As Stephen Schwarz points out: “So the very thing that makes it plausible to say that the person in bed with the violinist has no duty to sustain him; namely, that he is a stranger unnaturally hooked up to him, is precisely what is absent in the case of the mother and her child.” That is to say, the mother “does have an obligation to take care of her child, to sustain her, to protect her, and especially, to let her live in the only place where she can now be protected, nourished, and allowed to grow, namely the womb.”15
If Thomson responds to this argument by saying that birth is the threshold at which parents become fully responsible, then she has begged the question, for her argument was supposed to show us why there is no parental responsibility before birth. That is to say, Thomson cannot appeal to birth as the decisive moment at which parents become responsible in order to prove that birth is the time at which parents become responsible.
It is evident that Thomson’s violinist illustration undermines the deep natural bond between mother and child by making it seem no different from that between two strangers artificially hooked up to each other so that one can “steal” the service of the other’s kidneys. Never has something so human, so natural, so beautiful, and so wonderfully demanding of our human creativity and love been reduced to such a brutal caricature. Thomson’s violinist story is to motherhood what Andres Serrano’s “Piss Christ” is to Good Friday.
I am not saying that the unborn entity has an absolute natural claim to her mother’s body, but simply that she has a prima facie natural claim. For one can easily imagine a situation in which this natural claim is outweighed by other important prima facie values, such as when a pregnancy significantly endangers the mother’s life. Since the continuation of such a pregnancy would most likely entail the death of both mother and child, and since it is better that one human should live rather than two die, terminating such a pregnancy via abortion is morally justified.
Someone may respond to the three criticisms by agreeing that Thomson’s illustration may not apply in cases of ordinary sexual intercourse, but only in cases in which pregnancy results from rape or incest,16 although it should be noted that Thomson herself does not press this argument. She writes: “Surely the question of whether you have a right to life at all, or how much of it you have, shouldn’t turn on the question of whether or not you are the product of rape.”17
But those who do press the rape argument may choose to argue in the following way. Just as the sperm donor is not responsible for how his sperm is used or what results from its use (e.g., it may be stolen, or an unmarried woman may purchase it, inseminate herself, and give birth to a child), the raped woman, who did not voluntarily engage in intercourse, cannot be held responsible for the unborn human who is living inside her.
But there is a problem with this analogy: The sperm donor’s relinquishing of responsibility does not result in the death of a human person. The following story should help to illustrate the differences and similarities between these two cases (for other responses to the general argument from rape and incest, see chapter 4).
Suppose that the sperm donated by the sperm donor was stolen by an unscrupulous physician and inseminated into a woman. Although he is not morally responsible for the child that results from such an insemination, the donor is nevertheless forced by an unjust court to pay a large monthly sum for child support, a sum so large that it may drive him into serious debt, maybe even bankruptcy. This would be similar to the woman who became pregnant as a result of rape. She was unjustly violated and is supporting a human being against her will at an emotional and financial cost. Is it morally right for the sperm donor to kill the child he is supporting in order to allegedly right the wrong that has been committed against him? Not at all, because such an act would be murder. Now if we assume, as does Thomson, that the raped woman is carrying a being who is fully human (or “a person”), her killing of the unborn entity by abortion, except if the pregnancy has a strong possibility of endangering her life, would be as unjust as the sperm donor killing the child he is unjustly forced to support. As the victimized man may rightly refuse to pay the child support, the raped woman may rightly refuse to bring up her child after the pregnancy has come to term. She can choose to put the child up for adoption. But in both cases, the killing of the child is not morally justified. Although neither the sperm donor nor the rape victim may have the same special obligation to their biological offspring as does the couple who voluntarily engaged in intercourse with no direct intention to produce a child, it seems that the more general obligation not to directly kill another human person does apply.
4. Thomson ignores the fact that abortion is indeed killing and not merely the withholding of treatment. Thomson makes an excellent point: namely, there are times when withholding and/or withdrawing medical treatment is morally justified. For instance, I am not morally obligated to donate my kidney to Fred, my next-door neighbor, simply because he needs a kidney in order to live. In other words, I am not obligated to risk my life so that Fred may live a few years longer. Fred should not expect that of me. If, however, I donate one of my kidneys to Fred, I will have acted above and beyond the call of duty, since I will have performed a supererogatory moral act. But this case is not analogous to pregnancy and abortion.
