This essay is dedicated to Judith Jarvis Thomson, who passed away on 20 November 2020.
In her highly influential — and debated — essay, “A Defense of Abortion,” Judith Jarvis Thomson offers an argument for the permissibility of abortion that avoids the contentious debates on sentience and personhood that fill the contemporary discourse. Instead of scrutinizing the minutiae of a fetus’s physical development to determine the point at which the fetus has attained a level of sentience that would qualify it for personhood (a common focus of the abortion debate), Thomson — for the purposes of her essay — accepts the notion that a fetus is a person (a view held by many pro-life advocates) and considers the implications. She concludes that even if a fetus is a person — with the right to life — it does not follow that abortion is always morally impermissible.
The crux of Thomson’s essay is a rights-based argument that says a person’s right to her body supersedes another person’s right to life. That is to say, person A does not have the right to use person B’s body even if person A has the right to life and the use of person B’s body is necessary to sustain person A’s life. To illustrate this point, Thomson offers a thought experiment in which the reader is kidnapped and has a “violinist” plugged into her circulatory system. In this thought experiment, if the reader unplugs herself from the violinist, the violinist dies. Despite the violinist’s right to life, Thomson says that most would “regard this as outrageous” if the reader was told it is morally impermissible to unplug herself from the violinist, especially if this entailed staying plugged in for a long time — nine months, nine years, or her entire life (565). Although Thomson accepts that such an act would constitute killing, she argues that some killings are justified. For example, Thomson describes the (unfortunately common) situation in which a mother must have an abortion to save her own life. Thomson says that “if anything in the world is true, it is that you do not commit murder, you do not do what is impermissible, if you reach around your back and unplug yourself from the violinist to save your life” (566). She concludes abortion is permissible in pregnancies in which the mother’s life is at serious risk.
Thomson extends this argument to say that abortion is permissible even when the mother’s life is not in jeopardy. She begins by problematizing the right to life, which entails “having a right to be given at least the bare minimum one needs for continued life” (567). According to Thomson, there are certain “bare minimums” for life that individuals do not necessarily have the right to. To illustrate her point, Thomson describes a thought experiment in which her life can only be saved by the touch of Henry Fonda and asks if she has the right against him to be given his touch. She says that although it would be awfully good of Fonda if he were to travel across the country to save her life, he is under no obligation to do so; her right to life does not supersede his right to be left alone or to do as he pleases. Thomson also considers the case in which Henry Fonda is not across the country but instead in the same room and asks if she now has the right to be given his touch. Again, she says no; even though Henry Fonda “ought” to save her, she has no right against him. She explains that it would be inconsistent to say that she has the right to the touch of Henry Fonda when it is easy for him to provide it and no right to his touch when it is difficult for him to provide it (570).
Thomson therefore makes an emendation to the concept of the right to life: instead of consisting of the “right not to be killed,” the right to life actually consists of “the right not to be killed unjustly” (568). Thomson says that abortion is not necessarily an unjust killing because, like Henry Fonda, a woman is under no obligation to provide the “bare minimum” for life to a fetus. The fetus has no right against the woman such that she is compelled to allow the fetus to grow inside her body for nine months.
The strongest objection to Thomson (in my opinion) is one based on responsibility — namely, that a woman is responsible for a pregnancy that results from consensual sex. This means that in such pregnancies, the fetus has a right to use the woman’s body. The objection holds that such pregnancies are disanalogous with the violinist thought experiment, which only represents pregnancy resulting from rape. Thus, the objection concedes to Thomson’s analysis that “it would leave out entirely the unborn person whose existence is due to rape… unborn persons whose existence is due to rape have no right to use their mothers’ bodies, and thus aborting them is not depriving them of anything they have a right to and hence is not an unjust killing” (568). This essay will consider the responsibility-based objection only as it pertains to unwanted pregnancy resulting from consensual sex, which Thomson argues does not necessarily bestow upon a woman responsibility to a fetus. This essay agrees with Thomson, finding that the objection fails to establish the universality of this responsibility.
In her analogy of burglars and people-seeds, Thomson identifies two types unwanted pregnancy: 1) unwanted pregnancy resulting from consensual sex without protection — i.e. leaving the window wide open to let the burglar or people-seeds in — and 2) unwanted pregnancy resulting from consensual sex with protection — i.e. installing bars or mesh that fail to prevent the burglar or people-seeds from coming in. The responsibility-based objection asserts that both types of pregnancy bestow upon the woman a responsibility to the fetus and upon the fetus a right to use the woman’s body.
Why is the woman responsible? To answer this question, it is necessary to define what responsibility is, how it is assigned, and what kinds of actions it requires. There appear to be two overarching forms of responsibility: 1) responsibility on the basis of harm and 2) responsibility on the basis of care.
Responsibility on the basis of harm is assumed when a person performs an action that creates a harmful situation for another person. Our legal system recognizes three categories of harm. The first is intentional harm, which occurs when a person knowingly and willingly causes harm to another person. This form of harm-based responsibility would be assigned if, for example, a driver intentionally steps on the accelerator when he sees a pedestrian. The second is negligent harm, which occurs when an individual accidentally causes harm to another person due to negligence. This would be assigned if a driver hits a pedestrian because he was texting or driving under the influence. The third is unintentional harm, which occurs when an individual causes harm to another person by no fault of his own. This would be assigned if a driver’s car malfunctions or if the pedestrian appears in front of the driver with no time for the driver to stop. Although our legal system defines only the first two forms of harm as criminal, all three forms of harm — even unintentional harm — impart upon the driver some degree of responsibility. The injured pedestrian therefore has certain rights against the driver. Of course, the rights differ greatly depending on the type of harm. If a pedestrian is harmed intentionally or negligently, then he has the right against the driver for some form of compensation. If a pedestrian is harmed unintentionally, he has the right against the driver to perform some act of Minimally Decent Samaritanism, such as calling an ambulance.
