Monday, October 6, 2008

By Request: The Elegant Argument for Abortion Rights

A silent but much treasured reader has requested that I post on the so-called "Elegant Argument" for abortion rights. Since I'm terribly pleased to have any readers, much less requests from them, I'm happy to oblige. So here goes:

First, don't ask me why they call it the "Elegant Argument". I've no idea. As far as I'm concerned, all logically valid arguments are elegant, so I see no reason to claim special status for this one.

By any name, the Elegant Argument for abortion rights is, to my mind, the strongest argument for said rights. Before we can get into, though, a few things have to be made clear up front. First, for the purposes of the argument, we'll be assuming that a fetus is a person with all the rights that you or I have as persons. The question of whether a fetus is a person is often viewed by people on both sides of the debate as the central issue. As we're about to see, the issue of personhood is actually irrelevant to the abortion debate.

Second, we must keep in mind that there is a clear distinction between what is morally correct and what is legally permissible. It is entirely possible for someone to have a legal right to do something immoral. The homophobe who gets on his soapbox and condemns gays is doing something immoral, but he has every right to do it. It may very well be immoral for you to refuse to help a relative in need by giving him a few bucks. But you have every legal right to refuse. The distinction between the legal and the moral is important to keep in mind, because the elegant argument for abortion rights is an argument for a legal right. It says nothing about the moral status of abortion in general or of any particular abortion.

Alright, enough with the preliminaries. There are three main premises to the elegant argument: (1) There is an inherent human right to bodily autonomy (2) When the right to bodily autonomy is being violated, it is legally permissible to kill in order to stop the violation (3) An unwanted pregnancy constitutes a violation of the right to bodily autonomy. We'll take each of these in turn.

There is an inherent human right to bodily autonomy.

The right to bodily autonomy - that is, the right to dominion over our person - is so basic that we take it for granted. But the best way to see that we have such a right is by noting that certain actions which we take to be violations of a right have the one thing in common - a violation of our control over our own person. Think about the following case for a moment: you go in to the dentist for, say, a surgery on your gums. He puts you under for the surgery, and when you awake you discover that he pulled a perfectly healthy tooth. Let's say he's got a collection, and he thought yours would make a nice addition. You're still alive, and you're experiencing no pain. Still, you've been wronged, haven't you? The dentist has violated your rights. In fact, we're inclined to say that he's violated you. But what right has he violated? Not your right to free speech. Not your right to trial by jury of your peers. Not even your right to life. You're still alive, after all, and were in no danger of death. You might be inclined to say it's your right over your property. But there is something more to it than that. If the dentist happily gave you your tooth to keep, you wouldn't be deprived of your property, but a violation has still occurred. And we'd feel the same if a different doctor came in during your oral surgery and poked around in your insides, but didn't take anything out. Why? Because you have a right to bodily autonomy - you have a right to say what happens to your own body, and other people can't just do whatever they like to your body without your consent.

These doctor cases are pretty clear cut cases of a right to bodily autonomy, but the right is even clearer in cases of rape. A rapist is most certainly violating the rights of his victim. But what right? None of the standard rights seem to apply. If the victim is not killed, there is no violation of the right to life. And no property is taken. The whole act of rape consists in using another individual's body without their consent. And that is only a violation of rights if we possess the right to be free from non-consensual use or manipulation of our bodies.

When a violation of the right to bodily autonomy occurs, it is legally permissible to kill in order to stop the violation.

Imagine the following (now rather famous) scenario. You wake up one morning to find yourself hooked up to another person. You are immediately told that the person you are connected to is a famous violinist who has a fatal illness. He needs to be hooked up to you, you are told, for the next 9 months so that he can use your body as a filter and nutrient provider. After 9 months he'll be healed and the two of you can go your merry ways. The music appreciation society had looked high and low for someone who would be compatible with the violinist, and just in the nick of time, they found you, seemingly the only person who can keep the violinist alive. Last night, while you slept, they hooked you up to the violinist, who is unconscious and knows nothing of the situation. Here's the question: do you have the right to unplug yourself from him? Note, the question is not "Is is the right thing to do?" or "Would it be wrong of you to unplug him?" The question is "Do you have the right to unplug him?"

