The Case of McFall v Shimp
If you have engaged in the abortion debate at all, you have definitely come across certain arguments for abortion known as bodily-rights arguments. These arguments attempt to demonstrate that abortion is permissible even if an unborn child is a human person with a right to life.
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For example, in his book, Beyond Roe: Why Abortion Should be Legal Even if the Fetus Is a Person, David Boonin argues that abortion is ethically similar to the real-life court case McFall v Shimp. To summarize the case, Robert McFall needed a bone marrow transplant in order to live. Testing revealed that his cousin, David Shimp, was a match, but Shimp refused to go through with donating his bone marrow to McFall. McFall sued Shimp so that he could acquire some of his bone marrow to remain alive. Nevertheless, Judge John Flaherty ruled in favor of Shimp, arguing that the state does not have the right to force Shimp to let McFall use his bone marrow.
The application of the case to abortion seems clear enough. Even though we agree McFall is a human person with a right to life, we also agree that McFall does not have a right to use Shimp’s bone marrow, and that it would be wrong for the state to force Shimp to let McFall use his bone marrow against his will. Even if we agree morally that Shimp should make this sacrifice for his cousin, it seems like it would be wrong for the state to impose this upon Shimp. Similarly, even if we agree that an unborn child is a human person with a right to life and that his mother should let her child use her uterus, we should agree that it would be wrong for the state to force a pregnant mother to let her unborn child use her uterus.
Consent Applies to Actions: The Roulette Case
One obvious problem with this argument is that Shimp did not perform some voluntary act which caused McFall to become dependent upon his bone marrow. On the contrary, in most abortion cases, a mother consented to the voluntary act of sex which she knew may result in her unborn child becoming dependent upon her body. It’s often at this point in the discussion that the common abortion-choice slogan “consent to sex is not consent to pregnancy” appears. Just because the mother consents to sex, the argument goes, does not mean she consented to becoming pregnant.
However, this would be to misunderstand the very nature of what consent is. As Equal Rights Institute and others have argued before, when people give consent, what they are consenting to is some particular action. Pregnancy, however, is not an action. Pregnancy is an effect of an action, sexual intercourse. McFall’s dependence on Shimp’s bone marrow is not an effect of any action that Shimp previously consented to, which is why Shimp can now choose or not choose to consent to the action of donating his bone marrow to his cousin. However, an unborn child’s dependence on his mother’s body is an effect of the mother’s consent to the action of having sex. Consent language only properly applies to actions, and not to effects. As Trent Horn argues in his book, Persuasive Pro-Life: How to Talk about Our Culture’s Toughest Issue, “We can consent to actions, because they are within our control, but the consequences of those actions lie outside of our control and so don’t involve our consent” (171.)
One example the Equal Rights Institute has given to illustrate this point is that of a roulette table at the casino. When I get to the roulette table at the casino, I decide I don’t want to be too risky today because I’m a broke college student, so I go ahead and bet on red. Unfortunately for me, the ball lands on black. It would be ridiculous for me at that point to say, “Well, I consented to putting my chips on red and betting my money, but I did not consent to losing my money if the ball landed on black.” Similarly, when you consent to sex, you know you may “lose” and that there is a possibility you will become a parent. Now that you have consented to the act, it is not possible to “withdraw consent” from the effects of the act.
Suppose further I used every method of cheating I could to make sure I did not have to deal with the negative effects of betting on red. I knew there was not just a 50/50 chance of winning, but a 98% chance that I would not lose my money. Unfortunately for me, I’m extremely unlucky and I still lose. Clearly, I had no intention of losing my money. I wanted to play, but I only wanted to win. This doesn’t seem to make my plea to keep my money any stronger. In fact, the pit boss would probably ban me from the casino permanently. Similarly, even if a man and a woman take every possible precaution and use every possible contraceptive measure so as not to reproduce, this would not change the parents’ responsibility to accept the effects of their actions.
Some abortion-choice advocates might concede what we have said and say, “Fine, I can’t consent to getting pregnant. That’s an effect. But I don’t have to consent to STAYING pregnant. I have a right to mitigate the undesirable effects of my actions. Pregnancy is an effect I didn’t want, so I can have an abortion to deal with that negative effect.” First, it should be affirmed that some actions do require ongoing consent. When a couple engages in sex, it is crucial that both parties continue to consent to the actions performed during sexual intercourse. At any point, one party can withdraw consent from the act and immediately the act must stop. However, it’s important to know that in this case we are still talking about an ongoing action, which requires ongoing consent for the action to be considered good. But in the case of pregnancy, we have already agreed that pregnancy is not an action, but the effect of an action. Therefore, since consent properly speaking cannot be given to pregnancy, it cannot be withdrawn from pregnancy either.
