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The Womb is an Attractive Nuisance
No, I don’t mean that women’s reproductive equipment are both desired and prone to unpleasant smells, discharges, and pains — though true, that’s hardly groundbreaking material. Rather, the womb is an attractive nuisance in the legal sense of the word: i.e., a property feature that is sufficiently attractive that liability for some damages to, and caused by some trespassers, attaches to property owner, not the trespasser.
The context is whether abortion be justified on the grounds that the fetus is a “trespasser” in the woman’s body, as is sometimes alleged. Some pro-life supporters may bristle at the comparison of a fetus to a trespasser, but I argue that even if we accept that, we still end up at a pro-life position.
First, we need to establish some legal terminology. A trespasser is an invader onto a property who does not have permission from the owner. In a constructive trespass, one can be invited onto the property and then have that permission revoked, but that revocation is only applicable if the trespasser is aware and able to leave. (The drunk friend passed out on the floor does not become a trespasser if you tell him to leave while he’s out cold.) As noted above, the doctrine of attractive nuisance states that for some property features — pools are the archetype — the duty to prevent harm is on the property owner, not certain trespassers (children or others considered unable to assess risks). The last concept we need is the doctrine of necessity: A trespasser cannot be ejected from the property into hazardous conditions. For example, a dock owner cannot force a trespassing boat to unmoor into a dangerous storm, though he does have the right to collect any damages from the trespass.
Now, to apply this to the abortion context. Is the fetus a trespasser? In the vast majority of cases, no. The sperm was an invitee, and constructive trespass cannot apply because the fetus created by that sperm is not capable of being told to evacuate and leaving. But what about a rape case? Here, we go to the doctrine of necessity — so long as a trespasser (the baby, not the rapist) cannot survive without trespassing, he cannot legally be ejected. Moreover, the womb should be considered an attractive nuisance — the woman has a duty to keep trespassers out; the fetus, being incapable of assessing risks, does not have a duty to stay out. Thus, the liabilities of the trespass — the hardships of pregnancy — should be borne by the mother, not the fetus.
I don’t expect to change many minds with this, but consider it another arrow in one’s pro-life quiver.
Published in Culture
You know , this makes some sense. You should probably also link to someone making the Libertarian trespassing case in the first place, for background. I’m too lazy.
That’s a really solid argument.
I didn’t find a really good guide to it. I should mention one interesting feature to it that applies here — what happens when we have artificial wombs so that the fetus can be evacuated without being killed? There, they argue that abortion should then no longer be allowed because the mother’s right to her property only applies to her body, not the trespassing fetus — she has no right to kill the fetus if the fetus can survive without her.
I have a feeling that some day I’m going to be able to use this argument, and my mind is still going to be blown by that fact.
My, my, my.
I can see heads exploding across the world on this statement. This column needs wide dissemination.
I am curious in your discussion of a womb being property how the customs and laws of easements such as right of way would apply. It would seem to me that such laws and customs require the property owner (womb owner) to accommodate the land locked property owner (child) reasonable use for travel through the owner’s property for purposes of access to the outside world.
In the case of rape it’s much worse than simple trespass. It’s trespass along with the requirement that you then care for the trespasser’s offspring after you’ve been aggressed against.
There seems like there might be couple of parts that could cause problems.
The sperm may have been invited, but at no point was a baby given permission to form from it. Even if the sperm always has a chance to create a baby, that wasn’t the intent behind inviting the sperm.
Also,
This might be true according to the law, but if so, I’m not sure the law is correct. The person passed out on your property may not technically be a trespasser, but it seems one would have the right to physically remove them from your property even if they don’t realize they’ve been told to.
Finally, Even if you have an attractive nuisance like a pool, aren’t you only required to take reasonable precautions (like a fence) to avoid liability? Unless I’m wrong about that, it would seem a reasonable amount of birth control would be enough to avoid liability.
For 18 years, if you happen to be a male rape victim.
And in some ways, we already treat the fetus as transgressing against the mother … it’s a fair description of what happens when adoptive parents pay for the medical bills of the birth mother.
The transit from landlocked property happens only once (John 3:4) so I think trespass is a better framework than right of way.
Yes. Of course, those using a reasonable amount of birth control rarely find themselves in this situation at all.
And, so far as I know, new!
Attractive nuisance? Why, yes. Yes it is. For men.
But I do like your legal analysis.
Seems limited in application,but does make one think.
I can get the passed out drunk out of my house without killing him, I don’t have to wait for him to wake up sober.
But I am curious if you think the attractive nuisance idea means women ought not dress in such a way as to make the playground more attractive.