Levin argues that there is an essential difference between abortion and the unplugging of the violinist. In the case of the violinist (as well as my relationship to Fred’s welfare), “the person who withdraws [or withholds] his assistance is not completely responsible for the dependency on him of the person who is about to die, while the mother is completely responsible for the dependency of her fetus on her. When one is completely responsible for dependence, refusal to continue to aid is indeed killing.” For example, “if a woman brings a newborn home from the hospital, puts it in its crib and refuses to feed it until it has starved to death, it would be absurd to say that she simply refused to assist it and had done nothing for which she should be criminally liable.”18 In other words, just as the withholding of food kills the child after birth, in the case of abortion, the abortion kills the child. In neither case is there any ailment from which the child suffers and for which highly invasive medical treatment, with the cooperation of another’s bodily organs, is necessary in order to cure this ailment and save the child’s life.
Or consider the following case, which can be applied to the case of pregnancy resulting from rape or incest. Suppose a person returns home after work to find a baby at his doorstep. Suppose that no one else is able to take care of the child for nine months (after that time a couple will adopt the child). Imagine that this person, because of the child’s presence, will have some bouts with morning sickness, water retention, and other minor ailments. If we assume with Thomson that the unborn child is as much a person as you or I, would “withholding treatment” from this child and its subsequent death be justified on the basis that the homeowner was only “withholding treatment” of a child he did not ask for in order to benefit himself? Is any person, born or unborn, obligated to sacrifice his life because his death would benefit another person? Consequently, there is no doubt that such “withholding” of treatment (and it seems totally false to call ordinary shelter and sustenance “treatment”) is indeed murder.
But is it even accurate to refer to abortion as the “withholding of support or treatment”? Professors Schwarz and R.K. Tacelli make the important point that although “a woman who has an abortion is indeed ‘withholding support’ from her unborn child . . . abortion is far more than that. It is the active killing of a human person — by burning him, by crushing him, by dismembering him”19 (see chapter 3 for information on fetal pain and abortion methods). Euphemistically calling abortion the “withholding of support or treatment” makes about as much sense as calling suffocating someone with a pillow the withdrawing of oxygen.
In summary, I agree with Professor Brody when he concludes that “Thomson has not established the truth of her claim about abortion, primarily because she has not sufficiently attended to the distinction between our duty to save X’s life and our duty not to take it.” But “once one attends to that distinction, it would seem that the mother, in order to regain control over her body, has no right to abort the fetus from the point at which it becomes a human being.”20
Legal problems with Thomson’s argument
There are at least two legal problems with Thomson’s argument: one has to do with tort law, and the other has to do with parental responsibility and child-welfare law.
1. Thomson’s argument ignores tort law. Judge John T. Noonan of the U.S. Ninth Circuit Court of Appeals points out that “while Thomson focuses on this fantasy [the violinist story], she ignores a real case from which American tort law has generalized.”21
On a January night in Minnesota, a cattle buyer, Orlando Depue, asked a family of farmers, the Flateaus, with whom he had dined, if he could remain overnight at their house. The Flateaus refused and, although Depue was sick and had fainted, put him out of the house into the cold night. Imposing liability on the Flateaus for Depue’s loss of his frostbitten fingers, the court said, “In the case at bar defendants were under no contract obligation to minister to plaintiff in his distress; but humanity demanded they do so, if they understood and appreciated his condition . . . . The law as well as humanity required that he not be exposed in his helpless condition to the merciless elements.” Depue was a guest for supper although not a guest after supper. The American Law Institute, generalizing, has said that it makes no difference whether the person is a guest or a trespasser. He has the privilege of staying. His host has the duty not to injure him or put him into an environment where he becomes nonviable. The obligation arises when one “understands and appreciates” the condition of the other.22
Noonan concludes that “although the analogy is not exact, the case is much closer to the mother’s situation than the case imagined by Thomson; and the emotional response of the Minnesota judges seems to be a truer reflection of what humanity requires.”23
2. Thomson’s argument ignores family law. Thomson’s argument is inconsistent with the body of well-established family law, which presupposes parental responsibility of a child’s welfare. And, of course, assuming as Thomson does that the unborn are fully human, this body of law would also apply to parents’ responsibility for their unborn children. According to legal scholars Dennis J. Horan and Burke J. Balche, “All 50 states, the District of Columbia, American Samoa, Guam, and the U.S. Virgin Islands have child abuse and neglect statutes which provide for the protection of a child who does not receive needed medical care.” They further state that “a review of cases makes it clear that these statutes are properly applied to secure emergency medical treatment and sustenance (food or water, whether given orally or through intravenous or nasogastic tube) for children when parents, with or without the acquiescence of physicians, refuse to provide it.”24 Evidently, “pulling the plug” on a perfectly healthy unborn entity, assuming that it is a human person, would clearly violate these statutes.
