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A Matter of Consent

Simon Smith argues that many discussions of abortion miss the point.

Most of us don’t like to think of ourselves as being easily shocked. A delicate nature is hardly the stamp of a robust intellect. Besides, we’re all adults here. We know how to ask hard questions, face hard truths. That’s what it means to have a philosophical frame of mind. We’re rational, reasonable – clear and distinct thinkers, as Descartes used to say.

Let’s see, shall we? I’m going to make some fairly shocking claims. Primarily, that’s down to my subject-matter, which is abortion. We’re talking about taking a life, and, genetically speaking, a human life at that. Add the fact that this life is commonly regarded as innocent, and we have, at best, a profoundly difficult moral challenge. At worst, of course, it’s even more serious. If those who campaign against abortion are correct, then we’re talking about murdering babies: more than forty million a year according to the U.N. Population Division (unpopulation.org). The philosopher David Oderberg has summed up that perspective like this: “homicides are and have for the last few decades been taking place on a scale unprecedented in human history.” (Applied Ethics, p.3, 2000.) That makes it sound a bit like genocide. Nothing too controversial, then.

What could be more shocking than the bare facts of the case? Well, here’s my contribution. Standard formulations of the abortion argument miss the point. Talk about murdering babies may or may not be accurate, but it is irrelevant. Bluntly, the point I’ll be making is that the typical argument against abortion provides a moral justification for domestic violence, rape, and murder.

In sober philosophical terms, I will argue that the anti-abortion argument falls into self-contradiction: it claims to defend the right to life while simultaneously denying life the value that makes it worth defending. In other words, anti-abortionists don’t simply negate the moral status of the female half of our species; they negate the moral status of all of us. It’s done with a simple objectification: designating people as things. As things, we lack any special moral status that could support any demands for a right to life. This outright denial of ‘personhood’ is, I think, the logical conclusion of most arguments against abortion.

The Baby and The Violinist

The standard formulation of the abortion debate comes down to a straightforward conflict of rights. In civilised societies, women have the right to decide what happens in and to their bodies. Even those most strongly opposed to abortion don’t generally dispute that. What anti-abortionists do dispute is the failure of pro-abortionists to assign the same moral status to the foetus. Both mother and foetus have rights – rights that can come into conflict. This conflict, anti-abortionists claim, is easily seen and easily resolved. The foetus, like the woman, has a fundamental right to life, and that right cannot be subordinated to a woman’s authority over her own body. Their argument, then, ostensibly concerns whether or not the foetus belongs in the same moral category as a reproductively mature woman. Now ‘moral categories’ and ‘moral status’ may be philosophically appropriate terminology, but can you imagine anyone firebombing a clinic because of a dispute over moral categories? Let’s be clear, this argument is about something more basic. It’s about whether the foetus is a person or not.

At least that’s what most people seem to assume. But in 1971, Judith Jarvis Thomson gave the philosophical ideas-box a good shake with her article ‘In Defence of Abortion’ (in the journal Philosophy & Public Affairs, Vol.1, no.1, and currently available at www.spot.colorado.edu). Unusually for a philosopher, Thomson immediately conceded that the foetus probably is a person from the moment of conception. Far from conceding the argument, however, she claimed instead that settling the nature of the foetus doesn’t answer the question ‘Is abortion legitimate?’ She argued that being a person and having a right to life doesn’t necessarily entail the illegitimacy of ending that life. There’s a premise missing here.

Thomson illustrated the logical gap with an analogy about a violinist. Imagine that you wake up one morning with a world-famous violinist plugged into your kidneys. This violinist has suffered sudden kidney failure while passing through town. The local music society – a pretty well-connected bunch, apparently – had details of your blood group, and it’s a match for the violinist. So they drugged you, kidnapped you, and hooked you up to him to provide him with dialysis. Now you’re the only thing standing between him and his final curtain call. The question Thomson asks is ‘Are you morally obliged to stay hooked up for the nine months it will take the violinist to recover?’ He has a right to life, certainly, and he will die if you don’t, but are you wrong to refuse to stay?

