Article ID: JAR1906JWBR | By: Jay Watts

A Book Review of

Beyond Roe: Why Abortion Should Be Legal Even if the Fetus Is a Person

by David Boonin

(Oxford University Press, 2019)


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David Boonin’s new book Beyond Roe: Why Abortion Should Be Legal Even if the Fetus Is a Person hits the shelves as the world ramps up the political wars over abortion. The Supreme Court’s ideological make-up may have shifted for the first time in decades as a result of President Trump’s appointments of Neil Gorsuch and Brett Kavanaugh. Abortion rights supporters fear that Roe v. Wade, the 1973 Supreme Court decision responsible for protecting the right to an abortion in all fifty states, may be in jeopardy. New York, Illinois, and other state legislatures rushed to amend their laws to protect abortion in the event Roe falls. States such as Georgia, Ohio, and Alabama sought to push the boundaries of the current climate to test if they can restrict access to abortion. Celebrities, business leaders, and cultural influencers threaten boycotts while the Senate calls in social media executives to answer charges of discriminating against pro-lifers. This book and its arguments couldn’t be more timely or relevant, given the current climate.

Boonin is a professor of philosophy at University of Colorado (Boulder) and one of the preeminent pro-choice philosophers of our day. This new work focuses on a particular aspect of his arguments, his longtime efforts to support and expand the bodily autonomy arguments first introduced by Judith Jarvis Thomson of MIT in her 1971 philosophical article “A Defense of Abortion.”

Thomson’s bodily autonomy argument makes the case that even if the full humanity or personhood of the fetus is conceded, abortion would still be morally permissible. Unlike pro-choice justifications for abortion that attempt to define the unborn as something less than fully human, Thomson stipulated for her argument that the unborn are just like us, with the same basic right to life. The issue isn’t whether or not the fetus is a human being; the question is whether or not a woman can be compelled to offer the use of her organs to another human being against her will. Thomson developed her famous violinist analogy, drawing a comparison between pregnancy and being kidnapped and having a world-famous violinist with a rare deadly kidney ailment sown to your side in such a fashion that he will share your kidney function until after a period of time when he is healed and can be detached safely. No one is required morally to stay hooked up to the violinist even though disconnecting will lead to the death of the violinist, a valuable human person. Thomson refers to this argument as the Good Samaritan. She builds a case that if a woman gets pregnant, she is doing a morally laudable act by allowing the fetus to continue to gestate, that woman being a Good Samaritan, but she isn’t morally required to do so. Thomson argues no one can be obligated morally to offer his or her organs to the service of another person, even if that other person is an intrinsically valuable human being. Even if abortion kills a valuable human person, it isn’t morally wrong.

Beyond Roe adds a twist to this line of argument. Boonin makes the same initial concession; the unborn is a fully human person. He then adds another component. Abortion can be both the intentional destruction of a human person and a morally wrong act but should still be protected legally. He pivots from the bedrock of the violinist analogy, which argues abortion as morally acceptable, to the court case McFall v. Shimp to argue abortion must be legally protected whether morally condemnable or not.

In 1978, Robert McFall was diagnosed with aplastic anemia from years of working with asbestos. He needed a bone marrow transplant in order to survive. The only promising donor was his cousin David Shimp. After initially agreeing to pursue being a bone marrow donor for his cousin, Shimp changed his mind and refused to allow any further testing. McFall filed an injunction to compel a court to require Shimp to undergo further testing and, if he was found to be a suitable donor, to undergo the lifesaving procedure. On July 26, 1978, Judge Flaherty of the Common Pleas Court of Alleghany County in Pennsylvania wrote in his brief decision on the matter:

Morally, this decision rests with defendant, and, in the view of the court, the refusal of defendant is morally indefensible. For our law to compel defendant to submit to an intrusion of his body would change every concept and principle upon which our society is founded. To do so would defeat the sanctity of the individual, and would impose a rule which would know no limits, and one could not imagine where the line would be drawn.1

