PBA310Y: The Good Samaritan Argument

Prerequisite: PBA210H

• A Defense of Abortion
• A Defense of Abortion
• Do the Unborn Unjustly Use Another's Body?
• “In chapter 7 of Francis Beckwith’s book, Politically Correct Death: Answering Arguments for Abortion Rights (1993), it extensively covers arguments such as this when refuting an analogy similar to the professor’s. The points Beckwith makes are in response to an analogy proposed by abortion advocate Judith Jarvis Thomson, known as “unplugging the violinist” and articulated in her paper, “A Defense of Abortion.” http://www.unmaskingchoice.ca/training/classroom/use#footnoteref3_bfcjhip
• http://www.equipresources.org/atf/cf/%7B9C4EE03A-F988-4091-84BD-F8E70A3B0215%7D/JAA025.pdf

• Bodily autonomy versus right to life
• Killing versus letting die
• Direct versus third-party action
• What does a right to life actually entail
  • right to continued life versus right not to be killed
  • right not to be killed unjustly
• on what constitutes a “right”, immoral versus unjust
• Good Samaritan versus Minimally Decent Samaritan
• “Special Responsibility”¹⁾
• “while I am arguing for the permissibility of abortion in some cases, I am not arguing for the right to secure the death of the unborn child”

Thomson doesn't actually believe a pre-born child is a person, even though she tries to assume the premise.²⁾

• “But it cannot seriously be thought to be murder if the mother performs an abortion on herself to save her life. It cannot seriously be said that she must refrain, that she must sit passively by and wait for her death.”
• “If anything in the world is true, it is that you do not commit murder, you do not do what is impermissible, if you reach around to your back and unplug yourself from that violinist to save your life.”
• “there isn't much a woman can safely do to abort herself”
• “Perhaps a pregnant woman is vaguely felt to have the status of house, to which we don't allow the right of self-defense.”
• Indeed, in what pregnancy could it be supposed that the mother has given the unborn person such a right? It is not as if there are unborn persons drifting about the world, to whom a woman who wants a child says I invite you in.”
• “a burglar”
• “If a set of parents do not try to prevent pregnancy, do not obtain an abortion, but rather take it home with them, then they have assumed responsibility for it, they have given it rights, and they cannot now withdraw support from it at the cost of its life because they now find it difficult to go on providing for it.”
• “people-seeds” as some kind of environmental toxin as an analogy for the attempted sterilization of the conjugal act

• Against (pro-life)
  • Schwarz 1990
  • Beckwith 1993
  • Lee 1996
• Against (abortion advocates)
  • Tooley 1972
  • Warren 1973
  • Steinbock 1992
  • McMahan 2002
• In Defence
  • Kamm 1992
  • Boonin 2003: ch 4

From the moral point of view, that is, a woman who carries a pregnancy to term is like a person who generously offers at some considerable cost to herself to provide waht another needs but does not have the right to, while a woman who declines to carry a pregnancy to term is like a person who declines to offer such assistance. It is not the case that abortion violates the requirements of morality, on this account, but rather that continuing to incur the burdens involved in a typical pregnancy goes beyond them, even if the fetus does have the same right to life that you or I have. […] while I will not attempt to defend Thomson's defense of the good samaritan argument, I will attempt to defend the argument itself.³⁾

Boonin summarizes Thompson's framing of the pro-life argument⁴⁾:

• P1: The fetus is a person
• P2: Every person has a right to life
• C1: The fetus has a right to life.
• P3: The woman has a right to control her body.
• P4: The right to life outweighs the right to control one's body.
• P5: Abortion kills the fetus.
• [P6: If abortion kills the fetus, then abortion violates the fetus's right to life]
• C2: Abortion is morally impermissible.

