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Abortion and Animals

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LT comments in the thread earlier today that (s)he can see some relevance of animals to the abortion debate. And I can actually see it in one narrow context. In his essay in What Roe Should Have Said, Akhil Amar argues:

There are indeed plausible textual reasons for not treating the unborn as persons within the meaning of the Constitution…but even nonpersons may have interests that deserve of human protection. A pet dog is not a person, yet society may protect it from cruelty or wanton destruction…

This is is true, as far as it goes. The fact that the fetus is not a legal person does not, in and of itself, mean that the state cannot legislate to protect fetal life. (Well, apparently there are some libertarians who argue that the state cannot protect animals; not being a libertarian, I’m free to agree with McArdle that such legislation is perfectly acceptable, and in any case it’s certainly not prohibited by the United States Constitution.)

But as applied to abortion, the analogy doesn’t do any serious work: it breaks down in ways that are particularly important to assessing abortion. Most importantly, unlike animals fetuses reside in women’s bodies, and being forced to carry a pregnancy to term imposes serious burdens on a mother’s health and life prospects, which forcing a woman not to torture dogs does not. Similarly, bans on abortion ineluctably place these burdens exclusively on women as a class, while most laws protecting animals don’t burden any particular class of individuals. And finally, unlike with abortion statutes as Michael Vick now knows we’re willing to enforce laws banning animal cruelty against rich people. Roe extended the de facto access affluent women had to safe abortions to more women by straining down legislation that was arbitrarily enforced; again, there’s no analogy with bans on animal cruelty here.

So ultimately the point, while narrowly clever, isn’t useful. If access to abortion is not a fundamental right, the analogy is superfluous; the state can already balance the relevant interests pretty much however it chooses. (It matters only in the sense that the state would not be required to ban abortion, a conclusion that for obvious reasons opponents of legal abortion are generally desperate to avoid in any case.) And if abortion is a fundamental right — and under the relevant doctrine is clearly is — comparing fetuses to animals doesn’t get you very far in terms of justifying the severe burdens abortion bans place on the right.

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