Boonin argues that this case produces broadly agreed-on and strong intuitions. As Judge Flaherty wrote, “For a society which respects the rights of one individual, to sink its teeth into the jugular vein or neck of one of its members and suck from it sustenance for another member, is revolting to our hard-wrought concepts of jurisprudence” (emphasis in original). This is the starting point from which it can be assumed we almost all agree. McFall is a valuable human life, a full person under the law. Shimp’s refusal to help is, by the judge’s estimation, morally indefensible. And still, almost everyone who reflects on this case ultimately will determine that the judge ruled correctly. Gravely ill valuable human persons do not get to force another to draw from their physical constitution against their will to provide life-sustaining bodily material, even if the failure to help those gravely ill valuable human persons is morally condemnable. Boonin argues that agreeing with this principle ultimately leads to the position that abortion must be legal in most circumstances.2

The Roe v. Wade decision emphasizes the importance of the woman’s right to privacy in light of the fact the state cannot determine if the unborn is a person or not under the law. If the current Supreme Court recognized the unborn as a person in the Fourteenth Amendment, then the privacy of the mother can be counterbalanced by each state’s desire to protect the Constitutional right to life of the unborn. States can craft laws restricting abortion expressing the morality of their local constituents above and beyond federal judicial fiat. Boonin’s argument attempts to provide the legal foundation necessary to defend morally permissive abortion laws in a post-Roe world and even cull back existing restrictions. He took great pains to write the book in nonscholarly language to keep the argument as accessible as possible, making a case that pro-lifers winning the argument over the moral status of the unborn shouldn’t produce a society without abortion. If Shimp didn’t have to donate his bone marrow to McCall, then a woman does not have to donate her uterus and other organs to the unborn. It is a supreme violation of autonomy to force organ donation.

Motivations ought to be immaterial to a woman’s freedom to seek an abortion, according to Boonin. It is irrelevant whether a woman seeks an abortion because the life was conceived in rape,3 she prefers a baby of a different sex,4 a prenatal genetic screening showed some abnormality,5 or a completely trivial reason such as not wanting to be pregnant on an upcoming vacation.6 The state should not require her to donate her body to another.

He acknowledges this justification has limitations. It could not justify abortion after viability, when the child is capable of living outside the womb, because that would be like Shimp allowing his organs to be used up to the point at which McFall was healthy enough to live on his own and then using lethal action to sever the relationship.7 It would not justify infanticide, as some utilitarian arguments do. Boonin compares infanticide to Shimp deciding months after the successful bone marrow treatment that he regrets the whole thing and doesn’t want a cousin.8

A good portion of the book is devoted to anticipating and addressing objections to his argument. He repeatedly tweaks details surrounding McFall v. Shimp to match the relevant objections in an effort to show that each fails to overcome the strong intuition that no one should be compelled to share their organs with another person. There are far too many to cover in the constraints of this review, but it is worth considering one of the most important defenses he offers, the letting-die-versus-direct-killing objection and how this affects legal reasoning.

Boonin begins his discussion of causes of death intuiting that this defense reveals a difference between the case of McFall v. Shimp and the case of abortion. He says, “It seems like the kind of difference that might matter. Generally speaking, if you kill someone, you’ve done something illegal, but if you simply let someone die, you haven’t.”9 This is an objection raised against Thomson’s violinist as well. There is an important difference between unplugging the violinist, Shimp refusing to allow McFall to use his bone marrow, and the intentional killing that abortion entails. In the first two cases, the violinist and McFall die as a result of pathologies they brought to the relationship, while the fetus dies by direct action against its body intended to end its life. If this objection holds, we aren’t required to accept that if the judge ruled correctly in McFall v. Shimp, then abortion must be legal. Not surprisingly, Boonin rejects this distinction.10

He asks if the moral evaluation would change if the manner of death changed. If the abortion method used is hysterotomy, like a C-section but with a much smaller incision, where the fetus is removed and dies because his lungs lack the capacity to work outside the womb, would that be substantially different from letting the violinist or McFall die?11 In hysterotomy and other extraction abortion methods, he characterizes the fetus’s death as being similar to McFall’s. The unborn is not killed by direct action against his body but indirectly through his removal from the mother’s life-supporting uterus, where the pre-existing condition of being too immature to be viable causes the death. Boonin argues that if this means of abortion is legally permissible because it meets the letting die standard, then the pro-life advocate must concede some forms of abortion ought to be legally permissible because they are no more directly responsible for the death of the unborn than Shimp is for McFall’s.12

Kate Greasley’s criticism of this argument is particularly helpful for two reasons. The first is that Boonin’s argument is not moral but legal, and Greasley is a lecturer in law at University College London. The second reason her criticism carries weight is that she, like Boonin, is one of the world’s most articulate defenders of the pro-choice position. Her disagreements with Boonin are based on the merits of the arguments, and not any predisposition to reject his views.