Second, we can grant for the sake of the argument that it is true that pregnancy requires ongoing consent. However, it doesn’t necessarily follow that abortion is a legitimate way to deal with the “undesirable effect” that is pregnancy. For example, suppose a pilot takes off with his passengers for a twelve hour journey across the globe. Midway through the flight, the pilot is experiencing drowsiness and back pain from sitting in his chair the whole flight. The pilot agrees that he consented to flying the plane, and the back pain and drowsiness are effects of the action he consented to. However, he doesn’t have to consent to CONTINUE flying. He has a right to mitigate the negative effects of his actions. And since back pain and drowsiness are effects he didn’t want, he can jump out of the plane with the parachute he has on him to deal with that negative effect. Clearly we would want to say that the pilot cannot do this if it means his passengers will die due to the plane crashing. Even if there were only one passenger on his plane it would be wrong for him to do such a thing. Therefore, it doesn’t follow that just because consent can be withdrawn in some cases, that it can then be withdrawn in all cases, especially in those cases when withdrawing consent to avoid dealing with certain negative effects causes the death of other innocent human persons. You do generally have a right to mitigate undesirable effects of your actions, but you cannot do a wrongful action, like killing an innocent person, to deal with an undesirable effect of an action you willingly consented to.
Tacit Consent and Social Conventions
While the roulette analogy is strong, the pro-life advocate is not out of the woods quite yet. Abortion-choice advocates can still attempt to point out differences between the roulette case and pregnancy. For example, Boonin writes, “In the case of you and the roulette wheel, there’s a widely recognized social convention operating in the background. The convention says when you put your chips down on red at the table, you by that very act communicate your agreement to let the casino keep them if the ball lands on black” (63-64.) According to Boonin, the only reason why the casino can take my money is because in this society there is a social convention in which my act of putting my chips on reds means I have tacitly consented to losing my chips if the ball lands on black.
Boonin raises another thought experiment in which I exist in a society in which the only way I can lose my money at the roulette table is if I sign a piece of paper agreeing to the condition that I will lose my chips if the ball does not land on the spot on which I bet. Unless I sign this piece of paper, it is impossible for the casino to take my chips, no matter where I put my chips down. If I put my chips down on red and the ball lands on black, but I did not sign the piece of paper, it would be wrong for the casino to take my chips because “in this society there’s no social convention by which putting your chips down on red means you’re betting on red” (Ibid.) Therefore, Boonin concludes, “Your voluntary act can count as tacitly consenting to do something, then, only if it takes place in a social context where doing the act is widely recognized as a way of intentionally communicating your agreement to do it” (65.) In today’s society, however, Boonin argues that there is no social convention in which a woman who voluntarily engages in the sexual act indicates tacitly by that act that she consent to let a fetus use her body.
Responding to Boonin
So where do we go from here? Insisting that consent language can only properly be applied to actions, and not to effects, may be persuasive to a lot of people, but some may still take issue with the argument. For those who see this use of consent language as unpersuasive, it may seem that the debate has reached a stalemate in which advocates on either side must simply agree to disagree. Fortunately, this does not need to be the end of the road. There are a few alternative ways we can reply, and some replies may be more persuasive to different people.
First, we might say that pregnancy is not just a foreseeable effect of sex like losing my money at the roulette table, but the natural end of sex. Sex is biologically ordered toward pregnancy, regardless of whatever our ends are. Pregnancy is a part of sex in a way that losing or winning money is not a part of putting chips down on a roulette table. I can put chips down at a roulette table and that act does not, of its nature, produce more money in my wallet. It may have that effect but only because society says so. If society didn’t say so, putting chips down at a roulette table would not cause me to gain or lose money. However, sex of its nature tends to the end of creating new life, whether or not humans desire that end. Our human bodies are naturally seeking reproduction at all times; the female reproductive system is in a constant cycle ordered towards preparing for and supporting a pregnancy, while the male is seeking reproduction not just in a wider cycle but in every act of sex. If sex of its nature did not tend toward creating new life, we would consider infertile couples to have a healthy reproductive system, and there would be no use for artificial contraception. Thus, treating pregnancy as just some effect like losing money at a roulette table rubs against our intuitions of what sex is. Therefore, it seems that consent to sex does entail consent to pregnancy, even if a couple does not want to have a baby, because pregnancy is naturally a part of sex.
