In the course of far too many abortion discussions, I’ve made numerous analogies and heard many more (from partisans of both sides). Analogies are often useful because they help to transfer our intuitions from easy and familiar cases to difficult and unusual cases. But the strength of an analogy depends on the similarity of the characteristic features of the cases compared. I’ve gradually reached the conclusion, however, that abortion is sui generis; there simply does not exist any other situation that duplicates all its relevant features. Analogies can help us to understand the interests involved, but no single analogy will dispose of the question. In short, all abortion analogies fail. Here’s the rundown on several such analogies:
The Unwelcome Houseguest. A woman’s body is like a house. She has the right to decide who stays there and who doesn’t. If she’s not happy with her guest, she is free to kick him out. This is the analogy I implicitly made in last week’s post (wherein I constructed a constitutional argument for reproductive choice based on the self-ownership implied by the 13th Amendment and the takings clause of the 5th Amendment). This analogy gets at the important notion that a woman has a strong property interest in her body, and that interest persists even if the fetus has individual rights. But the analogy has two problems, each of which leads to another analogy. First, forcing the fetus to leave results in its death, which is not generally true if you ask a houseguest to leave. And second, unlike the houseguest, the fetus didn’t voluntarily enter the womb in the first place.
The Necessity Case. The common law recognizes situations in which a person in dire need can use another person’s property without consent and then pay later. The classic case involves a boat captain who ties his boat to a dock (even though the dock’s owner is absent or unwilling to consent) in order to avoid losing his boat in a storm. The dock owner cannot legally refuse, and he’ll even be held liable if he deliberately unties the boat from his dock. But the boat captain must pay the dock owner compensation for his use of the dock, including any damage done. Similarly, one might argue, a fetus can command the use of the mother’s womb (possibly paying compensation later). The analogy’s usefulness lies in identifying the dire nature of the fetus’s situation. But the analogy fails for at least three reasons. First, the amount of time involved in necessity cases is typically short (the length of a storm, for instance), whereas the fetus demands nine months of feeding and shelter. Second, the nature of the sacrifice differs dramatically. There’s a substantial difference between letting someone tie their boat to your dock and letting someone live inside your body. Third, compensation is typically not paid, at least not by the fetus; indeed, giving birth often incurs even greater future obligations, unless the baby is given up for adoption.
The Invited Houseguest. This analogy is similar to the Unwelcome Houseguest, except that it recognizes the “invited” character of the visit. Like a homeowner who has invited guests to come over for dinner, the woman might be said to have invited (at least the possibility of) a fetus into her womb. But what’s an invitation? The mother may not have laid out the welcome mat – indeed, she may have specifically laid out “NOT welcome” mats in the form of condoms, diaphragms, spermicides, and chemical alterations of her body chemistry. This hardly constitutes an invitation. And setting that objection aside, does an invitation create an obligation? Are you obligated, legally as well as morally, to serve your dinner guests the promised food? In general, the answer is no, unless some kind of implicit contract has been formed. Absent a binding promise, you can oust your guests at any time. So for this analogy to work, it has to be transformed into…
The Bed & Breakfast, a.k.a. The Implicit Contract. Suppose a traveler makes a reservation to stay in your bed & breakfast. Don’t you have a contractual obligation to provide him a place to stay when he shows up (and some food in the morning)? Let’s also suppose that yours is the only hostel in town, so the traveler has no viable alternative. This analogy, like the previous one, emphasizes the invited character of the situation. And like the previous analogy, it suffers from the absence of a true invitation. The mother may not have consented, and she may even have taken positive measures indicating her lack of consent. (Yes, she took a risk, but taking a risk does not necessarily mean consenting to all consequences thereof. A person who ventures into a dark alley at night risks being assaulted, but that doesn’t imply consent to the assault.) For the analogy to fit, we would have to suppose that the B&B owner didn’t accept a reservation, but instead locked the doors and put up a “no vacancy” sign. If we think the traveler’s need for shelter trumps such objections, then we’re back to the Necessity Case.
In addition to lacking robust consent, the alleged contract with the fetus lacks something else. A valid contract requires consideration, meaning some form of compensation received by each party in exchange for its burden. What consideration does the mother receive? The pleasure of sex, one might say. But the fetus does not provide that consideration, because the pleasure occurs before the fetus even exists. This is the Achilles’ heel of the Bed & Breakfast analogy: a contract presumes the existence of two parties who both consent beforehand in exchange for promises. The act of sex cannot be likened to the signing of a contract, because an entity that does not exist can neither consent nor make promises. And the fetus’s lack of consent points to yet another analogy…
The Negligent Driver. When you negligently or deliberately cause harm to another person, the law requires you to provide compensation, either with money or some kind of action. If your negligent driving puts a pedestrian in the hospital, you are liable for his medical bills. Likewise, one might argue, your sexual behavior creates the risk of placing a fetus in a very precarious situation. If so, you are liable for the fetus’s care during that time. This analogy emphasizes the responsibility of people for the risks they create, thereby dodging the previous analogy’s “no invitation” problem. The difficulty with this analogy comes from the definition of “harm.” Harm doesn’t mean being in a difficult situation – it means being in a worse situation than you would have been otherwise. Were it not for your reckless driving, the pedestrian would (in all likelihood) still be walking around, safe and sound. Were it not for the act of sex, the fetus would not exist at all. To sustain the claim that the act of sex creates a risk of harm to the fetus, you have to insist that existence in a dependent state is worse than sheer non-existence. If the act of sex constitutes a tort, it is the only tort I can think of that creates the very person it victimizes.
So in my opinion, all the analogies fail. They can still be of use, however, because they highlight all the relevant considerations. A woman does have a property interest in her body, but property interests are sometimes defeasible (as the necessity cases demonstrate). A woman does create the risk of pregnancy (at least if the sex is consensual), but creation of a risk does not imply consent to all possible consequences. Pregnancy does put a fetus in a precarious situation, but not a situation that can sensibly be characterized as harm relative to the alternative of non-existence. A reasonable answer to the abortion question has to take all of the above into account. (And I should emphasize, again, that all of these analogies assume for the sake of argument that the life in question is a legally relevant one.) In a later post, I’ll talk about an answer that makes sense to me.