I had planned on writing a substantial response to Matthew Lu’s “Defusing the Violinist Analogy” for a very long time. But after finishing my last post, I began wondering if there was anything left to say about Lu’s argument that I haven’t already essentially said about Wagner’s “De Facto Guardian.” Like “De Facto Guardian,” “Defusing” is meant to be a response to Judith Jarvis Thomson’s “A Defense of Abortion.” Both essays discuss teleological matters. Both have a version of the snowed-in cabin scenario. Both attempt to establish a basis for saying raped people must carry any resulting pregnancy to term without necessarily relying on the prenate’s alleged rights. And in doing so, both ignore the fact Thomson had something to say about the approaches they use.
While Wagner was cautious about using teleological arguments against Thomson’s violinist analogy, Lu is more full-throttled in his approach. But instead of discussing what kidneys and uteruses are for, Lu focuses on what they normally do. His variation on the teleological argument relies on the fact that in the violinist analogy, you are artificially plugged into the violinist while in pregnancy the attachment of the prenate to the pregnant person is natural. That makes a straightforward application of the argument I previously made less tenable. So there is still something to say here.
While discussing the differences between the violinist analogy and pregnancy-by-rape, Lu engages in a discussion about whether aborting a pregnancy from rape can properly be seen as a restoring the status quo ante that obtained before the rape. I already had an argument that aborting pregnancies from rape would be an appropriate way of viewing it. I will still offer that argument. However, while reviewing Lu’s essay in preparation for writing this response, I had an insight suggesting that attempting to restore the status quo ante from before the rape is not the right model to view pregnancy from rape. A more appropriate model makes Lu’s case fall apart entirely.
Wagner also attacks the concept of bodily self-ownership, which he believes Thomson’s positive plank depends on. So obviously I have something to say here. Having some investment in the concept, my original plan was to offer a full-throttled defense of bodily self-ownership. But upon reviewing Lu’s essay, I realized the argument he offered simply fails. This means that even if Thomson and I are wrong about bodily self-ownership, the permissibility of abortion does not depend on it anyway.
Wagner offered the concept of the “de facto guardian” to explain why we have an obligation to feed infants we happen to be stuck with in snowed-in cabins with. But Thomson herself offered an explanation for this: Minimally Decent Samaritanism. Wagner’s failure to address Thomson here was intellectually lazy. But in theory Wagner’s readers can easily access Thomson’s paper, compare their accounts, and come to their own decision about which account is better. In short, though Wagner was lazy, no irreparable harm was done.
But Lu’s failure address Thomson’s Minimally Decent Samaritanism is especially infuriating. This is because Lu’s account of the immorality of abortion is Minimally Decent Samaritanism. Recall that in “Defense,” Thomson specifically states, “There may well be cases in which carrying the child to term requires only Minimally Decent Samaritanism of the mother, and this is a standard we must not fall below.” Lu, in effect, is saying that “normal” pregnancies, including those caused by rape, fall within the scope of Minimally Decent Samaritanism. Thomson denies this, so one would think there should be some discussion here.
Instead, Lu dismisses the burdens of a “normal” pregnancy as no more significant than ruining an expensive suit. Obviously, I have something to say here. In fact, I have a lot to say here. If you want to skip that part, the TLDR version is STFU.
Lu doesn’t say anything about the political implications of his argument. However, his article was originally brought to my attention by a slaver who obviously thought the argument could serve as the basis for a legal ban on abortion. So I will finish this post by considering the legal implications of Lu’s argument assuming he has made his case. I conclude the slavers won’t get much, and the cost of what they do gain may not be worth the price.
Attacking the Violinist Analogy
Before proceeding to the violinist analogy itself, Lu points to the fact that Thomson herself noted that the right to be unplugged does not entail the right to ensure the death of the violinist. To use her terms, if the violinist survives the unplugging, you can’t turn around and slit his throat. But since most abortions involve directly killing the prenate either before or during the process of unplugging it, it would seem that if Thomson’s analogy holds, most abortions still wouldn’t be permissible.
If Lu is correct, then Thomson is contradicting herself. However, Lu misconstrues what Thomson actually said. When Thomson turned away from the violinist and addresses abortion itself, she did not hesitate to call it a killing. In section 4, she didn’t contemplate the question of whether abortion is unplugging or direct killing. She contemplated the question of whether abortion is unjust killing. She not only knew that abortion is a killing, she didn’t even bother to note the difference between unplugging and killing. She was not going to turn around and completely undermine her entire argument. Something else is going on here.
As it turns out, in a subsequent defense of her “Defense,” Thomson outright said, “Now it had not actually escaped my notice that the mother who aborts herself kills the child, whereas a [the person who has the violinist unplugged] merely does not save.” She felt that the difference between abortion and unplugging faded into moral insignificance, and was not worth discussing. Indeed, she thought asserting that the distinction makes a difference is “shown to be false by the story of you and the violinist.”1
Unfortunately, as I write this section, I don’t have a ready copy of “Rights and Deaths” available, so I don’t know whether Thomson spelled the case out. Let’s see if I can construct it independently. Go back to Thomson’s story. You demand to be unplugged. The hospital director completely agrees that you are entirely justified in making that demand. However, there is a problem: “I would certainly unplug you, but the process of unplugging you will itself kill the violinist. As this would be a direct killing, we can’t do it.” Or again: “I would certainly unplug you, but in order to unplug you, we must first slit the violinist’s throat. As that would be a direct killing, we can’t do it.”
I don’t think that would assuage our sense of outrage in the original case. I would think that if anything, our sense of outrage would be intensified. If we are justified in being unhooked, then we are justified in doing whatever is necessary to be unhooked. If the violinist is directly killed, it would still not be an unjust killing.