With respect to pregnancy, intentional harm occurs when a woman becomes pregnant with the intention of aborting the fetus. This is blatantly wrong and almost never occurs, so we can ignore this type of harm. Negligent harm occurs when a woman becomes pregnant as a result of consensual sex without protection. Unintentional harm is done when a woman becomes pregnant despite taking reasonable precautions.
If negligent harm is done, then proponents of the responsibility-based objection would assert that the fetus has a right to use the woman’s body. They would also disagree with Thomson’s suggestion that not using protection does not constitute negligence. In her essay, Thomson says that “if the room is stuffy, and I therefore open a window to air it, and a burglar climbs in, it would be absurd to say, ‘Ah, now he can stay, she’s given him the right to use the house — for she is partially responsible for his presence there…’” (568). Proponents of the responsibility-based objection would argue that Thomson’s burglar analogy is disanalogous to pregnancy because the connection between a burglar and an open window is tenuous compared to the connection between unprotected sex and pregnancy. Open windows do not (directly) cause burglars to come in; unprotected sex causes pregnancy. Thus, they would argue that not using protection when the possibility of pregnancy is so manifest qualifies as negligence.
However, there are two problems with the notion of harm-based responsibility. The first problem has to do with unwanted pregnancies resulting from consensual sex with protection. This type of unwanted pregnancy should count as unintentional harm, meaning that, at most, the fetus has a right against the woman such that she performs an act of Minimally Decent Samaritanism. Proponents of the responsibility-based objection may argue that even if such a pregnancy counts as unintentional harm, the Minimally Decent act is to keep the fetus alive. However, it is disingenuous to equate Minimally Decent Samaritanism to a 9-month pregnancy. Most would agree that the physical toll pregnancy takes on a woman qualifies it an act of (at least) Good Samaritanism. The second problem is that pregnancy is not, in and of itself, a harmful situation. If a woman does not do harm to a fetus by conceiving it, then the woman has no harm-based responsibility to it, and it follows that the fetus has no harm-based right against the woman.
That leaves responsibility on the basis of care. This form of responsibility holds there are situations in which Person A has the right to receive care from Person B even if no harm was done by Person B against Person A. Usually, this is because Person B occupies a special role or because there is a relationship between Person A and Person B. For example, a patient who visits the emergency room has a right to receive care from the doctor on call. For another example, a child has the right to receive care from her parents. Proponents of care-based responsibility often use the second example as a rationale for why a woman has is responsible for her fetus. They say that if a child has the right to care, what difference does it make if the child is unborn? Surely there is a special relationship between a woman and the fetus growing inside of her!
Thomson argues that care-based responsibility must be voluntarily assumed. She acknowledges that “if a set of parents do not try to prevent pregnancy, do not obtain an abortion, and then at the time of the birth of the child do not put it up for adoption, but rather take it home with them, then they have assumed responsibility for it…” (572). However, she asserts that women do not automatically assume responsibility for the fetus when it is conceived because they “do not simply by virtue of their biological relationship to the child who comes into existence have a special responsibility for it” (572). And, of course, if there is no responsibility on the part of the woman, then the fetus has no right to her body.
Proponents of care-based responsibility may argue that the woman occupies a special role because she is the only person who is able to care for the fetus, who is completely dependent on her. This is similar to the Thomson’s Henry Fonda analogy. Thomson says that even if Henry Fonda is the only person who can save you, he has no moral obligation to do so because you do not have any right against him. Proponents of care-based responsibility may use a slightly different analogy, asking, if an off-duty doctor on a plane sees a passenger become gravely ill, does she have a responsibility to help him? In some countries, the answer is yes. In Brazil and Germany for example, Minimally Decent Samaritan laws compel the doctor to help the passenger. In other countries, such as the United States, no such laws exist. Thus, the most we can say here is that there are some countries in which being a doctor is essentially a 24/7 job; they do not cease occupying their special role when they are “off-duty.”
Regardless, being pregnant is different than being a doctor. Whereas doctors assume a special role with care-based responsibility voluntarily, women do not necessarily choose to assume the role of mother when they become pregnant. Generally speaking, if a pregnancy is unwanted, then the purpose of the sex that resulted in that pregnancy — even unprotected sex — was not to conceive. Thus, women do not automatically assume care-based responsibility when they become pregnant.
Thomson’s argument that abortion is, in many cases, permissible because the fetus has no right to the woman’s body, is difficult to challenge. This essay has examined different aspects of the responsibility-based objection, namely that of harm-based responsibility and care-based responsibility, and found that neither necessarily gives the fetus the right to the mother’s body. Although there are other objections to consider — such as to the idea that some killings are justified — none seem as strong to me as the responsibility-based objection. They would likely be easily refuted. By assuming for the purposes of her essay that a fetus is a person, Thomson inspired lively debate about the relative weights of the right to life and of bodily autonomy, and for that, she is rightly celebrated. Still, I think the most straightforward way to justify abortion is on the basis that a fetus, before a certain point, is not a person.
Citations
Steinbock, B., London, A. J., & Arras, J. D. (2013). Ethical issues in modern medicine: Contemporary readings in bioethics (pp. 564–572). New York: McGraw-Hill.
