Estimated reading time: 15 minutes

Boonin’s Bodily Rights Argument

In his recent book, Beyond Roe: Why Abortion Should be Legal—Even if the Fetus is a Person, philosopher David Boonin develops a pro-choice argument that appeals to the legal case McFall v. Shimp. Here is Boonin’s description of this case:

Robert McFall was an asbestos worker from Pittsburgh. In 1978, he was diagnosed with aplastic anemia. The doctors told him he’d die if he didn’t get a bone marrow transplant. And they said he needed one soon. Preliminary tests for tissue compatibility were quickly conducted. Only one promising candidate was found: a cousin of McFall’s named David Shimp. Before additional tests could confirm his compatibility, though, Shimp had a change of heart. He refused to submit to further testing. And he declared that he wouldn’t give McFall any of his bone marrow even if it was needed to save McFall’s life. Running out of options at that point, McFall decided to sue Shimp. In the motion filed by his attorney, McFall asked the court to order Shimp to undergo the additional testing and, if the results were positive, to order Shimp to give him the bone marrow he needed.^[1]

The judge ruled against McFall, deciding that the state had no right to force Shimp to let McFall use his bone marrow. 

Boonin invites us to agree with the judge’s decision, and he then uses this agreement to develop the following bodily rights argument for a pro-choice position:

1. If the state does not have the right to force Shimp to let McFall use his bone marrow, then the state does not have the right to force a pregnant woman who is pregnant as the result of voluntary sex to let the fetus use her uterus.
2. The state does not have the right to force Shimp to let McFall use his bone marrow. 
3. Therefore, the state does not have the right to force a pregnant woman who is pregnant as a result of voluntary sex to let the fetus use her uterus.
4. If the state does not have the right to force a pregnant woman who is pregnant as a result of voluntary sex to let the fetus use her uterus, then the state does not currently have the right to prevent her from having an abortion.
5. Therefore, the state does not currently have the right to prevent a pregnant woman who are pregnant as a result of voluntary sex from having an abortion.^[2]

Call this Boonin’s Main Argument. This argument is logically valid, in the sense that the pro-choice conclusion must be true if all of the premises are true. Premise (2) strikes most people—even most pro-life people—as  correct. It seems like it would be wrong for the state to strap Shimp down and extract his bone marrow against his will. And premise (4) will seem true to many because abortion is currently the only means the woman has to stop the fetus from using her uterus. So, the pro-lifer’s best bet for resisting the force of Boonin’s Main Argument is to reject premise (1).

Premise (1) is a parity premise: it is meant to be plausible because the two types of actions that it mentions—Shimp’s letting McFall use his bone marrow and the pregnant woman’s letting the fetus use her uterus—are quite similar. In particular, these two actions appear to be the same in all respects that could make a difference to whether the state has a right to forcibly ensure that they are performed. Since this is so, we are supposed to think that if the state lacks the right to forcibly ensure that one of them is performed then it also lacks that right for the other. And if this is so, premise (1) is true.

One more point about Boonin’s Main Argument is worth noting before turning to critique. As the title of his book suggests, Boonin seeks to establish that his argument succeeds even if the fetus is a person. So he grants for the sake of the argument that human fetuses are persons with the same basic rights as you and me. Accordingly, I will assume that the fetus is a person in what follows.

The Responsibility Objection

In my view, the strongest objection to premise (1) is the Responsibility Objection. An important step of this objection is as follows:

Responsibility Principle (RP): If as a foreseeable result of your voluntary act someone will die if you don’t assist them, and if they wouldn’t need your assistance if you hadn’t done the act, then they have a right to your assistance. 

Assuming that RP is true, we can offer the following powerful challenge to premise (1). The pregnant woman performed a voluntary act (having sex) that had the foreseeable result that a fetus will die if she does not assist it, for she knew that this voluntary act risked resulting in a fetus’ needing her assistance in order to survive. And this fetus would not need the woman’s assistance had she not done that act, for the fetus would not even exist had the woman not had sex. Since RP is true, the fetus has a right to the pregnant woman’s assistance. Since the only way for the woman to assist the fetus is to let the fetus use her uterus, the fetus must have a right to the use of the woman’s uterus. 

