Judith Jarvis Thomson’s “A Defense of Abortion” is the seminal essay on abortion. Whatever your position on abortion, no one can reasonably argue about it without having some familiarity with this essay. Personally speaking, this was the essay that made me truly understand what is meant by “my body, my choice.” Before reading this essay, I accepted the saying without truly understanding what it meant. I’ve been pro-choice since I first heard there was such a thing as abortion and that there was a massive political debate about it. I was around thirteen years old at the time, and it was my first instinct to side with women in the supposed conflict between their rights and the fetus’ rights. As I would have put it in those days, I can point at a woman; I can’t point at a fetus without a woman getting in the way. It was a somewhat simplistic way of looking at it. At that time I did not have the knowledge I needed to adjudicate the rights claimed for both women and fetuses. Thomson’s essay gave me the knowledge I needed and I haven’t looked back since.
However, it was not a matter of accepting Thomson’s argument because her essay adhered to my already existing bias in favor of women. I thought her argument was so devastating that I searched out counterarguments. The counterarguments did not have to convince me that Thomson was wrong, per se. They only needed to convince me that her resolution of that conflict didn’t fully solve the issue. This would have thrown me back to the fact I could point at a woman and not a fetus, while still acknowledging a genuine conflict was going on.
But none of the counterarguments could even do this much. Not that they tried. But even Beckwith, who I thought of as the premier voice of the anti-abortion movement, couldn’t touch her. So, whereas once upon a time I could have flipped to the pro-slavery side of the abortion debate, it has since became so unlikely that I wound up getting a pro-choice tattoo:
So if Thomson’s argument was so brilliant and so decisive, why did I write “Why Abortion is Permissible”?1 Obviously I wouldn’t have taken the time and trouble I didn’t at least think I could improve on what she wrote (not to mention all the other pro-choice works I had read to that point). Also, there were some ways that my thinking about abortion evolved beyond Thomson while I was heavily debating the topic in various Internet forums. However, none of that means that I think Thomson’s essay is necessarily flawed. The slavers still have not managed to decisively defeat Thomson’s basic argument more than fifty years after its initial publication. That alone says something about the strength of the essay.
Moreover, my essay benefited from fifty years of people throwing shit at it to see what sticks. I don’t think any of it does, but when I wrote “Why Abortion is Permissible,” one of my goals was to construct an argument that would be immune to the criticisms hurled at Thomson. Object to the weirdness of the violinist scenario? Unfortunately, there is nothing weird or fantastic about rape, kidnapping, and slavery. Hold to the intending vs. foreseeing objection? My argument holds that (within certain limits) even if the death of the fetus is intended, it would still be permissible. Like Thomson, I don’t think that the distinction between direct and indirect killing makes a moral difference. If you feel that way, my argument makes the case that even if abortion is direct killing, it is still permissible.
In short, my essay stands on top of Thomson’s, and would not be possible without it. My argument shifts more to a self-defense model in contrast to Thomson’s right-to-refuse model. Even so, my argument is still rooted in her basic insight that one cannot use a person’s body without consent—even for life itself.
Since writing “Why Abortion is Permissible,” the argument I presented there has been the basis of almost everything else I’ve written on the topic. And I will admit that I derived a certain satisfaction when I could show that standard anti-Thomson arguments won’t fly against my argument.
A few years ago, I learned that Thomson had died. I wondered how well Thomson’s arguments still stood on their own terms. So I pursued anti-Thomson arguments and defended them as much as possible on Thomsonian terms while holding my argument as a backup. I found that I rarely had to use the backup. In fact, I’ve found that more often than not, I could defend Thomson’s work on her terms precisely because her opponents ignored what she said. Mind you, what she had to say may or may not be the best or strongest argument about a given objection. Even pro-choice philosophers have found some of her arguments inadequate if not outright flawed. The problem is that slavers ignore what she said entirely. You can see examples in my responses to Wagner and Lu.
Typically, the anti-Thomson argument focuses on the violinist scenario. They will make their argument that abortion is disanalogous to the violinist scenario for reasons X, Y, or Z. But they ignore the fact that Thomson had something to say about counterarguments X, Y, and Z. In these cases, all I have to do is point out what she did say about those counterarguments. I don’t even have to agree with those arguments (though I usually do). The point is that she said something about it, and ignoring what she said means, at best, the slaver’s argument is intellectually questionable.
