Tuesday, March 08, 2005

Every Abortion Analogy Fails

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.


Glen Whitman said...

I think that analogy fails as well. If a soldier makes a contract with his government, only that government is in a position to require his performance. The government may do so on *behalf* of a third party -- say, an allied country -- but the third party has no direct claim to the service. For instance, the U.S. used its soldiers to free France, but the soldiers did not owe a duty to France. They owed a duty to the U.S. government, which duty the government chose to use for the purposes of assisting France. (I leave aside the point that many soldiers are drafted.)

So if we follow your analogy, in which the contract is with the biological father, at best it proves that the father can command the mother to bear the child, not that the fetus or the government can command her to do so. And I suspect that this is a contract that many potential fathers would happily give up at the time of coitus (when the contract is allegedly formed). The woman could simply say, "By having sex with you, I am not thereby agreeing to carry a child to term. If you don't like those terms, we're not having sex." If he agrees to have sex anyway, no contract is formed.

Andrew M. Bailey said...

Thompson's violinist case seems to differ enough from the intuition pumps already discussed to deserve independent discussion. It's closest to the Unwelcome Houseguest case, but seems to avoid the two conditions you believe disqualify that case. That is, it does involve the death of the guest if expelled, and it does not imply any voluntary action on the part of the guest.

The case, as formulated by Thompson: "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." Is it morally incumbent on you to accede to this situation? No doubt it would be very nice of you if you did, a great kindness. But do you have to accede to it? What if it were not nine months, but nine years? Or longer still? What if the director of the hospital says. 'Tough luck. I agree. but now you've got to stay in bed, with the violinist plugged into you, for the rest of your life. Because remember this. All persons have a right to life, and violinists are persons. Granted you have a right to decide what happens in and to your body, but a person's right to life outweighs your right to decide what happens in and to your body. So you cannot ever be unplugged from him.'"

Anonymous said...

I think you breakdown the analogies rather creatively but I wish you would use your vast skills in economics to analyze the abortion issue for us. For example, you could consider the negative externalities of forcing poor, ignorant women to have babies. In China, they have a one child per family law because of overpopulation. I think this focus on killing an embryo or fetus or baby or blob or who's imposing what duty on whom has gotten use almost nowhere. It's time for Glen to muster up his courage or whatever he needs to tackle this issue from a purely socio-economic viewpoint. Take the world view and apply cost-benefit analysis or the Coarse theorem etc. to the abortion "dilemma"; help us truly understand...or go for a walk in the crisp night air and listen to Joe Cocker!

Glen Whitman said...

JB, I'm still not seeing it. Even if the third-party beneficiary is the marginal citizen who could have been drafted otherwise, it's still the government that's an actual party to the contract and is calling on the soldier to fulfill his part.

As for the notion that a soldier might enlist in the belief that Clinton won't start a war, and then be surprised when W does: this doesn't matter if the terms of the contract specify that the soldier must fight regardless of the president (which assuredly they do). If the army actually included a clause specifying Clintonian foreign policy in the contract, then the soldier would have legitimate grounds for complaint -- but no such clause is included, to my knowledge.

And the distinction between implicit and explicit is *extremely* important. The thing about implicit contracts is that they can be explicitly waived. When I buy a service, there's an implicit guarantee that I won't be harmed in the normal course of things. But I can waive that guarantee, such as people do when they go parasailing or bungee-jumping. So if you're claiming a woman, by having sex, is entering a contract with a man to carry a child to term if she becomes pregnant, the woman can explicitly refuse that term, and the man can explicitly waive it. On what grounds can you say that two people have formed a contract with each other when *both* those people deny having done so?

Glen Whitman said...

JB, you're confusing the analogy in two ways. First, you're bringing in a tort (which I addressed separately). Second, you're talking about people disclaiming a contract *after the fact*. But I was pointing out that people can disclaim a contract *before the fact*, thereby causing the contract never to exist in the first place.

Anonymous said...

Consider The Programming Scenario:

Two programmers, a male and a female, collaborate in the creation of a complex computer program -- the planned design-to-completion time is (you guessed it) nine months. The male programmer's contribution to the completed program, due to time constraints caused by another project, is limited to one night of intensive collaboration (program design) with the female programmer. The next morning, the female programmer is left with the nine-month task of producing a working program. After several months of painful, round-the-clock programming the female programmer has decided that the end product of her work will not be worth the time and labor she is putting into it. Since there is no customer for the program and no other outside interests, the programming project is aborted.

If the program was completed successfully, it would be the sole property of the programmer. If the project is aborted the incomplete program is also the property of the programmer.

In case anyone balks at equating a baby with a "product" consider the manufacturing process that takes place in the womb. Does "product of conception" ring a bell?


Anonymous said...

