Tag Archives: Judith Jarvis Thomson

McFall v. Shimp: More Analogous to Legal Abortion Than We Usually Think

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In 1971 Judith Jarvis Thomson analogized the legal prevention of abortion (i.e., anti-abortion laws), in the case of a rape pregnancy at least, to legal compulsion to endure the use of one’s kidney by a stranger for nine months. She expected readers to agree that such a compulsion would be “outrageous,” and even most pro-lifers agreed that indeed, our society should not institutionalize such compulsion. Almost all pro-lifers defend, legally if not morally, a passive right to refuse such that the needy person dies of their own disease – unless perhaps there are special circumstances * and the demand on one’s body is almost trivial, such as the donation of one pint of blood. Thomson’s paper pioneered a genre of similar arguments for abortion rights, known as “bodily-rights arguments” (or more specifically “right to refuse” bodily-rights arguments).

Soon enough after 1971, in a Pennsylvania court in 1978, Judge John Flaherty ruled that Robert McFall did not have a right to any of the bone marrow of David Shimp, even though McFall’s life might be saved by it and he might otherwise die. There was no known public disagreement with the ruling. This bore out the contention that a legal compulsion to endure the use of one’s internal organs, at least if the one being compelled was not responsible for the condition that had created another born person’s need to use them, would be unacceptable if not outrageous.

So the legal prevention of abortion, i.e., anti-abortion laws, compelling a woman to endure the use of her internal organs (at least if she was not responsible for the condition that had created another person’s need to use them, that is, a pregnancy), is clearly unacceptable – if such legal prevention of abortion is really analogous to the legal backing that McFall sought in trying to use some of the bone marrow of Shimp.

In fact, legal prevention of abortion is disanalogous in a number of ways to the legal backing that McFall sought in trying to use some of the bone marrow of Shimp; but the pro-life side has focused more than anything else on one disanalogy: the fact that McFall was left passively to die of his own disease, whereas in an abortion, the pregnant woman actively kills or hires someone to kill her unborn child.

I would like to argue here that that distinction, while worth making, is not sufficient in itself to justify the legal prevention of abortion, and that such legal prevention can only be justified by the cumulative import of a number of disanalogies.

The problem with simply pointing out that McFall was left passively to die of his own disease, whereas a pregnant woman actively kills or hires someone to kill her unborn child, is that, once Judge Flaherty ruled against him, McFall “took no for an answer.” He did not proceed to start taking Shimp’s bone marrow.

But an unborn child does not take no for an answer. An unborn child is tiny, it is innocent, it is unconscious, but nevertheless it is capable of refusing to take no for an answer and proceeding, without going through the courts, to start using its mother’s uterus and consuming its mother’s blood.

So in order to make the McFall v. Shimp situation more analogous with an unwanted pregnancy and a proposed abortion, let’s see how that case could hypothetically have played out instead of how it actually played out. This may get a little fanciful, but we already knew that any hypothetical that is really analogous to pregnancy will be fanciful.

Let’s say Judge Flaherty delivers his 1978 verdict, including his well-known comment “For a law to compel the defendant to submit to an intrusion of his body would change every concept and principle upon which our society is founded.”

At this point something understandably snaps in McFall, and he develops a psychotic delusion that Shimp is a bone-marrow-dispensing robot. (So that whatever he may do to Shimp, he will be innocent by reason of insanity, just as an unborn child is innocent.)

He follows Shimp home, and before Shimp knows what is happening, McFall has tied him to his own kitchen table and is proceeding to take some bone marrow.

There is no lethal threat to Shimp, and he knows it, but nevertheless he manages to get a concealed handgun out of his pocket. His only possible target is McFall’s head. He fires and kills McFall.

Now he has committed an active killing, as when a woman aborts. But how much less justified is he than if he had passively let Shimp die, which pro-lifers say should legally be okay? He has not killed gratuitously. As when a woman aborts, he has done it under circumstances where he had said no, but the person needing to use his body had refused to take no for answer.

