(the second in a series of early university papers on ethics, this article once again explores the difficult task of finding any semblance of moral justification in the killing of an unborn child)
Abortion has been under intense moral scrutiny for quite some time. A number of philosophical theories have been presented to deal with this issue, each building upon the last in an effort to formulate a universal moral rule. Not surprisingly, all of these theories have come under some form of scrutiny, and the theory put forth by judith jarvis Thomson is no exception. Her paper entitled “a defense of abortion” is little more than an attempt to justify abortion in the cases of rape and self-defense. It does outline the inadequacies of the pro-choice and pro-life movements, but the theory she proposes fails to justify abortion in all but a few cases, and is only a mediocre substitute for typical pro-choice logic.
Despite the validity of her argument in very particular circumstances, Thomson’s thesis fails to address the ethical issue that is raised by abortion in general, and it is for this reason that her theory must be rejected as a broad “defense of abortion.” Thomson does not believe that a fetus is a person at the moment of conception, but she grants this for the sake of argument, if only to pacify those who would reject her thesis on this basis. The personhood of the fetus, however, is the principle topic of debate between pro-choicers and pro-lifers. The pro-life movement is predicated on the assumption that a fetus is a person right from the moment of conception. Thomson claims that this statement is based on the fallacy of the “slippery-slope,” which asserts that, if it is hard or impossible to draw a sharp line between two related but fundamentally different items, then the two items are the same.
When applied to abortion, the “slippery-slope” fallacy deals with the point at which a fetus becomes a person. Understandably, then, prior to this point it is morally permissible to kill the fetus. At any time afterwards, abortion becomes morally impermissible because the fetus is considered a person whose right to life must be protected. Pro-lifers claim that this change occurs at conception, and the fetus must therefore be protected throughout the entire pregnancy. On the other hand, pro-choicers believe that the transformation occurs somewhat later in the pregnancy, some even promoting a point beyond birth (see tooley in “abortion and infanticide”). Thomson argues that it is difficult to establish a point at which it can be absolutely determined that the fetus is a person, and in this regard I must fully agree. To select a specific time is to say that, at this particular point, an unborn child ceases to be merely a fetus and gains the status of a person. But what is the qualitative difference between an unborn child one millisecond before this point and one millisecond after? This question represents one of the main difficulties in arriving at an accurate point of personhood, and has brought into question the validity of both the pro-choice and the pro-life arguments. My only criticism of Thomson here is that she simply hints at the difference between a fetus and a person but fails to make a concrete distinction.
After granting the fetus personhood, Thomson attempts to refute any popular pro-life arguments that are based upon this supposition. To do this she uses her “notorious” example of an ailing concert violinist. The case is set up as follows: you wake up in the morning to find out that you have been kidnapped and a famous concert violinist has been attached to your kidneys, and needs to remain there for nine months until he has recovered from an ailment that only your kidneys with your particular blood type can cure. The question now is whether it is “morally incumbent upon you to accede to this situation,” (Thomson, “A Defense of Abortion,” Pilosophy and Public Affairs, Volume 2, 1972: p49). Thomson draws a parallel between this example and abortion in the case of rape. Through this parallel, she attempts to justify the latter by claiming that the fetus, like the violinist, is forced upon the woman. I have a problem with this parallel and the solution at which Thomson arrives. She makes a distinction between abortion in the case of rape and abortion in the case of consensual intercourse, thus implying that fetuses born of rape have fewer rights than those conceived under voluntary circumstances. In my opinion, the way in which a fetus is conceived has no bearing on its development into a person, and pre-natal children born of rape should therefore be granted the same rights (if any can be absolutely determined) that other fetuses are allowed.
To relate this idea to the violinist, I do not think that you have any more right to unplug the violinist in the event of a kidnapping than you do under slightly different circumstances. Consider the example of a woman who goes to a casino and wants to play the slots. There is a waiver directly above the slot machines in plain view that warns any female users about the consequences of using the slot machines. More specifically, it warns potential female gamblers that, as a result of gambling, there is a chance that a violinist will be attached to your kidneys (with the same medical condition as the other violinist). If this woman proceeds, she is accepting the risk involved in gambling, and is therefore responsible for the consequences of her actions. The woman then chooses to gamble, and in so doing, falls victim to the waiver and has a violinist attached to her kidneys. In this case, does one violinist have more of a claim to his host than the other? I would have to say no because both violinists are fundamentally the same, aside from the process through which they became attached. This process, however, is not a relevant criterion when determining their personhood, and consequently, they both remain persons. It follows, then, that if all persons are granted the same moral rights, so too should both violinists be granted equal rights.