Let’s suppose you’ve got a heart as big as all outdoors, so you say, “Well, nine months is a long time… It’s a lot to ask, but we’re talking about a human life here. For the sake of nine months, I’ll stay.” Good for you. But what if it were nine years? What if it was for the rest of your life? That really is a lot to ask. However noble it might be for you to agree to stay, even for the rest of your life, it can hardly be amoral requirement. Acts of heroism are heroic precisely because they go above and beyond moral requirements. And if anything may be deemed heroic, saving this violinist’s life by agreeing to be a human dialysis machine is.

Misconceptions of Thomson’s Argument

Oddly, people often get a bit confused about what Thomson is doing here. One common assumption is that her analogy demonstrates the legitimacy of terminating pregnancies resulting from rape, but nothing more.

It’s an understandable position, and it’s entirely mistaken. In fact, we can’t simply determine the legitimacy of abortion according to the circumstances of conception. Do so, and matters of life and death are settled on the basis of a most appallingly arbitrary distinction: it means that a child conceived by rape has a different moral status from one conceived by consensual sex – and by ‘different’ here, we really mean ‘none at all’. But that can’t be right. Whether or not someone has a right to live can have nothing to do with what their parents were up to at the first meeting of sperm and egg. If we claim that abortion is acceptable in cases of rape, then, we must either agree that abortion is acceptable in all other cases, or we must defend a profoundly disturbing prejudice.

Another thing people often do when faced by Thomson’s analogy is point to the difference between foetuses and sick violinists. Well, yes. It wouldn’t be an analogy otherwise. And there’s no denying that normal pregnancies rarely involve lying in bed for nine months with a total stranger. However, exactly how that’s supposed to affect the argument is unclear. Perhaps we’re meant to think that the existence of a genetic relationship between mother and foetus somehow makes a moral difference. But why should it? What, after all, has genetics to do with morality? Is someone’s worth – his or her right to life – to be decided on the outcome of a DNA test? If so, then consider this: Should the violinist turn out to be your long-lost brother, you indeed will do wrong to disconnect yourself from him and let him die; however, as long as he’s a stranger, there’s no moral question to answer. Similarly, if a woman were to be kidnapped and have another woman’s fertilised egg implanted into her womb, she too could legitimately opt for abortion: it’s only if there’s a genetic relation that abortion matters morally. Obviously, we’re back in the same situation we were in when considering the circumstances of conception – grounding moral worth in arbitrary and irrelevant facts. The emotional and psychological bonds between kith and kin may be stronger than those between, say, people who merely share an office – that our moral obligations to work colleagues are therefore less doesn’t obviously follow. (In fact, in her article Thomson didn’t just concede that the foetus is a person: she wanted to see what is implied if we agree that the foetus is a person in the richest sense. That’s why in her analogy this isn’t just any old fiddle player. He’s a world famous violinist: a person at the peak of his creative powers; an artist bringing joy to others the world over. This is someone whose value as a person cannot be in any doubt at all.)

Perhaps the most serious mistake concerning Thomson’s argument, is the idea that the victim’s choice is the central issue. But if you’ve been kidnapped and drugged, you haven’t been given a choice. Whether or not you stay or go is not the point of the analogy, and to say that your choice about this is the moral turning point is entirely misleading. It is a choice of course, if we’re going to be pedantic – in the same way that, should someone pull a knife on you in the street, you don’t have to hand over your money. You could choose major surgery and being scarred for life instead. But if you woke up to find yourself being used as a human dialysis machine, would you accept that the morally decisive moment in the whole affair is your decision to stay or go? Wouldn’t you point out that, if it’s morality we’re concerned with, there’s a little matter of kidnapping that needs dealing with first? Surely the kidnapping is the defining moment here. It sets the stage for whatever decisions follow. Any choice you now make is a response to that situation: your choice is not strictly determined, perhaps, but it’s certainly made under extreme duress.