If we consider the case of rape:
If the fetus is a trespasser, and the woman is forbidden from ejecting the fetus on grounds of necessity, the woman would also have a claim against the fetus or whoever has legal guardianship of said fetus. Not only is the fetus trespassing, the fetus is engaged in battery on the woman by extracting nutrients and administering waste products, as well as inducing hormonal changes and potentially causing loss of working hours. Even more egregiously, the woman is exposed to the risk of severe medical complications. Women still die in childbirth, or suffer permanent disability. (See Eclampsia for an example )
What is the case law when a trespasser can not be ejected due to necessity, but also poses a threat to the owner? For example, a person trespasses into a cabin in order to escape a snowstorm, but they have a contagious, potentially fatal disease. What is the owner allowed to do?
This argument is interesting, but I do not consider the fetus a person until it possesses detectable vital signs, so it is less persuasive to me.
That is quite an argument, Amy!
Omega, vital signs are pulse, respiration, temperature, blood pressure and (in some systems) level of pain.
I can tell you the pulse of an embryo (not even yet a fetus!) at 26-28 days after conception, using my little ultrasound device.
At this age, respiration is nil and the temperature is that of the Mom. Blood pressure can be calculated in fetuses using Doppler ultrasound.
Is that enough?
If it is a trespass than the remedy must be proportional to the offense, at least that is the general sentiment I learned last semester in Torts. So killing the baby for trespass would only work if the baby’s existence in the womb was life threatening. I defer to actual graduated lawyers, but that is my reading of the intentional tort of trespass.
This post is brilliant, Amy.
I have usually couched this in the more amorphous idea that the party able to prevent the harm is the one responsible for it. You get this bit in contract law (ambiguiuty is construed against the drafter – don’t like the result? should have drafted better), or the assignment of externalities in torts law.
The examples used by pro-choice people almost always assume that the baby has the same or greater opportunity to avoid this clash of rights than the mother had. In reality, excepting the (very rare) cases of rape, thr opposite is true.
Could one not make the argument that the rapist has committed an act of conversion on the woman’s womb?
Well said, Amy. I’ve never thought of the fetus in this way, so you’ve given me some food for thought. It does make sense. Thanks!
Certainly, the rapist trespassed. However, from my reading, the fetus is the trespasser in question.
This seems to be a very sound legal argument against the notion that a fetus can be aborted simply because it can be viewed as a trespasser. Bravo!
How does the Castle doctrine apply? https://en.m.wikipedia.org/wiki/Castle_doctrine
it used to be said that if you shoot a person trespassing or breaking into your house, make sure they fall into the house if you shoot them. Any validity to that notion these days?
Is that actually distinguishable from the maternal pulse? Genuine question here as I am rusty on embryology. Would the heart rate/rhythm be different from the mother?
Also, is there any sign of brain activity? I know someone can be declared dead if the higher brain ceases functioning, even if the brainstem is capable of maintaining vital functions.
If a fetus is capable of brain activity and semi-independent vital function, then it is alive. He or she should only be aborted if the pregnancy is a threat to the mother’s life and there no other reasonable options. However, before then, I believe that the not yet living pregnancy may be terminated – I’m a fan of the morning after pill, especially for rape victims.
Tends to be faster.
I’ve never heard anything like it either.
All the more reason to punish rape as a very serious crime, just short of murder. But punish the guilty party, the rapist.
Yes. Heart rate scales allometrically with body size. An embryo/fetus has a heart rate of hundreds of beats per minute, similar to a mouse or other small mammal.
The most – perhaps only-part of the post I find compelling is the picture of the unborn baby in the womb. The winning point for the Pro-Life side has to be the humanity of that baby. It has its unique genetic identity right from the beginning and develops identifiable human features throughout the pregnancy. It is striking how pictures or videos of babies in the womb are hardly ever seen, in spite of the advances in technology that have made them so accessible. One need only remember the hysterical reaction to the Doritos advert during last year’s Super Bowl to understand how terrified the Pro-Choice side are of letting ordinary people see the reality of life in the womb. I’m afraid that the admittedly clever argument around trespass is just too obscure. In legal terms I think that perhaps the argument should be based more on the duty of care to the innocent life within. This helps better, I think, to address the foul argument of the Pro-Choice side that the foetus is a parasite whom no woman should be “forced” to tolerate .
It’s not about being the absolute winningest argument ever for the pro-life side. It is obscure and technical and most people don’t understand the principles on which is it based. It is, to use a bit of even more obscure legal jargon, a 12(b)6 style argument. When a lawsuit is filed, the defendant can file for summary judgement on many grounds, including “failure to state a claim for which relief can be granted.” (This is 12(b)6 in the Federal Rules for Civil Procedure.) In plain English, it means that even if we assume all the facts set forth in the plaintiff’s complaint, the defendant still isn’t in the wrong.
A fetus is not a trespasser. My argument is that even if we accept that it is for the sake of argument, that still doesn’t justify abortion.