posted by Josh Brahm, April 13, 2013 @ 9:02 am

De Facto Guardian: A Response to the Strongest Version of the Bodily Rights Argument for Abortion

I’ve been privileged to participate in a philosophy study group with folks from the JFA community.  Stephen Wagner, writing for the group, just completed a first draft of a long-awaited paper detailing a response to what we believe is the toughest pro-choice argument, a bodily rights argument that claims that a woman has a legal right to refuse to allow the unborn to use her body, especially in the case of rape and very early in pregnancy (a version of the Violinist argument).  Our response is available for download here.  Eager for public interaction with the paper, we decided to make this post the official internet download site in order to focus public discussion of the paper in one place, using the commenting features within this post.

De Facto Guardian and Abortion: A Response to the Strongest Violinist (PDF)

With this paper, we hope to push the dialogue about bodily rights arguments in a direction we haven’t seen very prominent in the literature or on the web.  We look forward to hearing what you think!

UPDATE: 3/26/14: You can now download audio of me teaching this material at a Students for Life conference by clicking here. Some people have told me it was easier for them to listen to the speech first to get the basic concepts in their head before reading the paper.

 

  • Guest

    I’m not sure why. But after reading that I have the Master Sword theme stuck in my head:

    http://www.youtube.com/watch?v=rdXIs-knzvo

  • http://www.facebook.com/profile.php?id=1052963185 Rich Brahm

    This is very helpful and answers the problems I’ve had with some of the responses to the violinist argument. I have a question, and a few nit-picks (typos).

    I think there might be another disanalogy between pregnancy and the cabin story that is not addressed here: a rape victim faces some degree of risk if she carries the baby to term. The blizzard victim doesn’t. While there have been recent studies* indicating that the prevalence of complications during an abortion have been under reported in the past, and may in fact equal or exceed the risk of complications in bringing a baby to term, this is not widely known and acknowledged. So an abortion advocate may feel that this is a significant disanalogy to the cabin in the blizzard stories. How would you address that objection? *For one such study see http://www.medscimonit.com/abstract/index/idArt/883338

    A few typos to fix:
    frantically not franticly (top of page 2)
    directly not dirctly (footnote 3 on page 4)
    and purview not perview (also in footnote 3)

    Why are the last couple of phrases in the first paragraph under IIa (page 4) in quotes? Are these quotes from Thomson’s violinist paper?

    Under item VIII where Russell is introduced, says “plastered to front of the house” (page 20). This should be “plastered to the front of the house”.

    At the bottom of page 20: “The story is very similar to the story of Mary with which she began.” Shouldn’t the pronoun here be “we” rather than “she”?

    • Guest

      That wasn’t addressed, but I don’t think it would justify abortion. It should be noted that Judith Jarvis Thomson assumed for the sake of the argument that the dangers of childbirth are negligible. We could tweak the blizzard story so there’s a chance that the woman will die or be permanently disabled when she tunnels out of the cabin (she gets hypothermia, is eaten by a polar bear, loses a hand from frostbite, or has a heart attack from the physical labour) with the overall risk of death being around 1 in 10000. Would this give her a right to refuse? I don’t think it would.

      • http://www.facebook.com/profile.php?id=1052963185 Rich Brahm

        I don’t think it would, either. Plus, the Denmark linked records study (URL is in my comment above) shows that the mortality risks associated with abortion are much higher than previously thought, and higher than natural childbirth. I just thought that it might be an objection that someone could raise, and wondered if you guys had considered how to respond to it.

  • lifereport

    A friend of mine asked a question that I know will come up for a lot of people that I want to offer a very brief response to, although much more could be said about it:

    “I read your paper about the bodily rights argument. Excellent work! There’s only one possible objection that I can foresee which you did not address. That would be a hypothetical case where the only way for the woman to feed the child is to cut off one of her limbs (cannibalism). I don’t think this is decisive (and I think your analogy is much better than the violinist). But it still could cause problems for the food/shelter vs. medical care distinction, as it would be extremely counter-intuitive to say that she does have a duty to provide support in this way.”

