Appreciating Judith Jarvis Thomson: Revisiting the Responsibility Argument

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?

Deserted Islands and Snowed-in Cabins, Oh My: The De Facto Guardian

Stop me if you’ve heard this one before. Through no fault of your own, you find yourself stuck on a deserted island or in a snowed-in cabin with an infant. You are not the infant’s legal guardian. Do you have any obligation to feed the infant? If you say yes, then you have just shown that a pregnant person is obligated to carry the pregnancy even in cases of rape.

If your immediate response is “Wait a minute here!” you are not alone. If this is not your immediate reaction, it should be. The basic scenario falls apart at the slightest touch. Merely feeding an infant is nothing like pregnancy with the attendant symptoms and side effects and an infant doesn’t take nutrition directly from a person’s body. The deserted island scenario is so unlike pregnancy, let alone pregnancy resulting from rape, that it is a wonder this scenario and others like it are a favorite among the slavers.

But what if a scenario like this can worked into something that fairly closely resembles a pregnancy caused by rape? Could the scenario be so easily defeated then? Enter “De Facto Guardian and Abortion: A Response to the Strongest Violinist” by Stephen Wagner. Wagner is writing for some slavers called the “Justice for All Philosophy Team,” so this paper is the result of a group project. Wagner is building on previous versions of the snowed-in cabin story proposed by Francis Beckwith and Rich Poupard. So “De Facto Guardian” is probably about as strong a version of this scenario as we are going to get.

The violinist of the title is a reference to the famous analogy proposed by Judith Jarvis Thomson in her “A Defense of Abortion.” The “strongest” violinist probably references the fact that it is widely acknowledged that Thomson’s analogy has its clearest application to pregnancies resulting from rape. Wagner and his team are especially concerned with her argument, and this paper is trying to refute it. So “De Facto Guardian” is best read as a response to Thomson. Though I don’t believe their response successfully refutes Thomson, assuming they do, it remains to be seen if and how their arguments might affect other attempts to show abortion is permissible, including my own.

The basic strategy of Wagner’s argument is take things step-by-step. The initial story hardly resembles pregnancy at all, let alone pregnancy caused by rape. The object is to see if the person has any moral obligation to act at this stage. If so, then we proceed to the next step to see if that obligation still holds. If so, we proceed to the next step, and so on until we have arrived at the point the scenario most closely resembles pregnancy. Wagner goes even further and ponders whether the obligation holds even in cases where the scenario is actually worse than pregnancy.

This means we are faced with a two-fold question by Wagner’s argument. The first question is, “Does someone have a moral obligation in this scenario?” The second question is how far that obligation, if any, extends given how onerous the conditions become. This means that if we can definitively answer there is no moral obligation in the first place, we need not consider how burdensome the conditions are. However, even if we do allow there is a moral obligation in the basic case, if we can definitively answer the conditions have become so taxing that the obligation no longer holds, we are justified in stopping at that point. If this point falls short of the scenario most closely resembling pregnancy, then Wagner’s argument fails. By parity of reasoning, the person who becomes pregnant as a result of rape is not obligated to carry the pregnancy to term.

 

The Basic Story

Mary, who gave birth a week ago, wakes up one morning and discovers she is in a cabin that has been snowed in. She finds a note telling her that she is stuck in the cabin for six weeks, that both she and her child are safe, and there is plenty of food. She searches the cabin and discovers a week-old infant, but it is not her child. She also discovers there is enough formula to feed an infant for three months, along with “a huge store of food and a ready source of water.”

Six weeks later, the police show up and rescue her. They inform her that her kidnappers were some behavior psychologists from the local university and ask if anyone else is in the cabin. Mary answers, “There was.”

Concerned, the police search the cabin and find the body of the infant. It is determined the infant died from starvation. The infant formula was not touched.

The question before us is whether Mary did something wrong here. Specifically, did she have an obligation to feed the infant while they were stuck in the cabin?

Wagner takes it as a given that Mary was wrong to let the infant starve. On the initial reading, I suspect most people would think letting the child starve was morally outrageous. Absent justification or excuse then, it would seem that Mary was obligated to feed the child and did something seriously wrong by letting it starve. But once the emotional reaction subsides and we think about this scenario more rationally, should we think Mary was obligated to feed the infant? No. Why not? Because Mary clearly would have been justified in leaving the cabin even at the risk of letting the infant starve.

