Bodily Rights vs. "The Responsibility Argument"

Lately, I've been spending a lot of time debating the abortion issue.¹ A frequently recurring theme I run into is the so-called responsibility argument. The responsibility argument is usually used by anti-abortion advocates in response to the bodily rights argument put forth by pro-choice advocates. So to understand the responsibility argument, we must first briefly review the bodily rights argument.

The classic statement of the bodily rights argument is Judith Jarvis Thomson's “A Defense of Abortion.” Thomson argued that even if a prenate was entitled to the right to life, that right does not include a claim to using the mother's body in order to sustain itself. Just as we have the right² to refuse anyone our body parts, even when their lives depend on it, so too a mother can refuse the prenate the use of her body. An abortion is therefore permissible in most cases.

The responsibility argument counters that, by virtue of voluntarily engaging in an activity knowing that pregnancy is a foreseeable result, the mother has given the prenate a claim to her body. This is sometimes phrased as “Consent to sex is consent to pregnancy.” Other times, it is more bluntly phrased as “[Choose a snarl word denoting woman] opened her legs, she can pay the price.” However phrased, the argument is that the mother's bodily autonomy has been forfeited³ by the act of having sex. Excluding cases of rape,⁴ abortion is therefore impermissible. Matters such as using birth control are irrelevant so long as the risk of pregnancy is not zero.

I must admit the responsibility argument does make a prima facie case for giving the prenate a claim on its mother's body in non-rape cases.⁵ The idea that people are required to take responsibility for their actions is well established in both legal and ethical reasoning. The consequences may sometimes include the forfeiture of certain rights, including bodily autonomy.⁶ Thus, we cannot simply dismiss this argument out of hand.

The questions that confronts us are: Is the woman really responsible for her pregnancy in a morally meaningful way? Granting the woman has some responsibility for her condition, does that responsibility rise to the level that abortion becomes impermissible when the woman had voluntary sex?

I have already gone through many outlines and started many drafts of this post. But the more I think about the “responsibility argument,” the more objections I come up with. So I've decided that, rather than write an essay that connects all my objections together, I would just make a numbered list. I am not saying these arguments are equally strong, though I do think some of them are decisive.

Without further ado then--

1. Consent to sex may be voluntary, but it is not necessarily free. To understand what I mean here, consider something more than ninety-nine per cent of adults have done at one time or another: getting up in the morning, crawling into their vehicles, and going to a crappy job, working for a crappy employer, making crappy wages. Those actions are completely voluntary—nobody put a gun to their heads and said they must do this. Yet, for all that, are those actions really free? No, they did it not because they wanted to, but because there is a host of pressures and obligations that forced them to do so. To not go to those crappy jobs carried consequences that made having even a crappy job worthwhile. Likewise with consenting to sex. Often enough, a woman consents to sex because of pressures and obligations⁷ that force her to do so.

Why does this matter when it comes to the “responsibility argument?” Precisely because of the rape exception. The rape exception specifically excludes rape victims because she was forced into the act. If being forced into the act is enough to exempt women from a general prohibition against abortion, then we can't limit ourselves to considering the crime of rape. We need to also exempt those who were forced to have sex by means other than physical force.

2. Sex may be necessary,⁸ but it is not sufficient to cause pregnancy. In order to get pregnant, a number of different factors must be in place, most of which are beyond the woman's control. The woman had sex, what happens after that is under the control of nature. The woman's lack of control over whether conception occurs or not also casts doubt whether pregnancy is foreseeable for any given act of intercourse.

3. Granting that objection 2 is wrong, it is still nature's fault that the prenate needs the woman's body to survive. In human reproduction, there simply isn't an option where the prenate can be created and not require the woman's body to survive. The woman is no more responsible for the prenate's condition than a potential organ donor is responsible for the illness or injury that caused the need for a replacement organ. In other words, at most she is simply responsible for the fact the prenate exists, and not for the fact it needs her body to survive.

4. Accepting a risk does not entail that we must accept the result should the worst occur. When we get into our vehicles and start the engine, we accept that there is a risk we will be injured in a car accident. But should an accident occur, it would be absurd to say that we must therefore forego medical treatment.

5. Nor does accepting a risk entail that we automatically give up our rights. If I leave my door unlocked in the knowledge that there are burglars out there, it would be absurd to say I've forfeited my property rights should a burglar actually enter my home and steal my things. If this is true for mere property rights, how much more so when it comes to the right to bodily integrity?

