Since writing Why Abortion Is Permissible, I have been more or less looking out for counterarguments as a means of testing the strength of my argument. As of this writing, that post has generated 374 comments, but even the most serious attempts to attack the argument tended to delve into issues that have no direct bearing on the argument itself. In other forums, the slavers mostly characterized the argument as absurd but demurred my challenge that it should be easy to prove me wrong. I made a list of the things I thought it would take to defeat the argument and even came up with a new variation on the Responsibility Objection. But nobody even tried to make such arguments.
As I mentioned in the update to that post, I eventually came across references to and eventually read Eileen L. McDonagh’s Breaking the Abortion Deadlock: From Choice to Consent.1 Among other things, this expanded my search for counterarguments. Since our arguments are so similar, criticism of her work could have implications for mine.
This approach is starting to bear fruit. I came across Francis J. Beckwith and Steven D. Thomas’ “Consent, Sex, and the Prenatal Rapist: A Brief Reply to McDonagh's Suggested Revision of Roe v. Wade” quite by accident. I was reading another paper not actually expecting it to directly reply to McDonagh. But it did, adopting Beckwith and Thomas’ counterexamples wholesale while further manipulating the scenarios to establish its own points. Parts of it didn’t quite make sense, so I began a search for the original.
Beckwith and Thomas (hereafter B&T) are obviously responding to McDonagh rather than my argument. While our arguments are very similar, meaning B&T’s arguments have implications for mine, the differences are such that it does not necessarily follow that if their argument is successful against her, it is also successful against me. However, since I don’t think their arguments are successful against McDonagh, I shall make very little reference to my argument except for illustrative purposes. Note: I am using gender terms either as in the originals or in a strictly biological sense. No implication about transgender or nonbinary persons should be drawn from said usage.
Before looking at the specifics of B&T’s argument, I would remiss in not pointing out that B&T are making a strawman out of McDonagh’s arguments. They directly acknowledge at the beginning of their paper and later directly quote McDonagh specifying that it is nonconsensual pregnancy that is comparable to rape, assault, and other bodily violations. Yet the nonconsensual part repeatedly drops out of their discussion.
So a stated purpose of the counterexamples is to show that “pregnancy, unlike rape, is not a prima facie harm.” But McDonagh never said it was. They say they are “[a]dopting McDonagh’s understanding of pregnancy as morally equivalent to rape in assault” for their first counterexample, but McDonagh isn’t saying this at all. Part of the supposed contrast between “the traditional pro-choice position” is that position acknowledges that pregnancy could be good, whereas McDonagh turns pregnancy into rape, so it can’t be a good at all. But again, she never does this.
McDonagh is saying pregnancy can be good or bad, and the distinction turns on whether it is consensual. In the same manner, the distinction between sex (good) and rape (bad) is whether it is consensual. To be sure, she is unsparing in describing what a fetus does to a person during pregnancy. While that does illustrate the magnitude of the fetus’ assault when the pregnancy is nonconsensual, it also demonstrates the great generosity of the person who does consent to the pregnancy.
B&T’s response to McDonagh has two parts. The first part is divided into two counterexamples which are both apparently meant to be reductio ad absurdum arguments.2 In the first counterexample, B&T takes a point made by McDonagh, that a nonconsensual pregnancy is like rape and needs to be treated the same way, and attempts to show this has absurd consequences. In the second, they attempt to show that if we are treating the conceptus as a full member of the moral community, a woman cannot withdraw consent to a pregnancy when paternity is in doubt because that would substantially risk killing the wrong and therefore innocent person. Exactly what B&T are trying to do in the second part is a bit unclear, but the means they are using is clear. They are attempting to use the teleological premise that the purpose of sex is procreation to assert that consent to sex is consent to pregnancy. The strange sound you heard when I originally read the paper was me rolling my eyes and heavily groaning.