If this seems like a radical idea, let’s think this through. Mary was definitely kidnapped; possibly the infant was also. She had no assurance other than the note that she would be freed at all. The note insinuated her child was with her in the cabin; that was a lie. And a “huge” supply of food and a three-month store of infant formula? For what was only supposed to be a six-week captivity? Mary may not have known exactly what was going on, but it would be reasonable for her to have suspected she would not be freed in six weeks, if at all. Presumably only the kidnappers knew where she was and anyone who tried finding her would not have known where to begin looking. Finally, she did have an obligation to find out what happened to her own child.

Furthermore, if Mary did try to escape, it would not have been prudent to take the infant with her. Not only would the child have hindered her chances of successful escape, taking it with her would have only put the infant in further danger. If she successfully escaped, hopefully the authorities could be directed back to the cabin in time to keep the child from starving. If not, then for all Mary knows, both she and the infant were going to die anyway, so either way the child would not be any worse off.

Now let’s turn back to the question of whether Mary was obligated to feed the infant. Since Mary was not morally obligated to stay in the cabin, there is no reasonable case Mary was obligated to feed the infant, for whom, after all, Mary had no responsibility.

We haven’t gotten anywhere even remotely resembling pregnancy, and it seems we have stopped Wagner’s strategy before it has even started. It would be tempting to rest our laurels here and move on to considering less absurd slaver arguments. But let’s not be so hasty here. After all, the scenario can be modified so that Mary and the infant are placed in a situation that precludes any practical means of escape. Examples might include a deserted island, a deep sea base, or a space capsule.

Would so modifying the scenario change anything? Perhaps, but our basic insight that Mary was justified in leaving the cabin still holds. Even if Mary couldn’t escape for all practical purposes, she would have still been justified in doing anything that would have allowed her to escape had the opportunity presented itself, even if it risks the infant’s death.

Under the modified scenario, was Mary obligated to feed the infant? No doubt Wagner would say she was. I highly suspect most people would agree on the initial reading. Subject to the above provision, I’m also inclined to agree Mary was obligated. And once the emotional reaction subsides, there doesn’t seem to be a reasonable case that Mary was not obligated to feed the infant. So, unless someone presents a reasonable case that Mary was not obligated to feed the infant (in which case I will rewrite this entire essay), I will take it as a given that our intuition in this case is justified. In other words, subject to the above provision, Mary was obligated to feed the infant in our modified scenario.

We are in basic agreement with Wagner in the “formula” case in section Ib, though in our case, this is subject to the provision that she was justified in trying to escape. We disagree sharply with Wagner in the “no formula” case of section Ic. It seems to me that the fact of an obligation is severable from the scope of the obligation. Unless we wish to be perfect, the obligation to give to the poor does not extend to giving so much we no longer have enough to live on.¹ This means we can set aside the discussion of where the obligation no longer holds because it is too taxing for the time being. So at this point, I am going to skip ahead to Wagner’s discussion of why Mary was obligated to feed the infant.

Whence Mary’s Obligation?

Saying Mary did something wrong and explaining why it was wrong are two entirely different matters. Mary had no special obligation to the child. She was not the child’s parent. She did not agree to take care of it. So the infant didn’t seem to have a right against Mary that she should feed it. We are in agreement with Wagner on these points and that they don’t seem relevant.

We are in substantial agreement that the mode of killing also doesn’t seem relevant. I would disagree about the severity of letting the infant starve vs. slitting it’s throat. I have grave reservations about whether there is a significant moral difference between killing and letting die, so I would not necessarily agree that slitting the infant’s throat would actually be worse. In fact, I would contend that if Mary refuses² to feed the child, she may as well slit its throat. That, at least, would be more merciful. But at this point of the discussion, the distinction, if any, does not make a difference.

Particularly when it comes to the “formula” case, there is another factor Wagner does not mention but we can be fairly certain he would agree is not morally relevant. That factor is Mary’s sex. In the “formula” case, if we switched Mary out and put Peter in her place, I think we would agree Peter would have also been obligated to feed the infant.

Wagner proposes three facts about this case that may help us explain why Mary is obligated to feed the child:

1. Mary was the only one directly available.

2. Mary could help.

3. Only basic physical needs were required.

Again, we are in substantial agreement that if we changed any one of these facts, Mary’s obligation was less certain. If Mary wasn’t the only one available, it isn’t clear what her specific obligation would be. If for some reason Mary was unable to help, her obligation certainly would not be clear.³ I agree with Wagner’s statement that, had the child’s needs gone beyond basic physical necessities, then Mary’s obligations would have been less clear. But for reasons that will be made clear below, I’m not sure he agrees with that statement.

