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Wednesday, August 22, 2012

Bodily Integrity Revisited

[Guest Blogger Simon takes a particular interest in the philosophical aspects of the abortion debate.  Here he considers the important role of bodily integrity.]


When studying the philosophy of abortion, it is often very hard to find new perspectives.  Many arguments run along the usual lines of bodily autonomy, personhood, the moral value of autonomy and human life, etc.  So I was surprised not long ago to have something pointed out to me that led me to alter my stance.

Much is made of bodily autonomy and the Violinist analogy, arguing that even if an innocent human has a right to life that doesn’t automatically override someone’s bodily autonomy. Granted, the case is weakened because the violinist argument applies more to rape victims, but even if we except consensual sex from the thought experiment, we run into a broader problem.

A few months back I posted on an abortion thread raising the bodily autonomy question and David Boonin’s Toxic Waste analogy.  I suggested that Boonin’s analogy is consistent in principle with existing moral precepts: even if another moral being is inside us we can still owe bodily compensation for causing existential harm to another moral entity.  

Another participant on the thread pointed out that nowhere in law do we allow bodily compensation by the offender for the victim.  This is quite true; one not need have read the Merchant of Venice to appreciate the problems involved with bodily compensation.  Since this is the case how can we ask women to give the foetus bodily compensation when our society does not legally require this in any other situation?

Of course not having a precedent is not, in itself, a reason to introduce a new law, but it does raise a point that doesn’t seem to have been addressed in any detail. And this is not just a simple matter of introducing a new law that focuses just on abortion and women, because when we think of legal matters we must make a general case for the principle. If you didn’t make this a general principle under the law, the result would be giving prenatal persons more rights than post partum persons: offenders would be forced to abrogate bodily autonomy to save prenatal life, yet post partum people cannot demand as much. Conversely you are giving pregnant women who consented to sex fewer rights than the rest of the population.

Such a principle would need to be applied in any case wherein an offender causes severe or existential harm to the victim and the only compensation is the temporarily use of the offender’s body, or if applicable (without leading to death), use of the offender’s organs or blood. For example, if a drunk driver caused a victim to need an organ transplant and no other organ was available, the law would abrogate the drunk driver’s bodily autonomy and allow the removal of the organ.

Unless this becomes a new legal principle, you don’t have the legal or moral basis to force a pregnant woman who consented to sex to compensate the foetus for putting it in existential peril. The most you could do would be to offer the woman a choice between jail time or the fetus’s use of her body.

36 comments:

M said...

Interesting post, Simon. I'm curious--if ultimately the woman would face jail time or the fetus's use of her body, doesn't that come down to the same conclusion: abortion is illegal?

Jameson Graber said...

I'm afraid I don't understand the premise of this post. Is there someone suggesting something any greater than what you label "the most you could do"?

What is the toxic waste analogy?

franky said...

the problem with comparing forced organ donation as compensation is its not exactly analogous to pregnancy.

In toxic waste or organ donation: do something, patient lives. do nothing patient dies.
In pregnancy it is the opposite.
Do nothing patient lives
Do something patient dies (is killed)
If we have the negative right not to be killed then abortion violates that right. This is not strictly the same as other analogies
This is where the violinist argument has some merit but shows the uniqueness in the situation of pregnancy.

One that i liked was the idea of Russian roulette.

You decide to play a game with a magic gun.
Every time you shoot you experience pleasure but 1 out of 5 shots shrinks another player into a capsule which is then teleported into your own body. For a few months the capsule is stuck in you but eventually makes its way out without causing any major life threatening harm to you. at which point the player is back to normal. If you try to remove the capsule prematurely the player dies. So....?

KB said...