In contrast, Shimp did not perform any voluntary action that had the foreseeable result of McFall needing his bone marrow to survive, and so Shimp is not responsible for the fact that McFall needs his bone marrow. It therefore seems reasonable to think that McFall does not have the right to Shimp’s assistance, specifically the right to use Shimp’s bone marrow. 

We should therefore believe that there is this relevant difference between the two acts that are mentioned in premise (1): the pregnant woman’s letting the fetus use her uterus involves letting the fetus use something that he has a right to use, whereas Shimp’s letting McFall use his bone marrow does not involve letting McFall use something that he has a right to use. Because of this difference, we should think that even if the state does not have the right to force Shimp to let McFall use his bone marrow, it would nonetheless be plausible that the state does have the right to force a pregnant woman who is pregnant as a result of voluntary sex to let the fetus use her uterus. And so, premise (1) is dubious. 

Boonin’s Rebuttal to the Responsibility Objection

Boonin offers an elegant rebuttal to this Responsibility Objection.^[3] He begins by arguing that RP is ambiguous and that there are actually two different principles that one might have in mind when one endorses RP:

Responsibility Principle A (RP-A): If as a foreseeable result of your voluntary act someone will die if you don’t assist them, and if they wouldn’t need your assistance if you hadn’t done the act, and if the reason why they wouldn’t need your assistance if you hadn’t done the act is that they would not exist at all if you hadn’t done the act, then they have a right to your assistance.

Responsibility Principle B (RP-B): If as a foreseeable result of your voluntary act someone will die if you don’t assist them, and if they wouldn’t need your assistance if you hadn’t done the act, and if the reason why they wouldn’t need your assistance if you hadn’t done the act is that they would exist and not be needy if you hadn’t done the act, then they have a right to your assistance. 

Boonin then gives the following argument:

1. Either the Responsibility Objection relies on RP-A or it relies on RP-B.
2. If the Responsibility Objection relies on RP-A, then the Responsibility Objection fails. 
3. If the Responsibility Objection relies on RP-B, then the Responsibility Objection fails.
4. So, the Responsibility Objection fails.

Call this Boonin’s Rebuttal. Boonin defends the second premise of this argument by offering a counter-example to RP-A:

Toxic Chemicals Case

McFall and Shimp worked together at a lab that processed a variety of toxic chemicals. One day, while Shimp was handling a particularly potent mix, he saw McFall choking. It was clear that McFall was about to die, that Shimp could save him by performing the Heimlich maneuver, and that he didn’t have enough time to wash his hands before performing it. Shimp also knew if he performed the Heimlich maneuver on McFall without washing his hands first, there was a chance McFall would be exposed to the toxic chemicals he’d been handling and that McFall would later develop aplastic anemia as a result. And Shimp also happened to know from testing that had been done earlier that year that if McFall ever contracted aplastic anemia, he would need some bone marrow from Shimp in order to survive. Unfortunately, there was no one else in the lab. So Shimp’s choices were to sit by and watch McFall choke to death or to perform the Heimlich maneuver on him knowing this might cause McFall to later develop aplastic anemia. Shimp went ahead and performed the maneuver and did so successfully, but McFall was exposed to the toxic chemicals in the process. As a result, he later developed aplastic anemia.^[4]

Boonin argues that if RP-A is true, that would mean that McFall now has a right to Shimp’s assistance in the form of the use of Shimp’s bone marrow. After all, all of the conditions mentioned in RP-A hold true in this case. First, it’s a foreseeable result of Shimp’s voluntary act of giving McFall the Heimlich maneuver that McFall will die if Shimp does not assist McFall by letting him use his bone marrow Second, McFall wouldn’t need Shimp’s assistance if Shimp hadn’t done his voluntary act. And third, the reason why McFall wouldn’t need Shimp’s assistance if Shimp hadn’t done the act is that McFall would not exist at all if Shimp hadn’t done the act (for had Shimp not acted, McFall would now be dead). The problem for RP-A is that it seems clearly false that McFall has a right to the use of Shimp’s bone marrow in this case. So, RP-A is false. And since RP-A is false, we should accept that the Responsibility Objection fails if it relies on RP-A. In other words, we should accept premise (2) of Boonin’s Rebuttal.