I would add a fourth fact about the “formula” case that helps explain why Mary is obligated to feed the child:

4. Given the circumstances, feeding the child was not a significant imposition.

This is the part where we are going to have controversy with Wagner. But strictly considering the “formula” case, that feeding the child was not a significant imposition is surely part of the reason we think Mary did something wrong. If you see someone drowning and there is an available rope, you would be morally criticized for not throwing him a line. But unless you are a trained and practicing lifeguard, you are not obligated to jump in after him. This is why if you do, you would be regarded as a hero. Again, if you stop at a convenience store on your way to work, and you see someone slip, you would be morally criticized if you did not at least call the paramedics if she is injured. But you are not obligated to drop everything and take her to the hospital yourself. This is why if you do, you would be regarded as a good Samaritan. And if throwing the line or checking on the person itself imposes a significant imposition, even the moral criticism is muted.

In Mary’s case, she was not going anywhere, whether because she couldn’t or she chose not to. Even though she retained the right to escape had the opportunity arose, feeding the infant in the modified “formula” case probably would not have detracted from her ability to escape. She was going to have to eat herself anyway. For at least six weeks, she had nothing but time. Finally and perhaps crucially, in this case, the supplies were already provided.⁴ There didn’t seem to be any good reason not to feed the infant, and this surely contributes to our sense Mary did something wrong by allowing the child to starve.

Assessing the factors that make us think Mary did something wrong doesn’t actually explain why we think she was wrong. But these facts can help us to build a theory that would explain the why. Wagner proposes the concept of the de facto guardian (DFG) to explain facts 1-3. This concept is not to be confused with the legal concept of de facto guardianship as it exists in some jurisdictions, though if Wagner’s concept holds and is legally implemented, it would replace the legal concept as it now exists.

These are the essentials of DFG:

• If for any reason one finds themselves in a situation that a child needs care, and that person is the only one available to help, that person has “the same obligations of a parent or guardian” (italics Wagner’s).

• The person’s lack of consent to care for the child is irrelevant.

• Only a threat to the person’s life can potentially change the obligation.

Wagner is unclear whether the time period involved is relevant in determining the scope of the obligation. Certainly the six week period of Mary’s case is covered, which seems fairly reasonable. Wagner asserts without argument that a de facto guardian’s obligation covers Mary’s case even if she were stuck in the cabin for two years. He never explicitly states exactly how long the period the DFG obligation lasts. But given his contention that only a threat to the person’s life may change the obligation, the time period could last until the infant has grown into an adult without contradicting Wagner’s theory.

This would seem to go far beyond what our intuition tells us about this case. Six weeks given that Mary wasn’t going anywhere and couldn’t fulfill whatever other obligations she may had anyway? Sure. Two years? Possibly it can be stretched that long, but crucially Wagner would have to make an actual argument, not simply assert it. Eighteen years? Unless Mary had done something wrong commensurate to that level of obligation, there is just no way to justify that.

Moreover, if only a threat to the person’s life may potentially change the obligation, then the DFG obligation is actually greater than the actual parent’s obligations. For example, a parent is not obligated to give blood to their children, even though a simple blood transfusion hardly constitutes a threat to most people's lives.

In Mary’s specific case, the stipulation that only a threat to the person’s life can potentially change the obligation conflicts with the fact Mary would have been justified in leaving the cabin in the original scenario and doing anything that would have allowed her to escape should the opportunity arise in the modified scenario, even at the risk that the child will die. DFG would suggest that it would be impermissible to take that risk. But this would also contradict the premise the de facto guardian has the same obligations as a parent, since, as we shall see, even if Mary were the infant’s parent, she would still be justified in leaving the cabin or doing anything that would allow her to escape.

Also, if the de facto guardian has the same obligations as a parent, then the obligation extends beyond mere physical needs. In the “formula” case, we may be agreed Mary should have fed the child, but even Wagner himself did not say Mary had to show infant affection, play with it, and so on. But this is arguably part of a parent’s obligations, which are not solely limited to providing for its physical needs. Parenting also involves training the child to be a functioning member of society. If Mary was indeed stuck in the cabin for two years, does her obligation extend to potty training the child? What about teaching it to walk and talk? DFG would suggest that Mary’s obligation does extend this far. But this probably goes far beyond what our intuition tells us about this case.

Finally, DFG potentially places anyone who has a random encounter with a child under (at least) the same obligations of a parent. This raises the question of why we would assign the position of parent to anyone at all. Being a parent means having special obligations towards specific children. If DFG holds, every adult has those otherwise special obligations to every child. Whence parenting then?