If the case is too abstract to get your intuitions going, then just imagine a woman being raped. She has kicked and screamed and bit and hit and done everything she possibly could to get her assailant off her. She's even managed to get ahold of a rock which she's being hitting her assailant with, but nothing short of killing the rapist has managed to get him to stop. Now, does the rape victim have the right to use that rock to kill her attacker to get him to stop? Most people have a very strong intuition that she does.

What these cases are supposed to do is to draw out your intuitions as to whether or not an individual can use deadly force to stop a violation of their right to bodily autonomy. Now, obviously, if the rape victim could get her attacker to stop by using something less than deadly force, then we'd be a bit hesistant about claiming that she could legally kill her attacker. But if she's in a position in which they only way to stop the violation of her right to bodily autonomy is to kill the person doing the violating, then our intuitions tell us that she has the right to do so. Note that I said "person". The rapist is a person, and he has the same rights as any other person - including the right to life. The right to life is not a right that is forfeited by committing this particular crime. We do not execute rapists, we merely put them in jail. Despite his right to life, however, it seems that the rape victim has the right to kill him in order to end his violation of her right to bodily autonomy. Note, too, that it doesn't matter if the rapist is unaware of what he is doing. A rape victim has just as much right to kill a sleepwalking rapist or a clinically insane rapist or a severely mentally handicapped rapist. What matters is not what the rapist does or doesn't know or intend but rather the violation of the victim's right to bodily autonomy.

There is, I think, a reason why bodily autonomy wins over life in this conflict of rights. The right to life is important. But without the right to bodily autonomy, the right to life is nothing more than a right to breathe and eat. In the absence of the right to bodily autonomy, an evil doctor could put you in any number of terrible states, but as long as you weren't technically brain dead, he wouldn't have violated your right to life. In a way, the right to life is best justified by appeal to the right to bodily autonomy, and this is especially true when you consider that your life just is the continued functioning of your body (this is true even if you believe in an immortal soul). If you don't have dominion over that body, then why would you have a right to it's continued functioning?

An unwanted pregnancy is a violation of the right to bodily autonomy

The first two premises usually aren't that controversial. Most everyone sees that there is a right to bodily autonomy, and most everyone agrees that it is legally permissible to kill in order to end a violation of that right (when killing is the only way to end the violation). It's this third premise that strikes up controversy.

We'll start with something clearly uncontroversial. The relationship between a pregnant woman and the fetus is one in which the fetus is using the woman's body. That seems clear enough. Remember, though, that the only way one person's use of another's body is a violation of the right to bodily autonomy is in the absence of consent. In the case of sexual intercourse, for example, consensual sex is not a violation of anyone's rights. It is only when one party does not consent that we have a case of rape. For an unwanted pregnancy to be a violation of the pregnant woman's right to bodily autonomy, then, it must be the case that the pregnant woman did not consent to the pregnancy.

In cases of pregnancy resulting from rape, it is clear that there no consent on the part of the woman. If you accept the first two premises, you automatically accept that abortion is legal in cases of rape.

It's cases of consensual sex that cause controversy. After all, the common pro-life quip is "The woman had a choice. She chose to have sex." Behind this line is a claim that consent to sex is automatically consent to pregnancy. But it's not clear that this is the case. It seems possible to draw a distinction between responsibility for an outcome of one's action and consent to that outcome. If someone drive recklessly, knowing full well that reckless driving leads to accidents, they are certainly responsible for the accident they get into. But did they consent to it? Similarly, I smoke cigarettes (yeah, yeah, I know. Bugging me about it won't get me to quit any quicker). I know that smoking causes cancer. If I get cancer, I am completely responsible for it. But, at least from a subjective standpoint, I don't believe I'm consenting to cancer. Nor do I believe that the person who eats McDonalds on a regular basis, knowing how fattening the food is, consents to getting fat. They are responsible for it, but I don't believe they consented. Similarly, an individual who engages in sexual activity knowing that it may cause pregnancy may be responsible for the pregnancy, but that doesn't mean they consented to it.