For example, in a case in New York, the court ruled that the parents’ actions constituted neglect when they failed to provide medical care to a child with leukemia: “The parent . . . may not deprive a child of life-saving treatment, however well-intentioned. Even when the parents’ decision to decline necessary treatment is based on constitutional grounds, such as religious beliefs, it must yield to the State’s interests, as parens patriae, in protecting the health and welfare of the child.”25 The fact of the matter is that the “courts have uniformly held that a parent has the legal responsibility of furnishing his dependent child with adequate food and medical care.”26
It is evident then that child-protection laws reflect our deepest moral intuitions about parental responsibility and the utter helplessness of infants and small children. And without these moral scruples — which are undoubtedly undermined by “brave new notions” of a socially contracted “voluntaristic” family (Thomson’s view) — the protection of children and the natural bonds and filial obligations that are an integral part of ordinary family life will become a thing of the past. This seems too high a price for bodily autonomy.
Ideological problems with the use of Thomson’s argument
There are at least three ideological problems in the use of Thomson’s argument by others. The other two problems are usually found in the books, speeches, articles, or papers, of those in the feminist and/or abortion-rights movements who sometimes uncritically use Thomson’s argument or ones similar to it. In fact, Thomson may very well agree with most or all of the following critique.
1. Inconsistent use of the burden of pregnancy. Thomson has to paint pregnancy in the most horrific of terms in order to make her argument seem plausible. Dr. Bernard Nathanson, an obstetrician/gynecologist and former abortion provider, objects “strenuously to Thomson’s portrayal of pregnancy as a nine-month involuntary imprisonment in bed. This casts an unfair and wrongheaded prejudice against the consideration of the state of pregnancy and skews the argument.” Nathanson points out that “pregnancy is not a ’sickness’. Few pregnant women are bedridden and many, emotionally and physically, have never felt better. For these it is a stimulating experience, even for mothers who originally did not ‘want’ to be pregnant.” Unlike the person who is plugged into Thomson’s violinist, “alpha [the unborn entity] does not hurt the mother by being ‘plugged in,’ . . . except in the case of well-defined medical indications.” And “in those few cases where pregnancy is a medical penalty, it is a penalty lasting nine months.”27
Compare and contrast Thomson’s portrayal of pregnancy with the fact that researchers have recently discovered that many people believe that a pregnant woman cannot work as effectively as a nonpregnant woman who is employed to do the same job in the same workplace. This has upset a number of feminists and rightfully so. They argue that a pregnant woman is not incapacitated or ill, but can work just as effectively as a non-pregnant woman.28 But why then do feminists who use Thomson’s argument argue, when it comes to abortion, that pregnancy is similar to being bedridden and hooked up to a violinist for nine months? When it comes to equality in the workplace (with which I agree with the feminists) there is no problem. But in the case of morally justifying abortion rights, pregnancy is painted in the most horrific of terms. Although not logically fatal to the abortion-rights position, this sort of double-mindedness is not conducive to good moral reasoning.
2. The libertarian principles underlying Thomson’s case are inconsistent with the state-mandated agenda of radical feminism. If Thomson’s illustration works at all, it works contrary to the statist principles of radical feminism (of course, a libertarian feminist need not be fazed by this objection). Levin points out that “while appeal to an absolute right to the disposition of one’s body coheres well with other strongly libertarian positions (laissez-faire in the marketplace, parental autonomy in education of their children, freedom of private association), this appeal is most commonly made by feminists who are antilibertarian on just about every other issue.” For example, “feminists who advocate state-mandated hiring quotas, state-mandated comparable worth pay scales, the censorship of ’sexist’ textbooks in the public schools, laws against ’sexually harassing speech’ and legal limitations on private association excluding homosexuals, will go on to advocate abortion on the basis of an absolute libertarianism at odds with every one of those policies.”29 Although this criticism is ad hominem, as was the previous one, it serves to underscore the important political fact that many abortion-rights advocates are more than willing to hold and earnestly defend contrary principles for the sake of legally mandating their ideological agenda.
The sort of hypocrisy is evident in abortion-rights activity throughout the United States. In the state of Nevada, those who supported an abortion-rights referendum in November of 1990 told the voting public that they wanted to “get the government off of our backs and out of the bedrooms.” But when the state legislature met in January these same abortion-rights supporters, under the auspices of the Nevada Women’s Lobby, proposed legislation that asked for the taxpayers of the state to fund school-based sex clinics (which will refer teenage girls to abortion services and are euphemistically called health clinics) and assorted other programs. Forgetting that many of us keep our wallets in our back pockets and place them in the evening on our dressers in our bedrooms, the members of the Nevada Women’s Lobby did not hesitate to do in January what they vehemently opposed in November: to get the government on our backs and in our bedrooms.