A Comprehensive Case for Legal Abortion: Addressing objections to Bodily Rights Arguments

Hello everyone, welcome to Bad Table Talk I am your host Oliver Niehaus and a while back I created a 3 part series surrounding the issue of abortion and since then a group called Pro-life Michigan has reached out to me and asked if I would like to participate in a debate so that will be coming either later this month or sometime next but I thought I’d record the position I will be taking. I have no desire to gatekeep this information I am confident this argument will hold up to scrutiny so without further adieu, please enjoy!

A philosophical counter to the responsibility objection
On a Woman's "Responsibility" for the Fetus

Email: omnbaseball@gmail.com
Link to Actually Making America Great Podcast

Links to online books
All books are free to access on Z-library which is the website that the links for the book redirect. If you have a Mac, selecting the EPUB option allows you to download it directly to your Apple Books, otherwise, you can just download the PDF
A Defense of Abortion by David Boonin
The Ethics of Abortion by Christopher Kaczor
Arguments about abortion : personhood, morality, and law by Kate Greasley
Persuasive Pro-Life by Trent Horn

Transcript

Hello everyone, welcome to Bad Table Talk I am your host Oliver Niehaus and a while back I created a 3 part series surrounding the issue of abortion and since then a group called Pro-life Michigan has reached out to me and asked if I would like to participate in a debate so that will be coming either later this month or sometime next but I thought I’d record the position I will be taking. I have no desire to gatekeep this information I am confident this argument will hold up to scrutiny so without further adieu, please enjoy!

Hello everyone, thank you for inviting me specifically thank you to Trevor, Christen, and everyone else at Pro-Life Michigan for allowing me the opportunity to come and participate in what will hopefully be a productive exchange of ideas. I first want to say that I admire your passion and dedication to fighting for a cause that you truly believe in. I’m not one of those abortion advocates who hate those on the other side of the conversation. If you’re a history buff like I am or just watched the musical Hamilton, hopefully, both, you’ll recall the Election of 1800, considered by many as one of the most consequential elections in American history. A very brief summary for those of you who don’t know a whole lot about it, it was between Thomas Jefferson and Aaron Burr, and the Election resulted in a tie and when that happens the vote goes to the House of Representatives and they voted 14 times and it resulted in a stalemate each and every time. That was until Hamilton intervened. To put it lightly, Hamilton and Jefferson weren’t exactly best friends, they disagreed on practically everything. However in the Election of 1800, Hamilton ended up swaying a few of his friends in the House to vote for Jefferson to break the stalemate and justified his choice by saying this, “Jefferson has principles, Burr has none.” While I disagree with your position fervently, I undoubtedly appreciate and would rather have an informed group of people that disagree with me than an uninformed group, the typical pro-choice crowd if I may be blunt, that happens to agree with me. So as I’m sure you’re aware I’m here to talk about abortion, not history, as fun as that would be as well. So before we get into this discussion, I want to clarify that if you’re sitting here right now as I’m sure many of you are, thinking to yourself, I could never support the intentional killing of an innocent human being, I hear you because that used to be me. I indeed used to be pro-life and followed the arguments of Klusendorf and Brahm as I’m sure most of you do as well. So for my case today, I will be accepting the premise that the fetus is a person from conception with the equal right to life as you and me. However, the right to life does not give you the right to use someone else’s body to survive. 