So soon Shimp is back in Flaherty’s court. The prosecution has charged Shimp with criminal homicide, because he actively killed McFall. There is no dispute about the facts of the case.

Shall Judge Flaherty say to Shimp, “I said earlier that a law cannot compel a defendant to submit to an intrusion of his body. But I take that back. Under your circumstances with McFall, the law did require you to submit, because your only alternative was active killing and the law does not permit active killing. True, there is no law worded ‘if your only alternative is active killing, you must submit,’ but our homicide laws, since I interpret them as applying even in your situation, have the same effect” – ?

I don’t know how Flaherty or any judge might rule, but since we are using this scenario only as an analogy for abortion, the point is what the law should be rather than what it presently is. I once debated with an intelligent pro-choicer who thought that acquittal of someone in Shimp’s position would be “uncontroversial.” I responded with my moral intuition that, as long as any harm likely to be done to Shimp were no greater than is done to a woman in an average pregnancy in a developed country, Shimp should not be legally permitted to use lethal force. But I found the pro-choicer’s view extremely understandable. Hence I do not consider that making the distinction between actively killing, and passively letting someone die of their own disease, is, alone, a knockdown response to the right-to-refuse argument. In ethical debate, if an analogy is to have its desired effect, it works by analogizing the situation containing the debatable issue to a situation where the right and wrong are not in debate. But if the McFall-Shimp story had played out in the way I have suggested, a way really analogous to abortion, it would have been a situation where the right and wrong are in debate.

If it is a fact that no law or precedent can compel a person to do X (for instance, “submit to an intrusion of his body”), that does not mean that there is an automatic corollary “the law allows lethal force to save oneself from X.” In many situations of “cannot compel a person to do X,” there would be no such corollary. However, when Flaherty said that a law cannot compel a person to submit to an intrusion of his body, he went on to say that for a law to do so “would change every concept and principle upon which our society is founded. To do so would defeat the sanctity of the individual and would impose a rule which would know no limits, and one could not imagine where the line would be drawn.”

To be consistent with those ponderous words he used on the first occasion, Judge Flaherty would either have to find active killing under the circumstances that Shimp faced to be permissible, or would have to be very sympathetic to such a finding. He would not find active killing to be as obviously impermissible as pro-lifers would like it to be in a situation analogous to abortion.

If Flaherty’s strong words are true without exception for any circumstance, and if our homicide laws would operate in the above hypothetical circumstance such that Shimp would have to submit, then those homicide laws “would change every concept and principle upon which our society is founded. . .,” so seemingly such laws could not stand – meaning that in that circumstance the law would allow lethal force. Flaherty’s words, with which no one seems much to disagree when we are talking about born persons, describe a non-negotiable right to refuse, meaning a right that can be defended by almost any means necessary.

Remember that in the hypothetical scenario, McFall is proposing not merely to injure Shimp’s body, but to use it. This distinction is at the heart of the concept of bodily rights, and the effect, I think, is to bolster Shimp’s right to defend himself.

When we point out that abortion is not just the withholding or withdrawing of help, but active killing, the right-to-refuse argument loses a lot of the sizzle it might otherwise have, so we should definitely point that out. It is a point worth making. But any motivation for a pregnant woman to actively kill stems from the absence of a passive option for freeing herself – unlike the passive options open to Shimp (the way his case actually played out) and to Thomson’s kidnap victim (that person could simply disconnect without actively killing) – and the absence of a passive option means by the same token that the woman is in a trap and that therefore the taboo on active killing also loses its sizzle. Active killing is the minimum level of force necessary for her to free herself. The more reason of a self-defense nature you have for killing someone, the less the moral difference between actively killing them and passively failing to help them becomes. Under some circumstances, actively killing someone for self-defense reasons might even be more moral than failing to help. So the point about active killing does not do the desired work of showing that a woman procuring an abortion is disanalogous to Shimp. Let’s make the point about active killing, but not expect it to completely defeat the right-to-refuse argument.

Fortunately, there are, as I said earlier, other disanalogies between the prevention of proposed abortions on the one hand, and compelled organ donations on the other. I don’t think any single one of the disanalogies can defeat the right-to-refuse argument in the case of rape, but I think a cocktail of disanalogies/arguments, taken together, can defeat it even in that case.

