Pro-life 101 Series – Bodily rights: Violinists, conjoined twins, and pregnancy

We at the Minimise Project like to emphasise that the abortion debate is really two debates. It’s not enough to argue about whether embryos and fetuses are equal persons, which we discussed in the first part of our Pro-life 101 series here. We also have to establish whether a woman’s bodily autonomy gives her the right to an abortion even if fetuses are our moral equals.

The reason this is relevant is often not apparent to pro-life people. Pro-life people usually think that once we have shown that the unborn is our moral equal, then opposition to abortion in all circumstances naturally follows. If it’s wrong to kill an equal human being, and foetuses are equal human beings, then it’s wrong to kill foetuses: the end! However, almost all people don’t actually think that it’s always wrong to kill a human being. Most people, for example, think it’s acceptable to kill someone in self-defence, if that is the only way to prevent you or others from being killed. Many people also think it’s acceptable to kill other human beings, including innocent human beings, during a war.

So it’s not enough to simply show, as the Equal Rights Argument shows, that unborn babies are our moral equals. We also have to show that unborn babies are not in a situation or circumstance that justifies ending their lives. Bodily Rights arguments flow from the idea that the particular circumstances of pregnancy, and women’s rights to bodily autonomy, do justify bringing about the deaths of unborn babies even if they are our moral equals. The task of pro-life people is to show this is not the case.

This question is a thorny one, much thornier than most pro-lifers give it credit for. To show that abortion is a human rights violation, we need to argue that a woman’s bodily autonomy doesn’t override the fetus’s right to life. This is, we think, a more difficult task. Pro-choice arguments about bodily autonomy are serious and substantive, and (just to repeat) don’t rely on challenging the humanity or equality of the unborn. On the contrary, one big reason bodily autonomy arguments are so compelling is that there seem to be an awful lot of other cases in which one person’s bodily rights do override another fully equal (born) person’s right to life.

Consider:

A real-life case. Wikipedia summarises:

“Thirty-nine-year-old unmarried asbestos worker Robert McFall had “a rare bone marrow disease” called aplastic anemia, where the patient’s bone marrow fails to manufacture certain necessary blood components. Without an urgent bone marrow transfusion, McFall would soon die. McFall’s first cousin, a 42-year-old crane worker named David Shimp, was the only available bone marrow match for McFall at the time, but Shimp refused to donate his bone marrow, which would have dramatically increased the odds of saving McFall’s life (with Shimp’s bone marrow donation, doctors estimated that McFall would have had a 50% to 60% chance of surviving). McFall then sued Shimp in order to force him to donate his bone marrow. When the case ended up in court, Judge John P. Flaherty Jr. stated that Shimp’s position was “morally indefensible”, but simultaneously refused to force Shimp to donate his bone marrow.Judge Flaherty also stated that forcing a person to submit to an intrusion of his body in order to donate bone marrow “would defeat the sanctity of the individual and would impose a rule which would know no limits, and one could not imagine where the line would be drawn.”

McFall died a few months later. Should the court have compelled Shimp to donate bone marrow to his cousin?

In all of these cases, the right answer seems to be “no.” Compelling people to use their body or part of their body to support another person in these cases is wrong, even though a fully equal person will die if they don’t. Certainly it would be a very good thing for these people to offer the aid: perhaps it would even be wrong for them to refuse. But it would also be wrong to make that refusal illegal. 

These are all bodily rights arguments: more specifically, they are what are called “Right to Refuse” bodily rights arguments. They hold that people should be able to refuse to have their body used by others in invasive ways without their consent: even if the people using their body are fully equal. These kinds of bodily rights arguments are different from “Sovereign Zone” arguments, which hold that people can do anything they want to anyone that’s inside their body. Sovereign Zone arguments are much less plausible than Right to Refuse ones – they would seem to imply among other things that pregnant women could legitimately torture a late-term fetus. But most pro-choice people rely on Right to Refuse arguments, and so it’s those that we’ll be considering in the rest of the post.

Now, there are a variety of responses that pro-lifers typically make to cases like these. Here are three:

Organ Donation Should Be Mandatory

Some pro-life people argue that random people should indeed be legally required to donate their organs to people in deadly need of them. It’s true that if this principle was conceded the pro-life position on abortion would neatly follow: it would be mild by comparison.

Special Obligations to Your Children

The people in the examples above are strangers, friends, or at best cousins. But assuming the Equal Rights Argument goes through, embryos and fetuses are the children of the people pregnant with them.* People have much stronger obligations to their children than they do to others. If a child who’s a stranger to me goes hungry on the streets of Dublin, I’d be acting well to feed them, but the law couldn’t require me to. If on the other hand, my own child was to go hungry, the law could and does require me to support them. So why can’t the law require a person to support their own child’s life in the case of pregnancy?

