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Bodily Rights – a Better Pro-Life Response

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A pro-choice argument that first used an analogy with a violinist, and has since seen a number of variations, goes like this: If a born person is dying of some disease, another born person should not be legally obliged to donate blood or bone marrow or a body part, even if that would save the life of the dying person. Most pro-lifers will agree with this. Therefore, since pregnancy involves the use by an unborn child, who would otherwise die, of a woman’s blood and body parts – the argument goes – pro-lifers should also agree that the woman should not be legally obliged to remain pregnant, even though that would save the life of the unborn. Thus pro-lifers should abandon the legal demands that are usually part of their position.

This is known as the bodily-rights argument, or more precisely the “right to refuse” version of the bodily-rights argument.

Especially in the last couple of years, pro-lifers have attacked this analogy by pointing out that when it is proposed that one’s body be used by a fellow born person, there are three possible responses (by the person whose body is proposed to be used), whereas in the case of pregnancy, where one’s body is being used by an unborn person, there are only two possible responses.

If one’s body is to be used by a born person:

  1. one may help the person
  2. one may passively let the person die
  3. one may actively kill the person.

If one’s body is to be used by an unborn person (pregnancy):

  1. one may help the person (i.e., one may carry the pregnancy to term)
  2. one may actively kill the person.

The born-person scenario elicits the moral intuition of pro-lifers and pro-choicers alike that it should not be legally permissible to actively kill that needy person. Utilizing that moral intuition, this pro-life response to the right-to-refuse argument concludes by saying that it should not be legally permissible for a woman to actively kill her unborn child either – which is what abortion consists of.

But these pro-life arguments often overlook another disanalogy (besides active versus passive) between pregnancy and the born-person scenario, and it is a disanalogy that goes in the direction of justifying active killing: in the born-person scenario above, the person whose body is proposed to be used is in fact NOT being used (the person does not really have any problem), so there is no justification, even arguably, for active killing, whereas in the unborn-person scenario, the pregnant woman’s body is in fact already being used, so if that use is without permission, then there is a justification for killing that is at least arguable and that many pro-choicers do argue for.

Relevant to the possible justification are the additional facts that the pregnancy is a kind of burden and involves a degree of risk, but the core of the bodily-rights argument is simply a principle of consistency and fairness: if Shimp in the McFall v. Shimp case, for instance, should not have to give his bone marrow to save McFall’s life, why should a woman have to give her blood and lend her uterus to save the unborn’s life? While pointing out disanalogies between the two scenarios such as that of passively letting die versus actively killing, pro-lifers should not overlook the fact that a woman with an unwanted pregnancy arguably has a justification for active killing that Shimp has not at all. Pro-lifers cannot avoid a confrontation with that arguable justification by pointing out that someone like Shimp, who is in quite a different position, would have no justification.

When a person is asked to donate bone marrow, for instance, and refuses, perhaps the person whose body is proposed to be used found it emotionally stressful to be asked for that bone marrow, but other than that, that person has no arguable justification or even explicable motivation whatsoever to kill. The use of a pregnant woman’s body, on the other hand, goes beyond a request; as mentioned; her body is already being used. She may additionally feel that use to entail a burden or a risk, but in any case, if there is a principle that no one’s body should be used without permission (which is a principle that pro-lifers generally agree with), and she has not given permission, then that principle is being violated.

During a recent one-and-a-half-year period, pro-lifers used that passively-letting-die-versus-actively-killing argument and, it seems to me, overlooked that “arguable justification” disanalogy, here (search for “he didn’t actively kill his cousin”), here (at 10:11), here (at 6:20), and here. Those are all wonderful presentations overall that I highly recommend, by the way. But to take an example that will illustrate the problem, one author says:

there are three separate courses of action people can take with blood donation. First, they could donate blood and help save the person’s life. Second, they could choose to not donate their blood or organs. Third, they could directly kill them. . . . It seems obvious the third option should not be available. It is wrong to directly and intentionally kill an innocent human being.

Of course that is wrong, as the author says. She expects everyone’s moral intuitions to say it is wrong, and indeed they will say that. But it is wrong not merely because it is direct/active killing, though that is what she wishes to show. It is wrong because in the scenario she has outlined, there is no arguable justification or explicable motivation whatsoever to kill. It is wrong because in that situation, only a psychopath would kill. So when she hopes that the reader’s moral intuitions about such a situation will carry over to the situation of pregnancy (such carrying over of moral intuitions being what a moral-philosophy analogy necessarily aims for), she appears to have overlooked the disanalogy that we have mentioned. At all the above links, the scenarios set out are supposed to be analogous to pregnancy, but they are not sufficiently so, because in pregnancy the woman’s body is being used.