* Listen at 5:23.

© 2019

 

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Judith Jarvis Thomson on Responsibility

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Though I do not think that a responsibility argument is necessary in order to dismantle the bodily-rights argument or other pro-choice arguments, the responsibility incurred in the creation of a new human being is a very important consideration in pregnancies other than rape pregnancies. I would like to take issue with an attempt to deny much of that importance:

If the room is stuffy, and I therefore open a window to air it, and a burglar climbs in, it would be absurd to say, “Ah, now he can stay, she’s given him a right to the use of her house – for she is partially responsible for his presence there, having voluntarily done what enabled him to get in, in full knowledge that there are such things as burglars, and that burglars burgle.” It would be still more absurd to say this if I had had bars installed outside my windows, precisely to prevent burglars from getting in, and a burglar got in only because of a defect in the bars. It remains equally absurd if we imagine it is not a burglar who climbs in, but an innocent person who blunders or falls in. Again, suppose it were like this: people-seeds drift about in the air like pollen, and if you open your windows, one may drift in and take root in your carpets or upholstery. You don’t want children, so you fix up your windows with fine mesh screens, the very best you can buy. As can happen, however, and on very, very rare occasions does happen, one of the screens is defective, and a seed drifts in and takes root. Does the person-plant who now develops have a right to the use of your house? Surely not – despite the fact that you voluntarily opened your windows, you knowingly kept carpets and upholstered furniture, and you knew that screens were sometimes defective. Someone may argue that you are responsible for its rooting, that it does have a right to your house, because after all you could have lived out your life with bare floors and furniture, or with sealed windows and doors. But this won’t do – for by the same token anyone can avoid a pregnancy due to rape by having a hysterectomy, or anyway by never leaving home without a (reliable!) army.

The first thing to notice is that if we read this paragraph by Judith Jarvis Thomson literally, she finds her burglar analogy and her people-seeds analogy to lead to two quite different conclusions about responsibility. Since burglars are unwanted, a homeowner does not have to accept the presence of a burglar who does enter, even if the homeowner has voluntarily left the window open; and therefore Thomson reasons that if an unborn child is unwanted, the mother does not have to accept its presence, even if she has voluntarily had sex. It would be “absurd” to say that she did. It would be “still more absurd” if she had taken careful precautions (in the analogy, putting bars on the windows), but absurd even if she hadn’t.

But in the people-seeds analogy, her conclusion of non-acceptance – “Does the person-plant who now develops have a right to the use of your house? Surely not . . .” – depends on very careful precautions. “. . . fine mesh screens, the very best you can buy . . .” is a condition for “Surely not.” (“Surely not,” of course, means “You are surely not responsible, so the unborn child has no right.”)

So in the event of carelessness about contraception – according to the people-seeds argument – the woman does incur some responsibility.

We might think that perhaps Thomson’s underlying thought was not what she literally said, and perhaps her people-seeds argument was intended merely to expand on what she had already said about the burglar – despite the use of two different metaphors – and hence would not change her “absurd” conclusion about the burglar.

We might think that, if not for her “recapitulation” near the end of her paper:

if [parents] have taken all reasonable precautions against having a child, they do not simply by virtue of their biological relationship to the child who comes into existence have a special responsibility for it.

(The sentence refers literally to a born child, but this is a recapitulation of what she had said earlier about the unborn. So both of the moral principles – the “do not,” and the “if” condition without which the “do not” would become a “do” – apply to an unborn child as well.)

Another Kind of Responsibility

At this point we should mention a kind of responsibility other than the kind incurred simply in the act of creation of a new human being. Thomson in her paper considers the possibility of a right not to be killed, and, as we have seen above, also addresses the possibility that responsibility for another human being can be incurred in some way through the process of that person’s creation. Does she also consider the possibility of a responsibility that might be incumbent simply because a helpless person not only has a right not to be killed, but also a right to be taken care of? Yes, she does consider that possibility, though she does not say “responsibility” – she speaks of “Minimally Decent Samaritan laws.”

