by Francis J. Beckwith
Pro-lifers in the United States have always assumed that if they could demonstrate beyond a reasonable doubt that the fetus is a human person, then it would be only a matter of time before the courts and legislatures would declare nontherapeutic abortion — the willful destruction of a living fetus — unjustified homicide. Thus the pro-life view would be vindicated and nontherapeutic abortion would once again be illegal.
Even pro-abortion Supreme Court Justice Harry Blackmun, who wrote the majority opinion in Roe v. Wade (1973), agrees with this assumption: “If the suggestion of personhood [of the unborn] is established, the appellant’s case, of course, collapses, for the fetus’ right to life is then guaranteed specifically by the [Fourteenth Amendment].”2 The scholarly and popular literature produced by evangelicals on the issue of abortion seems to make this assumption as well.3
In 1985, however, evangelical philosopher Robert Wennberg4 defended a moderate pro-choice position employing an argument first presented in 1971 by M.I.T. philosopher Judith Jarvis Thomson. Thomson argued that even if the fetus is a human person, abortion — at least in the early months of pregnancy — isstill morally justified.5 Unfortunately, nearly all the books published by evangelical opponents of abortion since the release of Wennberg’s6 — with the exception of recent works by John and Paul Feinberg,7Keith J. Pavlischek,8 and this writer9 — have failed to address this important argument. This is so despite the fact that this argument — though nearly a quarter of a century old — is now being suggested by a number of legal scholars as a way to circumvent the problems of fetal personhood which they believe were mishandled in Roe v. Wade.
THOS PERSONHOOD DOES NOT MATTER
In her 1971 article, which by 1986 had become “the most widely reprinted essay in all of contemporary philosophy,”10 Professor Thomson argued that even if the fetus is fully a human person with a right to life, this does not mean a woman must be forced to use her bodily organs to sustain its life. It is much the same, we are told, as the case in which one does not have a right to use another’s kidney if one’s kidney has failed. Consequently, a pregnant woman’s removal of a fetus from her body, even though it will probably result in its death, is no more immoral than an ordinary person’s refusal to donate his or her kidney to another in need of one, even though this refusal will probably result in the death of the prospective recipient. Thomson illustrates her position with the following story:
You wake up in the morning and find yourself back to back in bed with an unconscious violinist. A famous unconscious violinist. He has been found to have a fatal kidney ailment, and the Society of Music Lovers has canvassed all the available medical records and found that you alone have the right blood type to help. They have therefore kidnapped you, and last night the violinist’s circulatory system was plugged into yours, so that your kidneys can be used to extract poisons from his blood as well as your own. The director of the hospital now tells you, “Look we’re sorry the Society of Music Lovers did this to you — we would never have permitted it if we had known. But still, they did it, and the violinist now is plugged into you. To unplug you would be to kill him. But never mind, it’s only for nine months. By then he will have recovered from his ailment, and can safely be unplugged from you.” Is it morally incumbent on you to accede to this situation? No doubt it would be very nice of you if you did, a great kindness. But do youhave to accede to it? What if it were not nine months, but nine years? Or still longer? What if the director of the hospital says, “Tough luck, I agree, but you’ve now got to stay in bed, with the violinist plugged into you, for the rest of your life. Because remember this. All persons have a right to life, and violinists are persons. Granted you have a right to decide what happens in and to your body, but a person’s right to life outweighs your right to decide what happens in and to your body. So you cannot ever be unplugged from him.” I imagine that you would regard this as outrageous…(emphasis in original)11
Thomson’s argument makes some very important observations that have gone virtually unnoticed. She is asking, “What happens if, for the sake of argument, we allow the premise [that the unborn are fully human or persons]? How, precisely, are we supposed to get from there to the conclusion that abortion is morally impermissible?”12 That is to say, from the fact that a certain living organism is fully a human person, how does it logically follow that it is never permissible to kill that person?
