By Daniel A. Kaufman
It is rare that one will find near universal agreement as to the most important paper written on a particular subject, but that is exactly what we find with Judith Jarvis Thomson’s 1971 paper, “A Defense of Abortion,” whose impact on the discussion on the morality of abortion cannot be overstated.
One enormous service that Thomson’s paper does in the debate is dispense with a significant red herring, one that has done nothing but confuse the public conversation on the topic and render it irresolvable. That red herring is the personhood of the fetus, an issue that will likely never be resolved – because it is a conceptual, rather than an empirical matter – but which fortunately, need not be, insofar as it is irrelevant to the issue at hand. That x is a person and x has a right to life does not entail that y must always be wrong in killing x, as is clear in the case of self-defense and just war. Merely establishing the personhood of the fetus, then, tells us nothing, one way or another, about whether it is sometimes morally permissible to end its life, and it is perhaps a testament to philosophy’s lack of effect on the civic conversation in the US that the public debate about abortion still primarily revolves around the status of the fetus, with pro-choicers engaging in dismissive rhetoric regarding the personhood of blastocysts and pro-lifers earnestly counting fetal fingers and toes. Thomson, however, is not misled for a moment, on this front, and begins her argument by stipulating that the fetus is a person and has a right to life.
One commonly hears pro-lifers say things like “The mother may have her right to live and to flourish, but the fetus has an equal right to live and flourish, so it is unfair to privilege the mother, by giving her the ultimate say over whether or not the fetus gets to live.” But this is to misunderstand the situation. Suppose that I have worked and saved up my money to buy a winter coat that will keep me warm, in what turns out to be a life-threateningly cold winter. You, unfortunately, have no such coat and cannot afford one and demand that I give you mine, on the grounds that you too have a right to life, and since my right to live is no more important than yours, it would be unfair for me to decide who gets the coat. The correct answer, of course, is that as I own the coat, I am therefore privileged with respect to what is to be done with it, regardless of any rights you might have. Analogously, the bodies that fetuses inhabit belong to the respective women, whose bodies they are, meaning that those women are in a privileged position, with respect to what is done with them. No one is denying that it would be very nice, if I gave you my coat, at my own expense, and similarly, no one is suggesting that it isn’t a lovely thing when women carry their fetuses to term. The question is whether there is an obligation to do so and whether a person is morally blameworthy for refusing, and this, at least is far from obvious, once we recognize that the situation is not the even-steven scenario that pro-lifers would like to paint.
Another great service that Thomson has done to the debate, then, is to recast what it is fundamentally about – to take what pro-lifers would like to describe as a matter of parity, in which equal parties are in competition with respect to some life-giving resource, and change it into one, in which the question at hand is to what extent people are morally obligated to give life-sustaining assistance to others, when the cost to themselves is great.
It is with this recasting in mind that I turn to the most famous of Thomson’s examples, that of the ailing violinist. This violinist suffers from a fatal kidney disease, and as it turns out, you are the only person with a compatible blood type. You have been kidnapped in the middle of the night and hooked up to the violinist, so that your kidneys can be used to filter his blood, but you are told by your captors not to worry, because your ordeal will be over in nine months. Again, it would be quite nice of you – laudatory, in fact – if you acceded to this situation and allowed the violinist to use your body for the allotted period of time, but Thomson suggests that it would represent a gross affront to our most basic intuitions to suggest that someone is morally bound to do so; that to refuse to accede to this situation and to detach yourself from the violinist is to act wrongly and thus, in a blameworthy fashion. This seems even more clear, if we alter the example slightly, as Thomson does, so that the primary cost of being hooked up to the violinist is not nine months of your life, but rather, your life itself; that is, where helping to save the violinist will have the effect of killing you.
These examples provide analogues for pregnancies that are the result of rape or which pose a substantial threat to the life of the mother and offer a way of understanding the moral permissibility of terminating a pregnancy in such circumstances, not necessarily a small thing, insofar as there are versions of the pro-life position, according to which abortion is morally impermissible, even in such circumstances. And yet, the pro-lifer will certainly want to point out that most abortions are performed on women whose pregnancies are neither the result of rape nor life threatening in any substantial way. Now, a question remains as to whether the length of time of a pregnancy – nine months – in itself represents a sufficient burden on a person, such that our intuition that to carry the fetus to term is non-obligatory can be sustained, but I want to focus on a different point that arises in considering these most common sorts of abortions, namely, that of consent.
The pro-lifer may say, “I can see how, when one has been raped or is facing a potential death sentence, carrying a fetus to term can be seen as a burden too great to reasonably demand of a person, but in a case where one has freely engaged in sexual intercourse, with the full knowledge that pregnancy may result, one has tacitly accepted the burdens associated with pregnancy and, in essence, given consent to the fetus to use one’s body for nine months. Under these circumstances, abortion represents a reneging on a promise – a tacit granting of permission – with a fatal result, and this is clearly wrong.” Since such cases represent the overwhelming majority of cases in which abortions are performed, the pro-lifer would seem to retain a very strong argument against abortion, even if some small number of abortions are deemed morally permissible.
Thomson, however, is skeptical as to whether we normally think this way about our behavior and the conditions under which we grant even tacit consent. Suppose that it is stuffy in my house, and I open the windows to let the air in, even though I know that in doing so, I make it easier for burglars or squatters to enter my house. Suppose, then, that this happens – that burglars or squatters do enter my house, through the open windows. Have I, by opening them, thereby granted consent – even tacitly – to the burglar or squatter using or occupying my house? In order to see that we do not, simply put yourself in the place of the squatter and imagine trying to convince someone – say, a judge — along these lines. “Oh, no, your Honor, I wasn’t trespassing. You see, I was given permission to be in the house. Not any sort of explicit permission, of course, but rather, tacit permission. How so? Well, by opening the windows and knowing that doing so would make it easier for me to get in, the owner gave me the permission.” Such reasoning would provoke laughter and a quick trip to the clinker. And of course, the case for tacit consent would be even less plausible, if I had gone to the trouble to take precautions to keep people out, like putting iron bars in all of my windows.
It is difficult to see then, how by having sex, one has tacitly granted the fetus the right to live in one’s body for nine months, and it is even harder to see this, when one has taken precautions to prevent a pregnancy, through the use of birth control pills, condoms, etc. For the fact simply is that we don’t generally take actions like these as granting the sort of consent that is implied, and in good part, this is because we think it is unreasonable to demand of people that they never do basic things, like open windows – or have sex – unless they are willing to give consent to squatters, whether of the fully grown or fetal variety. Such demands in themselves constitute an unreasonable burden.
Thomson’s conclusion is that while we have a duty to be minimally decent Samaritans – to help others, when we can, and when such help is not too onerous or costly to ourselves – we do not have a duty to be good or “splendid” Samaritans – i.e. to help others at substantial or extraordinary cost to ourselves. This is a general conclusion that she reaches, by way of consideration of precisely the sorts of cases we have discussed, one with respect to which the case of abortion is simply a single instance.