I’m going to now use a thought experiment similar to the Violinist Thought Experiment by philosopher Judith Jarvis Thompson, but modify it to a different scenario to address what I believe to be the largest flaw with such a scenario which is the responsibility objection. Here’s this scenario. You’re racing your car on the highway. You enjoy driving fast but acknowledge the fact that there are inherent consequences with your decision to drive fast, one being crashing into another car and injuring those in other vehicles. You decide to drive fast and reckless anyways, well, because it feels good in the moment and unfortunately you crash into someone, severely injuring them, and causing them to need a bone marrow transplant in order to survive. You are the only available donor. Without your bone marrow, they will die. The question becomes, can the state force you to use your bone marrow to save the life of the other person, whose current state of dependence is directly a result of your reckless action. You may be starting to see the parallel I’m making with pregnancy and this gets out of the way the most powerful objection, in my opinion, to bodily rights arguments which is the responsibility objection. So to clarify, just like the mother is the reason the fetus is dependent on her for survival, so is the reckless driver the reason the injured person is dependent on their body for survival. I’m going to operate off of the idea that right now you don’t think the driver should be legally required to donate their bone marrow to the other person for survival, and if you do think so, well then you just saved me a lot of time and we will get to that later. I do want to make it clear though, I’m talking about a legal obligation, not a moral one. The question for this debate was should abortion remain legal, not the morality of the action itself. I think everyone here or at least I hope everyone here agrees that if you engage in an action that you know has a high probability of someone being reliant on your body for survival, you have a very strong moral obligation to provide such support. However, whether or not the state should force you definitely adds another level of complexity to this discussion. So for now let’s say that you answered that the state shouldn't force you by law to donate your bone marrow to save the other person. If you’re pro-life which I imagine many of you here are, I doubt that situation rocks your position very much as you find this car crash situation to be much different than pregnancy and abortion which is true, however, thought experiments will always have differences, but it’s important not just to point out differences, but prove why those differences are morally relevant. So there are five major objections to bodily rights arguments. Just like philosopher Stephen Schwartz created the SLED acronym for the 4 major differences between the fetus and the person you are right now, I created an acronym to help you remember the 5 major objections to bodily rights arguments and that acronym is ROCKS. 

R - Responsibility Objection 

O - Organ Use Objection

C - Consent Objection or commonly known as the willingness or tacit consent objection

K - Killing vs Letting Die Objection (Aka Intending vs Foreseeing or the doctrine of double effect) 

S - Stranger vs Offspring Objection 

So let’s start off with the first one which I believe is the strongest being the Responsibility Objection. There are indeed critiques to this but I didn’t find them very appealing and thus I built in the responsibility aspect into my scenario. So it’s not as much a critique of my scenario but rather a very common one that is made against Thompson’s violinist thought experiment and is also absent in cases of rape so that’s important to note. However, despite being the strongest objection, I’m going to assume for sake of discussion that it’s not enough on its own as you probably objected to the idea that the state shouldn’t force the person to donate their bone marrow solely on the basis that they were responsible for putting someone in a state of dependence. So that’s the first objection which I didn’t discuss in-depth but rather built-in so if you would like to read more about the philosophical counter to the responsibility objection, I’ve sent it to Trevor and Christen and I’m sure they’d be more than happy to send it to you. So let’s leave that one there for now.

The second objection is the stranger vs offspring obligation. This one can be easily avoided by changing the person you hit to being your own child but what’s important as well is to distinguish between the different types of parental relationships. There’s the obvious clear-cut biological definition which states that if your egg or sperm were used in the creation of that child then a biological parental relationship exists. But do you really believe that a biological parental bodily obligation exists? For example, let’s say that some of Trevor’s sperm is taken without his knowledge and is used to create a child via in-vitro fertilization, and that child is born but Trevor doesn’t ever meet that child until he’s 45 when he is informed that unfortunately the child he never knew he had, needs a bone marrow transplant to survive. Should the state force Trevor to donate his bone marrow to save that child that is biologically his and therefore you would claim to which he has a biological parental obligation? I would assume the answer is no as he’s never met this child in his entire life and has had no such meaningful relationship with them. However, there is another type of parental relationship which is a custodial parental relationship. This just means that you are the custodial guardian of a child. Very often, being when you’re raised by your biological parents, both a biological and custodial relationship exists. But let’s assume Trevor and his wife Christen adopt a child shortly after birth and raise this child for years. This wouldn’t be a biological parental relationship but rather a custodial parental relationship. Would Trevor or Christen have a bodily obligation, or in other words could the state force them to donate bone marrow to save that child should a scenario arise where the child needed a bone marrow transplant to survive? The answer legally would still be no but I see how you could make a stronger moral argument as to why there is more of an ethical dilemma in this situation rather than the last where Trevor merely had a biological relationship to a child he never met. Now I agree that Trevor would be a terrible human being and I definitely think I can safely say Trevor would probably donate the bone marrow, but the question is, legally can he be obligated or more straightforward, should he be legally? Some of you may be thinking yes and guess what, I agree! However, that scenario doesn’t exactly mirror pregnancy and that comes back to the different types of parental relationships that exist. The scenario I just described to you was a solely custodial one where Trevor and Christen merely adopted the child and had no biological relationship to the child. However, the relationship between a woman and the fetus is solely biological and it seems like you most likely agreed that a biological relationship alone is not grounds to force Trevor to donate his bone marrow to the child that was created via in vitro fertilization without his knowledge that he meets decades later. That is the analogous example to pregnancy due to the fact that as I said, the relationship between the mother and the fetus is solely biological. So in order to say that the relationship between the mother and fetus is grounds for the state to force the mother to use her body to sustain the life of the fetus, you would also have to say that Trevor must be forced by the state to donate the bone marrow to save the life of the biological child created without his knowledge via in vitro fertilization and he meets decades later. I’d imagine that’s probably something tough to concede. 

