to, reading to, singing to etc. The implication here, of course, is that if Rachel or whoever had simply chosen not to have the baby, that choice and that choice alone would have been enough of an abracadabra to metaphysically transform the fetus into nothing more than a lump of cells or the inconvenient consequence of a one-night-stand not worth reading to at all.”

Glen Reynolds at Instapundit offers an answer

At common law -- and still, pretty much, the law generally -- there's no duty to rescue. The classic example, in fact, involves a man walking down the sidewalk and observing a baby drowning in a half-inch of water. Even if the man could rescue the baby with no risk and minimal inconvenience to himself, he's under no duty to take any action at all, and can simply keep walking without facing any penalty beyond moral condemnation.
But if he decides to help, and takes action, then he becomes obligated to follow through and must exert all reasonable effort (short of risking death or serious bodily harm; inconvenience doesn't generally count) to save the baby's life and leave it in a position of reasonable safety. The analogy should be obvious here.

His analogy is obvious even to a non-lawyer like me. But it seems to me Glen is missing a point. What he says is perfectly true - that an individual who is a passerby has no duty to rescue, but they do have a duty not to harm. In Glen's example pushing the baby down in the water would invite criminal action. The choice in abortion is not whether to rescue, but rather whether to harm. The fetus is what she is – a living creature with human DNA, biologically a member of the species homo sapiens sapiens. A choice for abortion is a choice to harm a member of the species homo sapiens sapiens, no amount of semantics can change that. I can see no way to draw an effective line between having a choice to harm one class of homo sapiens sapiens and eventually having a choice to harm any unpopular class of homo sapiens sapiens. Who is not a part of some group that someone or other does not like?

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