However, let’s assume for the time being that Wagner’s de facto guardian can be fixed so that it can account for Mary’s obligation to feed the child without posing these problems. We can rightly ask whether this is the only theory that would account for our intuition that Mary should have fed the child. And as it so happens, not only is there at least one other theory, it was proposed by Thomson herself. Her concept of the Minimally Decent Samaritan (MDS) has the potential to explain Mary’s case at least as well as the de facto guardian concept.⁵

Thomson’s Minimally Decent Samaritan concept proposes that if it would be morally indecent to not help a person in need, we are obligated to help that person. This is true even if, strictly speaking, that person does not have a right to your assistance. However, the scope of that obligation is limited, both in terms of severity and time. MDS does not apply when assisting another person requires significant sacrifices of your total well-being. MDS also does not apply when the assistance would require a large sacrifice of time.

Now that we have an alternative theory, we can now ask which theory better explains Mary’s case. Here we see that MDS has far more explanatory power than DFG. Both MDS and DFG can explain why the fact Mary was the only one available is relevant and explain why her obligation would have been less apparent if there are many people. Both would also explain why Mary’s ability or lack thereof is a factor.

When we turn to the consideration that only physical needs are required, MDS can explain why we need only concern ourselves with physical needs that can be readily met. Training a child to be a functioning member of society involves a significant amount of time and resources and includes sacrificing many other interests and concerns. In Mary’s specific case, the time and resources spent on training a child to be a functioning member of society would have detracted from trying to escape if she could. As we’ve already seen, DFG as presented by Wagner is unclear whether whether the obligation is limited to physical needs that can be readily met and would even suggest those obligations take precedence over Mary’s interest in escaping.

Finally, MDS explains why the fact that feeding the child would not have been a significant imposition plays a role in our sense that Mary should have fed the infant, while also explaining why our sense that the obligation becomes less clear the more significant the imposition becomes. If the formula weren’t already supplied, or if preparing the formula required a long arduous process, or if feeding the child would in fact detract from her ability to escape, or if we were talking about eighteen years, or given any number of possible ifs, our sense of Mary’s obligation becomes less clear, and MDS can explain that.

In contrast, DFG says no imposition short of the threat of death can release Mary. Wagner in effect is saying that our sense that the severity of the imposition (short of death) has a role to play in our judgment is simply wrong; we have to bite the bullet here. However, Wagner gives us no reason to believe we should bite this bullet, let alone that we must do so. We are expected to bite the bullet simply on his say so. Perhaps he is right. If so, that still requires an argument.

Minimally Decent Samaritanism can also explain cases where our intuition says someone has done something wrong that the de facto guardian can’t explain.

We’ve already experimented with exchanging Mary for Peter and concluded Mary’s sex is not relevant to our sense of outrage. What happens if we exchange the infant for an adult who is disabled in such a way they cannot feed themselves? I’d imagine we would still feel morally outraged, that Mary should not have let this person starve. This would suggest the infant’s age or stage of development is not in itself a relevant factor.⁶ With its specialized concern for children, DFG to this point does not explain why Mary would be obligated to feed the disabled adult. MDS can explain this.

Let’s look at some other cases, drawn from both this essay and Thomson’s “Defense.”

• MDS explains why we can be morally criticized for not throwing an available line to a drowning person. DFG would only explain it if the drowning person were a child.

• MDS explains why should call the paramedics if we someone slip and seriously injure themselves. DFG would only explain it if the injured person were a child.

• MDS explains why we ought to allow Thomson’s violinist to stay plugged into you if doing so only requires an hour and does not threaten your health. DFG would only explain it if the violinist were a child.

• MDS explains why Henry Fonda should briefly touch Thomson’s brow to save her life if he need only walk across the room. DFG would only explain it if Thomson were a child.

• If the legend surrounding the Kitty Genovese case were true, MDS would explain why someone should have called the police.⁷ DFG would only explain it if Genovese were a child.

Given the greater explanatory power of MDS, we conclude that it is a better explanation for Mary’s case than DFG. As we turn to examine the “no formula” case, we would be justified in using MDS as the primary theory to judge whether Mary’s obligation extends to breastfeeding the infant. But just in case DFG can be fixed, we will also look at this case through the first premise of the theory, that the de facto guardian has the same obligations as a parent.⁸

The “No Formula” Case

We rejected the conclusion Mary was obligated to feed the infant in the initial story Wagner proposed and offered a good justification for that rejection. But if the story is properly modified, we can agree that Mary did something wrong by letting the child starve. We also found substantial though not perfect agreement about the facts that make us think Mary was wrong to let the infant starve. We then considered Wagner’s de facto guardian theory and found it lacking, especially in comparison to Thomson’s Minimally Decent Samaritanism. We have, however, agreed to consider the premise that Mary has the same obligations toward the strange child as she would have toward her own child for the sake of argument.