Although a near unanimous number of ethicists maintain that it is prima facie wrong to kill an innocent human person, a vast majority agree that there may be some circumstances in which taking a human life or letting a human being die is justified, such as in the event of a just war, capital punishment, self-defense, or withdrawing medical treatment. Thomson’s argument, however, includes abortion as one of these justified circumstances. She maintains that, since pregnancy constitutes an infringement by the fetus on the pregnant woman’s personal bodily autonomy, the ordinary abortion — though it results in the death of an innocent human person — is not prima facie wrong.
One can immediately appreciate the appeal of this argument, especially in light of what is arguably the most quoted passage from Roe: “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate.”13 The Court, however, did not choose to employ Thomson’s argument, though there is little doubt that it was brought to its attention. Consequently, the Roe Court assumed the major premise of the pro-life position: If the fetus is a person, then abortion in almost every case is unjustified homicide. This, according to a growing number of scholars, was a fatal mistake — a mistake that energized the right-to-life movement.
It appears that the first leading legal scholar to have recommended Thomson’s argument to the judiciary was Michigan Law School professor, Donald Regan, in a law review article that appeared in 1979.14More recently, Professor Laurence Tribe of Harvard Law School, whose influence on the Court’s liberal wing is well-known, suggested in a 1990 book on abortion that the Court should have seriously considered Thomson’s argument. Tribe writes: “Perhaps the Supreme Court’s opinion in Roe, by gratuitously insisting that the fetus cannot be deemed a ‘person,’ needlessly insulted and alienated those for whom the view that the fetus is a person represents a fundamental article of faith or a bedrock personal commitment…The Court could instead have said: Even if the fetus is a person, our Constitution forbids compelling a woman to carry it for nine months and become a mother” (emphasis in original).15
In his highly acclaimed book, The Culture of Disbelief (1993), Stephen Carter of Yale Law School also recommended Thoinstead of an approach that denies that humanity under cover of the pretense that the definition is none of the state’s business. The conclusion of fetal humanity by no means ends the argument; it simply forces the striking of a balance….My point is that the only fair way around a successful legislative effort to define the fetus as human — the only option that does not deride religiously based moral judgments as inferior to secular ones — is to argue for a right to abortion despite it. And an argument of that kind does not require an attack on the religious motivations of any abortion opponents. (emphasis in original)16
In addition to what has already been mentioned, a subtle philosophical shift seems to have occurred on the Supreme Court as well as society at large, which would indicate an openness to Thomson’s argument. First, in a 1985 article Justice Ruth Bader Ginsburg, recent Clinton appointee to the Supreme Court, chided the Court for appealing to the right to privacy rather than the equal protection clause in its grounding of abortion rights. She argued that since women are unique in their ability to be burdened by pregnancy — giving men a distinct advantage in social and political advancement — women should have the right to abortion based on the constitutional principle that all people, regardless of gender, deserve equal protection under the law. Thus, Ginsburg argued, by permitting women to undergo abortions on the basis of the equal protection clause, the Court would have made a clear stand for gender equity on firm constitutional grounds rather than basing its decision on the controversial and constitutionally vague right to privacy.17
Second, consider the recent physician-assisted suicide cases in Washington state and Michigan, in which a judge in the first case and a jury in the latter acquitted physicians who had killed consenting patients by appealing to an almost absolute principle of personal autonomy. The judge in Washington claimed she could find this principle in the 14th Amendment, the same place Justice Blackmun found the right to privacy in order to constitutionally ground Roe.
Third, in the 1992 case that upheld Roe as precedent, Casey v. Planned Parenthood, the Court asserted the following about the meaning of the 14th Amendment:
Our law affords constitutional protection to personal decisions relating to marriage, procreation, family relationships, child rearing, and education….These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion by the State.18
Evidently the Supreme Court has chosen to abandon a rigorous defense of philosophical argument in the free marketplace of ideas only to replace it with a New Age mantra (“define your own reality”) in the convenience store of slogans.