The first counterexample looks at a point McDonagh pressed about a suggestion that a pregnant person should simply wait until birth, at which time the coercive pregnancy will end. “This type of reasoning is akin to suggesting that a woman being raped should wait until the rape is over rather than stopping the rapist. Nonconsensual pregnancy, like nonconsensual sexual intercourse, is a condition that must be stopped immediately because both processes severely violate one’s bodily integrity and liberty” (11-12).3
Taking McDonagh seriously, B&T propose the following scenario:
A young woman is involved in a car accident and is rendered unconscious by her injuries. She is brought to a hospital where, still comatose, she is examined by a doctor. While performing some tests, the doctor determines that the woman has been pregnant for several weeks. Furthermore, suppose that evidence comes to light to suggest that the woman is unaware of her pregnancy—perhaps her close friends know nothing of the pregnancy, her diary shows no knowledge of being pregnant, and so on.
Given these circumstances, what is the doctor’s obligation here? B&T argue that if we follow McDonagh’s argument to its conclusion, the physician is obligated to immediately perform an abortion and tell the woman after she wakes up. In other words, since there is no good evidence the pregnancy was consensual, the doctor must assume it is not and act accordingly. But this could also wind up being a serious violation of the woman’s bodily integrity.
You may be inclined to respond, “Why not just wait until she wakes up and ask?” If so, you are not taking the situation seriously enough. If you came across a man having sex with an unconscious woman, would you wait until she wakes up to see if she consents to the sex? No, you would immediately intervene and stop the man. If nonconsensual pregnancy is akin to rape and they should be treated similarly, then the doctor is obligated to perform the abortion immediately.
McDonagh seems to be in trouble and my argument can’t sidestep the problem. Fortunately, these situations are not actually analogous and B&T’s argument is fatally flawed.
Focus on the man having sex with the unconscious woman. What makes us so sure that we should intervene now rather than wait for the woman to wake up and ask her if she consents to the sex? Because having sex with an unconscious person is by definition rape! See, for example, California Penal Code 261.
Contrast this with what is presented to the doctor. The doctor is treating an unconscious woman who happens to be pregnant. The doctor does not know whether the patient consents to the pregnancy. For all the doctor knows, the woman herself doesn’t know she is pregnant. Contra B&T, this is not good evidence consent had not been given and that she is therefore under assault. By itself, it’s not evidence of anything.
Consider a situation that is more analogous to the doctor’s case. A police officer sees that a passenger in a moving car is sleeping. The officer does not know whether the passenger is in the car voluntarily. This is a possible kidnapping situation. What is the officer’s obligation to the sleeping passenger? Should the officer immediately pull the car over and slap some cuffs on the driver until the passenger wakes so he can ask whether they are being transported consensually? Of course not! The fact the passenger is sleeping is not in itself evidence of anything.
This counterexample was intended to show that McDonagh’s argument was “ill-formed.” However, there are relevant differences in the cases that mandate they be treated differently. Since having sex with a sleeping person is by definition rape, one needs no further evidence before intervening. An unknown pregnancy is not by definition nonconsensual, so one does need further evidence before proceeding.
Moving on to B&T’s second counterexample:
Imagine if a woman were raped by her husband’s identical twin brother within five hours after having unprotected sex with her husband. Suppose that she and her husband engaged in sex for the express purpose of procreating a child. A month later she discovers that she is pregnant, but she does not know, and cannot know, if the child’s father is her husband or the rapist. Would she be justified in having the abortion? Apparently not, according to McDonagh, for there would be a 50/50 chance that she would be killing an innocent person, someone whom she consented to let live in her body.
This is wrong on so many levels that I hardly knew where to begin! We will start by saying the anonymous referee quoted by B&T is not wrong in saying that since the woman withdraws her consent now, she can have an abortion. But we will deal with this later. B&T contend that the referee missed the point, so we will continue here to show that they are just plain wrong on their own terms. The real point, according to B&T, is that the conceptus conceived with her husband “was an invited guest,” and to have an abortion now risks a 50/50 chance the woman is killing an innocent person.
The problem here is that it is impossible for the conceptus to be an invited guest. In order to be an invited guest, one must be somewhere that the host can issue the invitation. In other words, the potential guest must exist. I can’t invite Batman into my home because Batman doesn’t exist! As Judith Jarvis Thomson pointed out more fifty years ago, unborn persons aren’t floating about somewhere where a couple could say to it, “Come on in!”4
If we can’t say the prenate was invited, what can we say that preserves the original scenario as closely as possible? The closest we come is to say that preclearance was granted should the woman become pregnant. But preclearances are often conditioned by certain factors being met. Is this the case here? Let’s attend closely to the scenario.
