Over at The Corner, Jonah Goldberg professes confusion as to why anyone who’s generally opposed to abortion might be prepared to make an exception in cases of rape and incest. I think there’s a pretty straightforward reason, though. About 35 years ago, Judith Jarvis Thompson offered a now-classic thought experiment: The Famous Violinist. We’re asked to imagine that an unwitting subject wakes up one morning to discover that the Society of Music Lovers has hooked her up to an ailing Famous Violinist, who needs to share her organs and circulatory system for nine months in order to be cured of his otherwise terminal condition. If she disconnects him, he will die. There is no question here (as there is with a fetus) whether or not the Famous Violinist is a full-blown moral person. Yet (says Thompson) our sense in this case is that even so, the unwitting subject has a right to her own body, and is entitled to disconnect him if she so desires, even though it might be nice to let him have the use of it for a while.
The response of most pro-lifers is that abortion is disanalogous, because unlike the subject in the Famous Violinist case, people who choose to have intercourse, even with contraception, know that they do so at the risk of creating a fetus. Therefore (the argument runs), they incur a special obligation to that fetus that isn’t present between the subject and the Famous Violinist. There are some interesting problems with that argument, but it’s intuitively appealing, and Jarvis’ attempt to deal with it isn’t wholly convincing. But for pro-lifers who rely on the “special obligation,” yet otherwise find the Famous Violinist analysis compelling, it would be natural to make an exception in cases where there was no voluntary action on the part of the pregnant woman that might be interpreted as creating such a special obligation. In cases of rape and incest, in other words, the Famous Violinist argument goes through without meeting the usual objection.
7 responses so far ↓
1 Grant Gould // Mar 10, 2006 at 4:31 pm
Of course, the Famous Violinist is also a perfect example of an argument that you can’t make in public discourse without seeming like an immoral godless bastard.
Of course, one of the major reasons that an implied-consent version of abortion restrictions is never going to fly is that our law does not recognize people below 18 (depending on your state) as being able to legally consent to sex. As such, people under the age of consent should be able to get abortions under the Violinist exception. And that will never fly in a million years politically. In politics as in all things: To reject the consequences is to reject the premises. If the Violinist argument leads to a safe-haven for abortions for minors, no politically relevant group will touch the Violinist argument.
2 Steven Maloney // Mar 10, 2006 at 6:33 pm
Of course, one can argue the violinist argument is actually too simple in way that does pro-choice arguments a little LESS credit than it deserves. Imagine if you initially agree to consent to be hooked up to the violinist, not really of your own free choice, but because of some sort of traditionally coercive social power relationship that made you feel that you could not say no or the social costs would be too much to bear. After being pressured or bullied into the hookup initially, if this coercive force later abetted or you decided to stand up to it, have you no right to change your mind? Maybe that’s too tortured an analogy, but you do not have to be Catherine McKinnon to think that any discussion about abortion that does not taken into consideration the power dynamics of wealthy v. poor or the gender inequalities between men and women on this front is at best a seriously incomplete discussion.
3 Charles // Mar 12, 2006 at 9:55 pm
Julian:
I get the “rape” argument, but wherefore incest? Incest doesn’t necessarily imply lack of consent, though rape always does. I have always assumed that the phrase “in the case of rape or incest” really refers to lack of consent (in the first case) and genetic abnormality (in the second). Does it really mean “rape” and “consanguinity rape?”
Gould:
Isn’t the special objection to underaged abortion the very fact that they can’t give consent to *medical procedures* as well as sexual intercourse? It would seem that there are two issues of consent then in the case of an underaged person who wished to get an abortion in the state with a “Violinist” abortion law. While the child would be entitled to an abortion under the law becasue she didn’t give consent to the intercourse, she would not be entitled to the procedure because she is not an adult. Parental consent would be necessary.
4 Julian Sanchez // Mar 13, 2006 at 9:17 am
Charles-
I suppose I was thinking of the father/daughter case (or maybe older brother/younger sister) as the paradigm instance, where the sex would obviously be coercive if not literally forced. So yes, really I was thinking of it as a species of rape–I wasn’t thinking mainly of, say, cousins raised apart who might have malformed children.
Steve-
I’d be extremely wary of making that sort of argument. (And let me repeat that I’m pretty strongly pro-choice, though for other reasons; this is a hypothetical about when abortion opponents might make exceptions.) Obviously, you will have some cases where someone over the legal age appeared to consent (in a way where we’re clearly not in the “rape” category) but turned out not to really be in any condition to consent after all. But it seems profoundly dangerous and disempowering to suggest that poor women in particular are *routinely* unable to give meaningful consent in some systematic way. Because you quickly hit a lot of pretty obvious follow-up questions like: “So can they consent to other things? Can they incur debt? Make contracts? Own property?”
5 digamma // Mar 15, 2006 at 10:24 am
Actually, I think the Violinist argument works well from the pro-life side too. A lot of people on the left are troubled (justifiably) by the idea that you could choose to let someone else die of starvation.
6 Gene Callahan // Mar 16, 2006 at 9:03 am
Yes, Steve’s concern suggests that women and the poor should have chaperones who can decide when they can have sex in the first place, i.e., when they “really want it” as opposed to when they are being “socially coerced.” In fact, they obviously need the same sort of paternalism regarding whether or not they can have an abortion! Maybe they’re being “socially coerced” into that choice!
7 Amy Phillips // Mar 16, 2006 at 9:36 am
The incest exception is an interesting one because it seems to assume that no woman would ever consent to have sex with a family member. If the idea is to give an out to young girls who are coerced into having sex with older male relatives, then the problem isn’t incest, it’s underage girls having sex with older men. I coincidentally wrote about this yesterday, arguing that a consistent pro-life position that makes a rape exception should also make an exception that allows all girls under the age of consent to have abortions.
If, on the other hand, the incest exception is designed to allow abortion in cases where birth defects are more likely (and the science on incest doesn’t back up that claim), then a consistent pro-life position should allow abortions in cases where amnio or other testing shows that the fetus is abnormal. The anti-abortion community has been vocal in their claims that aborting unhealthy fetuses constitutes malicious eugenics and must be prevented, so that’s not consistent either.