Abortion and Animal Rights

(Source: Politico.com)

I advocate for the rights of animals. I argue that, if animals have moral value and are not just things, we are obligated to stop using animals as resources. It’s not just a matter of not causing animals to suffer. Although sentient (subjectively aware) animals certainly do have a morally significant interest in not suffering, they also have a morally significant interest in continuing to live. I believe, and have provided argumentation for, the position that it is morally wrong to kill and eat or otherwise use sentient nonhuman animals. If there were sufficient support as a moral matter to abolish animal exploitation, I would certainly support a legal prohibition on it.

So I must be opposed to letting a woman have the right to choose whether she is going to have a child? I must be in favor of the law probiting abortion or at least not treating the decision to choose as protected by the U.S. Constitution, as the Supreme Court held in 1973 in Roe v. Wade, right?

Nope. Not at all. I support the right of a woman to choose and I think it is very wrong that the Court, led by misogynist Sam Alito and representing an extreme right-wing majority including Justices who dishonestly told the American people that abortion was settled law that they would respect, is apparently planning on overruling Roe v. Wade.

Indeed, I clerked for Justice Sandra Day O’Connor of the United States Supreme Court during the October Term 1982. That was when, in her dissent in City of Akron v. Akron Center for Reproductive Health, Justice O’Connor rejected the trimester approach to evaluating the state regulation of abortion that had been articulated in Roe v. Wade but still endorsed the right to choose. She proposed the “undue burden” standard: “If the particular regulation does not ‘unduly burden’ the fundamental right, then our evaluation of that regulation is limited to our determination that the regulation rationally relates to a legitimate state purpose.” The “undue burden” approach to evaluating abortion regulation became the law of the land in 1992 in Planned Parenthood v. Casey and allowed a relatively conservative Court to have a general consensus that the right to choose was constitutionally protected subject to state regulating, but not imposing “undue burdens” on, the right to choose.

Am I being inconsistent in supporting the right of a woman to choose but in arguing that we ought not to kill and eat — or otheriwise use exclusively as resources — nonhuman animals who are sentient?

Nope. Not all. In 1995, I contributed an essay to an anthology on feminism and animals published by Duke University Press. In that essay, I made two points:

First, the overwhelming number of abortions occur early in the pregnancy when the fetus is not even arguably sentient. According to figures that are more recent than my essay, about 66% of abortions occur within the first eight weeks and 92% are done at 13 weeks or before. Only about 1.2% are done at 21 weeks or after. Many scientists and the American College of Gynecologists maintain that 27 weeks or so is the lower boundary for sentience. Although the issue of fetal sentience continues to be debated, the consensus is that most if not substantially all human fetuses that are aborted are not subjectively aware. They have no interests to affect adversely.

With the possible exception of some mollusks, such as clams and oysters, virtually all of the animals we routinely exploit are unquestionably sentient. There is not even a fraction of the doubt about nonhuman sentience as there is about fetal sentience.

But I don’t base my support for the right to choose just on, or even primarily on, the issue of the sentience of fetuses. My primary argument is that human fetuses are not similarly situated to the nonhuman animals we exploit. A human fetus resides inside a woman’s body. So, even if the fetus is sentient, and even if we consider that the fetus has a morally significant interest in continuing to live, the conflict exists between the fetus and the woman in whose body the fetus exists. There are only two ways to resolve the conflict: allow the woman in whose body the fetus exists to decide, or allow a legal system that is clearly patriarchal to do so. If we opt for the latter, that has the effect of allowing the State to, in effect, enter and control the body of the woman in order to vindicate its interest in fetal life. That is problematic in any event but it is particularly problematic when the State is structured to favor the interests of men and reproduction has been a primary means by which men have subjugated women. Look at the Supreme Court. Do you think that they can be trusted to resolve the conflict in a fair way?

A woman having an abortion is different from a woman (or man) abusing a child who is already born. Once the child is born, the child is a separate entity and the State can protect the interests of that being without, in effect, taking control of the body of the woman.

Nonhuman animals we exploit are not part of the bodies of those who seek to exploit them; they are separate entities analogous to the child who has been born. Conflicts between humans and nonhumans do not require the sort of control and manipulation required in the abortion context. Humans and the nonhumans that they seek to exploit are separate entities. If there were sufficient support to stop animal use, that could be done without the State effectively entering and controlling the body of anyone seeking to harm animals, and in a context where that control has occurred historically as a means of subjugation. Quite the opposite is the case; animal exploitation has been encouraged as part of our subjugation of nonhumans. The situations are not similar.

I support choice because I do not believe that the State, especially a patriarchal state, has a right to, in effect, enter and control a woman’s body and tell her hat she must bear a child. I do believe that the State has a right to tell a parent that she cannot abuse her 3-year old or that she cannot kill and eat a cow. And given that most women who choose not to bear children overwhelmingly end their pregnancies at a time when the likelihood of the fetus being sentient is low, I think that most decisions to terminate pregnancies do not even implicate the interests of a sentient being.