B&T specifically stipulated that “she and her husband engaged in sex for the express purpose of procreating child.” Implicit here is that they had sex under conditions that would ensure that the husband would be the father if pregnancy resulted. Remember, the woman did not know she would be raped five hours later. Based on their actions, this would mean that the preclearance was conditioned on the certainty the husband would be the father. But since she was raped and now doesn’t know and cannot know who the father is, the conditions of the preclearance have not been met. That means she does not consent to let the conceptus live in her body, regardless of who the father actually is. She would be justified in having the abortion, even on B&T’s own terms.
At this point we need not continue with B&T’s extension of the counterexample to the possibility of executing the wrong identical triplet. That comparison depends on establishing with certainty the exact identity of the rapist, but since we’ve established the exact identity of the conceptus is irrelevant, there is no need to belabor the point.
Curiously, B&T anticipates a possible response by writing “If … McDonagh were to say … that the pregnant woman may withdraw her consent at any time…” (emphasis added). We need not wonder about this, since McDonagh outright said this:
What is more, pregnancy is an ongoing condition, defined by a series of ways in which the implanted, fertilized ovum initiates and maintains massive bodily changes in the woman. As such, it requires not just a woman’s initial consent but also her ongoing consent in tandem with the ongoing bodily changes involved. Pregnancy based on consent, therefore, does not constitute either a binding contract or a binding promise—what the law calls an estoppel by promise. (79)
In any case, B&T are reduced to complaining:
A consent that can be withdrawn at any time for any reason or for no reason—even if it results in the death of a mentally immature, rights-bearing, human being that one intentionally brought into existence and invited to be placed in a vulnerable position—is no “consent” at all. It is a will to power.
There is really only one possible response here: If so, so what? In nearly every other conceivable context, that is exactly how consent works. Just because I kiss a woman doesn’t mean I’m obliged to have intercourse with her. I can tell my employer at any time for any reason, “Take this job and shove it!” Just because I accompany a workmate toward their home doesn’t mean I’m obligated to go with them all the way. I can stop donating in the middle of a series of transfusions—even if that means the recipient will die without them. I can invite a person into my home and kick them right back out.
So saying pregnant people may withdraw their consent to pregnancy at any time, for any reason, or no reason at all is simply taking the rules that apply to everyone else and applying it to them. To say that a pregnant person must carry the pregnancy just because they initially agreed to let the prenate use their body is to say that pregnant people are not rights-bearing human beings who deserve equal treatment.
And what of the “mentally immature, rights-bearing, human being that one intentionally brought into existence?” What of it? The woman I kiss has no right to my penis. My employer has no right to my labor. My workmate has no right to my company. The sick person has no right to my blood. A guest has no right to my home. And a prenate has no right to a pregnant person’s body. That means if consent is withdrawn, the other person’s rights are not violated. To say that prenates have a right to a pregnant person’s body is to give them special rights.
This is the difference between McDonagh on the one hand and Beckwith and Thomas on the other. When McDonagh concedes the fertilized ovum is a full member of the human community with the same rights as the person carrying it, she means it. B&T don’t.
Before moving to the core of their argument that consent to sex is consent to pregnancy, we will look at a couple side issues B&T raise. B&T believe issues against McDonagh’s argument could be raised on other grounds, but they only specifically get into a couple. They try to make out a case of negligence that requires a pregnant person to carry to term. Basically, we have a duty to exercise care so that a person likely to be aborted is not created. Put in the form of a syllogism, this is how it works:
Pregnancy is a foreseeable result of unprotected sex.
The fetus is a human person.
Therefore, one has a duty to avoid creating persons when abortion is foreseeable.
First, let’s note the conclusion does not follow from the premises. Even if the premises are true, they do not constitute a duty to avoid creating persons who are likely to be aborted.