In some cases, this might plausibly be attributed to ignorance. If all you’ve heard about Thomson’s argument is the violinist scenario, you may well think pointing out disanalogies is enough to defeat the argument. But let’s face it, Thomson’s essay has been easily accessible on the Internet since at least the 1990s when I first encountered it. To be ignorant of what Thomson said about counterarguments X, Y, and Z is to be willfully ignorant and says you really have nothing to say about her argument. If you know she said something about your argument and fail to address it, then you are just plain dishonest.
This brings me to the so-called Responsibility Argument. I have already done a post on the Responsibility Argument, but I’ve never been totally satisfied with it. Indeed, even after this post, I probably will still have more to say about it. But for this post, I want to focus on Thomson’s remarks about it. A fairly common argument against the violinist scenario is that, while it might apply to cases of rape, it does not apply in cases where the pregnant person had voluntarily engaged in sexual intercourse.
There are some who take the violinist scenario to justify the rape exception, while holding to the Responsibility Argument in all other cases. And they might even cite Thomson herself in this respect. “Can those who oppose abortion on the ground I mentioned make an exception for a pregnancy due to rape? Certainly.”
But Thomson does not really give you that option. If you only take the violinist scenario to justify the rape exception, then you are fundamentally missing the point. The point of the violinist example is not to justify the rape exception (though it does that). The point is to bring out the problem of the entire anti-abortion argument. And the problem with the anti-abortion argument is that the right to life does not grant anyone the right to use someone’s body to keep themselves alive.
Those who oppose the rape exception grasp this point. So, for example, Wagner and Lu argue against the rape exception. It is not just a matter of being particularly cruel (though they are). It’s a matter of realizing that the rape exception cracks open the entire anti-abortion argument. In my case against Wagner, I argued that if we could defeat his argument before the “this looks a lot like pregnancy” stage, we’ve defeated his entire argument. Similarly, if the slaver can stop the rape exception, they have defeated Thomson’s argument.
Thus, the Responsibility argument can only come into play if the rape exception is granted.2 Thomson herself notes this:
But it might be argued that there are other ways one can have acquired the right to use of another person’s body than by having been invited to use it by that person. Suppose a woman voluntarily indulges in intercourse, knowing of the chance it will issue in pregnancy, and then she does become pregnant; is she not in part responsible for the presence, in fact the very existence, of the unborn person inside her? No doubt she did not invite it in. But doesn’t her partial responsibility for its being there itself give it a right to the use of her body? If so, then her aborting it would be more like the boy’s taking away the chocolates, and less like your unplugging yourself from the violinist—doing so would be depriving it of what it does have a right to, and thus would be doing it an injustice.
…
On the other hand, this argument would give the unborn person a right to its mother’s body only if her pregnancy resulted from a voluntary act, undertaken in full knowledge of the chance a pregnancy might result from it. It would leave out entirely the unborn person whose existence is due to rape. Pending the availability of some further argument, then, we would be left with the conclusion that unborn persons whose existence is due to rape have no right to the use of their mothers’ bodies, and thus that aborting them is not depriving of anything they have a right to and hence is not unjust killing.
Then follows a series of arguments that ultimately Boonin finds unsatisfactory.3 It strikes me that when pro-choice philosophers identify inadequate arguments Thomson made, they fail to appreciate how radically new Thomson’s argument was even when they note it. It must be remembered that when Thomson’s article was published, the abortion debate centered almost solely around whether the fetus was a person that had the right to life. If the fetus had the right to life, then the abortion argument was effectively over. Indeed, even today most slavers and even some pro-choice philosophers argue as if the abortion issue should be decided solely on the personhood of the fetus. Thomson was changing the basis of the debate entirely. Expecting her to have anticipated and responded adequately to all the shit that would be thrown against her thesis would be too much to expect of anyone in her position.
Indeed, the only reason Thomson said anything at all about the Responsibility Argument is because of responses to earlier presentations of her argument before her paper was published. And the first thing she said was “that it is something new.” It wasn’t something she anticipated when she first formulated her argument. She would have had very little idea how the Responsibility Argument would develop, and thus could only speak to it in relatively general terms. In the past, I myself thought she was merely content to muddy the waters as it were. But the more I thought about it, the more I came to realize I was wrong. Thomson was not trying to muddy the waters. She was throwing down a gauntlet. And it’s a gauntlet the slavers have refused to take up ever since. She was basically saying that we can discuss a person’s responsibility in becoming pregnant, but it needs to be a reasonable discussion. Here are the parameters.