Thomson presents this scenario in response:

You wake up in the morning and find yourself back to back in bed with an unconscious violinist. A famous unconscious violinist. He has been found to have a fatal kidney ailment, and the Society of Music Lovers has canvassed all the available medical records and found that you alone have the right blood type to help. They have therefore kidnapped you, and last night the violinist's circulatory system was plugged into yours, so that your kidneys can be used to extract poisons from his blood as well as your own. The director of the hospital now tells you, “Look, we're sorry the Society of Music Lovers did this to you – we would never have permitted it if we had known. But still, they did it, and the violinist is now plugged into you. To unplug you would be to kill him. But never mind, it's only for nine months. By then he will have recovered from his ailment, and can safely be unplugged from you.” (1971: 132)

Boonin claims she's not attacking P4, as many claim. Surely Thomson would agree the right to control your body doesn't trump a right to life when they are in genuine conflict, e.g. the right to swing your fists and pummel someone else to death.⁵⁾ She is not arguing that the right to control your body outweighs someone else's right to life. Thomson's claim is that there's no such conflict in the first place, that a right to life does not entail a right to use your kidneys. “So, in unplugging yourself from him, you do nothing that conflicts with his right to life, even though you do something that brings about his death. […] the fetus's right to life does not include or entail the right to be provided with the use or the continued use of whatever is needed in order for it to go on living.”⁶⁾

Thomson is arguing that C2 does not follow without P6, and that P6 is not true. “The right to life does not include or entail the right to life support.”⁷⁾ Thomson says, “We need to be shown also that killing the foetus violates its right to life, i.e., that abortion is unjust killing. And is it?”⁸⁾

However, you still need to show that if P6 is false for unplugging the violinist, that it's also false for abortion – that the two cases are sufficiently analogous. Boonin says Thomson's argument is that the rights-based argument against abortion is unsuccessful without P6, and that it cannot be revised to succeed with P6.

• Boonin considers whether the scenario is just weird or implausible or impossible, like a mutant cockroach turning into a human infant after 9 months or a time travel Hitler assassination scenario, but defends the analogy as being quite morally relevant if odd.⁹⁾
• He says it's not weird like Zeno's paradox, but rather people who express it's unpersuasive because it's weird usually mean it's unpersuasive because it's not analogous¹⁰⁾
• The weirdness is a virtue insofar as it separates abortion for the sociopolitical context and perhaps distances the moral question from other baggage¹¹⁾

There is at least one obvious difference between the two cases that seems plainly to be of moral significance. In the case of you and the violinist, the situation in which you find that there is a violinist whose life is dependent on you does not arise from any voluntary action of yours. But when a woman becomes pregnant, except in cases where the pregnancy arises from rape, the situation in which she finds that there is a fetus whose life is dependent on her does arise, at least in part, from a voluntary action of hers. If she had not voluntarily engaged in sexual intercourse, she would not have become pregnant.¹²⁾

Thomson provided an initial reply to this objection:

I suppose we may take it as a datum that in a case of pregnancy due to rape the mother has not given the unborn person a right to the use of her body for food and shelter. Indeed, in what pregnancy could it be supposed that the mother has given the unborn person such a right? It is not as if there were unborn persons drifting about the world, to whom a woman who wants a child says “I invite you in.”¹³⁾

Boonin believes Thomson's response to this objection rests on the following two claims¹⁴⁾:

1. the fetus cannot acquire the right to use the woman's body unless we can suppose that the woman has given the fetus this right
   • The Responsibility Objection: “a person can acquire the right to your assistance when his need for your assistance (foreseeably) arises from a voluntary action of yours on the grounds that you are responsible for his state of need, even if in doing the action that led to his being in a state of need you did not 'give' him the right to your assistance either explicitly or tacitly.”, e.g. a hunter's responsibility towards an innocent bystander he has accidentally shot. “Because the woman in nonrape cases is responsible for the fact that there is a fetus whose life now depends on the use of her body in order to survive, the fetus has acquired a right to the use of her body even if the woman has not 'given' this right to the fetus, explicitly or otherwise”
2. we cannot suppose that the woman has given the fetus this right unless she has explicitly agreed to do so
   • The Tacit Consent Objection: “because the woman's pregnancy in nonrape cases is the (foreseeable) result of a voluntary action of hers, she should be understood as having tacitly” consented

Boonin finds Thomson's replies/sidestepping to these objections entirely unsatisfactory. For example, what about people who fail to use contraception? Or what about the fact that contraceptive methods are known to be imperfect? ¹⁵⁾ “A hunter, for example, can plausibly be held responsible for taking care of an innocent bystander she accidentally shoots, even if she takes every reasonable precaution to avoid such an accident short of not going hunting in the first place.” ¹⁶⁾

(Interestingly, Boonin remarks that pro-lifers who support abortion in the case of rape have a problem of being inconsistent, but taking the Good Samaritan Argument but limited to cases of rape only would solve this inconsistency – and in this way be a greater contribution to rape-exception abortion critics than abortion advocates.¹⁷⁾ His claim that “a significant portion of those who generally oppose abortion are willing to make an exception in [cases of rape]” seems either too focused on the American political context, or on the mushy middle that pro-life activists are trying to change anyways.)

