Consider the following thought experiment:
Your parents own an airplane. It’s technically in your mom’s name, because she owned it before they got married, but now it basically belongs to the both of them because that’s how marriage works. They invite you for a ride, and you agree to go along. Mid-flight, however, your mom decides that she doesn’t want you in “her” plane anymore, so she tells you to get out. Unfortunately, there are no parachutes, and despite being a little peeved, you agree to get off the plane when you land. That’s not good enough though; your mom wants you off “her” plane NOW! Your dad tries to calm her down, but she’s obstinate, insistent that it’s “my plane, my choice!” When you inevitably refuse to jump from the plane without a parachute, your mom takes out a gun and forces you towards the open door at gunpoint. Both you and your dad try to reason with her, but she refuses to listen and eventually shoots you dead and pushes your lifeless body out of the plane. Was she justified in doing so, given that the plane is technically her property and you were technically trespassing once she no longer wished for you to be aboard?1
This scenario points to several problems with the position of “evictionism”. Evictionism is a view on abortion rights favoured by many libertarian defenders of property rights, in which the mother owns her womb, and so has the right to “evict” her child from it at any point she deems him or her to be trespassing within it (and using her resources without her permission). Hypothetically at least, this needn’t require the death of the child, but if that is an unfortunate consequence of the child’s eviction from the womb, that does not constitute unjust murder. Most importantly, evictionism holds that the child is a person with the same human rights as any other, but that the child is (unintentionally) violating another’s rights, and can be justly stopped from doing so.2
It should be noted here that there is a reason that, in the thought experiment, your mother does not merely push you from the plane and “allow nature3 to take its course”, but directly kills you before evicting you from her airplane. This is because, unlike in the neater hypothetical usually considered by evictionism, abortion procedures almost invariably involve killing the child before their evacuation from the womb. This adds a morally significant factor to any decision to abort, since it not only involves allowing one’s child to die, but directly killing the child. However, this is only an accidental component of abortion due to current technology, and is usually not considered in evictionist arguments and thought experiments.
Evictionism therefore has many elements in common with Judith Jarvis Thompson’s famous “Unconscious Violinist” argument, in which you have been hooked up to another innocent person via life support, against your will, the disconnection of which would kill the innocent person. Thompson posits that it would be perfectly just for you to disconnect yourself from the innocent person, thereby leading to his death. In other words, you have no (enforceable) moral responsibility4 to maintain the life of another person who is using your resources to survive.
Thompson’s Unconscious Violinist
Our thought experiment here is meant to address a key problem with Thompson’s case. In most cases (pace rape), the violinist is placed in the dependent and vulnerable situation by the patient supporting his life. Thus the person who put the violinist in such a vulnerable situation would have an enforceable responsibility to deliver him safely from that situation, much like your mother’s responsibility to allow you ample opportunity to leave the plane safely. Mainly, this argument points out that when you put someone in a position of vulnerability, particularly on your own property, be it your body (which is your property) or anywhere else, you voluntarily take on a responsibility for that person, and your other rights are mitigated. Putting someone by your own actions into a life threatening situation on your property, particularly without their say in the matter, then refusing to allow them to safely leave, constitutes at the very least criminally negligent homicide or at most premeditated murder, depending on the presence or absence of mens rea. This is the moral equivalent to an implied contract, such as the agreement to pay when ordering something to eat, or, perhaps hitting the nail too closely to the head, the agreement to carry someone safely to the ground at the destination when selling an airline ticket.
(click to enlarge)
One might object that there is a categorical difference between one’s body and one’s external property, and therefore while it would be permissible to force the mother in the example to carry her child safely to the ground to exit her plane, it would not be permissible to force her to carry her child safely out of her womb, since her child would in the latter case be using her body, while in the former case he or she would merely be using her property. In addition to Thompson’s scenario, this argument is often associated with the tumblr-argument shown here to the left.
Firstly I would like to point out that this view completely disregards the inviolability of private property, which most libertarians who support evictionism claim to hold dear. However, that is merely a tangential observation. More importantly, such a distinction should make no appreciable difference to matters of law and justice. This is because we already force people to do certain things with not only their property, but with their bodies, in response to a crime, attempted or committed. For instance, persons are bodily prohibited from enacting a robbery if that is their intent. In such a case, property rights seem to supercede the right to bodily autonomy. However, one might say that this is merely forcing inaction, not forcing a positive bodily action. While this is a dubious distinction at best, again rejected by many libertarians especially, even this is still immaterial to the point being argued, since there are clear cases in which we command persons to do particular things with their bodies as a result of a crime. Prison is an obvious large-scale example of this, but even monetary damages can be seen as this type of command, since the violator is effectively commanded to labour on behalf of the victim. And how else can labour be done except through the use of one’s body?
Conception: an Accident, or Negligence?