6. The responsibility argument sets a standard of strict liability that imposes extreme burdens on the woman to avoid the punishment of forced gestation. Effectively, her only options are complete abstinence during her fertile years, having a hysterectomy, or having a bilateral oophorectomy. All of these options have severe consequences for a woman's total well-being. There is no other case where we would impose extraordinary burdens on someone to avoid strict liability.

7. The responsibility argument does not address cases where the man sabotaged the birth control.⁹ Though having sex in these conditions cannot be considered voluntary (indeed, in some places sabotaging birth control legally constitutes sexual assault), logically the responsibility argument will not excuse the woman. True, her consent was conditioned upon properly using birth control, but even using birth control does not reduce the risk of pregnancy to zero. Since she would have still voluntarily taken the risk, she must still accept the responsibility and can still be required to gestate.

8. Even a rape victim may not be able to evade the strict liability standard demanded by the responsibility argument. One could avoid being raped by building an impregnable fortress and remaining inside of it. By failing to do so, she assumes the risk of rape and, by the terms of the responsibility argument, is therefore liable for the results. Given that we live in a rape culture where the woman is often, if not usually, blamed for the rape as it is, this argument isn't as absurd as it might appear at first glance.¹⁰

9. The responsibility argument is not applied evenly. The same argument would justify forced donations of blood, tissue, and organs when someone caused the need. Yet anti-abortion advocates deny this implication.

10. Anti-abortion advocates also try to say the responsibility argument isn't about punishing women for having sex. As it is, prohibiting abortion deprives pregnant women of their right to life, liberty, and security of person; their right to be free from slavery; their right to be recognized as a person before the law; their right to equal protection under the law; their right to be free from torture; their right to bodily integrity; and their right to decide when and if to have children, all without due process of law. The responsibility argument goes further than a blanket prohibition of abortion though, precisely by claiming that this wholesale deprivation of rights is justified because the woman had sex. The responsibility argument turns sex into an act of negligence, if not a crime.

11. If abortion is prohibited on the basis of the responsibility argument, it is inevitable that someone will die as a result of an unwanted pregnancy. This means she will have been sentenced to the death penalty for having sex. Even assuming the responsibility argument can be sustained, we should rightly ask if the punishment fits the crime. Death for having sex is completely incommensurate.

The responsibility argument creates a prima facie case that the woman who engages in voluntary sex forfeits her bodily autonomy by giving the prenate a claim to her body. This case does not hold up under scrutiny. Though her participation in sex is voluntary, it does not necessarily mean her choice was free. Even granting that her choice was free, her responsibility for her pregnancy is in itself questionable. The responsibility argument sets up a standard that imposes excessive burdens on a woman trying to avoid punishment. Advocates of the responsibility argument are not consistent in applying the principle. Finally, even if it is granted that the woman is responsible for her pregnancy, the punishment is wholly disproportionate to the act she committed.

Edit: Changed the link to Thomson's "A Defense of Abortion" after one of the comments made me realize the html version here contained an error. The pdf version now linked also retains Thomson's footnotes, also omitted in the html version.

1I wish to make it clear that I am discussing abortion as a political issue, rather than a strictly moral one. My moral stance on abortion, while still comparatively permissive, is more restrictive than my political stance.

2Later recognized in the case of McFall v. Shimp.

3Some proponents will prefer to say that the right has actually been waived rather than forfeited. Holly M. Smith decisively refuted that notion in her paper “Intercourse and Moral Responsibility for the Fetus.”

4Most people using the responsibility argument also exclude cases that pose serious threats to the life and/or health of the mother. Technically speaking, the life/health exception belongs to a different category than the rape exception and is beyond the scope of the responsibility argument.

5Other cases may be exempt given the responsibility argument. For example, a woman who engages in intercourse without the knowledge that sex causes pregnancy would likely be exempt. It is not my object to tease out all the possible exemptions. If my counter-arguments are successful, then exceptions to the responsibility argument becomes a moot issue.

6A convicted criminal, for example, forfeits certain rights, including freedom of movement, an aspect of bodily autonomy.

7I realize that saying a person can be obligated to have sex will put me on thin ice in some circles. While I am prepared to argue that in some circumstances, a person can be objectively obligated to have sex, I need not have recourse to such an argument here. It is enough for the purpose of this argument that the woman feel some obligation to have sex, whether or not that feeling is based on an objective duty.

8Or not, when considering artificial insemination or in vitro fertilization.

9Indeed, in my experience, abortion opponents avoid the topic of reproductive coercion in general. The exception is when the man attempts to force the woman to have an abortion, which they use as a reason to prohibit abortion.

10And let's not forget Todd Akin's comments about “legitimate rape” in this context.