1. Because the woman's act of intercourse is voluntary, she should be understood as having tacitly consented to something with respect to the state of affairs in which there is now a fetus developing inside of her body
   • Boonin says this confuses (a) voluntarily bringing about a certain state of affairs with (b) voluntarily doing an action foreseeing that this may lead to a certain state of affairs – and that only (a) is plausible for grounding tacit consent, yet only (b) is applicable to nonrape pregnancy cases¹⁸⁾
   • Boonin asks what would you have to believe about tacit consent for this objection to hold, which Boonin says may well be necessary but are not sufficient:
     • voluntary action
     • causal relationship between action and resulting state of affairs
     • Foreseeable (if unintended) consequence
   • Boonin's example to try to prove the distinction between (a) and (b)¹⁹⁾
     • Bill and Ted both leave a restaurant after voluntarily placing some cash on the table
     • But Bill placed the money there for the waiter (a)
     • Ted simply was uncomfortable with the cash in his pocket, placed it on the table temporarily, intending to put most of it back into his pocked, knowing he might forget it, did not take precautions (e.g. tying a string to his finger) to remember and didn't remember until 10 minutes after leaving the restaurant – at which point he returns to try to get most of his money back. This is (b) because Bill voluntarily took an action foreseeing that it might bring about a state of affairs, but did not voluntarily bring about that state of affairs.
     • Boonin says it would be unreasonable to say that Ted tacitly consented to the waiter taking all of his cash – the voluntariness, causality and foreseeability are not sufficient for tacit consent. (One might say that Ted is nonetheless responsible or that his actions were negligent, but then this is the responsibility argument, not the tacit consent argument.)
     • Boonin says a woman who has sex knowing it might lead to pregnancy is like Ted, not Bill. Just as Ted's returning to the restaurant is evidence that he never tacitly consented to giving away the whole pile of cash, a woman's procuring an abortion is evidence that she never tacitly consented to giving her child the right to use her body.²⁰⁾
     • Furthermore, Boonin later says that we can only assume Bill has tacitly consenting to giving this money to the waiter because of a well-established cultural convention. So, for example in a culture that finds having children out of wedlock morally impermissible yet abortion permissible, what could be assumed about tacit consent to the child through sex would be wildly different and may actually suggest the opposite. “The point is simply that a person's act cannot reasonably be taken as evidence of tacitly consenting to something unless it takes place in a context in which it is generally understood as constituting such consent.”²¹⁾
   • Boonin addresses Langer's tacit consent objection, saying that if a woman had voluntarily joined the Society of Music Lovers knowing she'd be entered into a lottery to be plugged into the violinist, that she would have waived her right to control over her body in this way.
     • Boonin says “her voluntary action is the act of agreeing to abide by the society's rules. […] In order for the two cases to be parallel, then, we must assume that [a pregnant] woman has similarly agreed to enter her name in a comparable pregnancy lottery by virtue of her having engaged in voluntary intercourse. BUt we cannot assume that she has so agreed because whether or not she has agreed is precisely the question we are attempting to answer.”²²⁾
       • Blaise: Is that true? Isn't there a relevant question of whether you could agree to have sex with knowledge that having sex is basically entering into a biological pregnancy lottery without agreeing to enter the biological pregnancy lottery? With knowledge, can you eat a piece of cake daily without tacitly consenting to the obesity that might result? With knowledge (and addiction aside), can you smoke a pack of cigarettes a day without tacitly consenting to entering the biological lung cancer lottery? Maybe this isn't a question of tacit consent… but can Boonin really just dismiss the biological pregnancy lottery that is sexual intercourse as irrelevant? How can you have sex, knowing that's where babies come from – knowing those are the biological rules of the game – without agreeing to the rules?
       • I suppose you could if you don't agree to the biological rules because you'll kill any human being that results, but I guess the separate question is whether or not that's morally acceptable to kill another human being because you don't consent to the rules of biology. Is refusing to follow the reality of sexual reproduction grounds for killing another human being?
     • Boonin says, say you knew the Society of Music Lovers kidnappers were lurking in a park and you walked by it anyways taking the risk, without carrying any protection. Surely no one will say you've tacitly consented to remain plugged into the violinist if you're kidnapped