Wagner may not be entirely happy with this, but presumably there is still enough here for him to move on to the next step of his strategy. After all, the bottom line is that we are agreed that Mary was obligated to feed the infant in the “formula” case.

Now, Wagner asks us to consider a modification to his scenario (or the scenario as modified to create Mary’s obligation in the “formula” case). Suppose the kidnappers did not provide any formula. But remember, she gave birth a week ago and is lactating.⁹ So she could breastfeed the infant. Now the question before us is this: Does Mary’s obligation in the “formula” case still hold if the only way to feed the child is breastfeeding?¹⁰ Obviously, Wagner takes it as a given that it does.

Just as obviously, Wagner anticipates that those who agree with him in the “formula” case won’t necessarily go along with him in the “no formula” case. He devoted only two paragraphs to the “formula” case but takes four to comment the “no formula” case. His language becomes less certain in section Ic: “If you think she did not have a moral obligation … If you have the same intuition I have.” Wagner clearly knows he’s moved into more controversial territory.

The “no formula” case looks sufficiently enough like Thomson’s strung-up violinist we could simply assert the right to refuse applies and be done with it. Most of the disanalogies between the strung-up violinist and a pregnant person Wagner will go on to propose, even if we were to grant they are relevant, simply do not apply in Mary’s case. We will consider the remaining disanalogies that may have relevance to Mary’s case soon enough. First, we will consider a new distinction Wagner proposes.

Strangely enough, Wagner waits until section VIc point E to even try making an argument that Mary’s case is not like the strung-up violinist. In Mary’s case, she is in the position of a de facto guardian, whereas you are not in the position of a de facto guardian in the original scenario proposed by Thomson. This argument clearly depends on DFG being correct, but as we’ve already seen, it is very problematic at best. Even if we were hold on to the premise that a de facto guardian has the same obligations as a parent, that still leaves us with the question of whether those obligations extend to the direct use of of one’s body.

Parents do not have the obligation to give their children blood, tissue, or organs, even if it is necessary for the child to live. It stands to reason that this would include breast milk. So if Mary has the same obligations as a parent in this case, she then does not need to breastfeed the child. The right to refuse still applies.

Wagner here argues that a difference between Mary’s case and the violinist is that the infant needs food whereas the violinist needs medical care. Wagner asks us to shift the location of the violinist scenario a deserted hospital that has plenty of food available. Now, Wagner says you are in a position of a de facto guardian, even though that requires shifting the goalposts so that DFG applies to disabled people as well as children. This is starting to look ad hoc, but we’ll bear with him a little while longer.

Before going on, let’s note that shifting the location to a deserted hospital makes the case look like the original, unmodified scenario. We’ve already established in this original scenario that Mary was entirely justified in leaving. By parity of reasoning you are equally justified in leaving the deserted hospital. So now we have to modify the scenario (again) to get to where we can start saying you and Mary have an obligation to feed the violinist and the infant. So when we get to the “no formula” case, we just wind up in the same position. You can unhook yourself and Mary doesn’t have to breastfeed.

Not so, Wagner asserts, because the difference between medical treatment and feeding and sheltering are such that in the deserted hospital case, you can still unhook yourself: “In this case, you are obligated (morally/legally) to feed and shelter the violinist, but you are not obligated (morally/legally) to give him your body as medical care.” So you can unhook yourself from the violinist but you still have to feed him. Even though he’ll die if you unhook him and therefore he will not need to be fed. Okay. Wagner will have to pardon us if we are confused.

Never mind, though. Even if the application leads to a weird effect, the point itself is clear. The problem is that Wagner does not give us a reason to believe this is a distinction that makes a difference. Supposing parents to have an obligation to feed their children even if that means the direct use of their bodies, we have only reversed the problem. If parents are obligated to feed their children using their bodies, it still stands to reason they are obligated to use their blood, tissue and organs for their children’s medical care as well. Why? Because parents are obligated to provide their children medical care. To say they have to let their bodies be used for food but not medical care is completely arbitrary.

Now let’s turn to the disanalogies between the strung-up violinist and a pregnant person that may have relevance to Mary’s case. In section Vb point B, Wagner discusses the point that kidneys weren’t intended to filter other people’s blood while uteruses are intended to gestate prenates. One could argue a similar difference exists between Mary’s case and Thomson’s violinist in that breast milk is intended to feed infants.

Wagner is suitably cautious about using an argument like this. He points out that accepting this difference has moral relevance requires certain worldviews and would likely be rejected by those who don’t share those commitments. He later acknowledges making this kind of argument into a moral argument is difficult. Nevertheless, he holds this disnalogy should not be rejected just because it is controversial; it could still be useful to those who share their worldview.