An argument for strong laws of this kind is the “de facto guardian” argument. The authors of “De Facto Guardian” find, within themselves, moral intuitions to the effect that an adult “in a situation in which she is the only person in the vicinity who can help a child in need. . . . now shoulders the same obligations of a parent or guardian . . . temporarily.” My intuition agrees at least up to this point. (I have explored correct and incorrect moral intuitions elsewhere.)

The farthest Thomson, however, seems willing to go is when she says:

It would [meaning with legal weight] be indecent in the woman to request an abortion, and indecent in a doctor to perform it, if she is in her seventh month, and wants the abortion just to avoid the nuisance of postponing a trip abroad.

So the only thing further that needs to be said about this kind of responsibility is that Thomson’s moral intuitions don’t allow it to extend as far as do my intuitions and those of some others.

Thomson does, however, take for granted the legitimate interest of the state in protecting unborn persons – and hence the state’s duty to protect them – though she thinks that that interest and duty should not usually prevail, due to lack of responsibility (as she sees it) and other considerations.

 

Getting back now to the burglar and the people-seeds, and looking at each of those arguments literally, we can say that Thomson’s burglar argument depends for its validity on four elements all working:

1. we must agree with the moral intuition that a homeowner need not tolerate a burglar in their house, even if they left the window open (I think Thomson has laid an effective groundwork here by picking a moral intuition we can certainly agree with)

2. we must agree that in assessing a homeowner’s or a pregnant woman’s responsibility – responsibility in terms of freedom to evict or a lack of such freedom – it does not make any difference what is being evicted – a burglar or an unborn child

3. we must agree that a pregnant woman is no more responsible for a sperm having entered her body than a homeowner is for a burglar having entered his/her house

4. we must agree that (analogous to the reasonableness of leaving a window open) it would be unreasonable to expect abstinence from sex – she says in the people-seeds analogy, but it would apply to the burglar as well: “Someone may argue that you are responsible . . . that [the people-seed] does have a right to your house, because after all you could have lived out your life with bare floors and furniture, or with sealed windows and doors” (an argument she rejects).

So her burglar argument depends for its validity on these four elements working; and her people-seeds argument depends basically on the same four working, except that with the people-seeds argument Thomson concedes more in the first element. So that element becomes:

1. we must agree with the moral intuition that a homeowner need not tolerate a people-seed in his/her house, if the homeowner has taken very careful precautions against it

Though we will all agree with the burglar version of 1, I don’t think we should fully agree with the people-seeds version of 1. And in the cases of both the burglar argument and the people-seeds argument, I don’t think we should agree with 2 or 3. And I think there is a logical flaw in 4.

But before I get to the people-seeds version of 1, let’s see what is wrong with 2, 3 and 4 in the burglar argument.

The problem with 2, of course, is that there is in fact a difference between a burglar and an unborn child. Anyone capable of burgling a house, if ushered out, will survive. An undeveloped child will die, unless some arrangement for it has been made. Here I feel that the de facto guardian concept should come into play. Thomson will eventually go on to speak of a very minimal (indeed) Minimally Decent Samaritanism, but here, where she uses the word “responsibility” itself, she does not concede even that much.

However, Thomson does here do the surprising segue from the burglar to the people-seeds. People-seeds, if the homeowner cannot turn them over to someone else, are dependent on the homeowner, and on the homeowner alone, for their survival. Perhaps Thomson does this segue out of some consciousness of the fact that many of us would expect an adult to be a de facto guardian for a child. Perhaps she is trying to have the best of both worlds in the reader’s intuitions – both our intuitive antipathy towards burglars (which militates toward our rejecting the idea of any responsibility), and our intuitive recognition that (unlike with a burglar) there is good analogousness between the vulnerability of an unborn child and the vulnerability of a people-seed – and that a child deserves some Samaritanism.