To apply this rule of moral equality to abortion, we must look at the rights Thomson grants a fetus who was conceived through consensual sex. She establishes that, in the case of voluntary intercourse, there is a “partial responsibility” (ibid. p57) for the fetus on the part of the parents that might justify an exception to her thesis. This exception would grant such fetuses pre-natal rights. By my logic, then, she must also grant these pre-natal rights to fetuses conceived under circumstances of rape in the same way both violinists share equal rights. Consequently, her “defense of abortion” no longer applies in the case of rape.
Maternal self-defense is one area where Thomson does succeed in justifying abortion. She calls her approach “the extreme view,” and makes reference to various theories that prohibit abortion in this case, like the negative-versus-positive-duty principle championed by Philippa Foot. She then discards these theories with the claim that “it cannot seriously be said that [a mother]… must sit passively by and wait for her death,” (ibid. p52). Here I must agree with her, because intuitively, I cannot see myself making that sacrifice. Whether it is a case of rape or consensual intercourse that resulted in conception, saving the baby’s life cannot come at the expense of the mother because the mother has a right to self-defense. There are limits, however, to the rights that can be forgone when acting in self-defense, as Thomson points out. “if someone threatens you with death unless you torture someone else to death, I think you have not the right, even to save your life, to do so,” (ibid. p53). Basically, she says that you cannot harm an innocent third party when your rights are being challenged, but it is permissible for you to harm the threat when acting in self-defense, even if it means destroying the threat. Thomson uses this argument to justify abortion in all situations where pregnancy poses a threat to the mother.
She then tries to justify a third party’s right to participate in the abortion, once the decision to abort is made. Here Thomson insists that she “has not been arguing that any given third party must accede to the mother’s request that he perform an abortion to save her life, but only that he may,” (ibid. p54). The reason she makes this important distinction is so that the third party is cleared of any moral culpability when aborting the fetus. I agree with her on this point because, once the decision to abort is made, it is purely a matter of medical convenience and personal safety to have a doctor perform the operation, rather than having the mother perform it on herself. Consequently, a third-party participant should not be culpable in the event of an abortion. If anything, the use of a third party should be encouraged because of the requisite medical expertise that such a party provides throughout the abortion.
After granting that the use of a third party is permissible, Thomson then redefines the entire “right to life” (RTL) argument. She insists that a RTL does not necessarily mean a right not to be killed. To illustrate this, she uses the example of a sick person whose affliction can only be cured by the touch of Henry Fonda’s cool hand on their fevered brow. She rightly illustrates that it would be “terribly nice” for Henry Fonda to fly in from the west coast to help, but it cannot be said that you have a claim on Henry Fonda to do so. To apply this idea to the kidnapped woman, Thomson concludes that “nobody has the right against you that you shall give them this right – if you do allow him to go on using your kidneys, this is a kindness on your part, and not something he can claim from you as his due,” (ibid. p55). She does concede that all persons have a RTL, but she modifies the popular perception of a RTL so that it now means “the right not to be killed unjustly,” where depriving someone of that to which he has a right is considered unjust. With the violinist, as with the fetus, Thomson insists that if you do not kill them unjustly, you are not violating their RTL. For this reason, you are fully justified in unplugging yourself from the violinist and aborting the fetus if you so choose. I only agree with her altered RTL definition in the case of maternal self-defense, when abortion is considered a just action because the mother’s life is being threatened. In all other cases, the fetus does have a claim on the mother’s body, and must therefore be protected against unjust killing. It is important to note, however, that Thomson is not in support of securing the death of the fetus. Her defense of abortion is based upon “detachment” of the fetus, even if that means the fetus will lose its life. This is not the same as securing the death of the fetus because, with detachment, its death is foreseen but not directly intended. If, by chance, the fetus does survive, she insists that it is morally wrong to actively pursue and kill it.
