After the recent Supreme Court ruling in Dobbs removed the federal right to abortion, the familiar confusions between legal and philosophical argumentation resurged with characteristic vigor. People spoke of “rights” in both the moralistic, natural law sense as well as in the positivistic, purely legal sense without observing the distinction. It’s most people’s inability or inexperience in dealing with philosophy that makes this debate so frustrating and this issue so seemingly intractable. I’ve observed this shortcoming just as consistently among the legal community. Law students and lawyers often forget that legal analysis is not the end-all-be-all of rational thought, and they often dismiss philosophy as idle navel-gazing. This general philosophical ignorance causes them to make unfortunate mistakes in argumentation and talk past one another without addressing the fundamental philosophical distinctions on which their positions rest. 

I recently observed a clear example of this sort of philosophical faux pas in the context of a debate about the morality of abortion. On several occasions, I saw the following thought experiment proffered by pro-choice advocates purporting to support the argument that “rights to bodily autonomy” outweigh any “right to life” that a fetus might have. The thought experiment was as follows: 

Imagine you are driving your car and get into an accident through no fault of your own or the other driver. You are fine, and get out, but see that the other person is dying of blood loss. Luckily, a doctor in possession of all necessary medical devices is present. He informs you that you have the correct blood type to save this person, and that he will be extracting your blood to perform the life-saving operation. You refuse, because you don’t want anyone to take your blood. He insists, saying that the interests of the life of the dying person are more important than your preferences–and that if you don’t do it, you could be arrested!

The right reaction to this thought experiment is to side with your right not to donate the blood. It might be nice to donate the blood; however, it shouldn’t be illegal to refuse, and it certainly is immoral to force someone to do it. The point of this thought experiment is to show that even when someone’s life depends on our actions, we have a right to personal autonomy that is greater than any need that another might have–even the need to stay alive. We have the right to say no. The thought experiment is quite imperfect–in large part because it ignores a well-established philosophical distinction: the distinction between doing and allowing harm.

This thought experiment purports to analogize the dying driver to the fetus. The mere fact that a fetus needs to use a woman’s body to survive should not be enough, the argument goes, to justify an intrusion into her most private sphere of physical autonomy. She, like the driver, has the right to refuse. But the analogy is flawed for various reasons. Firstly, the reluctant blood donor must choose between giving his own blood to save a life or letting the driver die; the woman must choose between allowing the fetus to use her body or killing the fetus. There is here an important distinction. This distinction has a long history in philosophy, but it was most famously enunciated in Judith Jarvis Thomson’s essay, “Killing, Letting Die, and The Trolley Problem.” It’s this essay that made famous the “Trolley Problem” thought experiment. Philosophers have certainly questioned the validity of this distinction, but they are very much in the minority. They are also, if I might say myself, wrong. There are few distinctions which make such intuitive sense. Indeed, much legal doctrine–particularly in Tort law–recognizes this distinction in its own way by refusing to assign negligence liability for refusing to rescue. (People v. Beardsley). 

There are other problems with this thought experiment. In the case of our driver, the outcome of not providing his blood is the death of the accident victim. In the case of our pregnant woman, the outcome is pregnancy. In some cases, this could be a great gift, in others a terrible inconvenience. In rare cases it could also mean death. But, given the variety of outcomes, the analogy is imbalanced. Essentially, the thought experiment is flawed because the problems and the remedies are unequal–if the driver doesn’t get the blood, he dies; whereas if women don’t abort the fetus, various outcomes are possible. Similarly, the remedy is imbalanced because the reluctant blood donor has the option of letting the driver die; whereas the pregnant mother has the option of killing the fetus. 

A much better thought experiment was offered by the very woman responsible for popularizing this philosophical distinction: Judith Jarvis Thomson. In “A Defense of Abortion,” Thomson recognizes the difficulty of the abortion debate precisely because she does not ignore the extremely important interest that an unborn child has in being born. To defend a pro-abortion view, however, she develops the following hypothetical:

Imagine you wake up one morning in a hospital bed and your kidneys have been connected to a famous unconscious violinist. It turns out the Society of Music Lovers has kidnapped you and has connected you to this violinist in order to filter the rare blood type you both share. They must do this for nine months and only then will the violinist recover and no longer need your assistance. The hospital director apologizes for what the Society of Music Lovers has done to you, but insists that the violinist is a person with a right to life and therefore you cannot unplug yourself from him without killing him and violating his right to life.