Boonin defends the third premise of Boonin’s Rebuttal by arguing that even though RP-B is true, RP-B does not do the work that the pro-life critic needs it to do. Recall that the proponent of the Responsibility Objection appeals to the Responsibility Principle to establish that the pregnant woman’s fetus has a right to the pregnant woman’s assistance. RP-B can establish this only if the following is true in the case of the pregnant woman who is pregnant as a result of a voluntary act of sex: the reason why the fetus wouldn’t need the woman’s assistance if she hadn’t done her voluntary act is that the fetus would exist and not be needy if the woman hadn’t done this act. But notice that this condition is not satisfied. In the case of pregnancy, the reason why the fetus wouldn’t need the woman’s assistance if she hadn’t performed her voluntary act of sex is that the fetus would not exist at all if the woman hadn’t done this act. So, RP-B cannot establish that the pregnant woman’s fetus has a right to the pregnant woman’s assistance. And so, the Responsibility Objection fails if it relies on RP-B. That is, premise (3) of Boonin’s Rebuttal is true.

On the basis of the above reasoning, Boonin concludes that the Responsibility Objection must fail.

Fine-Tuning the Responsibility Principle in Response to Boonin

I will argue that Boonin’s Rebuttal is unconvincing because its first premise is false. Boonin doesn’t say anything in defense of the first premise.  Perhaps it is supposed to be plausible because it is initially difficult to think of some third possible version of the Responsibility Principle that the Responsibility Objection might be relying on. But I will argue that the pro-lifer can reasonably endorse a version of the Responsibility Objection that appeals to the following version of the Responsibility Principle: 

Responsibility Principle C (RP-C): If as a foreseeable result of your voluntary act someone will die if you don’t assist them, and if they wouldn’t need your assistance if you hadn’t done the act, and if the reason why they wouldn’t need your assistance if you hadn’t done the act is that they would never have existed if you hadn’t done the act, then they have a right to your assistance.

Suppose that RP-C is true. The pro-lifer can then offer the following version of the Responsibility Objection to premise (1) of Boonin’s Main Argument. The pregnant woman performed a voluntary act (having sex) that had the foreseeable result that a fetus will die if she does not assist it, for she knew that this voluntary act risked resulting in a fetus’ needing her assistance in order to survive  And the fetus would not need the woman’s assistance if she had not done this act. Further, the reason why the fetus wouldn’t need the woman’s assistance if she hadn’t had voluntary sex is that the fetus would never have existed had the woman not done this act. So, RP-C implies that the pregnant woman’s fetus has a right to the pregnant woman’s assistance. And since the only way for the woman to assist the fetus is to let the fetus use her uterus, the fetus must have a right to use the woman’s uterus.

In contrast, in the original McFall v. Shimp case, Shimp did not perform any voluntary action that had the foreseeable result that McFall needs his bone marrow to survive, and so Shimp is not responsible for the fact that McFall needs his bone marrow. It therefore seems reasonable to think that McFall does not have the right to Shimp’s assistance, specifically the right to use Shimp’s bone marrow. 

We should therefore believe that there is this relevant difference between the two acts that are mentioned in premise (1) of Boonin’s Main Argument: the pregnant woman’s letting the fetus use her uterus involves letting the fetus use something that he has a right to use, whereas Shimp’s letting McFall use his bone marrow does not involve letting McFall use something that he has a right to use. Because of this difference, we should think that even if the state does not have the right to force Shimp to let McFall use his bone marrow, it would nonetheless be plausible that the state does have the right to force a pregnant woman who is pregnant as a result of voluntary sex to let the fetus use her uterus. And so, premise (1) is dubious. 

Of course, this version of the Responsibility Objection is only as credible as RP-C itself. Fortunately for the pro-lifer, there is good reason to accept RP-C. First, notice that it is not vulnerable to the objection that Boonin presses against its near cousin, RP-A. In the Toxic Chemicals Case, it’s not the case that the reason why McFall would not need Shimp’s assistance had Shimp not performed his voluntary act of doing the Heimlich maneuver is that McFall would never have existed had Shimp not done the act. So RP-C does not have the implausible implication that McFall has a right to the use of Shimp’s bone marrow in the Toxic Chemicals Case. 

Second, RP-C is plausible because it helps us to make sense of our convictions about some cases in which one person seems to acquire rights to a second person’s assistance in virtue of the second person’s voluntary actions. Consider two such cases.