But, what of the objection that most women who choose to abort their children do so because the child was conceived “accidentally”? To this I merely ask the reader, where do babies come from? Like all adults, we are aware that babies are a result of sexual intercourse. Regardless of what measures are taken to prevent that result, if we perform an action whose end is known to us, and then act surprised when the end comes to fruition, we are either lying to ourselves or to someone else, as a way of mitigating our responsibility for that foreseeable result. Perhaps another thought experiment would be useful to clarify. In a modification of the tumblr analogy above, it would be more like you causing a car accident that injured your sister, either by intent or by negligence (not mere accident), and thus incurring a responsibility for her care, either by transfusion or restitution (the later of which is impossible by stipulation). As I stated above, putting someone into a life threatening situation, such as the airplane or the car crash, then refusing to assist them in any way, constitutes at the very least criminally negligent homicide (in your case of your sister) or at most premeditated murder (in my case of your mother with her airplane).5
Even in this case though, one might object to the particular requirement to donate blood to save one’s sister, as the original argument does. Despite my dismantling of the greater objection above, I will entertain the specific objection here for the sake of being thorough. To do so, let’s ask a slightly different but related question. Would it not make sense for the legal charges to differ between whether one DOES decide to donate blood to save someone they negligently injured, or allows them to die? If the former, they would reasonably be charged with battery at worst, or nothing at best, if the victim were to accept “payment” in the form of medical assistance. In the latter, it would be manslaughter at best, murder at worst, and the perpetrator would/should be charged appropriately. Similarly, could a mother not be charged differently (or not at all) depending upon her choice of whether or not to cause her innocent child to die? In other words, can we not simply treat the case like we treat any other legal case, not by forcing specific action (because the law seldom does that, nor really should it), but by demanding recompense after the fact? What I mean here is that typically, when a crime is committed, the justice system does not demand a particular action to rectify the situation, but usually issues punishment or demands monetary compensation to remedy the problem. This overall consideration is similar to a case where the difference between attempted murder and murder, when the only difference between the two is, for instance, whether the intended victim happened to be wearing a bullet-proof vest. In most cases like this, the damage done determines the severity of the infraction. So it stands to reason that if the perpetrator were to reduce the damage done, the infraction is less severe. Ergo, if your sister lives, you have done far less wrong than if she were to die. Since we have a duty not to harm others, or to correct the unjust harm we do, it seems that we have an obligation to not let her die by any means at our disposal.
Other Concerns
There are also a couple of minor objections which I would like to deal with quickly, since they are perhaps ancillary to the main argument. That said, I have heard these arguments before, so I think it would be prudent to deal with them in at least some detail. One may first object to my implication that the plane is or ought to be jointly owned by the mother and father, and that this is a disanalogy to a woman’s body, which is not jointly owned by her husband (or even that this is not how property is shared in marriage, since someone can retain their own personal property upon entering into marriage). I will concede that one can retain their personal property, but there is a specific reason I included that the plane was effectively jointly owned: the covenant of marriage involves a mutual exchange of ownership rights over each other, or at least exchange of reproductive rights. This is where the phrase “marital duties” originates. So in this context, the father of the child in question does have some measure of right to parentage, which is, I think, difficult to deny. In any case however, this particularly Christian understanding of marital rights is not necessary to the argument. If it helps you understand the argument more clearly, feel free to ignore the question of ownership of the airplane, and consider it wholly the mother’s property. Is her “eviction” of her child from the plane at altitude any more just?
Another possible, though ancillary objection comes from a somewhat existentialist viewpoint, that no human being can have anything like “a right to be born”. While this is certainly true, that we are thrown into the world without our consent, this has little to do with being born per se. More precisely, the claim should be that no human being has a right to be begotten, at whatever point that occurs. As I have noted, since evictionism accepts that pre-born children are human beings already possessing human rights, we have agreed that the child as such already exists, and so we needn’t concern ourselves with any right to come into being. As such, the question is not one of “having a right to be born”, but rather an ethical question about what the rights of already-existing human beings have.
I should note that this thought experiment was inspired by one used by both Tom Woods and Trent Horn. ↩
Because of this, I will not be addressing the question as to whether a fetus is a human being with rights. For the purpose of this argument, it will be assumed that he or she is. ↩
And gravity! ↩
Please see my previous article on the distinction between what aspects of morality are enforceable and which are not. ↩
I should also note here that “accident” is not a category in criminal or tort law. However, “negligence” is legally defined as, “when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct.” It should also be noted that getting pregnant as a result of sex is far more like recklessness than negligence, since “Recklessness” is defined as, “when he consciously disregards a substantial and unjustifiable risk that the material elements exist or will result from his conduct.” So, to fit the analogy, it is far more like reckless driving which caused the “accident” than negligent driving. But I digress. All of these definitions are taken from Kaplan, Weisberg, and Binder’s Criminal Law: Cases and Materials, 6th ed., pg. 207 ↩