Pregnancy is Less Demanding than Organ Donation

Here the claim is that pregnancy, as physically demanding as it is, is just less demanding than donating an organ would be.
None of these responses really work. The first is just too demanding. Perhaps you really do believe that the government should be able to legally require organ donation. But most people don’t. They think, like we do, that this would be an authoritarian hellscape.

Special obligations arguments are much better: but they don’t quite do the necessary work either. To see why, imagine a different version of Kidney Donation.

Kidney donation to your child

Shiv, a very sick five-year old, requires a kidney donation or she will die. Her father Logan has two well-functioning kidneys. Can the government force Logan to donate his spare kidney?

Here we seem to be on pretty firm ground in thinking that Logan is a horrible person if he doesn’t donate his kidney to his daughter. But even here I don’t think that the government should be able to legally require that he does it. Making a person undergo surgery to lose an organ is, again, a bridge too far. 

What about the argument that pregnancy isn’t as demanding as organ donation? One problem with this argument is that it relies on a very blurry distinction. It’s clear that both organ donation and pregnancy are extremely invasive in a bodily way, and both involve using your body to support someone else. These are clear distinctions. But once we get into the question of just how demanding each is, it becomes much less obvious what to say. For example, here are some details on recovery time after kidney donation, via the USA’s National Kidney Foundation:

Usually, living donors stay in the hospital 1 to 2 nights after surgery. How long you’ll stay in the hospital depends on if you’re in pain, when your doctors feel that you’re ready to go home, and how close you live. Most donors who live close by can return home after 1-2 nights. If you live far away, the team will ask you to stay in the area for about one week, just in case you need to go back to the hospital for any reason. 

The two most common types of surgery (laparoscopic and robotic) are non-invasive, meaning they allow the surgeon to remove your kidney safely while making the least number of incisions to allow your body to recover more quickly.

Right after surgery and a few weeks into recovery, you may feel:

* Bloated and constipated, which are normal symptoms after any surgery.

* Itching and some pain around the incisions (cuts) as they heal.

* Fatigue (feeling tired).

* Some discomfort from the gas that you’ll receive during surgery that allows the surgeons to see inside your body to remove the kidney.

* Shoulder pain after donating as any gas that is left over moves up the body.

* Most living donors make a full recovery four to six weeks after surgery.

This sounds an awful lot like recovery from childbirth! In truth, some recoveries from kidney surgery will be more demanding than some recoveries from childbirth, and some will be less so. But there doesn’t seem to be any huge categorical difference that would warrant legal requirement of one but not the other. And that’s before we count the painful childbirth itself (not, like a kidney donation, generally done under general anaesthetic), or the nine months of actual pregnancy! The morning sickness, the tiredness, the swollen ankles, the relative commonness of conditions like pre-eclampsia.

It might be objected that once your kidney’s gone, it’s gone: pregnancy is temporary, kidney donation is permanent. But as stated above, this isn’t true of a partial liver transplant. The liver just grows back. Nor is it true of bone marrow or blood donation, and we don’t legally require either of those, which are arguably even less invasive than either pregnancy or organ donation. And some pregnancies which are not life-threatening do nonetheless have significant long-run impacts on the mother’s health, both physical and mental. Is abortion going to be permissible in those cases? If not, it suggests that what makes the difference between abortion and these other cases I’ve discussed is not their relative levels of demandingness.

Another more plausible contender for being the difference between the organ donation cases and pregnancy is the following:

Giving aid vs withdrawing aid

In the organ donation cases, what’s in question is a person using their body or part of their body to give support to a person. In pregnancy, what’s at stake is taking away support that’s already being given. It’s like trying to take your kidney back once you’ve already donated it.

This difference seems much more relevant, and in fact we at Minimise used to put things in these terms in some of our workshops. Something like this is going to end up being part of the right response to bodily rights arguments. But it isn’t universally the case that you can never withdraw bodily support that’s been already been given to another person. That’s shown vividly by one of the most famous philosophical thought experiments ever: Judith Jarvis Thomson’s ‘Famous Violinist’.