The violinist analogy that the pro-choice side likes is a much closer analogy in that way, at least, because the “donor’s” body is indeed already being used without permission. But suppose we adapt the violinist analogy such that the “donor” cannot disconnect from the violinist without first actively killing. So now we have an analogy that is like pregnancy in that the “donor’s” body is being used without permission (as in the original “violinist”), and moreover now the “donor” has only the two options of 1) helping the person (like a woman who carries a pregnancy to term), or 2) actively killing the person. Now we have corrected the analogical problem that we found at the four links above (as well as correcting the absence of direct killing that we find in the original violinist scenario). In this new situation, should it nevertheless be illegal to actively kill? It is not as obvious that it should be as it is in the above blood-donation scenario (or in the McFall scenario), because in that blood-donation scenario there is no use of the proposed donor’s body without permisson, whereas in this modified violinist scenario, there is, as mentioned, a use without permission. The pro-life author at the first link above has to admit (in a video, at 15:55) that a prohibition on active killing in such an adapted violinist scenario would be “ethically murky.” David Boonin, usually considered the most persuasive pro-choice philosopher, flatly bites the bullet (at 1:13:51 in this video) and says that actively killing the violinist (with an ice pick, no less, since he is asked the question in that way!) would be justified providing the violinist is unconscious (which some unborn babies are at the stage when they are killed).

I am not saying that we should fail to make the distinction between passively letting die, and active killing. It is a point worth making. But if we make it in the context of an analogy, we should make it in the context of an analogy that does not overlook the fact that a pregnant woman’s body is being used, and we should make it remembering that in that context, that distinction alone won’t reliably do adequate work of convincing people that abortion should be illegal. Fortunately, there are other disanalogies as well 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 at least in the case of rape, but I think a cocktail of disanalogies/arguments, taken together, can defeat it even in that case. (See also this resource, also linked to previously.)

© 2020

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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Bodily Rights and a Better Idea

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A positive review of the original version of “Bodily Rights and a Better Idea”, written by LMJ Deputy Editor C.J. Williams, appeared in Life Matters Journal Volume 5 Issue 1 — April 2016

I hope that this essay has only become clearer since 2016. It was last updated 30 December 2023.



You might first want to read “Bodily Rights and a Better Idea: the Short and Easy Version.”

See also the Ownership of the Body section of “The Body, the Uterus, and the Question of Ownership”



Robert McFall clearly needed some of David Shimp’s bone marrow more than Shimp needed it. When Shimp – McFall’s first cousin – refused to give it, McFall took him to court.

The judge’s gavel came down. He wasn’t enthralled with Shimp as a person, but every speck of the bone marrow in Shimp’s body was, in the eyes of society, private property – Shimp’s private property. McFall’s eyes closed on the world, for the last time, before his 40th birthday.

A caring society views both such persons as equally valuable. Such a society has an interest in seeing both thrive and not come to harm. It would seem completely logical for society to have instructed Shimp to hand over some bone marrow, and if he did not do so peacefully, to have taken it forcibly. Why doesn’t society do that? Is society wrong not to do that?

Society sometimes grants to its citizens surprisingly strong body-related rights – body-related rights that are out of proportion to what a rational fairness would seem to demand. In a moral framework, our bodies have a certain mystique. I don’t think that that is necessarily wrong. People are psychologically constructed with a strong sense of ownership of their bodies. Ownership of any kind has no foundation in science, and a strong principle of individual body ownership would be very debatable philosophically, but the psychological sense is a reality. And due to sharing that sense, which is to say, due to belief in the validity of that sense – or due at least to a pragmatic recognition of the strength of that sense – society sometimes grants to its citizens surprising rights such as those of Shimp that we have just seen. A belief in the validity of that sense could also be termed a moral intuition (whether or not it is a correct moral intuition) that near-inviolable body ownership ought to be respected.

I cannot think of a more likely explanation than this for the origin of that particular moral intuition. And I basically support such rights, at least in this part of this century. Perhaps Shimp should have been sentenced to a lot of community service for refusing to help McFall. But I say that I basically support such rights because I do not think he should have been tied down and his bone marrow removed forcibly.

It is important that the laws and conventions of society should give that psychological sense of ownership, and the actual ownership that society tends to think underlies it, its due. But is the current concept of bodily rights the most logical and coherent way to accomplish that? The value of the current concept of bodily rights is one of the first things we will examine.