Now we can make sense of Thomson’s statement that if violinist survives, we can’t turn around and slit his throat. The difference is that though you are justified in killing the violinist if that is necessary to be unplugged, killing the violinist if he survives the unplugging process would be unjust. By parity of reasoning, abortions are permissible even if it is a direct killing, but if the fetus is detached alive, it would be impermissible to then kill it.2
With that misunderstanding out of the way, let’s move on to Lu’s attack on the violinist analogy itself. Lu himself sets the parameters:
Of course, the point of drawing analogies in moral reasoning is to suggest
that what applies in the putatively clear case also applies in the controversial
case. Therefore, an analogy is apt only to the extent that the two cases are
relevantly similar. If we can show that the two cases should not be analyzed
in the same way, then whatever conclusions might apply in the one case will
not necessarily apply in the other.
This means that when analyzing the distinctions Lu asserts, the question before us will be, “How does this make a difference?” If it doesn’t make a difference, then what applies in the clear case (here, the violinist scenario) still applies in the controversial case (here, aborting rape pregnancies). But we also have to note what Lu does not say. If the difference is relevant, it does not mean the argument for the controversial case is false. That would require further argument. It would just mean the specific analogy doesn’t shed any light on the controversial case.
The first distinction Lu makes is that while kidneys can be forced to filter another person’s blood, that is not their normal function. To unplug yourself from the violinist is to restore the kidney’s normal, natural functioning (i.e., filtering your own blood). On the other hand, the normal function of a uterus is to provide for the gestation and protection of prenatal beings. An abortion involves interfering with (Lu: “a violent assault on”) the normal functioning of the uterus.
This seems to be a valid distinction. How does this make a difference? Lu doesn’t actually say. We can infer from his language that he considers interfering with the normal process of pregnancy a bad thing. But that would still raise the question of why this is a bad thing. And Lu doesn’t answer this question; he just takes it for granted that it is bad. We need not do the same. Without that assumption, there is no reason to believe the extrinsic/intrinsic functioning distinction makes any difference. In one case, someone is using your organ(s) to stay alive; in the other, someone is using the pregnant person’s organ(s) to stay alive. That’s all the analogy needs to function.
Next, Lu asks us to consider the nature of plugs. Plugs are designed to be inserted and taken out at will. This is why you can move electrical appliances around your house. The embedding of the conceptus into the woman’s body, however, is not intended to be inserted and taken out at will. It will permanently detach itself in due time. “A normal pregnancy, by its own nature, ends in birth.” I’m sure that assurance is no small comfort to someone who became pregnant through rape.
Let’s try a statement like that on the rape itself. Suppose I catch a person with a penis in the act of raping a person with a vagina. So I shout: “Don’t worry! Normal intercourse, by its own nature, ends in ejaculation!” Somehow, I don’t think the person with a vagina will thank me for that.
Regardless, let’s go ahead and consider whether this distinction makes a difference. It doesn’t. Bottom line: In Thomson’s scenario, the violinist is attached to you. In pregnancy, the conceptus is attached to the person with a uterus. That’s all that is necessary for the analogy to work.
Strictly speaking, Lu’s argument about attempting to restore the status quo ante that obtained before the rape by allowing the pregnant person to abort a rape pregnancy is not a disanalogy at all. It seems to be a reflection on the fact that most people hold onto the rape exception even while disapproving most other reasons people have abortions. It seems unjust, not to mention cruel, to force a pregnant person to carry (and probably raise) their rapist’s child. As Lu said of unplugging, there is a certain “conceptual and imaginative clarity” here. The pregnant person was wronged by the rapist, forbidding her an abortion would only compound that wrong.
Lu thinks this line of thinking is muddled. It is proper justice to return something one has stolen or compensate them for the damages. That restores the victim to “the state of not having something stolen,” i.e., the status quo ante or the state which was before (the unjust act). But properly speaking, the unjust act is the rape. Aborting a resulting pregnancy does not restore the rape; it doesn’t restore one to “the state of not having been raped.” The pregnancy was just a(n unfortunate) side effect. This is just a philosophical way of saying, “I’m sorry you were raped, but you can’t take that out on a helpless child!”
However, having a stolen object returned doesn’t seem to be what we have in mind when we think it would be unjust to force a pregnant person to carry the rapist’s child. Let’s use a model that reflects what we seem to think. Someone stabs you, regardless of whether they intended to kill you. You survive the stabbing, but you don’t make it to the hospital in time to keep the wound from becoming infected. Fortunately, the wound is healed and the infection cleared. So now you sue the assailant. After considering the case, the judge rules you are entitled compensation for having the wound healed, but not for having the infection cleared. The judge explains that the actual crime consists of the knifing, and the infection was just an unfortunate side effect. The actual status quo ante is not “the state of not having been infected,” but “the state of not having been knifed.” The assailant owes you the latter but not the former. I think most of us would consider this an outrageous miscarriage of justice.
This model seems to reflect what most of us have in mind regarding rape pregnancies. And put this way, it reflects reality. You would be compensated for having the infection cleared as well as having the wound healed. The reason is simple: if you had not been knifed, you would not have gotten infected. The status quo ante folds “the state of not having been infected” into “the state of not having been knifed” as it were. Similarly, if the pregnant person had not been raped, they would not be pregnant. Allowing an abortion in these cases folds “the state of not being pregnant” into “the state of not having been raped.” So it does seem that allowing an abortion to a person pregnant from rape is properly addressing the crime.
I suspect Lu’s answer would be the same as in the original case: “achieving that state does not license a second immoral act.” However, the topic of discussion is precisely whether abortion is moral. So he would be begging the question in this case—just as he was in the original.