Second, even if it is true that we have a duty of care not to bring people into existence when an abortion is foreseeable,5 no case of negligence can be made from its breach. As B&T remind us, “one is liable for negligence if one (1) has a duty, (2) breached a duty, and (3) caused harm as a result of breaching the duty.” However, breaching this alleged duty results in the creation of a person whose abortion is foreseeable. No one is harmed by being created.
We can dismiss the Hand Formula on the same grounds. We don’t need to calculate the burden of preventing an unwanted pregnancy against the expected cost of an injury because, again, creation is not an injury.6
In the midst of their core argument, B&T takes a stab at refuting McDonagh’s contention that self-defense applies to abortion even though the fetus is not deliberately doing what it does by comparing it to defending oneself against an incompetent (and therefore legally nonculpable) person. They ask you to imagine locking yourself in a room with such an individual knowing with certainty the individual would attack you. Could you then claim justifiable self-defense if you kill that individual? Probably not, since in most cases you can’t provoke a fight and then claim self-defense. Similarly, by virtue of inviting the conceptus into your body, you can’t claim self-defense in having an abortion.
However, this scenario faces the same problem we saw in counterexample two. You can’t invite someone who does not exist anywhere. If I claimed I locked Batman into a room with me knowing this would trigger an attack, but I killed him in self-defense, I would not be sent to jail. I would be sent to an insane asylum.
As mentioned previously, I am uncertain what B&T are attempting to do with their consent-to-sex as consent-to-pregnancy argument. In their words, “If one can show that McDonagh’s philosophical anthropology is controversial, then the moral intuitions that are grounded in it and to which she appeals in order to make her case are not prima facie correct.” Assuming they have successfully accomplished the goal of showing McDonagh’s anthropology is controversial, I am not certain what this is supposed to mean. I can think of two things:
McDonagh’s case is not sufficient to take to court, as it were.
B&T have offered an alternative account for the reader’s consideration.
Either way, I don’t imagine they think they have actually defeated McDonagh’s argument. They concede as much when they responded to a referee by saying, “All we are trying to do is to show that McDonagh does not have a prima facie case…” (emphasis added). Unfortunately, this doesn’t clarify what B&T are trying to do.
In both law and philosophy, a prima facie case is one that establishes the argument is basically sound. Prima facie cases are usually defeasible either by presenting additional evidence or through the circumstances of a specific case.7 Prosecutors obtain indictments by proving to a grand jury that their case, if unanswered, is sufficient to establish the guilt of the accused. We have a prima facie obligation not to kill other people. However, the accused can defeat a prima facie case by presenting evidence and arguments that they are not guilty. The basic obligation not to kill other people can be overcome by the circumstances in which a person finds themselves, e.g., self-defense.
If B&T have shown McDonagh does not have a prima facie case as in sense 1, then all McDonagh needs to do is rebuild her argument so that it is stronger and try again. Perhaps such an argument would take into account the factors B&T identified.
But this doesn’t seem to be what they are doing. What they are doing is offering different evidence and arguments to show McDonagh has not proven her case. Instead of acting as grand jurors determining whether the prosecutor has enough a case to take to court, they are acting as defendants in a court case that has already begun. This would mean that McDonagh has established a prima facie case.
That leaves us with sense 2. B&T are merely trying to establish an alternative case and letting the reader decide. I myself noted that doing this has the benefit of providing interested but uncommitted third parties with clear choices. So if this is what they are trying to do, I’m not going to complain.
Yet this is not a satisfying account either. Beckwith’s history in particular militates against it. Beckwith doesn’t merely argue that abortion is immoral. He wants pregnant people to carry to term in nearly all cases, and he wants the state to legally enforce it. Merely presenting an alternative case and letting the reader decide will not accomplish this.
Indeed, I suspect B&T originally intended to offer a more full-throttled case than simply trying to show McDonagh doesn’t have a prima facie case. Their case that consent to sex is consent to pregnancy is built on the premise that the purpose of sex is procreation. Let’s take at some of the things they say:
“[I]t seems correct to say that the telos (or purpose) of reproductive organs is reproduction (i.e., pregnancy), for the sperm and ova seem designed for that very purpose.”
“Thus, to understand one’s self and one’s nature is to understand that one’s sexual organs are designed for procreation.”