The next objection is the Consent Objection or more commonly known as the willingness or tacit consent objection which states that since the woman willingly engaged in sex that she willingly allowed the fetus to be dependent on her and thus consented to the fetus using her body. There’s a definite distinction between consenting and accepting and despite often being used interchangeably, there needs to be a distinction between the two. For instance, many people often say that consent to sex is consent to pregnancy and this just is a misuse of the word consent. You consent to actions and accept that there are certain outcomes that come with such actions. You cannot consent to outcomes themselves. The question is whether or not you have responsibility for those outcomes which goes back to the responsibility objection which I addressed earlier. But the tacit consent idea conflates consenting to sex with automatically consenting to the legal responsibility of pregnancy and being legally obligated to carry that pregnancy for 9 months. However, let’s for sake of argument say that you openly consent to that child using your uterus to survive. That seems odd but for sake of argument, you tell the whole world that you love being pregnant and can’t wait to be a mother. Just go along with this. Can you change your mind? Does you consenting to allow that fetus to use your body at a certain time mean you automatically consent for 9 months? It seems odd to say that if we let someone be dependent on our body for a brief period of time that they automatically have a right to use our body for as long as they need correct? Let’s say Trevor willingly agrees to donate the bone marrow to his long lost son and for sake of argument, the procedure for donation will take 9 months, how convenient :) However a month or so in, Trevor begins to feel serious pain and thus desires to disconnect. Should he be allowed to do so? Or should the state force him to stay connected to his biological long lost son? It seems inhumane to force him to do that and endure the pain and suffering he is facing just because he willingly agreed to do so at one point. Therefore, just because the act of sex is willing, it doesn’t give the fetus an automatic right to the mother’s body. There’s one more objection under this same realm and I didn’t give it its own letter because well one it didn’t fit well into the word ROCKS but mostly it just fits well as a subset of consent and responsibility and that is that since the woman is responsible for creating the fetus or in other words is responsible for its current state of existence that therefore the fetus has a right to her body. I find this argument to be odd and not logically consistent in multiple ways. For example, let’s say I’m having lunch with my friend at my house, just the two of us, and he starts choking, and let’s assume that if I don’t give him the Heimlich, he will die. I, therefore, give him the Heimlich and save his life. Therefore, for the rest of his life, his current existence will be a result of my action to save his life. Therefore would you say that if in 20 years he needs a bone marrow transplant that I should be required to give it to him? I think the answer is an obvious and resounding no. Therefore, I don’t see how the idea that because the mother is the reason for the fetus’s existence somehow gives the fetus the right to use the mother’s body. So, all in all, The consent and willingness obligation doesn’t seem to hold under scrutiny either. 