While discussing the proper status quo ante, Lu made the statement that rape “consists in the assault on the woman’s bodily integrity” (emphasis removed). My immediate thought was Lu simply doesn’t consider the possibility that an unwanted pregnancy is an assault on the bodily integrity of the person with a uterus. Men can be raped but they can’t get pregnant.3 I wondered whether I should relegate this thought to a footnote or find some way to work it into the text when another thought occurred to me. What if we combined these two facts (rape is an assault on a person’s bodily integrity; an unwanted pregnancy is an assault on the bodily integrity of a person with a uterus)? I concluded that debating whether aborting a rape pregnancy is an attempt to restore “the state of not having been raped” is the wrong approach entirely.
Let me suggest another model that more accurately captures the rape pregnancy. The rapist has their way with a person with a vagina. The rapist then either is captured or escapes; it doesn’t really matter. Then, still dealing with the trauma, the person with a vagina is kidnapped by the rapist’s child.
This model is both more accurate and sheds new light on the situation. To seek restitution from the kidnapper in this case has nothing to do with restoring “the state of not having been raped.” It is rather an attempt to restore “the state of not having been kidnapped.” That the kidnapper happens to be rapist’s child has no direct relevance. Similarly, aborting a rape pregnancy is not about “taking the rape out on the child.” It is about dealing with a different assault on the pregnant person’s bodily integrity. While aborting that pregnancy may not restore “the state of not having been raped,” it’s not meant to do that in the first place.
Now let’s turn back to Thomson’s scenario. Discovering you were the only person who could aid the violinist, the Society of Music Lovers kidnaps you and attaches you to the violinist. After that, the Society disappears from the story entirely. The rest of the story is about what to do about the fact you are plugged into the violinist. The discussion at this point is not whether unplugging yourself restores you to “the state of not having been kidnapped.” The question is not whether “the state of not being unwillingly plugged in” can be folded into “the state of not having been kidnapped.” We are simply discussing whether you have the right to be restored to “the state of not being unwillingly plugged in.” It turns out that the violinist analogy not only holds up, it captures the situation of the person impregnated through rape even better than Thomson herself may have realized!4
After all this discussion about how the violinist analogy doesn’t capture pregnancy from rape, Lu throws us for a loop by conceding Thomson is correct that the right to life does not entail a right to use someone’s body. Remember, this conclusion was the entire point of the analogy. Also remember Lu never at any point says his disanalogies show that abortion is impermissible. The closest he comes is calling interfering with the normal and natural process of pregnancy a “violent assault.” But violent assaults may be permitted under certain circumstances, so the language itself doesn’t necessarily mean interfering with the normal process of pregnancy is strictly prohibited. In fact, only one of these disanalogies come up again when Lu argues his own positive plank.
This is enough to make one wonder what the hell is going on here. Why spend more than four pages trying to prove the violinist analogy doesn’t help us analyze the controversial case, only to concede the point of the analogy? Lu does have a specific reason for disconnecting the violinist from the rape pregnancy, which I’ll address in due time. For now, the key takeaway is that not only does Thomson’s violinist analogy survive Lu’s attack, it more closely resembles the controversial case than expected.
Attacking Bodily Self-Ownership
Lu next attacks Thomson’s assertion of bodily self-ownership, but again I’m not entirely certain why. It doesn’t help his case at all. Most of the points he makes are irrelevant to the abortion debate, and he doesn’t address the most relevant point relating abortion to bodily self-ownership at all. And in the end, he admits his attack on bodily self-ownership doesn’t prove abortion is immoral. So why bother then?
It seems clear is that Lu is concerned with defending anti-abortion proponents from a charge of inconsistency allegedly made by Thomson. But that is not what she said. In fact, Lu quotes what she actually did say. Thomson wrote that, although abortion opponents grant that one has a right to control their own body, they "do not take seriously what is done in granting it.” This could mean they are being inconsistent, but it could also mean other things, like not thinking through the scope of what they are granting. Thomson simply could have been saying something like, “They let this can of worms be opened, so I’m going to take advantage of it.” In any case, to the extent Lu’s argument does work, it works whether or not Thomson was making a charge of inconsistency.
This means we need not concern ourselves with whether Thomson’s alleged charge of inconsistency holds. We can simply analyze his arguments in terms of whether the right to controls one’s body entails a right to abortion. Thomson likens bodily self-ownership to being the owner of a house. Just as a homeowner has the right to eject trespassers, a pregnant person, as the owner of her body, can eject unwanted conceptuses. This is the central point we need to keep in mind.
Lu attacks Thomson’s alleged argument that the right to bodily self-control entails ownership by pointing out renters may have the right to use the property, but that right of use does not mean they own the property. While right of use certainly does not entail ownership, what puzzles me is why Lu thinks Thomson was making this argument in the first place. She didn’t actually say that bodily self-control entails ownership. Indeed, the general sense I get from what she said is that the right to bodily self-control follows from bodily self-ownership, not the other way around:
My own view is that if a human being has any just, prior claim to anything at all, he has a just, prior claim to his own body. And perhaps this needn't be argued for her anyway, since, as I mentioned, the arguments against abortion we are looking at do grant that the woman has a right to decide what happens in and to her body.
It is true enough that Thomson didn’t actually argue for bodily self-ownership. But this was simply because she didn’t think it was necessary given that her opponents already granted a right she thought entails from ownership. Her argument wasn’t, “I have the right to control my body, therefore I own my body.” Rather her argument was, “I own my body and therefore have the right to control it.”