JB your analogy fails because saying that getting pregnant because of sex puts you in a contract in which you have to deliver a child is as arbitrary as say... declaring that next time you go out in the forest puts you into a contract where if you encounter a carnivorous animal you should let him eat you. The act of going in the forest brings the risk of an encounter with carnivorous animal. There is no rational reason why you would be made to forfeit your right to defend yourself to the benefit of a starving (baby) bear. There aren’t any more reason to forfeit your right to defend against the side effect of sex than to forfeit your right to defend yourself against the (baby) bear just because “hey you knew it could happen in the forest!”.

The sole reason for the government to enlist you is for you to go on missions if needed. People who go in the military are aware of that.

Most of the time, the point of sex isn't to deliver a child if so needed, but simply enjoyment. People are also aware of that. Your metaphor requires we assume that the sole reason of sex is to deliver a child. An assumption I am not willing to accept.

There is no reason to think that the implicit contract is that you carry the child till birth than there is a reason to think that the implicit contract is the requirement for abortion in the case where a party was clearly not doing this for procreation. In fact, using your flawed rational, I could use your metaphor to promote government control of the rights of men to avoid procreation. I could argue that a woman should be forced to have an abortion because “hey she knew of the possible side effect of sex and can’t force a man to release his valuable genes to the world. It’s a contract!”

Anonymous said...

Until you've performed an abortion for MONEY you don't know what FUN you've been missing out on! I object vehemently to the MONOPOLY that M.D.s have on the procedure. Why not have abortion schools just like cosmetology schools? I bet that JB would be just as accomplist an abortionist as he is a blogger. The high cost of abortions is the real problem. I tired of seeing my medical insurance rates going up on account of those money-hungry hospitals, doctors, and HMOs. Somebody needs to demystify the abortion procedure for us. Sucking an attached fetus out of the womb is no big deal even JB could do it without qualms--if the PRICE is right!

Anonymous said...

JB, all the other analogies presented in this post were tools to help argue weather abortion is acceptable or not. Your analogy makes the presupposition that abortion is unacceptable on the ground that sex is meant solely for procreation and therefore there is an implicit natural contract based on creation. Then it further extrapolates this implicit contract to equate women with an enlisted solder and which makes women who abort pregnancy equivalent to a deserting solder.

Your analogy, serves no purpose but to demonize women who abort by comparing them to an icon of appalling behaviour: the deserting solder. Your analogy brings almost no useful philosophical argument to the debate about weather abortion is acceptable or not. It is an emotional argument that is offensive to women who had abortion and could easily be used to show how one could (or should) have contempt for these women.

Your analogy shouldn’t be grouped with the others because it is the step that follows the first debate. Only when we have determined that abortion is bad, will your analogy serve the purpose of arguing the details of its badness. It could help argue that even if the women tries hard not to get pregnant once they are pregnant it doesn’t indemnify their decision to abort and maybe argue how society should put strict punishment on abortion not unlike the deserting soldier would be punished.

Your analogy is rhetorical and you are not much different than someone asking a rhetorical question like: “Why is President Bush a war criminal?”. The suggestion that we wouldn’t see past the hidden assumption is insulting our intellect and irritating me. At the very least you should have pointed out clearly that your metaphor presupposes that abortion is bad and is only meant to discuss how bad it is while humiliating aborted women.

Chris said...

I am pro life and do not want to broach the general concept of abortion; however, I do have a specific question.

Can an analogy with any sort of validity be addressed in regards to late term Partial Birth?

After the decision in Roe, the courts ruled that, post-viability, the state has the right to balance the interests involved including the health (life) of the child. I interpret this to mean that if and ONLY IF the life of the women is endangered by caring to full term may the abortion take place.

California has decided that this "balance" of mother v. child rights should include the mother's "mental health". Under wait circumstances should the mental health of the mother outweigh the life of the fetus? The forecasted health of the child is irrelevant; furthermore, a viable fetus is treated (Post Roe) as a human being. This interpretation, regarding the insertion of women's mental health into the equation, has allowed doctors to circumvent the true balance of interest by getting a Psychologist’s diagnosis. Some doctors are timid to such proceedings due to potential scrutiny.

Since a late term (I refer to after the 7th month or so) abortion would entail removing a dead fetus from the womb, I don't understand how such an abortion would save the life of the mother. Essentially, we are saying that removing a dead fetus, at near full size, may save the life of the mother.

It seems as though the only logical, although unreasonable, instance in which late term partial birth abortion could be performed is for the "mental" wellbeing of the mother.

I will adjust my inquiry accordingly: How could an analogy convey a women's right to cancel a child's life late term on the grounds that it could reasonably damage her mental/emotional health?

Chris said...

Bob, I apologize for my abrupt objective stance on the subject in which your wife had a legitimate choose (I also apologize for your loss). Essentially, modern technology allows us to accurately balance the interest between the mother’s health and that of the yet-to-be-born child. I am in full agreement that when the life of a mother is threatened from carrying the baby to term, the mother should have the right to choose.