This becomes clearer when we add in the factor of "birth control". Imagine that I know there is a prowler about in my neighborhood, and I know that this prowler is going to try to get into my house any way he can. By continuing to live in the neighborhood, I knowingly put myself in a situation in which it's likely that the prowler will get into my house. Now, if I foolishly leave the window open, and the prowler comes in, I'm certainly responsible for his being in my house. To my mind, I didn't consent to his presence. But maybe your intuitions run differently. But what are your intuitions if I put bars up on my windows. If the prowler still gets in, have I consented to his being there? I don't think I have. After all, I've done something to prevent his presence, and this seems inconsistent with consent, even of the tacit variety. Similarly, in cases in which a woman engages in sexual activity and uses contraception, if she does conceive, it seems odd to say that she consented to the pregnancy.

Even if you don't by the foregoing lines of reasoning, and you hold firm that consent to sex is consent to pregnancy, when it comes to bodily autonomy, consent can be withdrawn. If a woman consents to sexual activity initially, her initial consent is not equivalent to consent to the entire act. Consent can be withdrawn at any time. And if a woman were to withdraw her consent mid-coitus, continuation of the act on the part of her partner would constitute rape. By analogy, then, even if a woman initially consents to pregnancy by consenting to sex, she may withdraw her consent at any time.

The Conclusion

Alright, so, to sum up, individuals possess an inherent right to bodily autonomy. If the right to bodily autonomy is violated, an individual may legally kill to effect cessation of that violation. And an unwanted pregnancy involves a violation of the right to bodily autonomy. It follows, then, that a woman may legally kill the fetus - even if it is a person - to effect cessation of the violation of her right to bodily autonomy.

Note that one may only kill if this is the only way to cease the violation of their right. That means that if we someday come up with a way for a woman to be rid of a pregnancy without killing the fetus, then it may be the case that abortion would no longer be a legal option for terminating the pregnancy.

And remember that this argument is only about the legality of abortion. It says nothing about whether or not it is moral. This is why it is entirely possible for people to think that abortion is wrong, and is a tragedy, and also think it is a legal option for a woman with an unwanted pregnancy.

So, that's it. The elegant argument for abortion rights. If any ethicists are reading and find fault in my description of the argument, please let me know.

1 comment:

C said...

I realize that you posted this years ago, but I still feel that I need to say something.

I'm not a lawyer or anything so I can't really argue with your legal reasoning for abortion. However, your analogies, though potent and relevant, seem to be lacking in...for lack of a better of severity.

My main contention, though, is the issue of consent. While it's obvious in your prowler analogy that you do not consent to his presence, I would argue that it is different in the case of a pregnancy.

I'm going to try to use an example of my own. I go to a skateboard park and they make me sign a waiver that says I will not sue them if I get injured. I sign the waiver, relinquishing my right to sue. After a while, I fall down a ramp and break my arm. Let's also suppose that I can't move my hand (thus violating my bodily autonomy). As in your dentist analogy, I am still alive and everything will be okay, but I have still "been wronged." I cannot sue the park owners, the ramp, my arm, or gravity. Though I would obviously prefer not to have a broken arm, but there is nothing I can do but to wait for it to heal.

Now this is not a perfect example either, so I'll move on.

Let's take the case of a rapist with his(probably) full mental capacities. He knows what he is doing. He has intent to cause harm emotional, psychological, and/or physical. A baby, whether wanted or not cannot have any malicious intent as she cannot reason. I think this is very important. Legally this would be like the difference between Third Degree Murder and Manslaughter.

Another thought, with regard to the withdrawal of consent. Let's say I go to a bank and take out a loan. I read and sign all the papers and the contract is final. There is a clause that says, "In the event that it rains and snows on the same day at any point during the month of July, the interest rate shall be increased to 200%." I know that the chances of that happening are essentially none, so I don't have a problem with signing it. But then, sure enough, July rolls around and it rains and snows on the same day. My now astronomical interest rate is a direct result of my consent to the loan as a whole, and I cannot withdraw consent to the interest rate any more than I can withdraw consent to contract and just stop paying.

I realize these thoughts are very poorly put together, and that it's only my opinion. Also, I appreciate your care in setting aside whatever passions you may have about this issue and discussing it rationally.

Also, although this may weaken everything else I've said above, why would a person not want to do the right thing. Is it not in some ways immature to do "what we can get away with" as opposed to "do what we ought."

-Imagine a world where every person sees the immeasurable value of every other...