Even though Lu is rebutting an argument Thomson did not make, I am going to grant him the general point. It is certainly conceivable that we don’t own our bodies, but merely have the right to use them. On the analogy of our bodies being like our homes, our right of use would be limited to things that we are not specifically prohibited from doing in the rental agreement. This will raise questions that are hard to answer without “retrench[ing] into a religiously grounded position.” Specifically, who owns our bodies and can demand we not use them in certain ways? Considering the fact Lu endorses Kass’ view that our bodies are not the sort of thing that can be owned, it would seem that no one can demand we not use them in certain ways. With specific regard to abortion, the possibility that we only have right of use doesn’t seem to help his case. Still, I will set aside that difficulty because I have a larger point to make later.
Lu goes on to mention a number of things we can’t do with our homes and that a number of things we can do are highly regulated. I’m not going to argue against this for three reasons. First, I can’t—regardless of whether I agree with the listed restrictions, the reality that those restrictions exist is simply a fact. Second, I do agree with at least some of those restrictions and would not want to argue against them anyway. Third, they are irrelevant.
Lu further argues even on the assumption of bodily self-ownership, there are numerous things we cannot do with our bodies. Here, I was prepared to argue we actually can do most or all the things Lu listed, but then I realized I don’t have to. So while I’m not going to stipulate we can’t do those things, neither am I going to argue about them here.5
What I want to point out about Lu’s arguments is that for everything he says about whether we own our bodies, or what we can and can’t do with our houses and our bodies, Lu never addresses the central issue as it relates to abortion. For all the things a homeowner can and cannot do with their property, homeowners unambiguously have the right to eject trespassers. Furthermore, even renters have the unambiguous right to eject trespassers. So whether the right to bodily self-control stems from outright ownership of our bodies or the mere right of use to them, by parity of reasoning the right to bodily self-control does entail the right to abortion. Thomson’s basic point holds.
Evaluating Lu’s Positive Plank
We have seen that Thomson’s violinist analogy resists Lu’s criticisms even better than we would expect. Therefore her putatively clear case can be used to evaluate the controversial one. While Lu succeeds in questioning Thomson’s assertion of bodily self-ownership, we have found her basic point holds even without that assumption. So Lu’s negative plank fails.
However, this does not mean we are done. Lu’s thesis is not “Thomson’s resolution of the conflict of rights case is wrong.” His thesis is rather, “The conflict of rights analysis is the wrong approach.” This is why he can concede Thomson’s central point that the right to life does not necessarily entail the right to things one needs to live. It doesn’t affect his thesis one whit. He could grant that I have totally and completely vindicated Thomson’s “Defense” without it affecting his own positive argument.6
Nevertheless, conceding Thomson’s central point does not mean Lu is quite done with rights yet. Acknowledging that the right to life merely means one can’t be killed unjustly, Lu again takes up the issue of direct killing. Except to note that the “unjustly” part silently drops out of his reassertion that “the child’s right to life similarly precludes its being directly killed,” I’m not going to re-engage this point. If Lu doesn’t accept the argument that the distinction between unplugging and abortion is insignificant, fine and well.
He does acknowledge that, assuming the distinction holds, abortion could still be conceived of as a case of self-defense. He relegates his rebuttal to a footnote, but here I will engage because my argument for the permissibility of abortion is modeled on self-defense. Lu’s rebuttal still seems to be tied to cases of pregnancy from rape: “In a pregnancy-by-rape case, killing the child would be no more a case of self-defense than killing one of the rapist’s other (already born) children who had nothing to do with the attack.” Conceptually, he is addressing the self-defense claim the same way he addressed the restoration of the status quo ante claim. And he is just as wrong here.
Recall the model I proposed for a rape pregnancy: The rapist has their way with the victim, and shortly thereafter, the victim is kidnapped by the rapist’s child. In this case, defending oneself from the kidnapper is not a case of attacking a person innocent of the original assault. It is a case of defending oneself against a separate attack. Remembering that an unwanted pregnancy is itself an attack on one’s bodily integrity, the person seeking an abortion is indeed responding to an illegitimate attacker.
Lu argues that Thomson’s treatment of the abortion question as a conflict of rights is a “radically incomplete understanding of justice.” He points out that there are numerous cases where we have obligations even though there is no corresponding rights claim. As examples, he notes we should not abuse animals, that we should not harm the environment, and that we should not destroy culturally significant artifacts even if we do own them.7
Before going on, I’d like to note here his examples do not involve infringements on fundamental rights and in the case of property, the infringement is minor. I don’t have a fundamental right to abuse animals. Using an electric car rather than a gas-powered one does not infringe on my right to travel. Not destroying my own property isn’t going to hurt me, and in cases of important cultural artifacts, it would be against my best interest to destroy them anyway. Lu is not wrong about having these obligations, but they are not the types of things we would do a conflict-of-rights analysis about anyway.
Nevertheless, I do think a good (though not necessarily better, see note 7) explanation for these obligations does stem from “the fact of their vulnerability (and [our] relative strength).” Let’s see where this can lead us.
Lu starts with his variation of the snowed-in cabin scenario. It is so absurdly bad that I can’t help but poke fun at it. In this variation, I live in a cabin that is isolated from society by distance and by nine months of bad weather per year. I have adequate supplies plus a little extra, presumably to get through the bad weather while accounting for the fact it might last a little longer than expected. One day I return from whatever I was doing—and surprise! Someone left a baby on the doorstep! “If you refuse to take in the child on the grounds that it does not have a right to the use of your private property, you prove yourself a moral monster.”
