Judy Nicastro's Abortion at 23 Weeks

This past week democrats in Texas managed to stave off a bill that would prohibit abortions after 20 weeks, thanks to a filibuster by Wendy Davis and a noisy gallery of abortion rights advocates.  A few days earlier, there was an editorial in the New York Times week in review section called "My Abortion at 23 Weeks".  I thought Wendy Davis should have read it during her filibuster.  Rarely does anyone even talk about her abortion at 10 weeks--openly discussing a second trimester abortion was incredibly brave and very relevant to the proposed Texas law.

Nicastro was pregnant with twins, one of which had a herniated diaphragm.  But that's not all--doctors informed her that "the organs were pushed up into our boy's chest and not developing properly."  After more testing, they told her "Only one lung chamber had formed, and it was only 20 percent complete."  Were the baby to be born, he would suffer through life support and probably (the article insinuates but doesn't say) die anyway.  The only complication is that aborting one of the twins would increase the chances of the other miscarrying.  But Nicastro took that chance and her daughter was born healthy three months later.

Did she do anything wrong?  There are four letters to the editor on Nicastro's story, two supportive and two critical. One is from Sarah Moses. Under her name it says "The writer, an assistant professor of philosophy and religion at the University of Mississippi, teaches a course on medical ethics."  It bothers me for readers to think her letter is representative of medical ethics, so I will point out that her departmental website says she is an "assistant professor of religion".  This may have some relevance to the substance of her letter.

Her opinion is that Nicastro had an alternative to intentionally killing the fetus at 23 weeks--she could have let the pregnancy continue and refused life support for the newborn baby.  She makes the point that at the end of life, refusing life support is morally better than outright killing the patient.  Her counsel (in so many words): see the pregnancy through, do nothing heroic to save the baby, let him die.  There's more suffering in that scenario, but she thinks that's what morality requires.

Yes? No?  No! First glaring problem: the fetus at 23 weeks is not yet a legal person, both in the opinion of most philosophers, and as judged by the supreme court in Roe vs. Wade.   So the choice between killing at 23 weeks and withdrawing life support after birth can't be compared to the choice between those two options as they pertain to a patient -- a person -- at the end of life.

Is intentional killing (painlessly at 23 weeks) really the worse alternative, compared to letting the newborn baby suffer and die?  Even granting the dubious supposition that a person is involved in both cases, rather than a fetus in one and a person in the other, this is highly dubious.  If death is inevitable, reaching it in the least painful way is not just permissible, it's imperative. To think intentional killing is forbidden, even when it achieves an inevitable death less painfully, involves a quasi-religious sensibility (which is why I mentioned Moses's position as a professor of religion, not philosophy and religion).  You can't explain the forbiddeness of intentional killing (to prevent the pain of an inevitable death) in secular terms--you have to bring in what God thinks about intentional killing, or God's ownership of our lives, or the health of the soul, or some such.  This is not medical ethics, simpliciter, it's religious ethics.

What do most philosophers think about killing to prevent a painful death?  They think it's justifiable.  In fact, they think it's justifiable at the end of life, too.  When the individual killed is a fetus, it's just all the more clear. 

The only puzzling thing about this case, to my mind, involves the healthy twin.  Was it right to put her life at risk, to prevent the painful death of her brother?  That's where there's some room for debate here. In our society we have limited alternatives, because infanticide is off the table.  Were that an option, it's hard to say why it would be better to terminate earlier, exposing the healthy twin to risk, rather than waiting until after birth.  It's probably only better psychologically--easier, all around, to bear.

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