Thomson’s response to the Responsibility Argument comes in two parts. In the first part, she writes, “And we should also notice that it is not at all plain that this argument really does go even as far as it purports to. For there are cases and cases, and the details make a difference.” She argues that if you open a window to let some air in, it would be absurd to say that this gives a burglar the right to be in your home—even if you open the window in full knowledge of the fact that burglars exist and are liable to enter your house through an open window. And it would even be more absurd to say that the burglar has a right to your home if you had bars installed on the windows and the burglar got in because of a defect.4 And it would remain absurd to say an innocent person who blunders into your home has a right to be there because you opened the window.
You might look at this and echo Lt. Elliott in Knives Out: Weak sauce. I am sure it is all too easy to come up with alternative cases where someone does something that leads to someone else having a bona fide claim to your care. Admittedly, this is the reason I thought Thomson was contenting herself with muddying the waters of the Responsibility Argument. Sure, there are cases, and then there are cases. But the problem for the person arguing the Responsibility Argument is not coming up with alternate cases. The problem is that they also have to show what they’re proposing is more like a person having intercourse knowing they might become pregnant, with or without using precautions, than Thomson’s burglar example. That’s not so easy, and partly explains why many of the alternative cases that are offered rely on some form of strict liability. However, Thomson excludes strict liability in the second part with her people seeds analogy and with the argumentum ad abusrdum that even those who have been raped could be held responsible for their pregnancy because they could have gotten a hysterectomy or never left home “without a (reliable!) army.”
Why does the Responsibility Argument almost always come down to some form of strict liability? As Ann Garry pointed out, it is the only model that “has the scope deemed appropriate by many opponents of abortion.” Someone pressing the case that voluntary sex creates the obligation to carry any resulting pregnancy to term needs to be able to accomplish two things. First, they need to explain exactly how having sex creates the obligation. Second, the explanation needs to cover everything except outright rape. Only strict liability models can do this.
Models that rely on some sort of fault cannot cover the scope necessary for the typical anti-abortion proponent. Setting aside all the other problems associated with fault models, they simply can’t cover all the cases the abortion opponent wants to include. For example, it is difficult if not impossible to argue people properly using birth control are being negligent or reckless. Few people who deliberately conceive subsequently seek abortions except for reasons that are more generally found permissible, such as endangerment of the pregnant person’s life or health. So even if it were granted that a person who deliberately conceived has an obligation to carry the pregnancy to term under normal conditions, it would cover far too few cases to satisfy abortion opponents.
With some form of strict liability, all that really matters is the pregnant person consented to sex. The precautions the person takes does not matter. Factors that would otherwise mitigate or absolve a person in a fault model, such as birth control sabotage, do not matter. With some forms of strict liability, one need not even know there is a connection between sex and pregnancy.
Using a strict liability standard has its own problems, but I am going to focus here on just one. Strict liability leaves uterus bearers with only a few ways of escaping the loss of their bodily rights: complete abstinence or having a hysterectomy or bilateral oophorectomy. This is a steep price to pay. No one else under any circumstances would ever have to pay such a high price to avoid losing a fundamental right. That abortion opponents pressing the Responsibility Argument are so willing to impose that price speaks volumes about what they really want—to control the lives of people with uteruses.
NOTES
1I developed the argument presented in that essay through several years of online debate about abortion in various forums. As I mentioned in the essay, my reading on the topic was not comprehensive. Some time after writing that essay, I found references to and finally obtained a copy of Eileen L. McDonagh’s Breaking the Abortion Deadlock: From Choice to Consent (New York: Oxford University Press, 1996). McDonagh’s book-length treatment contains far more detail than my essay, but her central point is the same: in an unwanted pregnancy, the fetus is the aggressor and abortion can be seen as an act of self-defense. So my essay should not be seen as completely original. That we came to a similar argument independently speaks to the strength of McDonagh’s argument.
2I have encountered slavers who oppose the rape exception yet also push some variation of the Responsibility Argument. While arguing any version of the Responsibility Argument amounts to slut-shaming, when done by those who oppose abortion even in cases of rape, the slut-shaming is especially egregious. Here is the question I would pose to those who oppose abortion in cases of rape yet still want to push the Responsibility Argument: If you don’t care how the person became pregnant, why should I? If you oppose abortion in cases of rape, you simply have nothing to say about any supposed responsibility a pregnant person has about their situation.
3David Boonin, A Defense of Abortion (New York: Cambridge University Press), 150-152.
4This is an obvious analogy to using contraception. Occasionally, a slaver brings up the point that if a person doesn’t want to get pregnant, they can use birth control. I immediately ask if they allow abortions in cases where birth control fails. To a person, the slaver says no. This raises the same kind of question as in note 2: If the use of birth control doesn’t matter to you, why should it matter to me?
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