However, I am inclined to accept the premises “the purpose of uteruses is to gestate prenates” and “the purpose of breast milk is to feed infants” are true.¹¹ What I take issue with is the implied conclusions: Mary is required to breastfeed and pregnant people are required to bring their pregnancies to term. Wagner is correct to acknowledge this argument is hard to make. I’m going to demonstrate exactly why it is so difficult.

Imagine, if you will, a person with a penis rapes a person with a vagina. The rapist is caught and put on trial. The rapist now offers this argument for their defense: “Ladies and gentlemen of the jury: the purpose of a vagina is sexual intercourse. Therefore, the ‘victim’ is obligated to allow me to have sex with them.” Except for psychopathic rapists, I would imagine everyone will think this defense is absurd.

This is the problem facing those who would make a teleological argument that Mary is required to breastfeed or pregnant people are required to gestate. The conclusion does not follow from the premise, so the argument itself is invalid. I can accept that the fact breast milk is for feeding infants or that uteruses are for gestating prenates may possibly be a necessary condition for requiring Mary to breastfeed or pregnant people to gestate, but it is not a sufficient one. Unless someone can successfully argue that people with vaginas are not obligated to sleep with every person with a penis that comes along, but that a lactating person does have to breastfeed any and every hungry infant and a person with a uterus has to gestate every prenate that lands in it, the teleological argument fails.

In section VIIc, Wagner proposes we change the scenario so that Mary signed a consent form to participate in the behavior psychologists’ experiment. The fact that she found herself in care of an infant was due to pure random chance. This would raise all sorts of questions on its own, but never mind. Surely now Mary would be obligated to breastfeed the infant, even apart from DFG (or MDS) considerations! And yes, we’ll agree to that—for as long as Mary consented to participate in the experiment.

Wagner forgot that agreeing to be part of such experiments comes with the right to stop participating at any time for any reason. If Mary decided to discontinue her participation in the experiment, the psychologists would have been obligated to release her.¹² If the psychologists failed to release her, Mary acquired the right to escape. The rest of the scenario flows accordingly.

While Minimally Decent Samaritanism would likely apply in the “formula” case, it certainly would not apply in the “no formula” case. If Mary were simply able to call the police, and they said they would be able to get to her the next morning, MDS would almost certainly apply.¹³ If the police said it would take six weeks to get to her, it becomes less certain MDS applies, but given the fact she did have the assurance she would be rescued, it could be argued that the six week period falls within it. If she started having problems breastfeeding, such as developing mastitis, MDS would certainly no longer apply.

But this is not the situation we are presented with. Mary had no assurance she will be freed except the word of her kidnappers. The “no formula” case, if anything, has even more ominous implications than the original. Mary would still have the right to do anything that would allow her to escape if she could. If she breastfeeds the child, her body will continue to produce milk, which means the calories she consumes are not going into anything that may help her escape had the opportunity arisen. And for all Mary knows, she was going to need those resources. Minimally Decent Samaritanism does not apply to this case.

We have saved considering what might change if the infant Mary discovered was her own for last. If we were outraged on our first reading of the original story, we can imagine the outrage would be even more intense if the child were in fact Mary’s. Given that Wagner’s arguments have failed so far, supposing it was Mary’s infant could serve as his Hail Mary pass. So go back to the original story. We are outraged that Mary let the infant starve. When we learn it was Mary’s own child, our sense of outrage doubles.

But when we calm down and start thinking rationally, we should ask whether anything meaningful has changed. Mary no longer had to figure out what happened to her child, but in every other respect, nothing has changed. Mary still had no assurance they would be freed. People trying to find her still would not have known where to look. She would have still been justified in leaving. It would still would have been imprudent to take the infant. And even if leaving meant risking the child will die, for all Mary knew, both were going to die anyway, so her child would have been no worse off if her escape attempt failed. The rest of our argument flows accordingly.

Differences in Our Intuition?

Assuming, as Wagner does in section IVb, our intuitions are different in the violinist and “no formula” cabin stories,¹⁴ what can explain this? Let’s try playing around with the scenarios and see what we discover.

First, let’s have Mary and you switch places. So now, it is Mary that is hooked into the violinist and you are stuck in the cabin. It doesn’t seem like this will change intuitions much, if at all. Wagner would still presumably think that Mary can be unhooked while you would have to breastfeed the infant (assuming of course, that you can). So it seems that this is not a case of sheer hypocrisy.

Just to be absolutely certain this is not about one’s biological sex,¹⁵ let’s take you out and insert Peter back into the cabin. Again, Wagner would still presumably think Peter would have to breastfeed the infant assuming he could. So it also seems this is not a case of sheer sexism. We can probably say the intuition has nothing to do with who is providing the service.

