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Abortion Rights, Property Rights and Kelo

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In light of the recent Supreme Court decision in Kelo v New London, which limits our individual private-property rights by reducing them to states rights, there is now a new twist with regard to the relationship between uteruses and fetuses. The “penumbra” of Kelo (the Supreme Court tends to enjoy arguments that include “penumbral” connections) suggests that individual states may now be able to evict fetuses from uteruses in that state more easily, if a state’s eminent domain laws determine that such a fetal eviction is good for, perhaps, commerce. There is also now a new potential for states to legislate laws allowing uteruses to be commandeered by other private investors if that state deems the eminent domain or taking of a particular uterus is advantageous in some legislated fashion for that state. Such a uterus, for example, may well be deemed better used to grow lawyers than laborers or vice versa.

Before I go any further, however, let me make clear, immediately, anyone who pretends it is self evident that a fetus is a baby is simply a liar, or at the very least guilty of really really bad logic.

The intentional killing of innocent people, which includes innocent babies, is universally considered murder. Murder, is never justified killing or it would not be called “murder.” So murder is always wrong, even if killing is not always wrong. Killing in self defense, for example, is not murder whereas genocide is murder. It also is not murder when someone dies by accident or even when someone really stupid does something so dangerously reckless that it leads to the death of an innocent person. If I like shooting machine guns in my neighborhood when I am drunk, and I kill someone, which is quite likely, it is not murder, though certainly the degree of reckless stupidity makes me criminally negligent and would hopefully at the very least land me in jail forever. The point here, again, is murder by definition is always wrong whereas killing is not always wrong. Murder also entails the intent to kill wrongly, or to kill someone outside of socially accepted acts of killing. Killing in a hot war, for example, is a socially accepted killing, and thus not usually deemed murder unless one breaks the mores of war and kills prisoners or the wounded or one’s comrades.

So, if someone lies and pretends killing a fetus is identical to killing a baby, what that particular prevaricator has really done is already presumed abortion is wrong without ever arguing why. The presumption that a fetus is a baby is simultaneously the presumption that to kill it is murder and wrong. It is tantamount to saying abortion is wrong because abortion is wrong which is why abortion is wrong. Only a liar or a fool would pretend this is an argument against abortion. It is merely an opinion, like “Chocolate is yummy because I like it.”

Back to evicting fetuses through use of eminent domain: Consistent with Judith Jarvis Thomson’s now famous defense of abortion, a woman’s right to abort a fetus residing in her uterus is based on her inalienable natural right to maintain her private property. Strictly speaking this is a libertarian argument since it is contingent on the negative nature of our inalienable natural rights. Simply, one’s right to private property or liberty or even life does not give the holder of these rights any entitlement whatsoever to make a claim against anyone else’s rights. My private property is my own, and yours is your own, and if luck has left me impoverished and you affluent, my rights do not extend to your property. This, as Thomson clearly articulates, means no one has an obligation to be a Good Samaritan, even if it would be really nice. If you are drowning, I have no moral obligation to risk my life to save you, even if that risk is minimal. If you are a fetus and your life depends on my allowing you to reside in my uterus for 9 months I have no obligation to extend my uterus to save you.

Oddly enough abortion has other parallels to real estate law as well. If you have made use of property that was mine for a sufficient amount of time, the legal principle of “adverse possession” means you can now claim that real estate as your own, since you have invested it with sufficient labor — your own personal liberty — to transform my property into yours. Investing land with personal free labor is, after sufficient time, more important legally than mere paper ownership of that land. The same holds in abortion. After a sufficient amount of time the fetus, through a sort of squatters’ rights can make a claim against the insufficiently protected uterus. In a word, pregnant people get one trimester for a free pass to abort/evict the fetal interloper. After that they can only evict in order to protect themselves from harm, which is generally determined by a doctor of some variety. In other words, if prior to three months the fetus is not evicted, the fetus, through “adverse possession,” owns that property until it leaves it.

Why this is significant, is that the similarities between abortion rights and real estate rights certainly seem to imply that eminent domain laws could consistently be applied to uterine rights. After all, the uterus is the only area in a human body where other bodies, much like earthen real estate, can in fact reside, and very typically do. And, if adverse possession seems applicable to uteruses so too could eminent domain be applicable. Perhaps we should also use eminent domain to take a few justices’ wives’ or daughters’ uteruses for the advancement of our nation’s economy. Yippee New London here we come!

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  • http://paperfrigate.blogspot.com DrPat

    Maybe you should have the ASIN for Huxley’s Brave New World in this piece: 0060929871.

  • http://adamantsun.blogspot.com Steve S

    so you mean like they are going to abort the fetus to put in a Starbucks?

  • http://sussfr.blogspot.com Matthew T. Sussman

    It’ll be a governmental online auction: eBayBee.

  • Nancy

    I don’t know if this makes me laugh or quiver: I can just see some half-assed lawyer trying to argue this for real!