Really? In this situation what I’d actually do is take it to whatever constitutes the local authorities and be done with it. The distance and weather can’t be that bad. After all, philosophers intent on proving I’m a moral monster keep dropping infants on my porch! Why can’t I just drop it off like I did with Beckwith’s baby and Wagner’s baby and Poupard’s baby and …?8
Of course, the actual point is that we have an obligation to not let the child starve. Likewise we should keep wandering toddlers out from busy streets and fish drowning children out of the water (even if it means ruining an expensive suit!). Yada yada yada. One would think abortion opponents would come up with new examples once in a while. Maybe even throw an adult into the mix just to blunt the criticism they are using arguments for their emotional charge rather than logical soundness.
Anyway, so we have the obligation. How extensive is the obligation? If the time required more than nine months (have to cover the period of pregnancy here), then maybe the obligation will change (but see Lu’s note 25). If the risks involved are more extensive than ruining an expensive suit or “risking” one’s car (have to cover burdens of pregnancy itself here), then the obligation might change. But certainly “nine months of inconvenience” is covered.
Sarcasm aside, is this starting to sound familiar? If so, go back to Thomson’s “Defense” and read the section on Minimally Decent Samaritanism (MDS). What will you see there? First, that Thomson’s conception of justice was not so “radically incomplete” after all; she did account for situations where we have an obligation to help others without a corresponding right claim. Second, it is the same thing as Lu’s positive plank. Thomson’s examples differ, but MDS can certainly cover Lu’s examples. Not simply let an infant dropped on your doorstep starve? Covered. Don’t let toddlers wander into a busy street? Certainly. Fish a child out of the water, even at the cost of ruining an expensive suit? Check. Thomson’s examples even include adults!
The only real difference between Lu and Thomson is the scope of the obligation they say we have. Lu must surely be aware of Thomson’s thoughts on Minimally Decent Samaritanism. Just as surely, he must be aware Thomson argued MDS does not cover a “normal” pregnancy. And unlike the violinist analogy or the argument from bodily rights, Lu can’t concede to Thomson here because her argument is a direct threat to his positive plank. Yet Lu ignores it completely. Wagner may have been intellectually lazy to ignore it, but Lu moves into the territory of outright intellectual dishonesty.
Let’s forgive Lu for the time being, though. We know that Thomson had something to say here, so we can go ahead and make some comparisons. We’ve already noted the scope of the obligation Lu thinks we have. What did Thomson say about the scope of Minimally Decent Samaritanism?
[N]obody is morally required to make large sacrifices, of health, of all other interests and concerns, and of all other duties and commitments, for nine years, or even nine months, in order to keep another person alive.
...
At all events it seems plain … it is not morally required of anyone that he give long stretches of his life—nine years or nine months—to sustaining the life of a person who has no special right … to demand it.
On the time period, Lu thinks (at least) nine months is covered under our obligation. Thomson said certainly not. But it could be argued that Lu is simply trying to include the period of pregnancy and Thomson was simply trying to exclude it. Neither one of them actually makes an argument about the time period involved, so we’re going to have to settle this another way.
Intuitively, Thomson’s version seems more correct. For example, in the cabin scenario, assuming we can make it work, nine months looks less like babysitting and more like parenting. So unless the child does have a special right against me, that would at best be pushing the limits. Lu’s judgment that the obligation might even extend to raising the child to maturity looks even more like parenting and certainly would require a special right against me. Lu grants I don’t have to risk starvation, but his judgment requires that I am required to stretch my resources very thin. For nine months? For someone who is not my responsibility? That sounds more like a Good Samaritan rather than someone just meeting their minimum moral obligations.
Or look at the violinist scenario. An hour under normal circumstances is a relatively minor inconvenience. Nine months? Well, I do have other concerns here. I have a job to keep, rent to pay, relationships to maintain, pro-choice articles to write. Surely even Lu would let me go, despite the fact I’d write more pro-choice articles. After all, the burden is more extensive than ruining an expensive suit. Right?
Perhaps I’m just going about this the wrong way. Let’s try examining what the “nine months of inconvenience” a “normal” pregnancy consists of.
First, just for the sake of thoroughness, let’s consider Lu’s contention that caring for an infant for nine months is much more burdensome than a “normal” pregnancy. What proof does Lu offer for this contention? Another man told him so!
Okay, then. We’re going to move on now.
Defining “normal” is a difficult task for anything, let alone pregnancy. I’m going to discuss what happens in all pregnancies (thus including “normal” ones)9 and draw on the summary of typical symptoms and side-effects made by Donald H. Regan in his “Rewriting Roe v. Wade.” I’m relying on this summary because—regardless whether one considers his argument successful—he has a vested interest in not overstating the symptoms and side-effects of pregnancy for the emotional impact. So if anything, he was underplaying the severity of the possible complications of pregnancy.
In all pregnancies, the conceptus attaches itself to the uterus, draws oxygen and nutrients from the pregnant person’s blood, and returns carbon dioxide and metabolic wastes to their blood. The biological mother essentially serves simultaneously as a living feeding tube, respirator, and dialysis machine for the conceptus.10 All pregnancies have some risk of permanent disability and death. The actual risk depends on the availability and quality of medical care; in the United States that is a confluence of location, race, and class. All pregnancies cause permanent alterations to the person’s body, even if they don’t lead to permanent disability.
Here is Regan’s summary of the physical burdens of pregnancy and childbirth:
First, complaints involving general inconvenience or discomfort: a tendency to faintness (generally limited to the first fourteen weeks); nausea and possibly vomiting (generally limited to the first fourteen weeks); tiredness (pronounced in the first fourteen weeks, then disappearing, to reappear near the end of pregnancy); insomnia (difficulty going to sleep caused by inability in late pregnancy to find a comfortable position in bed, compounded by difficulty going back to sleep when wakened by a kicking fetus or by the need for frequent urination which accompanies pregnancy, also compounded by general disruption of the body's internal temperature-regulation mechanism); slowed reflexes; poor coordination; uncertainty of balance (caused by increase and redistribution of body weight); manual clumsiness in the morning (caused by swollen fingers and carpal-tunnel syndrome); shortness of breath following even mild exertion; and new aversions to certain foods or smells (especially fatty or spicy foods).