Next Thomson outlines the difference between moral decency and moral justice, and then applies this theory to her analysis of abortion. Once again, she uses Henry Fonda to illustrate this distinction. Although it might be morally indecent for Henry to refuse to fly in from the west coast to help you, it does not follow that such action is morally unjust. Here Thomson suggests that not bringing a fetus to term in the event of a pregnancy due to rape would be morally indecent, but not unjust, because the fetus has no claim on you to secure its right to life. This returns us, once again, to the idea of rights. Just because you will die if Henry Fonda does not come to your assistance, it does not follow that you have a claim on him to do so. Thomson draws a parallel between this example and the claim that a fetus has on its mother. If the mother can save the life of the fetus by carrying it to term, it does not follow that the fetus has a claim on her to do so. “nobody is morally required to make large sacrifices, of health, of all other interests and concerns, of all other duties and commitments, for nine years, or even for nine months, in order to keep another person alive,” (ibid. p62). Thus, she insists, situations may arise when we are not morally required to be decent to each other, only just. Abortion in the case of rape is one of these situations, and by this reasoning, she justifies killing the fetus on the grounds that doing so might be indecent, but is not unjust.
In my opinion, she understates the responsibility parents have for the fetus. She insists that such responsibility can be abdicated if it “requires large sacrifices,” (ibid. p66). Her justification for this treatment of the fetus is based upon the degree to which the fetus is a burden on the mother. As with the point of personhood, this “point of excessive burden” is very arbitrary. Take the example of a single-parent who is responsible for an infant, and who has to forego job promotions and vacations to ensure the survival of this child. This scenario raises two important questions. First, are the sacrifices required of any parent large enough to merit an abdication of responsibility for the child? Secondly, at what point in the development of the fetus is responsibility no longer an option, but becomes required of parents? The answer to this question is very important because it can be argued that responsibility for infants, small children, and indeed, teenagers, can be abdicated if they require a significant sacrifice from their parents to ensure their survival. In my estimation, to have consensual intercourse is to accept responsibility for the fetus right at the moment of conception. From that point on, responsibility for the product of such activity (the fetus) cannot be renounced. It is for this reason that all abortion must be considered a morally unjust abdication of responsibility, unless the life of the mother is being threatened. Then, as I have stated, it becomes a matter of self-defense.
I believe that moral decency is required when dealing with persons in the case of abortion because moral decency should be synonymous with moral justice. Recently, people have been more willing to forego responsibility in exchange for an easier lifestyle. By making this distinction between decency and justice, Thomson is giving people the option of abdicating their responsibilities should the burden be too large. This abdication has a direct impact on the people for whom they have a responsibility, like fetuses and small children. If the whole premise of morality is determining what ought to be done and then doing it, then in the case of abortion, morality demands that we must treat all persons how they ought to be treated, even if it means making large sacrifices. Therefore, if it can be determined that a fetus is a person, then fetuses should enjoy the same rights as other persons, and a “significant sacrifice” ought to be made for both if their lives are dependent upon it.
In response to this claim, Thomson would assert that “no person is morally required to make large sacrifices to sustain the life of another who has no right to demand them, and this even where the sacrifices do not include life itself….we are not morally required to be good Samaritans,” (ibid. p64). Thomson would then reply to my criticism of her work by referring me to the last few lines of her paper. The following quotation seems to be more of an escape clause than a genuine philosophical rebuttal. She says that, “it should be remembered we have only been pretending throughout that the fetus is a human being from the moment of conception. A very early abortion is surely not the killing of a person, and so is not dealt with by anything that I have said here,” (ibid. p66). With these lines she ends her paper rather abruptly, ostensibly telling the reader that the preceding text was merely an analysis of the popular pro-choice and pro-life arguments. These lines suggest to me that perhaps this paper should have been more focused on determining the exact point at which the fetus becomes a person. As it stands, Thomson has done little more than defend the right to self-defense in the context of abortion.
Although she justifies abortion in the case of maternal self-defense, Thomson’s paper fails to apply this justification to abortion in general. It does, however, succeed in giving us some insight into the failings of both the pro-choice and pro-life movements. Unfortunately, these perspectives will remain at odds until both sides can agree on the exact point at which a fetus becomes a person. This ethical stalemate has implications for both morality and justice. With respect to morality, abortion deals with the rights of persons. The mother’s right to control her body is being challenged by the fetus’s apparent RTL, and this decision depends solely on the personhood of the fetus. With respect to justice, abortion deals with the prospect of murder. If the fetus is a legal entity then its rights must be protected under the law, and abortion would be considered murder. Both of these issues can only be resolved by determining the status of the fetus, and abortion will remain the topic of intense debate until such a resolution can be found.