During the last decade or so, pro-lifers have worked to defeat the central pro-choice claim that abortion is necessary to women’s health and well-being. We’ve uncovered medical data revealing the short-term and long-term damage caused by abortion to a woman’s body. We’ve brought to light stories of women who have regretted their abortions. And we’ve spent considerable time and treasure giving women in crisis the practical tools necessary to bring their unborn children to term—since most women experience the abortion right as anything but the boon to women that feminists often claim it is. The once-ridiculed notion that one could be both pro-woman and pro-life has finally made its mark.
Yet, despite the gains pro-lifers have made in this regard, pro-choice feminists still adhere to another set of arguments entirely, arguments that resound in a popular slogan: “get your hands off my body.” In this view, because women, rather than men, get pregnant, a pregnancy forced by abortion restrictions signifies a basic gender inequality that no practical, pro-life social supports can alleviate, no matter what the medical data (which they still consider questionable) say about abortion’s aftermath. Indeed, “forced” pregnancy, for the most radical of pro-choice scholars and jurists, amounts to something akin to military conscription. As Justice Harry Blackmun wrote in his opinion in Planned Parenthood v. Casey nearly twenty years ago,“[Abortion restrictions] conscript women’s bodies into [the service of the State], forcing women to continue their pregnancies, suffer the pains of childbirth, and … provide years of material care.”
The philosophical argument underlying pro-choice appeals to bodily autonomy is not a new one; indeed, the original version cast by moral philosopher Judith Jarvis Thomson is old enough to commemorate its 40th anniversary this year. Forty years later, the autonomy argument is still wildly popular among supporters of abortion and especially among pro-choice academics.
Thomson’s 1971 philosophical argument is utterly unpersuasive for the ardent pro-lifer who upholds the embodied uniqueness of women, but it resonates profoundly with pro-choicers. Today her argument is especially weighty for abortion advocates, because she makes no effort to dabble in ineffectual claims that the fetus is anything but a human being, or even that such a human being somehow lacks the status of a human person. These claims are becoming less and less tenable, even if some pro-choicers continue to cling to them for whatever remaining rhetorical help such claims give their cause. Thomson grants the personhood of the fetus and, as many readers will remember, depicts abortion as something akin to self-defense. The dependent fetus is imaginatively analogized to a famous unconscious violinist who is kept alive by being attached, for nine months, to an innocent bystander’s circulatory system. The act of abortion thus detaches the bodily invader from the unwilling host.
This analogy for bodily autonomy has taken a variety of forms over the years, and each has been engaged philosophically by the greatest of pro-life minds. Of late, however, pro-choice feminist legal literature that is more critical of straightforward autonomy arguments has morphed the analogy into something more nuanced. The argument concedes the bond that a pregnant woman often experiences with her developing unborn child, but maintains that a woman should not be forced to enter into a “relationship of nurture” with the fetus nonconsensually. Another version concedes the responsibility mothers feel toward both their born and unborn children, and portrays abortion as a “parenting decision” that dutiful mothers elect when they find themselves unable to care for another (or a disabled) child. For those scholars who embrace a sort of “care” or “relational” feminism, the fetus is no longer an aggressor, but one with whom an emotional relationship is likely to develop, even before birth. Thus, the enormous emotional strain of putting an unborn child up for adoption, and the various physical and psychological risks for a pregnant woman, should entail that we recognize her prerogative to consent to this “relationship of nurture.”
The common-law argument that underlies these Thomson and Thomsonesque analogies is that one need not play the “good Samaritan” to another: a bystander need not keep a famous violinist alive with his own body; a passerby need not rescue a drowning stranger; a parent need not donate bone marrow to his dying adult child; a woman need not continue an unwanted pregnancy. All of these tasks pose risks and demands of various and often unforeseen levels on the autonomous individual. The law, thus, does not require anyone to undertake these risks.
There is an element of truth to these analogies concerning pregnancy. Pregnancy is difficult, and it can often be burdensome. For some women, it poses enormous risks and demands. For almost all women, it can be a trial at times, and for some, that trial lasts all nine months. But, as many over the last forty years have argued, pregnancy is most unlike any of these other situations. The affirmative and destructive act of abortion cannot seriously be analogized to failure to rescue a stranger, nor can it be honestly described as the mere failure to continue a pregnancy.
Even if “failure to rescue” were an accurate approximation to abortion, special affirmative duties arise, both morally and legally, when the drowning individual is not a stranger, but is one’s own dependent child. One does not play the “good Samaritan” but the responsible and law-abiding parent when she rescues her drowning child from a pool of water. In pregnancy, the dependency and vulnerability of the nascent, developing child are even more evident, and the parent’s affirmative duty of care is arguably more obvious. For not only is the unborn child dependent and vulnerable, but her mere existence (as a dependent and vulnerable developing child) is due, at least biologically, to the life-giving act in which her parents engaged.
This reasoning does not cede philosophical ground to the contractarian view (that underlies pro-choice rhetoric) by arguing that because a woman consented to sex, she consents to pregnancy. Rather, the argument, based in centuries-old common law, maintains that when an individual puts another individual in a position of vulnerability (“in harm’s way”) and has the ability to offer help and assistance, the law requires that individual to do so. As philosopher Francis Beckwith has written, “The parents of the fetus are responsible for assisting it because they are in fact responsible for bringing into existence a being that is needy by nature and thus are responsible for its neediness.” Thus, parents share an affirmative legal duty toward their unborn child who, in his vulnerability, is utterly dependent upon their help and assistance—even more so than their born child, for whom other competent adults could care.