More specific complaints, still involving inconvenience or discomfort, are: tender breasts; stuffy nose; constipation; heartburn (different from nausea, and not limited to early pregnancy); nosebleeds; edema of the feet and ankles; a metallic taste in the mouth; special difficulty in curing any vaginitis that may occur; increased susceptibility to and difficulty of curing urinary tract infection; increased frequency of urination (quite apart from any urinary infection); occasional extreme urgency of urination (as the fetus bumps the bladder); and occasional stress incontinence from the same source. Many pregnant women also report more headaches than when they were not pregnant, though there is no apparent reason for this aside from the increased psychological stress of pregnancy.
Among complaints not merely uncomfortable but painful, some of which can be very painful indeed, we find: backache; costal-marginal pain (caused by the enlarged uterus pushing against the lower ribs); abdominal "round ligament" pain; abdominal muscle pain; pelvic ache; pelvic shooting pain (as the fetus bumps a nerve at the rim of the pelvis); foot and leg cramps; the different pain and leg cramps associated with varicose veins; hemorrhoids; pain and pins-and-needles in the wrist (carpaltunnel syndrome); and mastitis. Finally, as a result of the general softening of ligaments during pregnancy, along with the extra weight and the loss of balance, there is an increased susceptibility to sprains and to aching feet.
The pregnant woman also experiences changes in her appearance: most obviously, the pronounced change in the shape of her body as a whole; consequent upon the change of body shape, an awkward gait and inability to wear her normal wardrobe; increased dryness of skin (for women with dry skin initially); thin, brittle, unmanageable hair; varicose veins (in the legs or the vulva, and sometimes in pelvis, abdomen, or breasts7); swelling of the face; changes in pigmentation (darkening of the nipples and areolae; sometimes darkening of larger patches of the breast; darkening of freckles or moles; the linea nigra from the pubic area to the naval; the often blotchy "butterfly mask" or chloasma); stretch marks (which result in part from avoidable excessive weight gain, but which are not always avoidable).
Finally, as a result of hormonal changes, the pregnant woman is likely to be at times markedly irritable, volatile in her moods, or subject to periods of depression. She may also experience a loss of sexual desire.
After the period of pregnancy, there is the actual delivery of the fetus. The days when a woman had a reasonable chance of spending twelve hours or more in sweaty agony are happily gone. But it is still true that for many women parturition is a thoroughly unpleasant and significantly painful experience. It can also involve a major operation, with all the added risk and discomfort that entails, if the fetus is delivered by cesarean section.
This looks more burdensome than ruining an expensive suit. And it is certainly no mere inconvenience. I’m going to go with Thomson here.
I’ve mocked Lu’s ruined suit mercilessly, and perhaps some might think that is unfair. Can we discuss abortion in terms of a (limited) “general obligation to protect the vulnerable” or Minimally Decent Samaritanism? Sure. The topic is not inherently beyond the realm of debate.
What we can’t do in such discussions is dismiss pregnancy as “nine months of inconvenience.” Pregnancy takes its toll on a person, and we need to deal with that fact realistically. None of the examples in Lu’s article is even close to doing what a pregnant person does for the conceptus. None of them require risking the effects even a “normal” pregnancy causes.
And maybe let’s be more realistic about what our obligations toward people we have no special responsibility for entails. Use up the extra stores and hope the storm doesn’t last any longer than expected? Sure. Do some rationing and tighten our belts a bit? I think most people would be willing to do that. Ration the stores to the point where the cabin owner is just barely surviving? Certainly not unless the owner does have a special obligation toward the infant. I’m not even so sure this is required even when we do have a special responsibility for the person.11
Then, too, it is all fine and well to say we have to feed an infant we happen to be stuck with in a snowed-in cabin. But how many of us are ever going to be in that kind of situation? Whatever judgments Lu or Beckwith or I make in judging the cabin scenario, we make them secure in the knowledge that those judgments will only apply to a certain class of people, which doesn’t include us.12 Can we really say “me and thee” when in practice it is only “thee”? Is it any wonder that some people who can get pregnant say (cisgender) men have nothing to say about abortion?
Prospects for Legalizing Lu’s Approach
Strictly speaking, Lu is making an argument about the morality of abortion. However, as noted in the introduction, his article was passed to me by a slaver who thought the argument could be used as a legal basis for banning abortion. So for now, let’s assume that Lu is correct that our general obligation to help the vulnerable includes suffering burdens equivalent to a “normal” pregnancy. What might this look like in terms of law?
First, the law would have to establish what a “normal” pregnancy is. We know what all pregnancies do, and we know what all pregnancies risk. We know that all pregnancies come with symptoms, though not all pregnant people suffer all the symptoms. We also know that the severity of the symptoms can vary among those experiencing them. So we can say that so long as the risks are no higher than x and the symptoms are no more severe than y, that is a “normal” pregnancy under the law. That would require a lot of suppleness that the law—especially criminal law—is not known for.
But assuming we can get past the subtleties of defining a “normal” pregnancy, what kind of abortion ban could we expect? Certainly not a blanket ban. If the pregnant person were experiencing an “abnormal” pregnancy they would still be allowed to have one. Despite what Lu may think, it is unclear whether abortions in cases of rape would be banned. The emotional and psychological trauma entailing from carrying a rapist’s child is certainly not “normal.”