Thomson’s conscious or unconscious sleight of hand in 3 revolves around this choice of words: “If the room is stuffy, and I therefore open a window to air it . . .” This is misleading because the woman’s role in becoming pregnant is greater than just that of a homeowner who leaves a window open for a purpose other than that which eventuates. If we really want to compare a homeowner’s behavior in opening a window “in full knowledge that there are such things as burglars” with a woman’s behavior in full knowledge of how babies are made, the nearest analogy would be to say:

“A homeowner who leaves their door unlocked and is burgled is like a woman who falls asleep in an unlocked room and is impregnated in her sleep.”

The homeowner in Thomson’s story opened the window for air, not to let the burglar in; therefore that homeowner is like a woman who has not consciously consented to sex. The homeowner is not like a woman who has consented, though Thomson tries to suggest that the homeowner is. So only the above “falls asleep” analogy is a good analogy with burglary. In the “falls asleep” version, I would agree that the woman, in spite of having left her room unlocked, is not responsible. She has been raped. But Thomson’s analogy is not like that.

And what about element 4, “we must agree that (analogous to the reasonableness of leaving a window open) it would be unreasonable to expect abstinence from sex”?

Let us accept Thomson’s contention that one cannot live without sex. Still there is a flaw in her argument, and it can be demonstrated with another analogy: One cannot live without food, either, yet we expect to pay for food. Hardly anyone gets it without some quid pro quo.

For sex, the quid pro quo is that one accepts responsibility for the possible outcome of the slight risk that one runs.

But if we are to apply a legal-contractual analysis like this in what is really a psychological and moral context, the transactions involved would be more complicated than when someone buys a sandwich.

First, think of a slot machine from the point of view of the casino. If the casino’s luck is bad on the occasion of one particular wager, the casino will have to pay big. That obligatory big payoff was compensated for by the probability of receiving regular benefits (small wagers that it won). In a similar way, a woman (or a man) who obtains the benefit of sex will run a risk of incurring a moral responsibility to make a big payoff sooner or later.

But you may object that the payoff for sex is owed only to nature, the giver of the benefit, and that since it is not owed to any person, it is not really owed at all in the normal sense. You might say that sex should be free of cost, like enjoying the beauty of nature.

However, what if enjoying the beauty of nature free of cost sometimes involved killing somebody along the way? That would change the equation.

You have received benefits that would cause you to incur a debt. Then someone comes along who needs that payoff, who cannot live without that payoff. That new person comes along produced by a sex act that was, for you, one of a series of benefits.

A woman who voluntarily has sex is getting something of value to her, and that something is part of the goods obtainable from nature. So that something may seem to be at the expense of no human being, and usually it is at the expense of no human being. But nature includes the ingredients for a child (a scientific fact), and the woman’s actions can help bring the ingredients together and produce that child. In those cases she is getting something that is part of the goods obtainable from nature, but in those cases it is not true that it is at the expense of no human being – in those cases she is getting something of value to her that is part of the goods obtainable from nature AND is at the expense of that child if one results (the child will have the misfortune of coming into existence in a state of dependency on her body).

So someone has come along who cannot live without the big payoff, and I think that the moral intuitions of everyone who really considers that “someone” to be a person, will say that that someone, the unborn child, deserves that big payoff. The debt gets called in. But the moral intuitions of those, like Thomson, who only consider that someone to be a person for the sake of argument, may not say that.

Enjoying sex free of cost involves killing an unborn child if one happens to eventuate and if one feels it as a burden. But it is not always free of cost; sometimes a debt is incurred. And if that alone does not create enough responsibility to require the woman – in the cases of many pregnancies, not all – to refrain from killing, remember that she is also in the position of a de facto guardian.

The father of an unborn child owes a payoff equal to that of the mother. For him the payoff will necessarily take the form of supporting the mother financially and emotionally, and shouldering many of the chores. Elaboration of his role, and also discussion of his possible avoidance, is in order, but would fall outside the framework of Thomson’s analysis and thus of this answer to her.