In any event, there is little doubt that a shift is occurring in the abortion debate. This shift should be addressed by those who oppose abortion as well as those who, regardless of their stand on abortion, see Thomson’s argument as a threat to the moral force of parental obligations. Let us, therefore, take a critical look at Professor Thomson’s argument.
WHY FETAL PERSONHOOD MATTERS
Although there are a number of problems with Thomson’s argument, the following five are sufficient for the judiciary to reject it from consideration.
(1) Thomson assumes that all moral obligations are voluntary. By using the violinist story as a paradigm for all relationships, Thompson implies that moral obligations must be voluntarily accepted in order to have moral force. Thus she mistakenly infers that all true moral obligations to one’s offspring are voluntary.
Consider the following story. Suppose a couple has a sexual encounter that is fully protected by several forms of birth control short of abortion (condom, the Pill, IUD, and so forth), but nevertheless results in conception. Instead of getting an abortion, the mother of the conceptus decides to bring it to term, although the father is unaware of this decision. After the birth of the child the mother pleads with the father for child support. Because he refuses, she seeks legal action and takes him to court. Although he took every precaution to avoid fatherhood — thus showing that he did not wish to accept such a status — according to nearly all child support laws in the United States he would still be obligated to pay supportprecisely because of his relationship to this child.19
As Michael Levin points out, “All child-support laws make the parental body an indirect resource for the child. If the father is a construction worker, the state will intervene unless some of his calories he extends lifting equipment go to providing food for his children.”20
For this reason, Keith Pavlischek argues that “given the logic of” Thomson’s argument, “the most reasonable course to follow would be to surrender the defense of paternal support laws for those children whose fathers would rather have had their children aborted.” This “will lend some credence not only to the pro-life insistence on the corollary — that an intimate connection exists between the way we collectively relate to the unborn and the way we relate to our children after birth — but also to the claim made by pro-life feminists that the abortion mentality simply reaffirms the worst historical failings, neglect, and chauvinism of males.”21
(2) A case can be made that the unborn does have a prima facie right to her mother’s body. Assuming there is such a thing as a special obligation to one’s children that does not have to be voluntarily accepted to have moral force, it is not obvious that the unborn entity in ordinary circumstances (that is, with the exception of significant life-endangerment to the mother) does not have a natural prima facie claim to her mother’s body. There are several reasons to suppose that the unborn entity does have such a natural claim.
First, unlike Thomson’s violinist, who is artificially attached to another person in order to save his life and is therefore not naturally dependent on any particular human being, the unborn entity is a human being who is by her very nature dependent on her mother. This is how human beings are at this stage of their development.
Second, this period of a human being’s natural development occurs in the womb. This is the journey we all must take and is a necessary condition for any human being’s post-uterine existence. And this fact alone brings out the most glaring disanalogy between the violinist and the unborn: the womb is the unborn’s natural environment whereas being artificially hooked-up to a stranger is not the natural environment for the violinist. It would seem, then, that the unborn has a prima facie natural claim upon its mother’s body.
Third, this same entity, when it becomes a newborn, has a natural claim upon her parents to care for her, regardless of whether her parents “wanted” her (see the above story of the irresponsible father). This is why we prosecute child abusers, people who throw their babies in trashcans, and parents who abandon their children.
Although it should not be ignored that pregnancy and childbirth entail certain emotional, physical, and financial sacrifices on the part of the pregnant woman, these sacrifices are also endemic of parenthood in general (which ordinarily lasts much longer than nine months). And these sacrifices do not justify the execution of troublesome infants and younger children whose existence entails a natural claim to certain financial and bodily goods that are under the ownership of their parents. If the unborn entity is fully human, as Thomson is willing to grant, why should the unborn’s natural prima facie claim to her parents’ goods differ before birth from what it will be after departing her mother’s womb?