Additionally, we can turn Boonin’s dependence upon tacit consent and social conventions on its head by asking Boonin the following question: would abortion be impermissible in a world in which having sex was a social convention by which women gave tacit consent to being pregnant? There are only two ways for Boonin to respond to this, yes or no. If Boonin answers no—that it would not be wrong for a mother to receive an abortion if it were a social convention that having sex gives tacit consent to being impregnated—then Boonin’s argument does not depend on social convention at all but on some other principle. In other words, if the social convention about what a woman consents to when she consents to sex changes, but the moral permissibility of her abortion remains, the social convention in the background cannot be what is guiding his answer.
Boonin’s only sound reply would be to say yes, it would be wrong for a mother to have an abortion if having sex were a social convention we’ve come up with to allow women to give tacit consent to being pregnant. However, if he were to answer in this way, he would accept a kind of moral relativism that would result in some problematic consequences. For example, suppose there exists a society in which becoming a doctor or a nurse is not a social convention people have come up with to give tacit consent to medically caring for all human beings. In this society, becoming a doctor or nurse only means that you have tacitly consented to caring for patients who are white and middle or upper-class. Would it then be problematic for a doctor in this society not to treat patients who are minorities or are in the lower class? It would seem that by Boonin’s appeal to social convention, there would be nothing wrong with this racist/classist refusal to treat such patients. The doctor does not have an obligation to treat minorities or low-income individuals, because becoming a doctor in this society does not mean you have tacitly consented to treating such individuals who are in need. However, I would imagine that he would believe this society to be committing a grave injustice, and that their social convention is equally unjust. But if this is true then pro-life advocates can reply that the social convention which allows for the killing of unborn children to escape the effects of sex is also unjust.
Lastly, in critiquing moral relativism more generally, Francis Beckwith writes in his book, Defending Life: A Moral and Legal Case Against Abortion, “Because each of us belongs to a number of different ‘societies’ or ‘cultures,’ which one of them should be followed when they conflict?” (10.) For example, suppose a woman named Susan who was raised in a traditional pro-life Catholic home voluntarily consents to sex with a pro-abortion-choice man named Mike and she becomes pregnant. Susan and Mike both grew up in a predominantly pro-abortion-choice town where a Planned Parenthood is located, but they attend a Catholic university which is predominantly pro-life. In such a case, which society and which social convention matters is most morally relevant? Would it be wrong for Susan to have an abortion because she comes from a pro-life Catholic family and goes to a pro-life Catholic university? If Susan’s neighbor Sally is in the same situation but she grew up in a pro-abortion-choice household and doesn’t attend a pro-life university, can Sally have an abortion? If the answer to both questions is yes, this would mean that in the very same community one woman would have a “right” to an abortion, while another woman would not. This does not seem like a tenable option for either pro-life or abortion-choice advocates.
In conclusion, then, the fact that consent language applies to actions and not to effects is still a major problem for abortion-choice advocates who think consent to sex is not consent to pregnancy. While it may be true that consent deals with actions, and not effects, pro-life advocates must be prepared to take the discussion further if people like Boonin think the only effects you have to accept are ones that you have tacitly consented to.
As for abortion-choice advocates who think social conventions regarding tacit consent are strong objections to the pro-life understanding of consent language, it should now be evident that relying upon tacit consent results in very problematic and uncomfortable conclusions for both pro-life and abortion-choice advocates. This kind of reasoning may help the abortion-choice advocate to argue that a woman has no responsibility to care for her unborn child after she engages in voluntary sex, but it can equally be used to justify evil acts like a doctor not performing life-saving medical treatment on minorities or low-income individuals just because he did not tacitly consent to perform such procedures by becoming a doctor. Therefore, if abortion-choice advocates don’t want social conventions that allow for things like racism or classism to be legitimized now, or in the future, they should accept the pro-life understanding of consent to actions.
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The post Is Consent to Sex Consent to Pregnancy? A Reply to Boonin’s Argument from Social Conventions originally appeared at the Equal Rights Institute blog. Subscribe to our email list with the form below and get a FREE gift. Click here to learn more about our pro-life apologetics course, “Equipped for Life: A Fresh Approach to Conversations About Abortion.”