Interesting philosophical grounds, but I think it is missing something. Suppose we do have a society where bodily harm offenses are dealt by the offender being compelled to utilize their own body/body parts to return the victim to his/her previous state as much as possible - a pre-abortive woman has not yet committed the "offense" yet this is the only time her body, physically, can be used to repay the victim. Once the offense occurs, nothing anyone does for the victim will bring it back to life.
Simply, you are speaking about a reaction, a response, but by then it is already too late. I don't think this philosophical point is grounds for a preventative motivation to not abort (or in the wider scheme, not be a drunk driver who crashes and kills someone).
Unless you are suggesting that the act of sex is the "offense"? Or the act of pro-creation? If that is the case, then you will run into trouble again, as there would be two "offenders" in this matter, while only one would be subject to pay the fee. As someone who is pro-life, that result does not bother me, but the view that this is a punishment, and that only one person is required to be punished, and that the person is someone of my sex, bothers me.

Anonymous said...

The dilemma is that to allow a rape exception would be an admission that criminalizing abortion isn't really about protecting the life of the fetus. By contrast, not allowing the exception makes the pro-life movement appear to favor oppression of women. The solution, therefore, is to pretend that women who get pregnant aren't legitmately raped:

"If it’s a legitimate rape, the female body has ways to try to shut that whole thing down."
-Representative Todd Aikin (R Missouri)

Todd Aikin is not an outlier, he represents the cognitive dissonance of the pro-life movement.

Anna Z. said...

The above comment represent one of the pro-aborsh movements main tactics: diversion and distraction.

Let's focus on the 99.5% of abortions that are not caused by rape.

Simon said...

Not all, rape and some health exceptions I think would be permissible.

Another analogy I've used is a woman going on holiday with her baby -who she is breast feeding-to an island that she knows has no baby formula & cannot leave or get supplies for months. She then decides to stop breast feeding and uses the bodily autonomy justification.

Granted in many a cases abortion is killing and not letting die, in the above case we aren't in a sense making the choice to not allow other people to use our body illegal. What we are doing is treating the situation just like many other where we place and cause harm to another being that we afford full moral rights.

So we aren't punishing sex, or someones 'right' to decide what they do with their body, but we are holding that person responsible for actions that harm other being with a right to life.

Simon said...

We have a general moral precept that we can be morally responsible for and can owe compensation to other beings with full moral rights for harms to them or placing them in a state of existential dependency.

One version of the Toxic Waste analogy has the tenant place toxic waste in the home of the landlady, which causes her child to need a organ transplant or die.In this case the only applicable compensation is his organ,they cannot find another.

Since he caused the existential dependency one could argue he could owe the use of his organ to the child.

But we don't allow bodily compensation under the law so even in if in principle he owes that compensation it cannot be enforced.
Same with pregnancy one can argue for consensual sex that the woman -& man- placed the foetus in a state of existential dependency, but even if this is the case we don't allow bodily compensation under the law.

So it isn't just the case that we would need to make general abortions illegal we would need to allow this to be a general principle under the law, otherwise it would unjustly affect only women.

Simon said...

It doesn't need to be exact, one need only apply a general principle as to whether we as a society are forcing someone to have their body used against their will.

Also we have a general negative right not to be killed but there are philosophical arguments that deal with innocent offenders even if the harm is of a passive or non fatal manner. Since bodily autonomy is of such high societal value it isn't unreasonable for many people to think this trumps a right to life in cases where the burden is arguably very high.

In your analogy -I use a similar one called Button Button- you are responsible for that happening so sure you are morally responsible. But what I'm saying is unless you make this a general principle under the law the only consequences can be jail time.

Simon said...

Guys I'm on night shift for the next week so if I'm a bit slow at getting back to you pls forgive me.

Simon said...

KB, of course after the fact my stance would be it would go straight to the jail option. But considering the woman needs to access resources, -often always through other parties- we can know in advance what she is planning to do.

Am I punishing sex? No. No more than i would be punishing people for going to a island resort that has no baby formula. What would be punished is what happens as a result of going there, and then deciding they didn't want to face the consequences of the duty of care they have placed themselves under.

As for men it would be complicated but maybe not impossible to hold them accountable. Say in the island analogy; what would we do with the husband who actively took her there knowing his wife could decide she didn't want to breastfeed?