So let’s switch the violinist and the infant. Now, you are hooked into the infant while Mary is faced with breastfeeding the violinist.¹⁶ For the violinist, I think we would have much the same reaction as in the “no formula” case. If there is still a sense of outrage, it probably wouldn’t be as intense as in the case of the infant (see note 6). But if you are hooked up to the infant, I suspect Wagner would now argue you are required to remain attached.¹⁷ I suspect that even some of us might hesitate to say we can demand detachment.

It seems the difference in our intuition for these cases is that we are talking about the fate of a child. This is understandable. We are socially and/or biologically conditioned to regard the death of a child as especially tragic. While we certainly do not want to dismiss that feeling out of hand, if we think about it rationally, we would realize the fact an infant is the one in need of help has no moral relevance to whether we have the right to refuse.

Some of us would argue that the infant is not a person with the right to life, and that is reason enough to show Mary has no obligation in the “no formula” case (and probably the “formula” case as well). However, this contention is itself highly controversial. Even if I were inclined to agree, I don’t think we can or should rest our case there (see note 8). This means even if we don’t think the infant is a person, we should stipulate it for the purpose of discussion.

Instead, I propose we ask ourselves what would be necessary to rationally justify requiring Mary to breastfeed the infant or us to remain attached to the infant. It would require arguing that children have a special right to people’s bodies if they need those bodies to live. In other words, we would have to argue that children have a higher right to life than the violinist. Or me. Or you. Or Wagner.

Even if I were able to make such an argument, I’m not willing to go there. I don’t think we as a people are willing to go there either. Even Wagner himself doesn’t seem willing to go there explicitly, which is why he shifted the goalposts to include the violinist under DFG in the deserted hospital case. So, insofar as there is an intuition that Mary is obligated to breastfeed the infant, we should bite the bullet and allow that Mary had the right to refuse.

We are justified at this point in saying we have defeated Wagner’s argument that Mary was obligated to breastfeed the infant in the “no formula” case.¹⁸ With that defeat, the rest of Wagner’s strategy falls. We need not consider changing the scenario to consider something even closer to pregnancy. Beyond the “no formula” case, Wagner is simply demonstrating that his cruelty knows no bounds.

However, we do have one final point to make.

Legal Intuitions?

In a properly modified scenario, we found some agreement with Wagner that Mary should have fed the infant in the “no formula” case. Suppose Mary had no justification or excuse for letting the child starve in that case; she simply refused to do it out of cold-hearted indifference. Now further suppose our outrage was such that we declared, “There ought to be a law against that!”

Do we need DFG, assuming it could be fixed? Again, the answer is no. We already have a law that could cover that kind of situation: depraved-indifference homicide. Typically such cases involve extreme recklessness with gross indifference to human life. However, with suitable precautions so people’s basic rights are not violated, the depraved-indifference homicide doctrine could be adapted to Mary’s simple refusal to feed the infant along with, for example, not throwing an available line to a drowning person. 

 

Conclusion

Wagner’s argument fails in nearly every way imaginable. His initial story is not the slam dunk he thinks it is. His de facto guardian theory as presented is problematic, perhaps beyond the point of repair, while Thomson’s Minimally Decent Samaritanism explains our sense in the “formula” case equally well if not better. His DFG theory requires us to bite a bullet that Thomson’s MDS doesn’t, and we are just supposed to accept that. When it comes to the “no formula” case, Wagner expects us to just accept there is a difference between feeding and medical care even though the distinction won’t stand under his own theory. His variation on the Responsibility Objection is so abysmally bad that the Responsibility Objection has become self-refuted. His argument can’t be saved even if we assumed the infant was Mary’s child. Wagner simply can’t show Mary was required to breastfeed the infant in his scenario. Insofar as this scenario is supposed to represent pregnancy resulting from rape, we must conclude that people who were raped are not obligated to carry any resulting pregnancy.

Remember, this is one of the best versions of this type of argument available. Lesser versions of this argument, whether we are discussing deserted islands, snowed-in cabins, stowaways on ships, wandering toddlers, or whatever else fail just as badly. No one has the right to use a person’s body without consent. The sooner the slavers realize this, the better off we’ll all be.

1The allusion is to Matt. 19:21.

2Here, Wagner might ask if there is a distinction between leaving the cabin in the original scenario and letting the child starve in the scenario as I modified it. There is. By leaving, Mary is not refusing to feed the child; she is only risking that it will starve given that, for all she knows, both she and the child are going to die anyway. Also, being justified in leaving does not mean she is required to leave. If Mary decided to stay, she would be under the same obligations as in my modified scenario.