In her book Arguments about Abortion: Personhood, Morality, and Law, Greasley writes, “that continued gestation is never the fulfillment of a special, positive obligation to aid, because the alternative abortion scenario is not the mere withholding of aid, but the act of killing, in breach of the negative obligation to refrain from killing other persons.”13 This acknowledges that we don’t merely have responsibilities to do things but also the duty not to do things. We ought to help others when we can. We also ought not to kill other people. That is a negative obligation. It is an action that shouldn’t happen.

She remains unconvinced by the claim that extraction abortions are simply letting the fetus die, replying, “The abortion procedures in question are not pure omissions; in each case there is an action being performed which results in the death of the fetus. So the absence of direct interference with the fetus’s body does not appear to settle the question about whether abortion is killing or failing to save”14 (emphasis in original). She likens it to an astronaut ejecting her shipmate into space and claiming it was his inability to survive in that environment that killed him. She points out that “it is at least clear that what is ordinarily required for human beings to remain alive does not usually suffice as an explanation for death,” likening such word games to stabbing someone and then claiming he died because he lacked sufficient blood to “oxygenate his body.”15 It is not as cut-and-dried as Boonin, Thomson, and others would like to believe it is.

Greasley’s clarification on this point is particularly pertinent to legal reasoning. If abortion isn’t letting die but the killing of a valuable human person, it fails to meet the standard of a necessary protective act in proportion with the threatened harms. As she states, “Harming another person in self-defence must be necessary in order to avoid physical harm threatened by him, and the harm inflicted in self-defence must be reasonable, meaning proportionate to the harm threatened”16 (emphasis in original). The problem for Boonin’s argument is that the unborn child does not threaten the woman’s life by simply existing. Lethal action against the unborn child isn’t morally justified if we accept the individual as a person under the law. Greasley states categorically, “The main burdens of unwanted pregnancy, serious though they are, are simply not of the sort that ever justify killing in self-defense.”17

She also raises a question about how effective any analogy can ever be in giving us broad insight into pregnancy and abortion. Pregnancy is a unique situation. This isn’t the case of two valuable human lives being artificially connected by external means. One life exists within another in something so common that it is the means by which all human life reproduces throughout all human history. Pregnancy is at once both uniquely without an apt analogy and so ubiquitous as to have been the manner by which we all came to be.18 Boonin tweaks the McFall v. Shimp analogy repeatedly to make it more and more like pregnancy, but in order to capture all of the relevant aspects of consideration in pregnancy, he will have to tweak it enough to make it pregnancy by another name.

Analogies can highlight certain features of the argument, but the whole of pregnancy remains a complex collection of duties, responsibilities, natural consequences, and odd but necessary physical dependencies rejecting all efforts to pair up successfully with other situations to give us clarity. Boonin attempts to deflect this criticism through both his dismissal of the Weirdness Objection (analogies are just weird)19 and his defining these objections above as a cumulative case argument composed of weak components.20 He isolates each aspect and reflects on their insufficiency to ground the justification for forcing a woman to donate her organs to another person with varying degrees of effectiveness.

I suggest that this approach is flawed. This isn’t an accumulation of weak arguments but is, to borrow language from The Dark Crystal, the recognition of a great conjunction of multiple and profound relational aspects in one experience. A new life begins, a new relationship begins, a new shared biological reality begins. The existence of adoptive parents and foster parents (legitimate social parental responsibility) doesn’t undermine the importance of natural biological parental obligations, as Boonin seems to suggest it does.21 It demonstrates that our community values parental responsibility to such a level that it created safeguards to fill the void when natural parental obligations are refused or have failed. If, as this argument concedes, the unborn are fully valuable human persons, then this relationship, whether perceived as wonderful or terrible, begins at the moment a whole distinct human life begins — at conception. This is true whether pregnancy was entered into cautiously or frivolously.