Maybe the bar would be set to high though; no man can in general know in advance whether the woman he chooses as the mother of his child is a child murder. We wouldn't hold him accountable if she later decided to kill her baby. He could ask her hey will you murder our children? Don't think that would be a good test. But on the other hand he could ask or get it in writing what her views on abortion are in advance. Something to mull over.

Simon said...
This comment has been removed by the author.
Simon said...

For those interested here is the post mentioned

Sorites Paradox

Hi- Sorry it's taken me so long to respond to this. The reason that I don't usually engage in discussions on message boards on these types of blogs is that it's simply too much of a time commitment/ distraction for me when I have actual work to do................

http://liveactionnews.org/opinion/ana-benderas-why-children-of-rape-victims-should-not-be-aborted/

Simon said...

Why bother posting when you won't even address the issues presented for discussion?

Simon said...

So have I changed my stance? Yes but I still don't think sex is a crime or that women are sluts.

You out there Thinking Aloud????

http://giliellthinkingaloud.blogspot.com.au/2012_03_01_archive.html

Zen State said...

I've checked out 'Thinking Aloud's" blog and its heavy on the 'loud' part and light on the 'thinking' part.

Come on guys, we need some humor!

Jenn H said...

Simon,

Because Trolls don't come to pro-life sites to address the issues, them come to distract and try to get things riled up.

They are not interested in discussing the issues at hand, as Anna Z. notes below.

In fact, I've read (who knows if its accurate, but its an interesting premise), that pro-abort groups like PP and NOW actually have some of their staff members and volunteers troll pro-life sites to post 'red herrings'.

Kristine Kruszelnicki said...

Ok, maybe I missed something but it sounds like you're making a pro-choice argument on a pro-life blog. Are you suggesting that in the name of bodily integrity that pro-lifers should relent on "forcing a woman" to not terminate her prenatal child's life?

And if that's your argument, who may I ask gave you permission to post?

Anonymous said...

Hmmm... good question. GOP friends -- maybe you can help answer these questions. If a woman has to carry a rape pregnancy to term -- does her rapist have to pay child support? Does he have parental rights and visitation rights? Can the rape victim get welfare without the work requirement so she can stay home and nurture her baby that was conceived by rape? Is she entitled to free child care services if she is working or attending college? How do we make this crime victim whole?

I am not trying to trick you -- I am asking sincerely to know your thoughts on these matters.

Anonymous said...

http://georgetownlawjournal.org/files/pdf/98-3/Prewitt.PDF

M said...

I asked Simon to write up his thoughts on bodily integrity. I think the pro-life side would benefit from addressing the issue of bodily integrity more often.

From what I understand, he is definitely not advocating that pro-lifers relent in their efforts. He's trying to explore the nuances of the debate. See the above comments for more elaboration.

Simon said...

Kristine this isn't a Pro-Choice argument it simply acknowledges that when dealing with abortion for consensual sex bodily compensation is invoked, and if we wish to do that it must be applied across the board. Otherwise it would unjustly only be applied to women who fall pregnant; in effect giving them less 'rights' than other people.

Personally I have no problem having this principle applied across the board. Granted it would need more in depth legal consideration, but in principle I would accept the idea as a legal and moral requirement to end the legality of most but not all abortions.

Simon said...

I'm not American and strongly left leaning so I'm definitely not GOP.

Rape cases are a different matter and my stance is -while it is unfortunate- I would still grant the right to an abortion for the rape victim based mainly on the usual bodily autonomy arguments.

Similarly I've argued in the past that unless we force everyone to give up their bodily autonomy rights to save/maintain the life of another human being in similar need, we cannot force a rape victim to do it.

BTW if the woman did go to term yes, he has to pay child support but no I wouldn't grant visitation rights. It would be up to the child whether they would want to see their father.

Also I'm not hung up on just the obsession with negative rights as some in the US are, and advocate more resources for women and poor families in general. So a rape victim would get access to many improve resources. Cancel some of the excessive military spending and you will have more than enough money.

everythingsestranged said...