“[McDonagh] maintains that it is permissible to engage in a pleasurable act whose design is to bring into existence a vulnerable, defenseless, and dependent human person….”
“[T]he mother, by virtue of the sexual act’s reproductive purpose….”
Then towards the end of the paper, they shift the goalposts and only say “procreation is part of the purpose of sexual intercourse.” Notably this happens during a discussion of a referee’s objections to their teleological argument. Apparently, the referee’s objections were substantial enough that they tempered their argument. No longer able to meet the burden of defeating McDonagh’s argument, they are now contenting themselves making a case that has a substantially lower burden.
Whichever sense they intend, once they pull back to the position that procreation is only part of the purpose of sex, their case can no longer serve either the senses discussed. In fact, their case falls apart entirely. Let me explain.
If we were to construct their case with a syllogism, it would look something like this:
The purpose of sex is procreation.
When someone consents to sex, they consent to the entire process of procreation.
Withdrawing consent after a child has been created is unconscionable.
Therefore, a person who became pregnant as a result of voluntary sex may not obtain an abortion.
This may not be a perfect representation, but it will serve the purpose. We could pick on any of the premises to show the argument is not sound, but since B&T are merely trying to show that McDonagh does not have a prima facie case, we need not actually do so at this point. Our point here is that in order for B&T to actually make that case, premise 1 absolutely, positively needs to be true. To demonstrate this, let’s change premise 1 and see what happens.
1a. Part of the purpose of sex is procreation.
Changing the premise this way renders the entire argument invalid. If procreation is only part of the purpose of sex, there is no longer any reason to believe that by consenting to sex, a person is consenting to procreation. In other words, if procreation is only part of the purpose of sex, then sex and pregnancy are severable—the very point McDonagh is making. Once severed, the idea that consent to sex does not mean consent to pregnancy has a solid foundational basis.8
Likewise, if procreation is only part of the purpose of sex, the argument can no longer serve as an alternative explanation for maintaining that consent to sex is consent to pregnancy. To serve as a fully fledged alternative to McDonagh’s anthropology, sex and pregnancy need to be so firmly connected that it can reasonably be said that consent to one is consent to the other. But if procreation is only part of, as opposed to the purpose of sex, the solid connection between sex and pregnancy is lost.
As part of their argument that McDonagh does not have a prima facie case, B&T try to put McDonagh in the horns of a dilemma. On one hand, McDonagh cannot deny things have a natural purpose, since that would undermine her argument that humans have natural rights. On the other, once teleology is admitted to the discussion, she can’t deny the belief that sex is part of pregnancy is at least as well grounded as her own.
I am unclear about how this is supposed to help their argument. B&T are ostensibly arguing against McDonagh’s contention that consent to sex is not consent to pregnancy. As such, whether sex is part of pregnancy seems irrelevant. McDonagh is not denying that sex and pregnancy are connected; she is arguing that they are not connected in such a way that consent to one entails consent to the other. Up until this point in their argument, B&T were arguing that sex and pregnancy are so firmly connected that consent to one entails consent to the other. This part of the argument seems to come out of left field.
Regardless, we’ll go ahead and grant this dilemma somehow rebuts McDonagh’s contention that consent to sex is not consent to pregnancy. We will go even further and grant they have successfully painted McDonagh into a corner.
We can be so generous because it is easy to cut through the Gordian knot B&T think they have tied: deny premise 1. As we’ve already shown, the ability to deny McDonagh has a prima facie case absolutely, positively depends on premise 1 being true. Even retreating to the position that procreation is only part of the purpose of sex is enough to make their case collapse. If premise 1 simply isn’t true, then McDonagh can simultaneously admit teleology and deny their case is at least as well grounded as her own.
It would be all too easy to focus on B&T’s repetitive use of the word design in their argument. Design implies at least one designer and we could simply demand B&T produce the designer(s) so the purpose of the design can be explained. That would clarify the issue once and for all. But that would be grossly unfair.
Instead, what we are going to do is look at the human species as it is. It makes sense to say that the purpose of sex for many animals is procreation because these animals only have sex when the female is in season. Nonsocial animals meet, mate, and go their separate ways.