The next objection is the killing vs letting die objection. This goes to the major premises of the syllogism that many pro-lifers like Scott Klusendorf use, being that it is wrong to intentionally kill an innocent human being, abortion does that and therefore it’s wrong. I take issue with both premises. Let’s discuss the first premise which is that it is wrong to intentionally kill an innocent human being. Is premise 1 universally true? Is it always wrong to intentionally kill innocent human beings? That may seem like a quick yes to you but I want to layout a famous thought experiment often called the trolley problem. It goes as follows. You are standing out in a field and you see a trolley speeding down the tracks headed towards a fork. On the left part of the fork, there are 5 people tied to the tracks and on the right, there is one. You are standing next to a lever that will switch the direction of the trolley tracks. If you do nothing, the trolley will naturally go to the left and kill the 5 people. However, if you pull the lever it will go to the right and kill just one person. The answer on what to do, to me, seems simple. Pull the lever to minimize the number of casualties. However, by pulling the lever, you are intentionally causing the death of one person vs letting 5 people die. So is it always wrong to intentionally kill an innocent human being? I think the above experiment provides an adequate example of why it may not be. Let’s apply this to abortion. For example, if a woman is pregnant and you know for 100% certainty, this is a thought experiment so that’s why it’s an absolute claim, that during the process of giving birth the mother will go into cardiac arrest and die. This is inevitable. However, in this example, the fetus will survive. Would you support aborting the fetus to save the life of the mother? Let’s say that you know from the moment of conception that the mother would inevitably die in the process of childbirth? Would you support a simple pill abortion or even the use of Plan B which can expel a recently fertilized embryo by preventing it from attaching to the uterine lining? Consider that scenario. I’ll get to premise two in a second because I take issue with the idea that 1. the fact that abortion is always the intentional killing of an innocent human being or that it’s relevant but for the sake of the point I’m making would you support abortion or as you would say, the intentional killing of an innocent human being to save the life of the mother? Some of you may say yes and some may say no. For those who said yes, you already proved the flaw with premise 1 of the syllogism. There are certain circumstances in which intentionally killing an innocent human being would be morally permissible in this instance to save the mother’s life. For those who answered no, that we can’t intentionally kill the fetus to save the life of the mother, I ask that we modify the scenario. Now not only will the mother die but also the fetus. Now can we intentionally kill the fetus to save the mother? I assume all of you agree as this scenario mirrors what is called an ectopic pregnancy. Now if there are any of you who think we shouldn’t abort the fetus in the second scenario if there are any, I hope not but if that’s the case, I respond exactly how Klusendorf responds to philosopher Peter Singer who supports infanticide in certain cases, “While I believe your conclusion is truly barbaric, I cannot help but appreciate your consistency.” So back to ectopic pregnancies, which if you aren’t aware is when the fertilized egg gets stuck in the fallopian tube and begins to grow there, and if it isn’t removed it will burst the fallopian tube and the mother will hemorrhage to death. So by removing that fertilized egg, are you not intentionally killing it? Even if you are intending to save the life of the mother, you are still killing the fetus are you not? And if you object there, make it the birth scenario. The mother will go into cardiac arrest and die and the fetus will not survive. She is about to go into labor. I understand this isn’t realistic but for sake of the thought experiment, would you support intentionally killing the fetus if you could make the absolute claim that both will die? Or would you rather let both die than actively kill to save the mother? It’s overwhelmingly likely that you do support killing the fetus. Therefore, can we truly say that it is always wrong to intentionally kill innocent human beings? An objection I have heard and not one that is common is the argument that if the fetus poses a threat to the mother then it is no longer innocent and thus removing it would be justified, but then I have to object and say that by what metric do you constitute posing a threat? If we’re being intellectually honest, the process of pregnancy and especially birth always pose a threat to the mother, albeit low as it is, it’s still a threat. So therefore what is the line where the fetus becomes enough of a threat that we would be justified in killing it? So in summary, Premise 1 isn’t correct, at least not absolutely in every instance. As I’m sure you acknowledged that in at least one of the two scenarios it wouldn’t be wrong to intentionally kill the fetus to save the life of the mother. And if you agreed that the most moral decision would be to pull the lever in the trolley scenario, that’s true in other scenarios as well. So let’s move on to premise 2, Abortion intentionally kills an innocent human being. At best this is incomplete. There are many different types of abortions some such as vacuum and dismemberment abortions that directly kill the fetus before removing it from the uterus, but there are also abortions such as dilation and evacuation abortions or a hysterotomy that remove the fetus alive and intact from the mother and thus it dies due to being underdeveloped. This premise is intellectually dishonest. As Klusendorf likes to do when prompted with the question of abortion in the case of rape, For sake of argument, I’ll concede some if you concede some. I’m going to concede that dismemberment and vacuum abortions are wrong if you concede that dilation and evacuation abortions and hysterotomies are not, which I doubt you will because that is indeed an odd position to take. Therefore the fact that certain abortions directly kill the fetus prior to removal has no moral bearing on the situation as you oppose abortions that are just merely removal as well.  