    My short answer: This is one of the first things we debated internally. We’re arguing that a de facto guaridnan only has the normal moral and legal obligations that parents already have, limited to food and shelter. Parents are never legally obligated to feed their arm to their child, and I would argue the de facto guardian has no higher obligation than a parent.

    • Guest

      So to summarize the main argument:

      Parental obligations are not always assumed voluntarily, and they do not require a biological relationship – as seen with the example from Up, where temporary “de facto” guardianship is established. The de facto guardian has the same obligations that a parent would have (as long as he has custody). The duty to provide food and shelter is stronger than the duty to provide extraordinary medical care (only the former includes an obligation to use an intimate body part to provide aid, as seen in the contrast between the violinist case and the breastfeeding case). However, it is not necessarily absolute (as parents would never be required to feed their limbs to their children). Thus aborting a person is wrong but refusing to cut your arm off is not.

      • lifereport

        Yes, that’s correct.

  • http://twitter.com/thephilosotroll Philosotroll

    I’ve made a long-form commentary of the article available elsewhere. It’ll make its way over to Tim and Steve, but I figure other readers who are interested in a different angle might find it engaging.
    http://philosotroll.com/2013/04/16/critique-and-criticism-of-wagner-on-abortion-obligations.aspx

    A very short version of the commentary would look something like this: (a) Steve’s use of intuitions in the article is misguided and well outside of the scope that they ought to be used by moral realists and anti-relativists. (b) Steve’s use of a de facto guardian status to instantiate a legal obligation as well as a moral obligation is unsuccessful, since the rational for de jure guardian status is not obviously met by the conditions present for de facto guardian status as he describes it. (c) The argument fails to make explicit a number of important inferentially engaged premises, and so appears to commit non sequitur. The line in the long form is a little more nuanced, but for those who want the CliffNotes, there they are.

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  • nebojones

    Almost all of the pro-abortion folks I have spoken to deny that a fertilized embryo is a person. They point to Roe v. Wade and claim that the Supreme Court decision justifies their position. Some of them claim that the fetus is not a person until it is born; others are more willing consider the fetus to be a person at the beginning of the third trimester. None of them believes that a one-month-old fertilized embryo is a person. To them, a more relevant analogy would be that the woman finds herself snowbound in a cabin with a tadpole or a caterpillar. Clearly, she has no moral or legal obligation to feed these creatures; she is free to let them starve, or even to deliberately kill them, if she benefits thereby.

    • Guest

      Then that’s what you need to argue for (the status of the unborn), not bodily rights. The bodily autonomy argument assumes that the unborn are persons (with the same right to life that you have) for the sake of the argument (the same way a famous violinist is), but claims that a woman is still not obligated (legally and/or morally) to let her body be used to sustain them. If they keep going back and forth (conceding that the unborn is a person for the sake of the argument, then denying it after you address bodily rights, then conceding it again and arguing bodily rights, etc) then that would be an example of moving the goalposts.

    • Vita

      If that is the case you can easily bring up another Supreme Court case that changed the legal definition of a person the Dred Scott Case. They will not agree unless they are extremely racist.
      The other question that you could ask is how they define personhood, because it is obvious that a living human being is present at this point.

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  • Monica

    Thank you for writing this paper and encouraging other pro-lifers to take the bodily autonomy argument seriously. It’s the only pro-choice argument with real persuasion, in my opinion.

    However, for what it’s worth, I think the paper has a problem, and maybe it’s an unresolvable one. I got stuck with this sentence:

    “My intuition is that whatever the law actually is currently, Mary’s moral obligation to feed is so weighty that it should be a legal obligation as well. It should not be legal for Mary to do what she did.”

    First of all: that’s not *my* legal intuition. I agree with Wagner about the moral obligations, but if I try to consider my *legal* intuitions than no, I don’t see a legal obligation to breast feed the child. I don’t think if, in reality, this poor woman was kidnapped and held in some cabin in a blizzard, people would try to prosecute her after the fact for not breast feeding the child. I think people would be horrified, but I’m dubious there would be legal precedent to prosecute her.