You wake up in the morning and find yourself back to back in bed with an unconscious violinist. A famous unconscious violinist. He has been found to have a fatal kidney ailment, and the Society of Music Lovers has canvassed all the available medical records and found that you alone have the right blood type to help. They have therefore kidnapped you, and last night the violinist’s circulatory system was plugged into yours, so that your kidneys can be used to extract poisons from his blood as well as your own. [If he is unplugged from you now, he will die; but in nine months] he will have recovered from his ailment, and can safely be unplugged from you. (Thomson, ‘A Defence of Abortion’)

In this case, by the time you wake up, the violinist (an innocent, fully equal person) is already connected to you. They are already receiving bodily support from you and your organs. Despite this, Thomson argues that you’d be completely within your rights to unplug from the violinist and walk away, withdrawing your life-saving aid in a way that means the violinist will die. If she’s right about this (and we think she probably is: we’ll certainly concede it for the purposes of this argument), then it doesn’t seem to be the case that abortion is impermissible because it’s withdrawing aid already given.

So what is the difference then? Is there any difference between all these cases – cases where bodily autonomy seems to trump the right to life – and abortion? We think there is.

***

Killing the innocent VS Not saving them

We might begin by changing the violinist argument slightly: instead of the choices being between staying connected or disconnecting from the violinist, imagine that your only choices are remaining connected to the violinist or violently killing him via shooting or stabbing. It’s harder to modify the organ donation cases in the same way but certainly their logic doesn’t seem to legitimise killing anyone either. David Shimp had no right to attack and kill Robert McFall. Sawyer, the reckless driver who caused the traffic accident, has no right whatsoever to finish the job and kill Jack.

The reason for that is clear: killing innocent people is either absolutely morally prohibited or very close to that, and one of the state’s main functions is to protect innocent people from being killed. This is, we think, really what people mean when they say that the unborn have the right to life. They have, like any other innocent person, the right not to be killed. Not the right to be saved at any cost, but the right not to be intentionally killed.

The organ donation and violinist cases are all cases of not saving people. None of them involve killing anyone. What killed Robert McFall? His disease. What would kill the violinist? His disease. The car accident is a little trickier, because there it is Sawyer’s actions that threaten to kill Jack: but it’s not his action of refusing to save Jack, it’s his initial reckless driving that so critically injured him.

Now it seems clear that some methods of abortions are definitely killing rather than not saving.

Destruction abortions:

Vacuum aspiration, surgical dilation and curettage (cutting), intact dilation and extraction, lethal injection, methotrexate (which stops embryonic cells from dividing and multiplying). 

These methods are clearly attacks on the unborn child’s body: they’re examples of killing if anything is. But we might contrast these with a different kind of abortion:

Extraction abortions:

Intact delivery without lethal injection, hysterotomy or hysterectomy, and arguably the mifepristone abortion pill (which works by blocking progesterone receptors, causing progesterone, which is necessary to maintain the uterine lining, to drop to levels that mean the uterine lining cannot continue to support the developing embryo) ).

These don’t seem to be a direct attack in the same way and could more plausibly characterised as something like ‘evictions’ of the unborn child. So could it be that these abortions are not killing, and are merely failures to save? 

Well, one interesting fact is that this is a position no-one really defends. Despite the influence of the violinist case, and the widely shared intuition that one could unhook from the violinist but not stab him, essentially nobody, pro-choice or pro-life, thinks that extraction abortion is permissible but destruction abortion isn’t. I can’t emphasise this enough: essentially no-one in the philosophical literature, in any country’s legislature, or in any conversation about abortion I’ve ever been in has taken this view.

So what explains that fact? 

There are a lot of potential reasons. Let’s start with one obvious one. Sometimes withdrawing aid from someone can also be killing them. This is the case when your goal in taking an aid-withdrawing action is the death of the person receiving aid. For example, if I unplug my uncle from a life-support machine so that I can benefit from the inheritance he has set aside for me in his will, I bring about his death as a means to my end (inheriting his money). If he survived the unplugging my action would be pointless.

As the pro-choice philosopher Kate Greasley points out, “I think it fairly transparent that the main intention most women have in procuring abortions is not to end their pregnancy by extracting the fetus, but to avoid motherhood or the emotional turmoil of adoption by ending the life of the fetus through the abortion.” (Greasley, Arguments About Abortion, p. 80)

What Greasley says is supported by the data. When American women were asked for the reasons why they got an abortion, a study conducted by the very pro-choice Guttmacher Institute found that almost all the reasons given were about not having a child, not the ending of pregnancy as such. The study is fairly old now but I’d be very surprised if the reasons had changed much.

The reasons most frequently cited were that having a child would interfere with a woman’s education, work or ability to care for dependents (74%); that she could not afford a baby now (73%); and that she did not want to be a single mother or was having relationship problems (48%). Nearly four in 10 women said they had completed their childbearing, and almost one-third were not ready to have a child. Fewer than 1% said their parents’ or partners’ desire for them to have an abortion was the most important reason. Younger women often reported that they were unprepared for the transition to motherhood, while older women regularly cited their responsibility to dependents.
(Finer et. al, 2005 ‘Reasons U.S. Women Have Abortions: Quantitative and Qualitative Perspectives’)

Aside from being a brutal indictment of American society, this goes a long way towards showing that most abortions only achieve their goal if the unborn child dies. An extraction abortion that left them alive would not solve any of these problems. As such, even extraction abortion methods are mostly chosen because they end unborn life, which makes the act of choosing it intentional killing.