The bodily-rights argument for legal abortion is usually advanced through thought experiments that create analogies with pregnancy – analogies in which our sympathies will be on the side of a right to refuse to let one’s body be used. And those arguments are usually contested by showing the disanalogies between the situations of the thought experiments, and the situation of actual pregnancy. This essay hopes to reveal that one’s bodily rights may not be as strong in the first place when abortion is being prevented as they are when organ donation is being compelled (which is in itself a disanalogy), but the main effort here will be to analyze the concept of bodily rights. I think that the resultant demystification of bodily rights will cause “bodily rights” to lose its power as a mantra and retain only a more rational kind of power – power in situations where that power serves justice, but not in situations where it doesn’t – and that that in itself will weaken bodily-rights arguments for abortion rights.

SYNOPSIS

Negative and even positive rights of different kinds can all be conceptualized in this way: they are rights not to be caused harm of different kinds. So what kind of harm can bodily rights, usefully conceived, protect us against? In order for the term “bodily rights” to be useful, such rights should not redundantly protect us in ways already covered by older and more obvious ethical notions (such as the right not to be punched in the face).

I find in this essay that the term “bodily rights” is useful only if it is confined to rights that aim to protect us against a certain kind of mental harm – offense to our psychological sense of body ownership. That form of mental harm is a real harm (a real mental harm), and it is caused by the trespass per se.

(Rather than a “sense of body ownership”, the sense may often be a sense more of identification with the body, and we also have a sense of dignity or indignity associated with the treatment of our body by others. For convenience, I will use “psychological sense of body ownership” to mean any balance among these different senses that an individual may have at any moment. In any case, they are all psychological senses that are susceptible to being offended.)

Current concepts of bodily rights do reflect some awareness of the sense of body ownership and of offenses to that sense, and they do aim to protect us against the harm of those offenses, but they also aim, redundantly, to protect us in other ways. Moreover, logically the strength of the right that protects us from that mental harm should vary in proportion to the degree of that mental harm. People advocating on the basis of the current concept of bodily rights may not (though they sometimes do) claim that bodily rights are absolute, but they do claim, at least implicitly, that the right is less than absolute only in that the strength of the right varies with the degree of trespass on the body, that is, on how deep in the body the proposed use of the body is to be. (They suggest that society may possibly require a person to use their arms and legs in some way, but it may not require them to surrender bone marrow, or to lend their uterus.) However, we find that in reality, the degree of that mental harm (consisting of offense to one’s psychological sense of body ownership) varies only partially and unpredictably in relation to the degree of trespass, so that really the degree of the harm can be ascertained only situation by situation.

This raises the possibility that a proposed use of the body, even if deep within the body, may not involve a high degree of the mental harm, and therefore may not justify a strong right to protect against it.

In relation to the abortion debate, it raises the possibility that a proposed use of the uterus may not involve an extremely high degree of the mental harm, and therefore may not justify a strong right to protect against that use. In the essay I discuss that possibility at some length. Bodily-rights arguments against abortion restrictions show us that denial of abortion is a degree of trespass on one’s bodily boundaries similar to the degree of trespass involved in other situations (such as the forcible appropriation of a body part) which nearly everyone’s moral intuitions agree are wrong. Bone marrow or a kidney is located deep within the body, and the uterus is located deep within the body. The arguments thus try to persuade us that denial of abortion is also wrong. However, they overlook the unpredictability of the mental harm, mentioned above.

I do not think that establishing the correctness of the pro-life position depends entirely on the possibility I mentioned about the degree of mental harm involved in a proposed use of the uterus. That possibility is the possibility of a big disanalogy between use of bone marrow or a kidney, on the one hand, and use of a uterus for gestation, on the other hand, but even without that disanalogy, I think that a “cocktail” of other, often better-known, disanalogies defeats bodily-rights arguments.

The moral intuition that body ownership ought to be respected seems to stem, as mentioned earlier, from the wish to spare our fellow human beings the mental harm of offense to their strong psychological sense of body ownership (which sense is an undeniable reality). So to answer the question whether there should be a right to refuse the use of one’s uterus – a right comparable in strength to the right to refuse to donate one’s bone marrow – one question that we in society have to answer is whether the mental harm to a woman when abortion is denied is really comparable to the mental harm that would occur if one’s bone marrow or kidney were taken forcibly. Since I think I will show that real mental harm is somewhat independent of the degree of trespass of one’s bodily boundaries, it is not enough, as mentioned, to show that the uterus is deep within one’s body. Rather, the degree of real mental harm when abortion is denied could be approximately determined only by psychological study focusing on the psychological phenomenon of harm in that specific class of situation, not by possible biological similarities with other classes of situation (normally I will just say “situations” rather than “classes of situation”). In the present undeveloped state of psychology and neuroscience, we in society will have to rely a lot on our intuitions, which will be discussed. To understand it in this way is to liberate our minds by demystifying bodily rights, as we seek our most correct moral intuitions about abortion.