In my analysis, I am approaching the issue with a suspect eye insomuch as I see the possibility for the laws to help a selfish woman circumvent a pregnancy. I believe that a rule implemented to the extreme left will allow such a situation; whereas, a rule implemented to the extreme right may affect the rights of women with a justifiable right to have an abortion. I believe we must find a common ground; consequently, not recognizing the fetus as civilly important until a date of viability is not said equilibrium.

When I discussed the California doctor’s ability to perform PB abortions based on the mother’s mental health, I did not exclude the possibility that there are cases in which there exists an interrelated detriment between the physical and mental health of the woman. Once again, I am stating that it is possible (in CA) to perform an abortion at a late term in the pregnancy in which there are no foreseeable physical drawbacks (in light of progressed technology). I believe, in this case, that a solely the mother’s mental health is not of significant interest as opposed to the assumed fully-functioning child. The statute implemented in CA is of the extreme left nature; thus, I see a distinct possibility for such occurrences to arise.

I dissent, in part, and agree, in part, with your hypothetical situation presented about the girl that has faced an undue barrier (via rape + parents) to having an abortion until the later stages of pregnancy. Although I am a large believer in God’s big plan (we need not digress onto the topic of religion), I find it reasonable that a rape victim’s emotional stress from such an occurrence is a sufficient grounds to have a significant interest in the abortion civil rights equation. I understand that the whole entire process is emotionally crippling to the young woman; however, what is the essential difference in emotional stress purported through an inhuman late term abortion versus a non-life-threatening pregnancy after which she has the opportunity to bless a family (through adoption) that cannot bear children. I have not been raped or pregnant (and do not have the genetic makeup for this combination); but I find it more emotionally fulfilling, in the long term, to shed light on a traumatic experience and let God shine through sin than to kill the child and have dwell on the occurrence emotionally. Once again, I am not a woman and I do agree that women do have a significantly weighted right to choose in this situation. I merely question that a woman making such a decision truly understands the long term implications of such a decision.

I appreciate your comments Bob; feel free to respond to my clarifications and dissents regarding your post.

Chris said...
This comment has been removed by a blog administrator.
Anonymous said...

This is kinda late to the game, but what the hey.

In regard to the explicit vs. implicit contract, I think the soldier analogy still works. See parasailing: I can explicitly disclaim any responsibility for the consequences ahead of time, but no disclaimer can protect me from actually getting hurt in the act of parasailing, because the act is not subject to negotiation - it's separate.

The enlistment contract (at least for a prospective volunteer) is essentially immutable in the same way. Enlistees as far as I know can't cross out lines in their own contracts, or reword their own oaths according to what they desire or are willing to risk. They can try to sign up as above in anticipation of peaceful times, or with the knowledge that their own personal skills will keep them off of the front line, but everyone signs the same contract.

It's one of the characteristics that make enlistment sui generis in the world of contracts in general, and it's also one of the characteristics that makes it more closely analogous to sex than other potentional analogies.

The only big difference that I see here is that it requires only a single individual to enlist, whereas it takes a male and a female to "enlist" in the sexual reproductive contract. Biology provides negligible consequences for males in sex, and passes pretty much all of it on to the female involved.

Such a one-sided contract provides a rather lot of incentive to the male gender to "enlist" as frequently as possible. Most societies attempt to correct this with laws prohibiting rape, and, to a lesser extent, punishing male "enlistees" who "desert", as it were.

That's all I have (if anyone's listening).

Anonymous said...

I disagree with JB's statement:

"For the self-aware human being and for at least 10,000 years of human history pregnancy was the primary effect of sex. The pleasure the enjoyment, that was the side effect."

The primary effect of sex is to resolve the drive to copulate.

Regardless of whether enjoyment is experienced or pregnancy results, regardless of whether there is knowledge or expectation of either, there is a sexual drive that compels physical behavior.

Silver Surfer said...

The baby in the womb is a person regardless of how that baby got there.

A baby born through rape carries none of the civil guilt attached to anti-rape legislation. The baby is not an accomplice to the act.

Therefore, the baby should not be murdered for being in the wrong place at the wrong time. Let us show respect and mercy for the innocent.

For those who argue that the baby could be a danger to the mother's health one would wonder to which degree. Recently we have seen where a mother delivered 8 babies and survives without problems.

It appears that childbirth is a natural course for women.

The baby is not consciously committing a crime against its mother and therefore is not the party of a guilt worthy of being put to death which includes a sentence without a trial.

The baby finds itself an innocent victim in a perilous position. It is very unjust to help a non co-operating mother who refuses to render aid.

Hunter said...

All angles and analogy?! That sounds absurd to me - the issue on abortion is not entirely about morality rather it is a web of highly inter-related factors that requires more than a sound mind to decide on. Options must be drawn from a variety of things and it should be.

Anonymous said...

Wow, this thread makes me want to carve my ovaries out with a grapefruit spoon.