If Boonin wishes to place an emphasis on our shared intuition that Judge Flaherty decided McFall v. Shimp correctly, it would be strange to dismiss an equally strong intuition that there is something about pregnancy that is qualitatively different from any accompanying analogy. In these cases, we should reflect on what reasons we have to intuit what we do rather than redefine the nature of parent/child relationships from the outset to reach an end agreeable to our position on abortion. In order to accept that McFall v. Shimp and pregnancy are the same in morally important ways, Boonin follows Thomson’s lead. They offer a definition of human relationships where all of us come into existence as assumed aggressors unjustly occupying the womb of the woman, otherwise known as the mother, and the woman only has the basic duty to refrain from killing her offspring once she accepts that duty.

Boonin understands that many readers will remain unconvinced.22 However, reading his work on abortion is profitable to those wishing to better understand the views of both sides of this issue. Beyond Roe clearly articulates a view of human relationships that would protect legal abortion even if the unborn are fully human and abortion is morally condemnable. It is also a view of human relationships there are good reasons to reject. Ultimately, his dependence on an odd court case with a one-page written decision to support the claim that abortion (one of the most argued issues of our day) ought to be legal reminds me of a quote from Lord of the Rings: it is like too little butter spread over too much bread. ––Jay Watts 

Jay Watts is the founder and president of Merely Human Ministries, Inc., an organization committed to equipping Christians and people who hold pro-life views to graciously defend the intrinsic dignity of all human life in a positive and gospel-focused manner.

 

Notes:

  1. McFall v. Shimp, 10 Pa. D. & C. 3d 90 (1978): Common Pleas Court of Allegheny County, Pennsylvania, July 26, 1978, https://scholar.google.com/scholar_case?case=11988310705292367329&hl=en&as_sdt=2&as_vis=1&oi=scholarr.
  2. David Boonin, Beyond Roe: Why Abortion Should Be Legal — Even if the Fetus Is a Person (Oxford, Oxford University Press 2019), 3–6.
  3. Boonin, Beyond Roe, 7.
  4. Boonin, Beyond Roe, 38.
  5. Boonin, Beyond Roe, 41.
  6. Boonin, Beyond Roe, 43.
  7. Boonin, Beyond Roe, 47.
  8. Boonin, Beyond Roe, 50.
  9. Boonin, Beyond Roe, 107.
  10. Boonin, Beyond Roe, 110.
  11. Boonin also discusses RU-486, but seems either genuinely confused or is intentionally vague about what the cause of death is in the RU-486 protocol. He suggests that the child is simply expelled through the combination of drugs into an environment where it cannot survive. The truth is that the mifepristone ends the life of the unborn prior to the misoprostol causing the contractions, which expel the lifeless remains from the uterus (Beyond Roe, 109).
  12. Boonin, Beyond Roe, 119.
  13. Kate Greasley, Arguments about Abortion: Personhood, Morality, and Law (Oxford: Oxford University Press 2017), 40.
  14. Greasley, Arguments about Abortion, 49.
  15. Greasley, Arguments about Abortion, 50.
  16. Greasley, Arguments about Abortion, 60.
  17. Greasley, Arguments about Abortion, 61.
  18. Greasley, Arguments about Abortion, 87–95.
  19. The content of this argument is made in Beyond Roe’s chapter on Hypothetical Cases, though the term Weirdness Objection is not used here. Boonin used that term in an earlier work, which Greasley interacted with in her response. (See Boonin, Beyond Roe, 18–20; David Boonin, A Defense of Abortion, [Cambridge: Cambridge University Press, 2003], 139–148; Greasley, Arguments About Abortion, 50.)
  20. Boonin, Beyond Roe, 137–139.
  21. Boonin, Beyond Roe, 89–90.
  22. Boonin, Beyond Roe, 207-208.