“Social contract” thinking may tell us that it is socially functional for a person to pay for a sandwich. But such thinking cannot tell us that it is right or just for a person to pay for a sandwich. Only our moral intuitions can tell us that. The sex-woman-child obligations that I have described may not presently be recognized in legal-contractual thinking, but they may become recognized in the more sophisticated legal-contractual thinking of the future. For now, those obligations are, whether described in my words or in some other words, the moral intuition of many, many people. (Just as the rightness of paying for a sandwich rests, ultimately, only on the moral intuition of many, many people.)

A quite different kind of legal-contractual analysis might be applied if we remember that humanity is more than just the sum of its parts, that it is also a collectivity, and that we all depend on it as such. Everyone begins their life by using the body of one representative of that collectivity – they may even use a body that has already been used by other children three or four or n times and might have started feeling tired. So everyone should be prepared, if the necessity ever arises, to pay back to that same representative or another representative. How a pregnant woman can pay back is obvious. Others should be prepared to pay back in other ways.

Really these two kinds of legal-contractual analysis should both be applied simultaneously.

Finally, now, to the people-seeds version of 1, which I had said that we should not fully agree with. Here Thomson concedes that those who have not been careful about contraception should bear responsibility. This is good as far as it goes. But her contention that those who have been careful need not bear responsibility depends, as in the burglar argument, on the contention that sex is a necessity that should be cost-free; and that I have discussed above.

 

This has all been about responsibility. Regarding the obvious next question, whether abortion should automatically be legal even when there is no responsibility, I have written in an essay
“Dismantling the Bodily-Rights Argument without Using the Responsibility Argument.”

© 2016

 

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Some future posts:

Life Panels

A Trade-Off of a Sensitive Nature

Unborn Child-Protection Legislation, the Moral Health of Society, and the Role of the American Democratic Party

The Motivations of Aborting Parents

Why Remorse Comes Too Late

The Kitchen-Ingredients Week-After Pill

Unwanted Babies and Overpopulation

The Woman as Slave?

Abortion and the Map of the World

Moral Intuition, Logic, and the Abortion Debate

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Courtesy of Life Matters Journal. This essay was published, with illustrations, in Volume 4 Issue 1 — June 2015.

 

I would like to thank Jake Earl, who created the “John” thought experiment. The probing questions of various people, but most definitively of Earl, helped me to better think things through.

 

Moral principles must be based on pre-logical moral intuitions and laws should be based on those moral principles. (Of course to say that “laws should be based on those moral principles” is not to say that every moral principle should automatically be enacted into a law.)

Though everyone I have talked to agrees that moral principles must be based on pre-logical moral intuitions, I have heard an intelligent person or two contend that the correctness of such moral intuitions can still be logically proved or disproved (by which I mean, proved by a process of discursive argumentation, if not by formal academic logic) — as if moral inquiries were a hard science like math. More importantly, many people who would not explicitly make this contention nevertheless present their arguments about moral issues as if this were the case. So while some philosopher probably demonstrated centuries ago the impossibility of logically proving the correctness of moral intuitions, the relationship of logic and intuition still deserves to be examined. And I think the insights gained in the process of examining it can lead us toward methods of self-exploration and of discourse that will help reveal moral truths, including moral truths about abortion.

First of all, for moral principles to be based on moral intuitions really means that moral principles are the verbalized form of moral intuitions. Therefore correct moral principles will follow from correct moral intuitions. And if the correctness of a moral intuition could be logically proved, then it would be possible to construct a correct moral principle through logic alone, with no recourse to intuition — since the process of constructing would be the same as the process of proving.

To say that it would be possible to construct a correct moral principle through logic alone, but at the same time to agree that moral intuitions (of which moral principles are the verbalized forms) are pre-logical — as everyone seems to agree — would be contradictory. Nevertheless, as mentioned, some people do present their arguments about moral issues as if the correctness of a moral intuition could be logically proved (that is, as if it would be possible to construct a correct moral principle through logic alone). So let’s continue to address that contention.

“The correctness of a moral intuition can be logically proved” and “a correct moral principle can be constructed through logic alone” seem to me like two different formulations of the same thing. But in case there’s any doubt, as I continue I’ll address the one I’ve actually heard, the former.

