Let me get this straight

Glenn Reynolds says:

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.

Now I've thought of this argument in a different context, as an explanation for why you could both support abortion rights (as, of course, I do) and also support holding pregnant women liable for engaging in behavior -- like drug use, excessive alcohol consumption, etc. -- that might endanger the fetus. But I think it provides at least a partial answer to Jonah's question.

One of the problems with this analogy is that the decision to try to rescue someone in immediate distress covers a single moment in time.  Under current law, an expectant mother has several months to decide whether she's going to have an abortion.

I think this difference makes the analogy falter, even if it's only advanced as a legal, not a moral, argument.  A woman can, conceivably, change her mind many times when deciding on an abortion.  As Glenn points out, at common law, once you decide to save a drowning baby, you're legally obligated to do every thing you can to accomplish that.  If you apply Glenn's analogy, once a woman decided to have the baby she'd be duty bound to follow through on that decision. ¹ If she later changed her mind and had an abortion she'd then be guilty of, at least, endangerment. 

I seriously doubt that's what Glenn had in mind.

¹ How you'd determine that is problematic, but if, for instance, a woman publicly announced her intention, that would presumably be sufficient.

Comments

[Mike Perry]

He also fails to take into account another factor. A parent--and that's what a pregnant woman is--cannot legally stand by and allow his or her child to die. That's a particularly severe form of child neglect. Nor can numerous others, such as the police, firefighters, or apartment managers (if that's where the drowning is occuring). Simply by being, you may have a legal obligation to act, with the only exception being when rescue would be too dangerous.

In addition, the government is not simply a bystander. You or I may not have a legal obligation to intervene in a lynching, but the government and its officers do. And if you remember your history, you'll recall that for most of a century it was the same Democratic party that now defends abortion that blocked attempts to end quasi-legalized lynching. Even the excuse for both is the same--"protecting women."

This also doesn't touch on the grossly defective moral character that non-action in such a case suggests. Conservatives who're soft on abortion tend to be the sort, as here, who interpret their obligations to others as narrowly as possible. They dislike the welfare state, not because it demeans the poor and creates dependence, but because it costs them money.

I wrote on how this sort of thinking applies across the political spectrum in "Heroic Selfishness." Some might want to read it.

--Mike Perry, Seattle