Thomson recognizes that not all moral obligations stem from rights. For example, if a child finds a chocolate bar, then his sister has no right to it, but decency requires that he share it with her anyway. Likewise, in some cases, it would be wrong to abort because it would be “indecent”.
When is it indecent? Thomson doesn’t say, just gives an obvious example: A woman wants to abort at seven months so that she can go to Europe.
But, argues Thomson, making decency a legal requirement in effect requires us to be “Good Samaritans”. Thomson notes that “no one in any country in the world is legally required” to be a Good Samaritan, except in the case of pregnancy. In fact, no one is even required to be a Minimally Decent Samaritan.
Thomson: Abortion is permissible in many cases, but this does not mean we have the right to secure the death of the fetus. “The desire for the child’s death is not one which anybody may gratify, should it turn out to be possible to detach the child alive.” In Thomson’s view, the death of the fetus is a necessary side-effect of abortion, but is not a legitimate goal of abortion. Were it possible to remove a fetus without killing it, then it must not be killed.
Pro-choice lobbies are concerned about laws and policies that may implicitly recognize the fetus as a person (e.g. criminalizing the harming of a fetus by an attacker, or extending federal funds to poor women for prenatal care on the grounds that the funding is for “low-income children”.) Would such laws and policies be cause for concern for Thomson? What about a personhood theory?
Do we share Thomson’s intuition about the case of the violinist?
Is Thomson’s view about rights compatible with Marquis’ theory of the wrongness of killing?
When is it “indecent” for a woman to have an abortion?
Abortion and Implicit Consent
Let’s assume, for the sake of argument, that a fetus must have the consent of the mother in order to have the right to use her body. Under what conditions does the fetus have the consent of the mother?
Explicit Consent: The mother-to-be declares, “I, ___________, hereby give this fetus the right to use my body for the purpose of growing into a viable infant until I give birth to it. I am fully aware of what this will involve.” In general, giving explicit consent to something means making a public, un-coerced and informed statement in which one recognizes certain rights and responsibilities that would not otherwise exist. This is what we do when we sign a contract. This is not what we do when we decide to have a child. If women give consent to fetuses, it is not explicit consent.
Implicit Consent: If you voluntarily enter a restaurant or a bar, then you are subject to certain “rules of the house”. You might be required to dress in a certain way, refrain from shouting, etc. If you fail to follow these rules, you may be expelled. The fact that you are there of your own free will is interpreted as an agreement on your part that you will obey the house rules. In other words, you have implicitly given your consent to be subject to those rules. Similarly, if you enroll in a class, then you are subject to certain requirements necessary for getting a passing grade (usually detailed in the syllabus). At no point do you say, “I hereby agree to the terms of this syllabus.” You have already given your implicit consent by staying enrolled in the course.
Depending on what nation, state and county you live in, you will be subject to different laws. Citizens do not give explicit consent to obey the laws, but it is arguable that they give implicit consent. For example, suppose Smith lives in a county where pornography is illegal. He could easily move to a different county, but he chooses not to. If Smith is caught displaying pornography, he could be fined. If he complained to the judge, “I never agreed to obey your pornography law”, the judge could retort, “No one forced you to live here, did they?”
The above examples of implicit consent all have two things in common: (i) the consenting person makes a voluntary choice to engage in a certain type of activity, (ii) the activity in question is generally understood to entail certain responsibilities. Because the person involved, like most other people, understands that certain responsibilities come with the activity, there is no need for the individual to explicitly agree to take on the responsibilities—they take them on automatically.
What has this got to do with abortion?
In a typical case of unwanted pregnancy, the pregnant woman
(A) Engaged in an activity (sexual intercourse) that is known to cause pregnancy, and in fact is the usual way in which people get pregnant.
(B) The now pregnant woman knew this at the time.
(C) Either (i) she was not using birth control, and she knew this, or (ii) She was using birth control, but she knew that birth control sometimes fails.
(D) The woman voluntarily chose to have sex.
In a case where all of these conditions are met, has the woman given implicit consent to give birth to a child?
Notice the following: In the uncontroversial examples of implicit consent, it was generally understood that the activity entailed certain responsibilities. But in the case of unwanted pregnancy, there is widespread disagreement about whether unprotected voluntary sex entails being responsible for the life of a fetus. On the other hand, It could be argued that there being a “general understanding” is not necessary for implicit consent…
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