The last objection and a very common but easily refuted one is the Organ Use Objection. Basically, the argument goes as follows. The pro-lifer will say, “you can’t compare donating a kidney or bone marrow to pregnancy because the primary purpose of those organs is for my body not someone else’s but the uterus’s primary function is to gestate another human being. But my kidneys aren’t meant for other people.” So I ask one question when prompted with this objection. Who exactly is the uterus meant for? Sure it’s meant for fetuses but which ones? Just the ones the mother conceives or all fetuses? If you’re a little confused by that, let me lay out a scenario to try and clarify. Let’s say that a woman is impregnated via in vitro fertilization without her knowledge, kind of like Jane the Virgin but I’m pretty sure that was artificial insemination so this is in vitro fertilization and it’s with an egg that’s not one of her own. Meaning it’s not her fetus. So she’s pregnant with a fetus that isn’t biologically hers. Could she get an abortion? Seems like an odd question. If you’re against abortion in all other cases, this would be an odd exception and I agree. So if you think that she should be required to carry that fetus to term despite it not being her fetus and the process not being natural, then the unnatural nature of a kidney or bone marrow transplant has no moral bearing on the situation, as you just admitted that the uterus is designed to gestate all fetuses, not just the woman’s own fetuses, the same way your kidney would be designed to filter all blood, not just your own. So that’s the response to the organ use objection. That’s the argument. And acknowledging that the organ use objection doesn’t hold validity, then in order to say that if the woman is forced to use her body to sustain the fetus, then once that child is born, if the newborn needs a bone marrow transplant that only the father can provide, you must be in favor of the state forcing him by law to donate his bone marrow. 

Why conservatives should be in favor of legal abortion

Conservatives are usually deontologists. They believe that the morality of actions is determined by the action itself and not the outcome. Therefore, deontologists would not pull the lever in the trolley scenario because by doing that they are intentionally killing someone and that action in a vacuum is morally wrong. The fact that the result of their action, or rather inaction, in this case, kills 5 other people is irrelevant. Conservatives also believe in individual rights which include inalienable rights. This is hypothetical because I indeed don’t believe in gun control due to it being ineffective but for sake of argument, if banning all guns did save lives, would you be in favor of that? The likely answer is no. I would be in favor if it saved lives but that’s not the case. So even if it did save lives, you’d likely be against banning firearms because it violates the Second Amendment and more specifically the right to defend yourself. That’s a deontological perspective. So let’s extend that to some other rights. The inalienable rights outlined in the Declaration of Independence are Life, Liberty, and the Pursuit of Happiness. Pursuit of Happiness was derived from 17th Century English Philosopher John Locke who originally said Life, Liberty, and Property, and as can be seen, by many early documents and Jefferson himself, Pursuit of Happiness was the pursuit to own property as that was what made them happy. So the right to own property is one of the inalienable rights, meaning it cannot be infringed upon, not even to save another’s life. You are not required by law to give up your house to save another’s life. And your body is an extension of your property as you essentially own yourself. Therefore you have an inalienable right to self-ownership. You cannot be required to use your body to save the life of someone else as I mentioned. Therefore since the right to self-ownership is inalienable, can the government violate that right to save someone’s life? That seems to not follow deontological ethics which if you believe you can’t violate the rights of one person to save others then this is clearly a contradiction. How about masks and lockdowns? Both reduce the spread of COVID-19 and save lives. However many conservatives believe the government shouldn’t be able to mandate either because the government can’t violate your individual rights to save other’s lives. Therefore can the government violate a woman’s individual rights to save the life of a fetus? It seems to be logically inconsistent to believe that the government can’t violate your individual rights when it comes to those other scenarios but can do so when it comes to a woman and her child. Another argument is that because the fetus needs the woman’s body to survive that therefore it’s entitled to it. But then I quickly ask, from a conservative’s perspective, do you really believe needs constitute rights? Healthcare, housing, and food are all human needs for survival but it would be accurate to say that most conservatives don’t believe those should be automatically given to you just because you need them.