Being kidnapped, drugged, and – not to put too fine a point on it – violated, is bound to inform your decision. The violinist’s condition and your response to it can’t be separated from the circumstances that led up to them. We can’t ignore those events and judge your decision as though it were made from a point of moral neutrality, any more than we can reasonably regard your choice as a mere whim. To pretend otherwise is disingenuous. More importantly, perhaps, any attempt to shift the weight of moral responsibility onto the victim seems both philosophically misguided and profoundly unjust.

The Point of the Analogy

As you may have already realised, this analogy is not about choice at all. It’s also not about whether or not a woman has the right to do whatever she wants with her body. It’s simpler than that. It’s about the non-consensual use of your body. This is the point which most of Thomson’s critics seem to have missed. It is a question of whether one person has the right to make use of another, for whatever reason, without their agreement. If the answer is ‘yes’ – if we sincerely believe that a person does not have the right to resist non-consensual use of their body – then it seems we are committed to some disturbing claims. We will have to concede that violence, including rape and murder, can also be legitimate. That’s quite a price for preventing abortion.

The feminist implications of Thomson’s argument should be obvious by now. It seems to me, however, that the violinist analogy sows the seeds of something that goes far beyond feminism. It’s noteworthy that at no time when telling her story does Thomson use the pronoun ‘she’. We’re not observing events which happen to someone else who is, either necessarily or coincidentally, a woman. We’re not asked to imagine the violinist scenario as spectators at all. Thomson takes great care to address her reader directly. She, like me, is talking to you. So this is not a question of whether women should be compelled to submit to the non-consensual use of their bodies. It is a question of whether you specifically, man or woman, should submit to such non-consensual use. Would your rape be morally legitimate? It’s a disturbing question, but it’s an important philosophical move, too, as it reminds us that we negate other people’s rights at the cost of our own. I cannot reasonably stake my claim to the right to resist non-consensual use of my body while denying that right to others.

The obvious objection here concerns the differences between rape and unwanted pregnancy. But it isn’t the method of non-consensual use that we’re concerned with, it’s the fact of it. If it was merely a question of the illegitimacy of violence, then we might have to say that non-violent rape – where, for example, the victim is drugged – is acceptable. If you argue that rape is violent by definition (as many would), then you’d have to explain what it is that makes it so. Yet it’s difficult to imagine what might be consistently morally unacceptable here other than the fact that it’s non-consensual use of someone’s body.

So the pertinent question is ‘Does the foetus make use of its mother’s body?’ If it does, then we have to ask whether the mother’s permission is required. If the answer is “No,” then we have two choices. Either we have to explain why permission is generally not required before making use of a woman’s body, or we have to explain why this particular person (we’ve already conceded that a foetus is a person just like any other) has the right to make use of someone else’s body without permission. If the answer to the second option refers to the innocence of the unborn child, then it looks like this also implies that someone who has done nothing wrong gets to rape – and that’s just absurd.

Anti-Abortion Is Anti-Personhood

Back to the calm waters of philosophical reflection. Deny a person the rights over consensual use of their body, and we negate their ‘personhood’. In a word, we objectify them, treating them as a thing to be used for whatever purpose we choose.

This particular type of objectification of people has a long and venerable history. It goes back at least as far as the ancient Greeks, who regarded the father as the true parent of a child, and the mother as a mere vessel for his seed. A woman is nothing more than a pot to be pushed around, passed around, dropped, shelved, or smashed, all at your owner’s whim. That’s what I tell my students. It does not go down well.

It’s important to be clear about this. We’re not talking about a temporary suspension of rights. We’re talking about negating them entirely. Even the worst criminals don’t suffer that. Many of their rights may be suspended. If they’re unfortunate enough to find themselves in the United States, they may even end up on death row. But we do not objectify criminals: we do not deny their ‘personhood’. In fact, punishment may well be a part of treating someone as a person. Punishment can be a mark of respect for the wrongdoer’s autonomy, their capacity to make genuine choices.