But there are certainly some abortions which are done via an extractive method simply for the purpose of ending the pregnancy, where the death of the child is not an intended consequence. Aren’t at least these abortions permissible? I want to argue that they are not, for the following reason.

Innocent People Have a Right Not to Be Deprived of the Ordinary Means of Survival

There is a difference, I think, between actions that deprive someone of the ordinary means of survival, and other actions that fail to provide assistance of a different sort. Kate Greasley again:

“[It is] clear that what is ordinarily required for human beings to remain alive does not usually suffice as an explanation for death… Consider: ‘He didn’t die because I stabbed him; he died because he couldn’t continue to oxygenate his body having lost so much blood from a gash in his skin’. Physical descriptions of inevitable biological failings do not give rise to any doubt about whether a killing has taken place in clear cases. In my stabbing example, the victim’s pre- existing need for enough blood to oxygenate his body does not preclude the attacker’s actions from being actions that kill. 

Pre-viable fetuses are innately incapable of surviving outside the uterine environment, and their dependence on that environment is nothing out of the ordinary; it is the only way in which human beings begin their existence. We do not usually redescribe acts of killing as failures to rescue as soon as it is pointed out that the relevant actions only caused the deprivation of normal conditions for sustaining human biological life. Considering this, it seems we would need a special reason for saying that expelling the fetus from the womb in an extraction abortion does not bring about its death, but only fails to rescue it from the natural consequences of its biological immaturity. 

The violinist’s situation of dependence is, contrastingly, quite unique. Certainly, one could not very well explain the death of the violinist subsequent to his being unplugged from you without drawing special attention to his underlying condition.”
(Greasley, Arguments About Abortion, p. 50)

Greasley, a very good philosopher, is pro-choice because of personhood reasons: she’s sceptical of bodily rights arguments but disagrees with the Equal Rights Argument above.

Thinking about the ordinary means of survival is quite intuitive. If John prevents Billy from getting access to food or water, and they subsequently die, everyone agrees that John has killed Billy, because food and water are ordinary means of survival. On the other hand, if John wakes up and finds Billy plugged into him á la the violinist and unplugs Billy, everyone agrees that John has not killed Billy, because being plugged into another person is not the ordinary means of survival.

The key insight from Greasley’s point above is that unlike the violinist and other similar thought experiments,  expelling an unborn child from the uterine environment is depriving it of the ordinary means of survival. This is because for a human embryo or foetus, being implanted in a human uterus is their ordinary means of survival. Unplugging from the violinist, or refusing to donate bone marrow, deprives them of extraordinary, but not their ordinary, means of survival. Actions which deprive an innocent person of the ordinary means of survival are either (as Greasley thinks) killing, or subject to very similar constraints to killing.

This neatly explains the difference between the cases we’ve discussed. But a pro-choice person could just deny the principle that’s just been articulated. They might say “yes, usually depriving a person of the ordinary means of survival is very bad, but it can be justified if the alternative is continuing to provide invasive bodily aid.” 

We don’t think that this is a position most pro-choice people are actually going to be able to endorse. To see why, we should think about conjoined twins.

The Conjoined Twins Argument

Pregnancy is a unique state: there’s nothing else quite like it. But there is one state that’s more similar than anything else: the case of conjoined twins, which Muireann has written about before.

Suppose there is a set of conjoined twins whom we’ll call Aonghus and Barra. If Aonghus and Barra remain conjoined, they have a good life expectancy and quality of life. Suppose also that if they are separated surgically, Aonghus will survive and Barra will die. Does Aonghus have the right to choose to undergo separation surgery without Barra’s consent?

Suppose also that previously the twins could have been separated safely, but that Aonghus took a drug that had a potential side effect of leaving Barra dependent on Aonghus. Suppose Aonghus knew this to be true at the time, but took the drug anyway. Suppose further that the effects of the drug will wear off in eight months’ time, at which point the twins can be safely separated again. Is Aonghus obliged to wait the eight months before getting surgery? Or does Aonghus’s right to bodily autonomy override Barra’s right to not have his life deliberately and knowingly ended, prematurely?