I hope that producing a better understanding of what bodily rights really consist of and don’t consist of  will in itself help in a general way to convince readers that in invoking bodily rights we have to approach different social situations in different ways. But beyond that, I hope to show that in the specific situation of a typical proposed abortion, the possibility I mentioned, that the harm caused by offending the pregnant woman’s sense of body ownership may be less than the harm caused by offending the pregnant woman’s sense of body ownership in some other situations, is likely a reality. In this essay alone I will not prove that abortion should be illegal, but I think that I can at least help show that there is no strong bodily-rights argument against making many abortions illegal.

(The entire argument of my essay can be outlined in ten  points – see below. The foregoing nine paragraphs can be broken down into points 1-8 of the outline.)

Moreover, if society holds and sustains a “right not to be unjustly harmed physically or mentally,” and the idea of “harm” incorporates an understanding of the psychology of ownership, including body ownership, that will serve all purposes, and society can dispense with the off-target and therefore sometimes misleading idea of bodily rights. (This sentence can be broken down into points 9 and 10, i.e., the last points, of my outline.)

I would like to proceed now according to the following outline:

1. Rights are only meaningful and useful in terms of protection against wrongs, that is, against unjust harm, so the concept of bodily rights – “bodily” and “rights” – can be meaningful and useful only in situations where there is a potential for unjust harm to be done that is defined solely by trespass of one’s bodily boundaries; and only if protection by more obvious ethical notions is lacking.

2. Harm can be only harm to the body or harm to the mind, or both.

3. In terms of a right to freedom from harm to the body, the concept of bodily rights doesn’t realistically add anything to older and more obvious ethical notions. So though the current concept of bodily rights aims to protect against both physical and mental harm caused by trespass of bodily boundaries, in relation to bodily harm, the concept is superfluous and therefore not particularly useful.

4. In terms of a right to freedom from mental harm, the concept of bodily rights could be meaningful as one possible way of framing that right. (Even if it is not the best way – see 10.) People have a sense of ownership of their bodies, such that trespass on their bodily boundaries can be a source of mental harm, and “bodily rights” would be one way to protect from that mental harm.

5. Because of the sense of body ownership (and the assumption that actual ownership underlies it), in a situation of opposing interests between two innocent people that involves one person needing to use the body of the other, society does not make a simple decision in favor of the person who is likely to suffer the greater total harm of obvious kinds – that is, of kinds other than offense to the sense of ownership. It counts that kind of mental harm as harm, which weights its decision in the direction of the person whose body stands to be used by the other. (The total harm that can possibly be caused to any person by any action consists of the physical harm, the tangible mental harm, and that or some other intangible mental harm.)

6. Society weights its decision in this way so strongly, that in many cases it decrees that a particular offense against one person’s sense of body ownership is not justified even if the other person will die.

7. Although the concept of bodily rights is often expressed as a very simple principle, and sometimes as an absolute principle, when people actually apply it to different real-life situations, we see a patchwork of different attitudes, each depending on the situation. This renders the concept vague and confusing as a yardstick in any situation that has not yet been resolved, such as a proposal to abort. It turns out that the degree of mental harm caused by offense to one’s sense of ownership, which society believes to be morally relevant, is inconsistently related to the degree of trespass on the body – the degree of trespass being morally irrelevant apart from harm. Since it is inconsistently related to the degree of trespass, the degree of the mental harm when abortion is denied could be approximately determined only by psychological study focusing on the psychological phenomenon of harm in that specific situation – not simply by knowing the degree of trespass.We could speak of the situational nature of the strength of bodily rights.

8. Some actions that trespass a person’s bodily boundaries without the person’s consent are countenanced or supported by society in general (meaning that society in general does not take very seriously any offense to the sense of ownership in such cases). In my personal view, still more such actions should be countenanced or supported.

9. What matters, in terms of the rights that society should choose to sustain in this area of law and ethics, is that those rights should reflect a recognition of the sense of body ownership and its nuances – and of the possibilities of mental harm based on that sense of ownership and its nuances.

10. If society holds and sustains a “right not to be unjustly harmed physically or mentally,” and the idea of “harm” incorporates an understanding of the psychology of ownership, including body ownership, that will serve all purposes in this area of law and ethics, and society can dispense with the idea of bodily rights.

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