First, RP-C helps us to make sense of our convictions about the following case:

Replicator Case

Betty is in possession of a replicator machine that can create anything at the push of a button. There is one downside to the machine: every once in a while, it creates a baby along with the object the user requested. One day, Betty uses the replicator machine to create a bowl of ice-cream, and along with the ice-cream comes a baby that will die unless Betty assists him.

Intuitively, the baby in this case has a right to Betty’s assistance, and RP-C can explain why, for all of the conditions mentioned in RP-C hold true in this case: a foreseeable result of Betty’s voluntary act of using the machine is that a baby will die if Betty does not assist him; the baby wouldn’t need Betty’s assistance if Betty hadn’t performed the act; and the reason why the baby wouldn’t need Betty’s assistance if she hadn’t done the act is that the baby would never have existed if Betty hadn’t done the act. ^[5]

Second, RP-C helps us to make sense of our convictions about the following variation of the McFall v. Shimp case:

Genetic Case

Shimp has a genetic condition that makes it certain that any biological children he has will develop aplastic anemia and die by the age of two unless Shimp lets them use his bone marrow. Despite knowing that he has this genetic condition, Shimp chooses to have a biological child and to name him ‘McFall.’ McFall develops aplastic anemia and will soon die unless Shimp lets McFall use his bone marrow.

Intuitively, McFall has a right to Shimp’s assistance, and RP-C can explain why, for all of the following are true: a foreseeable result of Shimp’s voluntary act of having a biological child is that McFall will die if Shimp does not assist him; and McFall wouldn’t need Shimp’s assistance if Shimp hadn’t performed the act; and the reason why McFall wouldn’t need Shimp’s assistance if Shimp hadn’t done the act is that McFall would never have existed if Shimp hadn’t done the act. 

Because RP-C makes sense of some of our intuitive convictions, and because it does not seem vulnerable to counter-examples, RP-C is a plausible version of the Responsibility Principle. So, RP-C provides the pro-lifer with a strong reply to Boonin’s Rebuttal, for it shows that premise (1) of Boonin’s Rebuttal is false. And more importantly, RP-C provides the pro-lifer with a direct reply to Boonin’s Main Argument. For as I explained above, it reveals that there is a relevant difference between the two actions mentioned in premise (1) of that argument. This makes it plausible that the state would have the right to force the pregnant woman to let the fetus use her uterus even if the state would not have the right to force Shimp to let McFall use his bone marrow in the original case of McFall v. Shimp.

Endnotes

[1]David Boonin, Beyond Roe: Why Abortion Should be Legal–Even if the Fetus is a Person (Oxford, Oxford University Press 2019), 3.
[2]Boonin, Beyond Roe, 3-139. Boonin also uses this argument in this recent debate between him and pro-life apologist Trent Horn: <https://www.youtube.com/watch?v=h3Grc1d2gew>. Two points are worth noting about the argument I am attributing to Boonin. First, an important difference between the argument that Boonin offers in his book and the one that I have presented above is that the latter focuses on establishing the pro-choice conclusion for cases of pregnancy that are not the result of rape. Boonin’s actual argument is developed to establish the pro-choice conclusion for both these cases and also cases of pregnancy that are the result of rape. In this article, I am seeking to refute only Boonin’s argument as applied to cases of pregnancy that are not the result of rape. Second, the argument I have presented above is a charitable reconstruction of Boonin’s argument. Boonin himself does not present the argument in precisely this form. For example, he nowhere explicitly asserts premise (4), although I think that it is reasonable to interpret him as relying on it.
[3]Boonin, Beyond Roe, 69-83.
[4]Boonin, Beyond Roe, 82.
[5]Variations of the Replicator Case are often invoked by pro-lifers in the context of the Responsibility Objection. For example, it is used by Scott Klusendorf in his book, The Case for Life. It is also used by Trent Horn in his aforementioned debate with Boonin, as well as by Josh Brahm in this presentation on bodily rights arguments: <https://www.youtube.com/watch?v=5aapKV1la2w>. The fact that the Replicator Case is popular among pro-life thinkers suggests that RP-C does a better job at capturing their views than either of the versions of the Responsibility Principle identified by Boonin.

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