Three important implications flow from this response to the bodily autonomy argument. The first concerns the proper way to conceive of the relationship between the pregnant mother and her unborn child in accord with this affirmative duty of care; the second examines the paternal duties neglected by both sides of the abortion debate; the third indicates the necessary—pro-woman—course of action.
Like the aforementioned “relational” feminists, Justice Kennedy, in the 2007 Gonzales v. Carhart decision, noted “the bond of love a mother has for her child.” Pro-lifers would do well to make more of the mother-child relationship Kennedy affirms—an acknowledgment that legal scholar Helen Alvaré suggests could begin the shift of abortion law into the province of family law. Yet they should not do so precisely the way that Kennedy does in Gonzales, nor the way legislators tried to do in South Dakota’s 2006 abortion ban. Both Justice Kennedy and South Dakota lawmakers attempted to connect causally the “natural” bond of love between mother and child and the emotional devastation abortion has caused many women, whose stories of regret and suffering were offered in amicus briefs and legislative testimony, respectively. Justice Ginsburg in her Gonzales dissent, and other academic pro-choicers in their writings, criticized this causal link, not only because Kennedy and the South Dakotans were unable to point to any “reliable data to measure the phenomenon,” but because such a presumption of the mother’s “bond of love” is, in Ginsburg’s words, hardly “self-evident.” Ginsburg cannot be that far off: opting for abortion certainly does not indicate an evident “bond of love” between mother and unborn child—even if the aforementioned “relational” feminists have admitted to experiencing it.
Such a natural—felt—bond of love of mother for child (born or unborn) may in fact be outside the experience of the more hard-hitting professional feminists who drive opinion in the pro-choice movement. Though one hopes the psychological burdens that post-abortive women often face will become more widely recognized, it would be to our advantage, when shaping legislative proposals or making legal arguments, to focus not on the subjective, experienced “bond” or “feelings” of love, which are so easily denied by those with a penchant for the autonomy argument, but on the objective relationship of dependency that exists between pregnant mother and vulnerable unborn child, and the moral and legal duties that follow. Once pro-choicers have conceded the humanity of the fetus, which all but the most obtuse of pro-choicers have done, it can no longer be denied that the unborn human being is very much a child, that is, a human being who shares his mother’s and father’s DNA, as a product of their life-giving sexual act. Establishing constitutional personhood, while certainly a laudable goal, is legally unnecessary: while “person” may indicate “rights-bearing,” “child” signifies one to whom certain parental duties are owed. Parallels between the legally binding duties of parents to their unborn children and their duties to their born children follow from this view of the unborn.
But the relationship of dependency that an unborn child has with her pregnant mother does not translate into maternal duties alone. Whereas pro-choice legal efforts encourage women to imitate male reproductive irresponsibility by abandoning the child brought forth by their sexual escapades, pro-lifers must demand that the law also obligate men who sire children. For the pregnant woman surely did not bring about the vulnerable, dependent new human being solely by her own doing, and though her body is uniquely capable of gestating developing human life, she does not carry sole responsibility to care for that life. Feminists are right to argue that pregnancy disproportionately “burdens” women and it is high time pro-lifers thought more about what paternal responsibility for unborn children might mean.
Acknowledging parental duty for unborn children also gives an added punch to pro-woman arguments in favor of chastity. Sex does not always make babies, but neither does it always make babies exactly according to our plans. This biological reality need not tread upon questions of the morality of contraception. Rather, the unassailable fact that contraception fails, and fails often, is enough to underscore the reality that sex is a serious enterprise, to be engaged in only by those prepared to become mothers and fathers. Concomitant with this reality is the gendered fact that the consequences of sex are far more serious and immediate for women than for men—even if abortion is an open option. The feminist hope that liberalized abortion would usher in a new era in which women would enjoy sexual and reproductive autonomy akin to that enjoyed by men is simply illusory. While abortion has freed men further from the consequences of the potentially procreative sexual act, women must act affirmatively—and destructively—if they are to imitate male reproductive autonomy. Indeed, coupled with the documented harm of abortion to women, a whole cottage industry of scholarship has arisen of late to document the anti-woman reality of non-marital sex. It’s time for women to recognize that self-respect requires that they disentangle themselves from the culture’s current male-centered mode of sexuality. Just as the men followed us into the woods, they’ll follow us out.
One cannot know with certainty whether the new pro-woman strategies adopted by pro-lifers can take credit for the change in public sentiment about abortion over the last decade. Surely 3D imaging of one’s unborn child and the educative impact of the partial-birth and live-birth legislation and litigation have also had their consequences. Perhaps we might say that a focus on the multifaceted truths of abortion is working, when they are presented incrementally and non-polemically, in all their objectivity: abortion snuffs out the life of a nascent human being; abortion poses serious risks to women’s well-being and future reproductive health; abortion shifts the costs of sex and pregnancy onto women alone, freeing men to abdicate their paternal responsibilities; and abortion rejects the moral and legal duties that mothers and fathers have toward their most vulnerable and dependent children. Pro-choicers are correct to worry that abortion restrictions would impact the ability of mothers (and fathers) to design their own lives autonomously. Dependent and vulnerable children do that.
This essay was inspired by themes in parts III & IV of Erika Bachiochi’s recent article “Embodied Equality: Debunking Equal Protection Arguments for Abortion Rights” (Harvard Journal of Law & Public Policy, Summer, 2011), now available online.