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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
Deleted, stupid joke
By the way, @amyschley. It’s an epic feat of logic.
Deleted much smarter joke. Y’all wouldn’t have gotten it anyway. :twisted:
I’m thinking this might be where the argument breaks down, as presumably most cases of “hazardous conditions” don’t last for 9 months. If a homeless person takes shelter in a North Dakota barn, it would seem to violate the “hazardous conditions” exemption to eject him during a blizzard. But if the property owner tries to eject him during normal December weather, couldn’t the homeless person truthfully state he wouldn’t survive in typical North Dakota conditions until well into the spring? Yet he’s got to move on.
i.e., while storms and blizzards pass relatively quickly and normal “trespassers” can be ejected in <24 hours, babies stick around for 9 months.
Where it really breaks down is if the trespasser is threatening the heath of who is being trespassed on, and who gets to make that determination….
There are a great many forms of violence where the victim spends the rest of their life disfigured or physically disabled. The duration of a rape victims’ suffering is properly accounted against the rapist, not the baby.
I think a lot of this misses the point, doesn’t it? The womb is not an attractive nuisance to the fetus; it is the proper environment for the fetus, where it belongs. The attractive nuisance aspect would apply to the woman’s custody of her reproductive system. She is responsible for management of her body so as to avoid harm to others. This argument struck me as an attempt to inject the topic of responsibility back into the discussion.