Humans are not like this. They have evolved away from the estrus cycle entirely. Among other things, this means humans have sex even when it is unlikely pregnancy will result. Worse from the standpoint of procreation, humans have evolved to the point where even females themselves usually can’t tell when they are ovulating. This means that if a couple were trying to achieve pregnancy, they can’t tell on their own when the optimal time to achieve the 10% chance9 they’ll actually succeed is.
If the purpose of human sex is procreation, then nature has an insane way of showing it. Forget about sex when one partner is already pregnant, homosexual sex, oral sex, anal sex, masturbation or any number of human sexual practices that can’t possibly result in procreation. Just focusing on vaginal intercourse, the physiology of human sex can only ensure an enormous amount of waste in terms of time, energy, and resources.
Consider human breasts. Humans are the only known species to have permanent breasts. Breasts are a locus of the human sexual response, both in terms of attracting mates and in sexual activity itself. Breast play, oral and manual, is a common part of sexual activity. Breasts undergo various changes during sexual arousal, and nipple sensations are sent to the same area of the brain as sensations from the clitoris, vagina, and cervix. Some of those who possess them report having orgasms from nipple stimulation alone. It would be fair to say the human breasts serves the dual purposes of mammary gland and sex organ. This is totally unnecessary when it comes to reproduction.
And for the pièce de résistance, consider the human clitoris. As far as we can tell, the sole function of the human clitoris is to enable sexual pleasure. It literally does nothing else. All it does is sit there, waiting to be stimulated in order to give its possessor intense pleasure. Think about this: In the human clitoris, we have a fully fledged, honest to God sex organ that does absolutely nothing for reproduction. As I’m sure many people who have been pregnant can remind us, it is utterly irrelevant that the female feel pleasure for reproduction to take place.
If there is any one single piece of evidence that shows the purpose of human sex is not procreation, the clit is it.
We could of course point to other problems with B&T’s philosophical anthropology. However, that is not necessary for our purpose. We only need to show that McDonagh could get out of the dilemma B&T thought they had her in. We have done that.
Beckwith and Thomas are trying to establish that McDonagh’s argument is problematic, if not wrong. Even at this lower standard, they have failed. Their counterexamples are fatally flawed, the first because it makes an inapt comparison, and the second because it asserts an impossibility. Their effort to show McDonagh does not have a prima facie case that consent to sex does not entail consent to pregnancy also falls short. It requires their first and most basic premise to be true, and that premise turns out to be false.
NOTES
1(New York: Oxford University Press, 1996).
2I say apparently because the first counterexample is clearly a reductio, attempting to take one of McDonagh’s contentions to the point of absurdity to demonstrate her principle is wrong. The second counterexample does not have the same form. However, both are meant to show McDonagh’s arguments have undesirable implications for “the traditional pro-choice position.”
3See my somewhat more sarcastic response to a similar argument.
4“A Defense of Abortion,” in Rights, Restitution, & Risk: Essays in Moral Theory. Ed by William Parent. (Cambridge: Harvard UP, 1986), 11.
5As a sidenote, one wonders how anyone could possibly bring into existence a person whose death from abortion is foreseeable. Outside of IVF methods (and even then conception is not guaranteed), all one can do is have unprotected sex in an attempt to create such a person. But having unprotected sex is not sufficient to create a person. Furthermore, having an abortion is a decision one makes subsequent to becoming pregnant. If one doesn’t foresee becoming pregnant, one can’t foresee they are going to abort. The closest we could come is to say that a person can take a risk of becoming pregnant intending to have an abortion if it actually happens. However, since the actual decision to have an abortion is subsequent to actually becoming pregnant, there is still an opportunity to change one’s mind, meaning death from abortion is not foreseeable in any meaningful way.
6For a more fully developed explication, see Ann Garry’s “Abortion: Models of Responsibility.”
7This description is somewhat oversimplified.
8As a sidenote, if procreation is only a purpose of sex, then a similar argument can be made against the so-called perverted faculty argument.
9Foster, Diana Greene. The Turnaway Study: Ten Years, a Thousand Women, and the Consequences of Having—or Being Denied—an Abortion (p. 52). Scribner. Kindle Edition.
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