    Secondly: this may just be a problem whenever we rely on appealing purely to intuition. If your intuition is that rape victims should legally have to carry their pregnancies, than it makes sense that your intuition would be that the kidnapped woman should be legally obligated to breast feed the infant. If your intuition is that rape victims should not legally have to carry their pregnancies, it makes sense that your intuition would be the kidnapped woman should not legally have to breast feed the infant.

    In any case, I simply don’t see any legal precedent for obligating people to provide bodily like that, so I just don’t know how they could prosecute the woman for that. In fact, I see quite the opposite. Consider the court case McFall v Shimp: McFall suffered from a life-threatening bone marrow disease and his cousin, Shimp, was a compatible bone marrow donor. Shimp refused to donate bone marrow. McFall requested Shimp be compelled to donate. The Court considered Shimp’s refusal “morally indefensible,” but still ruled in Shimp’s favor, explaining,

    “For a society which respects the rights of one individual, to sink its teeth into the jugular vein or neck of one of its members and suck from it sustenance for another member, is revolting to our hard-wrought concepts of jurisprudence. Forcible extraction of living body tissue causes revulsion to the judicial mind.”

    The cabin in a blizzard analogy is very good imagery and, if nothing else, I think it illustrates well why I think rape victims are *morally* obligated to carry their pregnancies.

    • profhunt

      Monica, You may wish to check out the statutes in your state, as involuntary manslaughter or negligent homicide are not federally defined. The woman’s refusal to use her reasonable skill and care appear to fall under the definitions In my state (IL) and previous states that I’ve lived in (MA and CO).

    • Guest

      I disagree with your implication that anyone who supports legalized abortion in the case of rape will support Mary’s legal right to refuse in the no-formula cases. Quite the contrary, many people rethink their views on abortion when being presented with the analogy. It provides a fresh look at the principles involved outside the context of pregnancy and abortion, but in a way that’s closely related (transposing the relevant similarities). Thomson’s violinist story also attempts to do this (and as such, has also caused people to rethink their views on the permissibility of abortion – particularly in the case of rape). It would be consistent to support the right to refuse in both cases with the blizzard story (or oppose it in both cases with the violinist story), but this conclusion seems quite implausible. So the challenge is to determine which analogy is more similar to pregnancy, and why. This would in turn shed light on the controversial issue.

      It is quite difficult to appeal to legal precedent here (as we don’t have any actual court cases to turn to). Abortion is legal in the U.S. on the grounds that a fetus is not a legal person with Fourteenth Amendment protection (change that, and Roe v. Wade automatically collapses in Justice Blackmun’s own words), not because of bodily autonomy. And McFall v. Shimp is irrelevant because it didn’t involve a parent or guardian refusing to provide food or shelter to their child. In fact, Shimp didn’t owe *anything* to McFall (the court would have ruled the same way if he had refused to pay his cousin’s medical bills). We would need a case where a certain adult is the only person in the vicinity with the ability to help a child through food or shelter. The most similar story we can find is in a Pixar movie, which is not legally binding. However, if we imagine a hypothetical world where cantankerous old men frequently tie helium balloons to their houses only to find needy boy scouts on their porches or where women wake up trapped in strange cabins full of infant formula with crying babies in the next room, it’s hard to seriously hold that we wouldn’t mandate the adult to provide support. The no-formula cases (and pregnancy) are more intimate and require more meaningful sacrifices, but they’re not so intimate that they would distinguish a serious crime from perfectly legal behaviour.

      It would be even more apparent if the only options were breastfeeding and directly assaulting the child with a weapon.

  • Deb

    I like the concept of de facto guardian, but this scenario sets up a false dilemma by oversimplification. There really isn’t anything sacrificial about a woman giving a baby formula for six weeks. However, if a woman is raped and forced to carry and have the baby, this is nine months of pregnancy AND giving birth. No comparison. Add to this other legal complexities such as: does the father get custody/visitation rights? In some states, yes, he may.

    • Guest

      I think you might benefit from reading the rest of the paper. It explores scenarios that involve levels of sacrifice more on par with pregnancy and childbirth.

      The fact that rapists who conceive children sometimes get custody/visitation rights seems like an unfortunate legal technicality more than anything else. It doesn’t say much about whether or not laws permitting abortion are just.

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