The overall point here is essentially a Kantian one. When Immanuel Kant argued that we should treat others not only as a means but also always as an end in themselves, he described the bare minimum for a moral recognition of others. But if I can switch your rights off at my or my society’s convenience, then I’m not treating you as anything more than a means of satisfying my wants and desires. On such a foundation, moral thinking will not stand.

This is the paradox at the heart of the anti-abortion argument: the right to life is defended at the cost of any values that makes it worth defending, and that effects all of us. By objectifying half the species – by denying women the right to resist non-consensual use of their bodies – anti-abortionists end up objectifying everyone. They negate ‘personhood’ in general. Being unable to distinguish people from objects means that I’ve failed to understand what it means to be a person myself. In some crucial sense, then, my failure to recognise you as a person is an expression of my own ‘thinghood’.

Briefly and borrowing an argument from the late P.F. Strawson, recognising myself as a person stands upon a prior recognition of others as persons. Being able to ascribe personhood to others is the adequate (not the necessary) logical condition for ascribing it to myself, because I have learned how and what it means to be a person from others. Where do all the things that make up our humanity come from: all the moral and spiritual ideas, the activities and behaviours which express our identity? Think about the language in which you express all the things that make you who and what you are. Where do these ideas come from? We’re taught how to be persons by other persons, who give us the tools with which to make of ourselves what and who we are to become. That’s a commonplace of developmental psychology as well as existential philosophy: my ‘personhood’ is bound up with others. I am a person insofar as I transact ‘personhood’ with others; I am a moral agent insofar as I engage morally with others; I am a language user insofar as I communicate with them. If I fail to recognise the moral status of others, or refuse to take part in these transactions, then I limit myself just as I limit others: I become merely one thing among others.

This is where the anti-abortion argument grinds to a halt. If I deny women the right to determine the consensual use of their bodies, I reduce them to objects. Do that and I reduce myself to an object likewise. Here, it seems to me, is the central contradiction. By negating my own ‘personhood’, I take myself out of the moral picture, and I am no longer in a position to ascribe ‘personhood’ to anyone else, including the foetus. Objects cannot engage in moral transactions; that, to some extent, is why they are classed as objects. The objectification of others leaves me unable to make the kind of value judgements which underpin the ascription of personhood. So I cannot coherently deny women consensual autonomy over their own bodies.

From this perspective, the ‘right to life’ argument against abortion looks like a red herring. The point is not whether we grant the foetus a right to life. And it’s not about a woman’s right to choose either. It’s more basic than that. It’s about whether we regard some individuals as truly persons, and whether we base that decision on something so arbitrary and alien to moral thinking as our reproductive biology. If we do, then we subscribe to a prejudice which undermines any notion of rights or of personhood. Put another way, a right to life have to mean more than simply being allowed to continue breathing.

Taking a stand against abortion on the basis of the foetus’s right to life ultimately fails because of what it denies about what it claims to uphold. What looks and sounds like a moral judgement is, in fact, merely a prejudice, that is, a means of classifying something according to irrelevant features. Pressing the point, if we’re going to hold that non-consensual use is made acceptable by an individual’s role in procreation, why can’t we say that on the basis of skin colour too? As long as we don’t complain when it happens to us.

That’s the ripple-effect of this contradiction. It goes much further than the issue of abortion. As suggested at the beginning, to deny women bodily autonomy legitimises rape and murder, not just of women, but of all of us. Once we’ve been reclassified as objects there’s no moral defence against our use, or our destruction, by others. There’s nothing morally wrong with breaking a pot. In the end, I suspect, this is one reason why the abortion debate slides so easily into violence, why people believe that clinics can be firebombed and the people who work there murdered. Evidently the value of human life is not a primary concern. And that may be the most shocking thought of all.

© Dr Simon Smith 2013

Having spent the last year as the only professional philosopher in Oman, Simon Smith is currently an independent scholar and wildly enthusiastic member of the Society for Post-Critical and Personalist Studies.

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