Who would have the burden of proof that the pregnancy was “abnormal?” Presumably, one way or the other, the burden would be on the pregnant person. We could go one of two ways: use a preclearance scheme or prosecute all abortions after the fact. In a preclearance scheme, the pregnant person would have to show their pregnancy is “abnormal” before having an abortion. Prosecuting all abortions after the fact would set “abnormal” pregnancies as a sort of positive defense, and the burden of proof would be on the defendant in many jurisdictions, except now there would be multiple defendants, the pregnant person and the people actually performing the abortion. Either way the question becomes how high the standard of proof would be. Set too high, then too many “abnormal” pregnancies would have to be carried; set too low, then too many “normal” pregnancies would be aborted.
Then there is the other end. Remembering Thomson originally wrote “Defense” at a time when most abortions were illegal in most states, she wrote:
Indeed, with one rather striking class of exceptions, no one in any country in the world is legally required to do anywhere near as much as this for anyone else. The class of exceptions is obvious. My main concern here is not the state of the law in respect to abortion, but it is worth drawing attention to the fact that in no state in this country is any man compelled by law to be even a Minimally Decent Samaritan to any person…. By contrast, in most states in this country women are compelled by law to be not merely Minimally Decent Samaritans, but Good Samaritans to unborn persons inside them. This doesn't by itself settle anything one way or the other, because it may well be argued that there should be laws in this country—as there are in many European countries—compelling at least Minimally Decent Samaritanism. But it does show that there is a gross injustice in the existing state of the law. And it shows also that the groups currently working against liberalization of abortion laws, in fact working toward having it declared unconstitutional for a state to permit abortion, had better start working for the adoption of Good Samaritan laws generally, or earn the charge that they are acting in bad faith.
Lu, in principle should agree with this. He does argue that all people have “an obligation to care for the vulnerable, even at considerable personal inconvenience” and at the expense of their other rights. So if a “normal” pregnancy falls withing this general obligation and/or Minimally Decent Samaritanism, then equal treatment would suggest that everyone would have the duty equivalent to the pregnant person carrying a “normal” pregnancy.
What would this look like when enforced by law? Considering there aren’t too many things that come to the level of simultaneously acting as a living feeding tube, respirator, and dialysis machine for nine months, while also having the risk of death or permanent disability that all pregnancies have, while also permanently changing one’s body in any case, while also imposing the symptoms and side effects of “normal” pregnancies, there isn’t much one cannot be required to do. This would entail that when it comes to helping vulnerable people, the government could force you to do practically anything, at your own expense and without compensation.
What about rights? Lu writes “if we cannot account for the responsibility in terms of rights claims, that is more of a reason to reject the applicability of the rights framework than a reason to reject that responsibility.” When talking solely about morality, this statement is not as disconcerting as it may first appear. In discussing ethics, it is not outside the realm of debate to question whether natural subjective rights exist and/or the role they play in determining whether a given action is moral. In a political context, Lu’s statement becomes very disconcerting.
To be fair, Lu does seem to acknowledge the pragmatic utility of applying the rights framework in the political context. He does not explicitly say we should reject rights arguments in the political context. However, the slaver who passed his article to me certainly is willing to sacrifice my rights (though not their own) if that is what it takes to get an abortion ban. I have noted before that we cannot get the type of abortion demand the slavers want without resorting to authoritarianism. Using Lu’s positive plank as a legal basis for an abortion ban would only ensure that authoritarianism wins the day.
Final Addendum
Since writing above about the distinction between unplugging and abortion, I have come into possession of a copy of Thomson’s “Rights and Deaths.”13 Thomson still didn’t spell out exactly why the distinction, assuming it has any moral significance, does not apply to the violinist analogy. Instead, she questioned whether the distinction between direct and indirect killing has any moral significance at all. Obviously, if the distinction has no moral significance at all, it wouldn’t have any application to the violinist analogy.
As I am myself inclined to deny there is any significant moral difference between direct and indirect killing, perhaps we can leave it at that. The distinction is not going to make a difference to the violinist, and it’s not going to make a difference to the prenatal being. After all, they are going to wind up dead either way. However, I think there is still more to be said here.
Though I didn’t raise this point earlier specifically because I was trying to imagine a continuation of the violinist analogy, I’m not so sure that unplugging the violinist would not actually constitute a direct killing. Someone has to do the unplugging, and the unplugging will result in the violinist’s death. That the violinist dies from the underlying kidney ailment doesn’t seem relevant. But for the unplugging, the violinist would still be alive regardless of the underlying condition. So the person(s) responsible for the unplugging may as well slit the violinist’s throat.
The irrelevance of the underlying condition (and thus the distinction between direct and indirect killing) can be demonstrated by another variation on the violinist analogy. Suppose you do want to be a Good Samaritan, so rather than demanding to be unplugged, you allow the violinist to use your kidneys for the nine months it will take for him to recover. But then, while you were sleeping, a not-so-famous violinist wishing to gain rank in the list of most famous living violinists comes into the room and unplugs you. Again, the violinist dies from the underlying kidney ailment. However, the not-so-famous violinist will certainly be charged with murder. In this case, the distinction between direct and indirect killing makes no difference.14
If the distinction between direct and indirect killing will not absolve the not-so-famous violinist of murder, it makes sense that Thomson didn’t deal with that issue in the original “Defense.” Since that distinction makes no difference in the case of the not-so-famous violinist, the question becomes whether unplugging the violinist in the analogy also constitutes murder. It was entirely appropriate for Thomson to focus on the question of whether the killing is unjust rather than on the method. And it also explains why Thomson can simultaneously hold that we cannot turn around and slit the violinist’s throat should he survive the unplugging process.