Aonghus and Barra may be imaginary, but conjoined twins are very real. Abby and Brittany Hensel are perhaps the most famous recent examples. It’s conceivable that there may be a case of conjoined twins where separation surgery would mean one twin would die while the other would survive, with this fact known or at least reasonably predictable in advance by surgeons. The details we’ve chosen for this case just serve to make the underlying point clearer.

Here we have one person who is bodily supporting another and could stop doing so by bringing about their death. Despite the fact that being a conjoined twin is in the vast majority of cases a much more burdensome and invasive abridgement of bodily autonomy than being pregnant, that it is permanent while many or all of the effects or pregnancy are temporary, and that separation surgery would not be aiming at the death of Barra, almost everyone thinks Aonghus would not have the right to unilaterally disconnect Barra.

Why is it the case that Aonghus can’t detach? We think it’s because doing so would be to deprive Barra of the ordinary means of survival. He needs human organs to stay alive: taking them away would be killing him, or subject to very similar constraints as killing him would be.  I think that to the extent we find this plausible, we agree with the principle we’ve articulated: that depriving a person of the ordinary means of survival isn’t justified, even in cases where providing those means infringes on a person’s bodily autonomy.

But if that’s the case, depriving an unborn child of the ordinary means of survival – the uterine environment and the nutrients given by the placenta – isn’t justified either.

Three objections

Objections can of course be raised, and we’ll discuss them further in other posts. For now let’s think about three obvious ones.

The first is that one could say that Barra’s body is not in fact dependent on the use of Aonghus’s, because the two share a body. Let’s concede for the sake of argument that sharing a body or part of a body is the right way to talk about things in the conjoined twins case. If so, I don’t think we’re going to be able to come up with criteria for bodily sharing or overlap that don’t also apply to a woman and her unborn child. Functional and metabolic integration, physical continuity, immunological tolerance: all of these are present in the case of pregnancy. This is why the philosopher Elselijn Kingma argues in a famous recent paper that we should consider the fetus to be part of the mother. I think her argument actually has a lot to be said for it, though I would follow Alexander Geddes’ 2022 paper in arguing that a more accurate way to put the situation would be that of ‘personal overlap’ or indeed just ‘conjoining.’ I think the cases remain relevantly similar, because in both the Aonghus and Barra case I’m imaging and in pregnancy we have both asymmetric dependence and conjoinedness.

The second objection is that separation surgery is not obviously depriving Barra of the ordinary means of survival. Being a conjoined twin is unusual, and dependence on another person’s body in that way is not standard part of the human life form or life cycle. I think this one gets complicated: “relying on the standard human organs” is part of the ordinary means of survival for humans, and separation surgery would be taking those away. However, even if we concede that separation surgery doesn’t deprive Barra of the ordinary means of survival, it doesn’t follow at all that the same holds for pregnancy.  Every single person who ever walked the face of the earth spent at least five months in someone else’s uterus. It’s hard to imagine that a condition that applies to every single human who has ever lived, and possibly will ever live, does not count as “ordinary”. Sure, being in a uterus is not the ordinary means of survival for born humans – but remember, bodily rights arguments are agnostic about whether the unborn baby is an equal rights bearer or not. It is therefore not relevant whether being in a uterus forms part of the ordinary means of survival for every human being, the question is whether it is the ordinary means of survival for this human being or set of human beings. So even if being conjoined to your twin does not constitute the ordinary means of survival for a conjoined twin and yet fatal separation is still wrong, it suggests that the factors that make it so will apply just as strongly if not more strongly to pregnancy.

The final objection is just that Barra is a conscious person with hopes, goals, projects, and sophisticated cognitive capacities, whereas an unborn child is not. Here I’ll just say that this is not a disagreement about how to balance the right to life with the right to bodily autonomy: it’s just a moral status or personhood claim, and as such a disagreement with the Equal Rights Argument. To stand, it would have to defeat that argument.

There are of course other objections that could be raised, many of which we’ve covered on the blog and others which we’ll continue to address in future posts. But this, we think, is the shape of the basic case around bodily rights arguments.

Conclusion

The equal rights argument establishes that embryos and fetuses are our moral equals, with equal fundamental rights, including the right to life. The arguments of this post, we think, establish that that right to life – the right not to be killed or deprived of the ordinary means of survival – remains in place even in the sort of extreme bodily dependence involved in pregnancy.

We should, as individuals and as a society, take the burdens of pregnancy and childrearing extremely seriously. We should have massive government supports that kick in before birth, we should have extensive state-mandated maternity leave, we should be willing to support our pregnant friends and family members at cost and inconvenience to ourselves. 

But we shouldn’t kill innocent people. We should conclude that abortion is a human rights violation and seek to eliminate it as a social practice.

Ben