This zany hypothetical does a much better job of capturing the relevant philosophical values at play in the abortion debate. Unsurprisingly, Thomson does not make the mistake of ignoring the distinction between killing and letting die. Here, your choice involves killing–taking positive action to terminate the life of a famous violinist by removing the connection between you and him. It’s a tougher call, but I think most of us will again side with the interest in bodily autonomy in this case. We want the right to be able to say “no” to even a famous violinist who we found attached to us and in need of our bodily essence for nine months. Our bodily autonomy is just that important. Unfortunately for pro-abortionists, this analogy has its own fatal flaws. 

Firstly, the situation in which this reluctant hospital patient finds himself was caused by a third party, bad faith actor. The patient (you) did not act in any way so as to bring it about and shoulders no responsibility for the outcome. Conversely, except in the rare and tragic cases of rape, a woman becomes pregnant of her own volition. We can set the issue of rape aside, since most advocates of abortion would not be satisfied with only that exception. In non-rape cases, the element of moral responsibility completely changes the game. In the case of the violinist, you played no part in bringing about this unfortunate state of affairs; whereas in the case of a pregnancy, you did. Even if the risk was low and the pregnancy was an accident, the volitional aspect remains unchanged–you chose to take the risk–and this factors into the moral analysis and cannot be ignored. 

There is a rebuttal to this argument that is worth mentioning. What if, the argument goes, you chose to have your body used to support the life of the violinist. If at some point after forming the connection you realized that you no longer wanted this, could you not back out? In this case, the volitional element is present–just like in the case of pregnancy. You took the action of hooking yourself up to support the violinist’s life. It’s a tougher call, but I think most people would believe that you should still have the right to refuse to continue supporting him, emanating from your right to bodily autonomy.

Ultimately, this last rebuttal still falls short. Even in the scenario where you chose to attach yourself to the famous violinist to save his life, you were not the original cause of his ailment. In the case of a pregnancy (with some unimportant exceptions) the fetus will continue to develop and live on its own. The only pending danger to the fetus’s life is the abortion itself. To see the “cause” problem in better detail, imagine if you had shot the violinist–say he was standing nearby during your target practice and you decided you probably wouldn’t hit him. Your shot injured him gravely, leaving him in the state where he could only survive on your blood. You then attached yourself to him to provide life-saving support that would take nine months. Could you then freely and morally renege on your choice? Consider the parallel in the pregnancy context. If we took the rebuttal to its logical conclusion–it would justify bringing a child to term, birthing it, and then simply leaving it alone out of the womb to whimper and die. This is an unacceptable outcome that should repulse all decent people. 

We have seen how each attempt to morally vindicate abortion per se through the right to bodily autonomy comes up short. The case of abortion is unique, because it would require (i) killing a fetus that you (ii) acted voluntarily to create, and that has (iii) no ailment other than that which you would impose upon it by abortion. All this to avoid an outcome that is almost always (iv) not calamitous. 

I have dealt here only with abortion per se, but there are good arguments for using the right to bodily autonomy to justify abortions at very early stages of pregnancy. I am much more receptive to these gradient-style arguments. There are also Utilitarian, greater-good-style arguments that appeal to the bonum commune communitatis of allowing broad access to abortion. Such arguments implicate the many classic objections to Utilitarianism as a moral theory. They also fly in the face of the modern, Liberal conception of “rights” in a way that should disconcert any of its proponents. Should our “rights” even enter into Utilitarian calculus? Imagine a country suffering from perilously low birth rates. Should it be able to orchestrate forcible inseminations of women to provide for the common good? Can the right to bodily autonomy be so easily overcome by the sweeping claims of Utilitarianism? Here, however, I don’t intend to address such arguments. Any attempt to use the principle of “bodily autonomy” to justify abortion at all stages, however, is ethically untenable. That is what I say here.

Now that the task of determining the right to abortion rests squarely in the hands of each of the state legislatures, the debates regarding abortion will only intensify across the country. Hopefully, the state legislators and the public will begin to engage more seriously with the relevant philosophy on the subject.