Important update 21 October 2022: I have make an important correction. I wrote, "However, while reviewing Lu’s essay in preparation for writing this response, I had an insight suggesting that attempting to restore the status quo ante from before the rape is not the right model to view pregnancy from rape." I then went on to report my thought process about Lu not considering the possibility that an unwanted pregnancy is an assault on a person's bodily integrity and combining the two facts (both rape and unwanted pregnancy are assaults on a person's bodily integrity).
All of that is true, insofar as it goes. I did hit upon these thoughts while reviewing Lu's essay in the manner I described. However, I happened to be reviewing my comments on Disqus when I came across comments I made in response to Monica Snyder's post at Secular Pro-Life, "Misconceptions about the rape exception." The fact I commented on that post demonstrates that not only was I familiar with it, but I in fact read it. The relevant portion of Snyder's post is point 5:
You don’t “undo” rape. Whether a rape survivor gets pregnant or not, whether she carries that pregnancy or not, she was still raped.
When a rape survivor gets pregnant and doesn’t want to be pregnant, there are two separate issues: (1) she was raped, and (2) she is pregnant against her will. The rape exception is about addressing the second issue, not the first.
By the time I started working on this essay, I had forgotten about this post. So at the time, it seemed like I was having an original thought. In retrospect, it seems more likely my intense thinking merely sparked something in my brain that was already there, even if I didn't consciously remember where the idea came from. The illustration is (so far as I know) original to me, but it needs to be made clear the idea behind it is not.
1Judith Jarvis Thomson “Rights and Deaths.” Philosophy and Public Affairs, 2 (1973), 156–57. Qtd. in David Boonin. A Defense of Abortion (Cambridge: Cambridge UP, 2003), 190.
2As a sidenote, we should question why Lu makes this argument at all. The general sense I get from his argument is that under “normal” circumstances, we are obligated to remain plugged into the violinist. This would seem to make the distinction between unplugging and abortion moot. I suspect that this argument serves as a backup. Lu can probably anticipate that many readers would still think one can be unplugged from the violinist even given his argument. Strictly speaking, his anti-abortion argument only applies to “normal” pregnancies. This would imply that in situations that are not “normal,” abortion could be permissible but for the direct vs. indirect killing distinction.
However, there are in fact abortion methods that unplug the prenate without directly killing it, e.g., medication abortions and hysteronomies. Lu notes such possibilities without specifically ruling them out. Perhaps he thinks his positive plank is strong enough to effectively make them impermissible. If his stance is that they are indeed impermissible, that means he acknowledges there is no significant difference between unplugging and direct killing himself.
Note I am not the only person to have noticed this phenomenon among abortion opponents. Boonin (Defense, 189) makes much the same point.
3At least, cisgender men can’t get pregnant. It seems doubtful to me (though obviously I could be wrong) that Lu accepts the validity of transgender people, so would not apply the cisgender label to anyone, let alone himself.
4Note I am not saying the pregnant person’s reason for aborting a rape pregnancy has nothing to do with being raped. It may well be that their reason for wanting an abortion is because they were raped. By the same token, you may well want to be unplugged because you were kidnapped. The point remains that we are not dealing with an attempt to restore “the state of not having been raped” or “the state of not having been kidnapped.” We are dealing with an attempt to restore “the state of not being unwillingly pregnant” and the “state of not being unwillingly plugged in.” The reason for wanting to restore that state is irrelevant.
5To be clear, I do think it is not inherently wrong to do most or all the things Lu lists. More specifically, I would argue that, to the extent those activities can be prohibited, we can’t do it on a straightforward denial of the right to bodily control. But to make those arguments here would merely sidetrack us from the issue at hand.
6To be sure, his case would be that much stronger if Thomson’s case fails. In much the same way, Thomson’s case that the right to abortion stems from the right to control our bodies would be that much stronger if we do in fact own our bodies. Failing to defeat Thomson’s argument simply means Lu is reduced to providing an alternate account against abortion and letting the reader decide.
7I should note there are those who argue instances like these and others do in fact have a corresponding rights claim. Most of these arguments are controversial, so I’m not going to rely on them even if I agree with those arguments.
8Joking aside, Lu’s analogy doesn’t even try to account for my ability to care for the infant. Realistically speaking, if I’m living in a cabin isolated from society, it is extremely unlikely that my provisions will include things like formula, bottles, diapers or anything else that is necessary to care for an infant. Obligation presumes ability, so this scenario can’t be saved even if it were adjusted to make it impossible to deliver the child to the authorities.
9I am aware that that I am somewhat (over)simplifying pregnancy, but I don’t want to actually scare anyone considering having a baby.
10A difference between Thomson’s analogy and pregnancy that abortion opponents do not want you to notice is that in the scenario, you are only serving as a living dialysis machine. This, of course, is a difference that favors the pregnant person.
11Yes, poor people do this for their children all the time—for which they are to be commended! Treating what poor people do for their children as the minimum obligation makes a mockery of the sacrifices they make. Worse, taking that position only serves to absolve us of our responsibility as a society to help them in their need. How convenient for the middle and upper classes who don’t have to make such sacrifices!
12To be fair, a similar criticism could in theory be levied at Thomson’s violinist analogy. However, while we are never going to find ourselves connected to someone like in the analogy, all of us could be asked to give our blood, tissues, or organs to someone in need. This means Thomson’s analogy can be universalized in a way the cabin analogy cannot.
13In Rights, Restitution, & Risk: Essays in Moral Theory (Cambridge: Harvard University Press, 1986): 20-32.
14This point was brought back to my attention by David Boonin’s similar discussion in Beyond Roe: Why Abortion Should be Legal—Even if the Fetus is a Person (New York: Oxford University Press, 2019), 107-120.