Is there such a thing as a correct moral intuition, and if so, can its correctness be logically proved or disproved? Though I am arguing no to the second question, I will argue yes to the first.

Moral Intuitions and Moral Principles

As an example of a moral principle — a generalized moral principle, but basically a sound one, I feel — let’s use “Thou shalt not kill.” I would say that that principle did not come from God, but rather is based on a pre-logical and pre-verbal human revulsion at most killing of the innocent. A pre-logical and pre-verbal sense of right or wrong is how I would define a moral intuition. Psychology professor Paul Bloom, author of the recent book Just Babies: The Origins of Good and Evil, said in an interview that while some moral ideals “are the product of culture and society” and “not in the genes,” “there also exist hardwired moral universals – moral principles that we all possess. And even those aspects of morality . . . that vary across cultures are ultimately grounded in these moral foundations.” Even if Bloom overestimates the role of the genes in the “hardwired” moral senses, and underestimates the role of culture in those moral senses, and overestimates how universal those moral senses are across cultures, it would be safe to say that most of us do have senses of right or wrong that come out of our unconscious in ways we cannot understand. I am calling those senses moral intuitions. (For alternatives to the term “moral intuition,” and for an explanation of “pre-logical” and “pre-verbal,” see Appendix A.)
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Dismantling the Bodily-Rights Argument without Using the Responsibility Argument

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Clinton Wilcox of Life Training Institute was kind enough to read the semi-final draft of this post and provide a brief but insightful critique. This does not mean that he necessarily endorses any of the final contents. However, I wish to take this opportunity to thank him.

 

The strongest argument for abortion rights is usually considered to be the bodily-rights argument. Perhaps the most effective variation of it that I have seen appeared in a (negative) comment under Kristine Kruszelnicki’s March 11, 2014 guest post on the Friendly Atheist blog:

They [both mother and unborn child] are entitled to their own bodily rights. So exactly how does a fetus have the right to co-opt another person’s body without consent?

Let’s say for example medical science has progressed to the point of being able to transplant a fetus into another human being. In an accident a pregnant woman is injured to the point of immanent [sic] death, does that fetus have the *right* to be implanted into the next viable candidate without consent?

The commenter was arguing, in other words, “A woman who is a candidate to be made pregnant in that futuristic way would have a right to refuse to let her body be so used – everyone would agree. Therefore, why should a woman who has become pregnant in a more usual way not also have a right to refuse to continue the pregnancy?”

In the context of the abortion debate (and, significantly, in hardly any other context), the term “bodily rights” comes up often. Synonyms still more commonly used are “bodily integrity” and “bodily autonomy,” but I will say “rights” because it is rights that have practical consequences. If anything can help determine the practical outcome “Woman goes through with abortion,” it is a right, not an abstract “integrity” or “autonomy.”

The above fetus-implantation version or any version of the bodily-rights argument could be rebutted by pointing out that most pregnant women voluntarily engaged in a sex act that caused the pregnancy in the first place, and therefore have a responsibility for the child (the “responsibility argument”); but this rebuttal does not work in cases of rape, and is not convincing to some people in any situation – for reasons which I need not discuss here but will refer to in an appendix. Thus the argument remains logically strong. But is it logic alone that makes an argument strong or weak? I would like to approach this from the perspective that an argument is an instrument for changing some of another person’s brain circuitry, and the ideas that correlate with that circuitry, to resemble part of one’s own circuitry and ideas, and that some value-related circuitry and ideas are better for us as individuals and as a species than others. I will contend that though logical demonstrations (such as the above thought experiment) and their rebuttals have an important place in the debate about bodily rights, there is no clear logical resolution to the debate one way or the other; that in seemingly logical demonstrations there are psychological factors at play apart from factors which are purely logical, and that those factors sway us from our normal intuitions; and that those factors can be neutralized by understanding them and by other techniques.

I would like to see people question where their convictions come from, because I think that the more they examine where they come from, the more they will move toward better convictions.