3I would go further and say if Mary can’t help, then she has no obligation at all. I’m not going to quibble with Wagner on this point, though.

4Arguably, if the formula had not been provided, Mary’s obligation also becomes less clear. This would certainly be the case with Peter. However, that argument will have to wait until we consider the “no formula” case at length.

5Given that “De Facto Guardian” is primarily concerned with responding to Thomson’s “Defense,” the de facto guardian concept is best read as an alternative theory Thomson’s MDS. Presumably, Wagner believes DFG is a better explanation for Mary’s case then Thomson’s. So, at best, it was intellectually lazy to not even try making that case.

6Of course, people may feel that starving an infant is more outrageous than starving an adult. Our concern here is with the fact the outrage exists, not the intensity of the outrage. While we may not be equally outraged in these cases, we would certainly be outraged in either case.

7Fortunately, the claim that thirty-eight people witnessed the Genovese murder and did nothing is not true. For an overview, see the Wikipedia article on the case.

8It seems to me that, if DFG can be fixed at all, this is going to be the central concept Wagner will want to keep. I would still have grave reservations that a de facto guardian’s obligations toward a strange child would be the same as if they were the child’s parent or guardian. Nevertheless, we have a strong motivation for stipulating this part of Wagner’s theory. Here we are not content to merely offer an alternative account and let the reader decide. We want to avoid a standstill; we want to say our argument is actually the better account and be justified in doing so. This means that if Wagner’s argument can’t stand on its own terms, then we can justifiably say our account is better.

9Technically, this may or may not be true. If Mary opted not to breastfeed her child and took medications to hasten the drying of her milk, she may or may not still be lactating.

10Interestingly enough, Wagner doesn’t consider a middle position that the kidnappers provided a breast pump. Though I seriously doubt it would change the outcome, I can’t entirely exclude the possibility he might have made us fall back and try to hold the line at the “this looks a whole lot like pregnancy” case. Unfortunately, this means that means if someone succeeds in making a plausible argument that Mary’s obligation at least extends to using the breast pump, we would have to revisit the case.

11I am not so inclined to accept the statement “the purpose of human sex is reproduction” as true. I can easily argue against this statement and even if I can’t prove it is false, I can muddy the waters. The above statements are not so easily argued against. Obviously, if someone with a better mind can successfully argue they are false, this slaver argument entirely falls apart.

12Here, I can’t help but note the irony of Wagner’s argument as it supposedly applies to pregnancy resulting from consensual sex. If having consensual sex is indeed like signing up to participate in an experiment, he has just managed prove the responsibility argument has no force!

13Realistically speaking, the infant would not die in one day, but for the sake of argument, we’ll assume that it could.

14As we have already shown, Wagner anticipated the “no formula” case would be more controversial, meaning we can’t take it for granted that our intuitions are going to be the same. The intuition may be different for Wagner and the “Justice for All Philosophy Team,” but my intuition remains the same in both the violinist and the “no formula” cases. I also suspect that for many if not most people on my “team,” their intuition will also remain the same in both cases. If it were just a matter of personal intuition, we could just say, “So what? Go ahead and breastfeed the baby then. We reserve the right to refuse.” However, these slavers want to force us to follow their intuition, so we will stay the course and follow the argument through.

15I hesitate to use this term, but it seems to be the easiest way to convey what I mean. If Peter is a transgender man, he could theoretically be lactating. What I mean to convey here is someone who is normally biologically incapable of lactating. If someone has a better term, I will gladly adopt it.

16This situation is not as absurd as it might appear at first glance. While feeding the violinist breast milk may not be ideal, it certainly would still keep him from starving. This means we cannot automatically excuse Mary because the violinist is not an infant.

17Wagner acknowledges a parent does not legally have to be “a kidney dialysis machine” for their children. However, I suspect that his distinction between medical treatment and feeding would not make so much a difference after all if Mary were strung up to the infant rather than the violinist.

18Incidentally, our thinking here largely answers the argument Perry Hendricks made in “My Body, Not My Choice: Against Legalised Abortion.” Like Wagner, Hendricks draws a straight line from requiring feeding in a case where formula is available (CABIN*) to breastfeeding (CABIN) with very little argumentation. But as we’ve already seen, the conversion is not as straightforward as it may initially seem. Given that Hendricks avoids discussion of what factor(s) beyond personhood might give Sally’s infant the right to be breastfed, we have no clear case that Sally must breastfeed in the CABIN case, even if we were agreed she must feed the infant in the CABIN* case.