       • Blaise: there seems to be a morally relevant difference in whether or not the reason why you experience an unintended but foreseen consequence that you knowingly risked through your voluntarily actions, if that reason is other people's voluntary and immoral actions to violate your rights, versus if that other reason is basic biological realities. Is it really the same thing to say that you didn't consent to a kidnapping and thus around bound morally versus you didn't consent to get sunburnt when you went outside for 3 hours midday with no sunscreen knowing that's how sunburns happen? While it might be meaningful to say that you did not tacitly consent to being kidnapped, I'm not sure if it's meaningful to say that you didn't tacitly consent to being sunburnt. Though, maybe it is more a question of responsibility than consent, but there is a consent to risk here.
       • Blaise: another way to put it: is the causal effect only your voluntary actions? Or the way others acting on top of your voluntary actions? When the cause of the unintended consequence is your action + biology, that seems radically different than when the cause of the unintended consequence is your action + kidnapping. Is it actually meaningful to say that you did not consent to the state of affairs emerging from the sunburn scenario? That you did not consent to biological realities?
       • Boonin tries to address this by removing the culpable agent and putting the second variable as a Y2K computer bug.²³⁾
         • Blaise: A random computer glitch that brings about a procedure radically different from the one in which you entered the hospital to receive still hardly seems analogous to experiencing the natural and commonplace and hardly surprising outcome of having sexual intercourse. Getting pregnant from sex is not like getting hooked up to the violinist because of a random computer glitch. The random computer glitch seriously calls into question the foreseeability requirement – sure you know it's the eve of Y2K, but it wouldn't be foreseeable that hospital staff would be so negligent as to proceed in the face of the glitch (so, not total inculpability either)
         • Blaise: Even when Boonin tries to rescue this by making the probabilities of randomness exactly equal to the changes of conception in a single sexual act, or maybe adding serious infertility problems to the woman who does actually get pregnant²⁴⁾, the difference of randomness versus natural outcome still remains (and hospital staff proceeding despite the random error). Even at equal odds, sex causing pregnancy has a much stronger foreseeability and causal relationship than a random computer glitch causing hospital staff to give you the wrong operation. You could make the odds equal between getting pregnant from sex and dying from a freak accident (lighting a match causing you to be incinerated from a gas leak, getting struck by a piece of falling ice walking down the street), and it wouldn't make the two situations analogous.
   • Blaise: I'm still not sure that it's soley a question of tacit consent here. But I don't think Boonin successfully dismisses consent entirely, even if it's a tacit consent to assume the risk of pregnancy as a possible outcome of sex rather than consent specifically to the use of your body – perhaps it's some form of consent combined with the responsibility argument
2. What she should be understood as having tacitly consented to with respect to this state of affairs is, in particular, the fetus's having a right to have the state of affairs continue for as long as this is necessary for it to remain alive
   • “Suppose that the procedure involved in unplugging you from the violinist is itself somewhat painful and costly. […] We might say that freely plugging yourself into the violinist constitutes consent to bear the costs of unplugging yourself. But does it constitute consent to more, and in particular, does it… constitute consent to remain plugged in for the nine-month period that the violinist requires?”²⁵⁾
     • What if you had to undergo nine painful bone marrow extractions over the next nine months, and you freely volunteer at first without fully understanding what's involved, would you be morally obligated to complete the rest of the extractions if you changed your mind after two?²⁶⁾
       • Blaise: What if you could only unplug yourself by decapitating the violinist?
       • Blaise: What about ordinary versus extraordinary care? A bone marrow extraction is not analogous to providing food and shelter for a child. What if you agreed to travel with a newborn baby from one location to another, but found it seriously burdensome to continue to carry, feed and shelter the child in the middle of a difficult journey? Since you consenting to the journey, does the child not have a right to your basic support until the journey is over? Or can you leave the child to starve? Or dismember the child to remove yourself from the demands you initially consented to?

• Boonin also raises the question of whether or not the right to control your body is one that you can even waive, e.g. a case of consenting to the use of your body in any way for cash – most of us would consider such an agreement invalid.²⁷⁾
  • Blaise: What does this say of Boonin's concept of parenthood, or his grasp on the reality that human beings are mammals, that he would consider the use of your mother's body in pregnancy analogous to the use of someone's body in slavery, as violating an inalienable right?