I would like to proceed according to the following outline:

1. Morality and moral principles, including our moral principles about when morality should be backed by legislation and when it should not, derive ultimately from intuition.

2. The intuitions of many people, particularly of most pro-lifers, say that the unborn children of pregnant women should be legally protected against abortion in some (not all) situations.

3. The intuitions of most pro-choicers differ from ours in the first place and say that the unborn children of pregnant women should not be afforded any legal protection.

4. There are some people who are, in terms of moral intuitions, “on the fence,” undecided.

5. Some people’s moral intuitions are better than those of others; in this particular area of moral investigation, the intuitions of pro-lifers are better. (Keep reading!)

I think that just as “there is no clear logical resolution to the (overall) debate one way or the other,” the correctness or incorrectness of any moral intuition cannot be logically proved, but that logic can nudge us toward correct moral intuitions, that is, help us find the correct moral intuitions within us. Under this point 5 below I will include a long section analyzing logically the concept of bodily rights. It is designed to nudge us toward more correct moral intuitions about the importance of bodily rights.

6. Though the intuitions of most pro-lifers say that unborn children should in many cases be legally protected against abortion, the intuitions of many pro-lifers also agree with pro-choicers (as do the intuitions of many undecideds) that a woman who is not pregnant (as in the above thought experiment) should not be legally subject to the forcible implantation in her of a child she did not conceive, even to save the child’s life. (And our intuitions also usually say that a violinist to whom we are hooked up should not be given legal protection from unhooking; and our intuitions also agree with various other pro-choice thought experiments designed to reject, in certain situations, legislative enforcement of a broad right to life.)

7. Human logical powers are limited, and therefore a particular situation, situation A, may seem parallel to another situation, situation B, in all the important morally-relevant ways that the human mind can think of, without the two situations necessarily being morally equivalent.

8a. The situation depicted by a thought experiment always includes some imagery of greater or lesser vividness, and some emotional content. If to our logical minds (momentarily or over a longer term) some outrageous situation, A, depicted by a pro-choice thought experiment, does seem parallel to situation B – a legal prohibition on abortion in a normal pregnancy – then the imagery and emotions of situation A get temporarily transferred to situation B. Let’s call this a process of “outrage transfer.” (Below I will touch on the search for an understanding of how events such as outrage transfer might actually work neurologically.)

b. Moreover, if we are subject to an over-fascination with logic, which many people are, then our consciences/intuitions will work with wrong information (the belief that logic can completely prove or disprove the moral equivalence of two situations) and may tell us that if there seem to be strong parallels between the situation of a pro-choice thought experiment that militates against legal protection of some living being, and the situation of pregnancy, then we should discard legal protection of the unborn in pregnancy – in spite of our earlier intuition supporting such legal protection.

8a and 8b are what I had earlier called “psychological factors at play apart from factors which are purely logical.” I had said that those psychological factors “sway us from our normal intuitions” and I had gone on to say, “those factors can be neutralized by understanding them and by other techniques.”

9a. The effects of outrage transfer will fade over time. Moreover, the outrage transfer of a pro-choice thought experiment can be offset or more than offset by pro-life thought experiments such as those involving the separation of conjoined twins, or the “Cabin in the Blizzard” thought experiment of Stephen Wagner et. al. (It can be “more than offset” if only because our minds are impressionable and are always most strongly affected by the imagery and emotional triggers that stimulated them most recently.)

b. Though human logical powers are not sufficient to tell us conclusively about the moral equivalence or otherwise of two situations (as mentioned in 7 above), they are sufficient to convince us of said insufficiency, and thereby to free us from an over-fascination with logic and restore our original trust in our intuition that the unborn deserve legal protection.

 

Someone will say that I am discarding logic and that moreover I am saying that a pro-life position can only be defended by discarding logic. But that is not what I am doing. We should always apply logic to the fullest extent possible, and there are good logical rebuttals to the forcible-implantation and other pro-choice thought experiments, and I will discuss them in brief; but we should not think that logic, even on a base of intuition, can give us final answers to all moral questions, specifically the question of whether a right to life overrides bodily rights in the case of pregnancy.

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