I believe that if the GOP actually took the lead on providing pregnant rape victims with resources and in protecting them and their children from having to share visitation rights with the rapist they would gain a lot of credit. It would definitely do a lot to combat the stereotype that all rape victims automatically want any pregnancy that might result to be aborted, a stereotype that hurts these women a lot more than it helps them.

Even if one is pro-choice on these matters, a lot definitely needs to change in these matters so that these women have access to all of the resources that they need. A rape victim should never feel like she is under suspicion or a "bad" victim because she chooses to give birth. The prevailing notion that abortion is the only solution to such situations is a gross disservice to the women who do end up in these scenarios.

That said, I find this post (and at least one post on the matter on this blog in the recent past) that concedes the notion of "bodily integrity" offensive. I'm not really sure why a pro-life blog is trying to concede the pro-choicer's arguments for them.

If taken to its logical conclusion, bodily integrity requires that a pregnancy can be terminated right up until birth just because the mother deems it so. I think if you took a random survey of people on the street and asked if they thought this was okay, almost no one would take you up on it. Does a pro-life blog really want to be making this argument?

M said...

I don't agree with your conclusion of the bodily integrity argument, actually. See here: http://blog.secularprolife.org/2012/03/bodily-integrity.html

Kristine Kruszelnicki said...

I think I understand your position a little better now. However, I hope you can appreciate my view that given that society isn't likely to apply this principle across the board, the argument can actually backfire and give the upper hand to pro-choicers who can say "see - it's not fair so we can't discriminate against pregnant women, let's let them all have abortions."

That said, in trying to understand why bodily autonomy is such a tripping point for many pro-lifers, including some SPL leadership who feel that bodily autonomy must grant abortion rights to rape victims (which I believe negates our claim that a fetus is a human being - since rape exception grants that a human being be killed if they are conceived in rape), I have been reading up on the philosophical treaties of the subject.

I agree we need to address this problem more. I hope to have further opportunity to provide a counter perspective to the one presented here.

Simon said...

Kristine I look forward to it. I'm tied up with work at the moment but will have more time after tues.

Brendan Malone said...

Interesting post, however I don't think it's as robust as it might first appear.

I have broken my reply into two parts in order to avoid violating the word limit...

a) Abortion isn't simply a refusal to do something that will prevent a person from dying, it is actually an act of direct killing.

This is one of the fatal flaws in the violinist analogy, the organ donor analogy, etc.

Abortion isn't simply an act of protecting your own bodily autonomy from violation by refusing to do something, it is instead an act of killing another human being in order to restore/secure your own bodily autonomy.

To make the violinist analogy akin to abortion, it would have to involve the person who was strapped to the violinist doing more than just unplugging themselves - they would need to kill the violinist and then unplug themselves from him.

Any person of goodwill can see that the violinist has no right to use your body, or that a sick person has no right to demand organs from you, but it does not follow from this that you then have the right to kill either of these two people because they lack a right to impose themselves upon you in this way.

If the captain of a ship finds a stowaway, who can't swim, aboard his vessel, it doesn't then follow that because the stowaway has no right to be on board that boat that the captain is then entitled to throw the stowaway overboard while they are hundreds of miles away from land.


b) You have ignored the vitally important underlying issue of whether consent to sex = consent to pregnancy, and whether pregnancy (after consensual sex) is a prima facie good or not.

If consent to pregnancy = consent to sex, and pregnancy is a prima facie good (which I believe to be the case), then any analogy which compares the feral occupation of the womb to criminal acts, or other acts of violation, is ultimately invalid, and this has a huge bearing on any laws that would be associated with bodily autonomy.

Questions of consent, violation, etc, are hugely important in many areas of law, and they would also definitely need to be considered in relation to this issue - it would be pretty hard to argue that the right to bodily autonomy is being violated if it could be shown that you actually consented, and that what is happening to you is NOT actually a violation.