Of course, a court will not force a parent to donate a kidney to her dying offspring. But, as in the case of the unconscious violinist, this sort of dependence on another’s body is highly unusual and is not part of the ordinary parental obligations associated with the natural process of human development.
Professor Stephen Schwarz points out that “the very thing that makes it plausible to say that the person in bed with the violinist has no duty to sustain him; namely, that he is a stranger unnaturally hooked up to him, is precisely what is absent in the case of the mother and her child.” That is to say, the mother “does have an obligation to take care of her child, to sustain her, to protect her, and especially, to let her live in the only place where she can now be protected, nourished, and allowed to grow, namely the womb.”22
It is evident that Thomson’s violinist illustration undermines the deep natural bond between mother and child by making it seem no different than two strangers artificially hooked-up to each other so that one can “steal” the service of the other’s kidneys. Rarely if ever has something so human, so natural, so beautiful, and so wonderfully demanding of our human creativity and love been reduced to such a brutal caricature.
This is not to say that the unborn entity has an absolute natural claim to her mother’s body, but simply that she has a prima facie natural claim. For one can easily imagine a situation in which this natural claim is outweighed by other important prima facie values, such as when a pregnancy significantly endangers the mother’s life.
(3) Thomson ignores the fact that abortion is indeed killing and not merely the withholding of treatment. Thomson makes an excellent point in her use of the violinist story; namely, there are times when withholding and/or withdrawing medical treatment is morally justified. For instance, one is not morally obligated to donate his kidney to Fred (one’s next-door neighbor) simply because Fred needs a kidney in order to live. In other words, one is not obligated to risk his life so that Fred may live a few years longer. Fred should not expect that. If, however, one donates a kidney to Fred, one will have acted above and beyond the call of duty, since he will have performed a supererogatory moral act. But this case is not analogous to pregnancy and abortion.
Levin argues that there is an essential disanalogy between abortion and the unplugging of the violinist. In the case of the violinist (as well as one’s relationship to Fred’s welfare), “the person who withdraws [or withholds] his assistance is not completely responsible for the dependency on him of the person who is about to die, while the mother is completely responsible for the dependency of her fetus on her. When one is completely responsible for dependence, refusal to continue to aid is indeed killing.”
For example, “if a woman brings a newborn home from the hospital, puts it in its crib and refuses to feed it until it has starved to death, it would be absurd to say that she simply refused to assist it and had done nothing for which she should be criminally liable.”23 Just as the withholding of food kills the child after birth, in the case of abortion it is the abortion that kills the child. In neither case is there any ailment from which the child suffers and for which highly invasive medical treatment (with the cooperation of another’s bodily organs) is necessary in order to cure this ailment and save the child’s life.
Or consider the case of a person who returns home after work to find a baby at his doorstep (as was the case in the film Three Men and a Baby, starring Tom Selleck, Ted Danson, and Steve Guttenberg). Suppose that no one else is able to care for the child, but this person only has to care for the child for nine months. (After that time a couple will adopt the child.) If we assume with Thomson that the fetus is as much a person as you or me, would “withholding treatment” (i.e., nourishment and protection) from this child and its subsequent death be justified on the basis that the homeowner was only “withholding treatment” from a child who could not benefit him, and for whom he did not ask? Is any person, born or unborn, obligated to sacrifice his life because his death would benefit another person?
Is it accurate to think of abortion as the withholding of support or treatment? Professors Schwarz and R. K. Tacelli make the important point that although “a woman who has an abortion is indeed ‘withholding support’ from her unborn child….abortion is far more than that. It is the active killing of a human person — by burning him, by crushing him, by dismembering him.”24 Euphemistically calling abortion the “withholding of support or treatment” makes about as much sense as calling suffocating someone with a pillow the withdrawing of oxygen.
