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