Brendan Malone said...

Part 2...

c) Your argument seems to miss the impotence of the issue of the unique relationship between mother and child - the fact that conception confers maternity.

And with maternity comes unique obligations (including legal ones) that, apart from the situation of paternity, or legal guardianship, are not applied between any two other human beings.

For example, even though two human persons are involved, the law recognises that I have no obligation to feed, care for or raise my neighbour's child, but it does expect my neighbour to do these things for his child, precisely because of the paternal bond that my neighbour and his biological offspring share - a bond that confers certain obligations that are unique to their relationship.

This is just one example where the law does actually make distinctions between the freedoms that are granted to some people, but not to others (I am free not to care for my neighbour's child, but he is not free not to care for his children).

This is important, because, while not addressing the issue of bodily autonomy directly, it does clearly show that when it comes to rights and freedoms the law doesn't actually apply the same rule of thumb to every person - therefore it would seem unreasoned to suggest - as you do - that the law could NOT make a specific principle that restricts the freedoms of only to one class of persons (prenatal persons), but not of other persons (post partum persons).

Related to this is the important question of: wouldn't it be just as logical to argue that forcing parents to care for infants they no longer want by outlawing infanticide is also a case of giving fewer rights to the parents of infants than to the rest of the population?


d) Lastly, I'm not actually sure that the assertion: "in law do we allow bodily compensation by the offender for the victim" is at all correct.

Isn't the legal requirement that fathers pay child support to their biological children actually a situation where the so-called 'offender' is required to make a bodily compensation to the so-called 'victim'?

The father paying child support has to, and often against his will, donate a percentage of his bodily labour to his biological child until they of age and have left home.

And the mother of an infant can't opt out, by way of smothering the child, of the bodily demands that feeding, caring for, clothing, and sheltering that child obligate of her.

While both of these situations are different to the specifics of pregnancy, surely they both still involve a scenario where a person is obligated to forgo complete bodily autonomy in order to compensate somebody else they are obligated to?

Simon said...

A quick reply. I don't think that even if we value human lives as highly as we do it doesn't automatically follow that it is sacrosanct even if it actively involves the killing of innocents. After all the killing of innocents is permissible in some highly constrained situations; granted they manly deal with lethal force to other innocents.

This for many comes down to not some logical conclusion but whether society values one position more than the other.

For many people they find the death unfortunate but since they value bodily autonomy so highly, and since in no other roughly similar situation is a human thought to be able to force this burden on another, many allow active killing.


Simon said...

I also granted in a strong sense one should take into consideration moral responsibility but as I've stated then the objection comes down mainly to a technicality and whether you also allow bodily compensation under the law. I find both stances equally valid but just think currently neither side is consistent with their other moral precepts.

Simon said...

My objection wold be even for parents there is no obligation to force organ donation so it equally applies to care via the body.

Again moral responsibility can be the game changer but it still requires bodily compensation laws to change.

Next labor from ones body isn't considered the same as use of the body. Think about how it is treated in other situations.

simonjm1970 said...

Regarding the David Boonin ref he never used the toxic waste analogy in this form in any publication, only in teaching and in one debate "Is Abortion Morally Justifiable in a Free Society? http://catholicaudio.blogspot.com.au/2007/08/dr-peter-kreeft.html

Andy Ree said...

Why in the boiling blue cornbread fuck would pregnancy be a "prima facie good"?

It involves numbness of the extremities,shortness of breath, diabetes, high blood pressure, hemorrhoids, abject tortuous misery during labor, genital shredding, annal/urinary incontinence, and potential loss of life or livelihood.

It's absolutely the worst 40 weeks of MANY womens' lives.

Holy balls, you are DEFINITELY a man.

GeorgiaPeach23 said...

I've got a head cold, so maybe I missed it, but is this post supposed to be pro-life? It lays out very strong reasons why abortion should be permitted.

Simon Jm said...

Sorry I never got the post. No health and rape still be an option.