(4) Thomson’s argument ignores family law. Thomson’s argument is inconsistent with the body of well-established family law, which presupposes parental responsibility of a child’s welfare. And, of course, assuming as Thomson does that the unborn are fully human, this body of law would also apply to parents’ responsibility for their unborn children. According to legal scholars Dennis J. Horan and Burke J. Balche, “All 50 states, the District of Columbia, American Samoa, Guam, and the U.S. Virgin Islands have child abuse and neglect statutes which provide for the protection of a child who does not receive needed medical care.” They further state that “a review of cases makes it clear that these statutes are properly applied to secure emergency medical treatment and sustenance (food or water, whether given orally or through intravenous or nasogastic tube) for children when parents, with or without the acquiescence of physicians, refuse to provide it.”25 Evidently, “pulling the plug” on a perfectly healthy fetus, assuming that it is a human person, would clearly violate these statutes.
In a case in New York, for example, the court ruled that the parents’ actions constituted neglect when they failed to provide medical care to a child with leukemia: “The parent…may not deprive a child of lifesaving treatment, however well-intentioned. Even when the parents’ decision to decline necessary treatment is based on constitutional grounds, such as religious beliefs, it must yield to the State’s interests, as parens patriae, in protecting the health and welfare of the child.”26 The fact is that the “courts have uniformly held that a parent has the legal responsibility of furnishing his dependent child with adequate food and medical care.”27
It is evident, then, that child-protection laws reflect our deepest moral intuitions about parental and community responsibility and the utter helplessness of infants and small children. These moral scruples are undoubtedly undermined by “brave new notions” of a socially contracted “voluntaristic” family (Thomson’s view). Without such scruples the protection of children and the natural bonds and filial obligations that undergird family life (and, through it, society itself) will become a thing of the past. This seems too high a price to pay for “bodily autonomy.”
(5) Thomson’s argument implies a “macho” view of bodily control, which is inconsistent with true feminism. Some pro-life feminists have pointed out that Thomson’s argument and/or the reasoning behind it, which is supposed to be consistent with feminism, is actually quite anti-feminist.28 In response to a similar argument from a woman’s right to control her own body, one feminist publication asked the question, “What kind of control are we talking about? A control that allows for violence against another human being is a macho, oppressive kind of control. Women rightly object when others try to have that kind of control over them, and the movement for women’s rights asserts the moral right of women to be free from the control of others.” After all, “abortion involves violence against a small, weak and dependent child. It is macho control, the very kind the feminist movement most eloquently opposes in other contexts.”29
Professor Celia Wolf-Devine makes the observation that “abortion has something…in common with the behavior ecofeminists and pacifist feminists take to be characteristically masculine; it shows a willingness to use violence in order to take control. The fetus is destroyed by being pulled apart by suction, cut in pieces, or poisoned.” Wolf-Devine goes on to point out that in terms of social thought…it is the masculine models which are most frequently employed in thinking about abortion. If masculine thought is naturally hierarchical and oriented toward power and control, then the interests of the fetus (who has no power) would naturally be suppressed in favor of the interests of the mother. But to the extent that feminist social thought is egalitarian, the question must be raised of why the mother’s interests should prevail over the child’s….Feminist thought about abortion has…been deeply pervaded by the individualism which they so ardently criticize.30
Despite the recent suggestion in legal scholarship that fetal personhood ought not be the question that determines the morality of abortion, we have seen that if such a move is carried out by the courts the result would be morally and legally disastrous. For this reason, opponents of abortion ought to master the contents of this article and be prepared to engage this old philosophical, though new legal, challenge to human dignity.
Francis J. Beckwith, Ph.D. is Lecturer in Philosophy at the University of Nevada, Las Vegas, as well as Professor at Large, Simon Greenleaf University (Anaheim, CA) and Senior Research Fellow, Nevada Policy Research Institute. He is the author of Politically Correct Death: Answering the Arguments for Abortion Rights (Baker) and co-editor of The Abortion Controversy: A Reader (Jones & Bartlett). He is on the North American editorial board of the journal Ethics and Medicine.