“Their body, still their choice”

By Kyle van Oosterum.

In ‘My body, not my choice: against legalised abortion’, Perry Hendricks offers an intriguing argument that suggests the state can coerce pregnant women into continuing to sustain their fetuses. This argument certainly piqued my interest given the recent overturning of Roe vs. Wade which means that the constitutional right to abortion no longer exists. In one sense, Hendricks does not need to offer an argument anymore and can enjoy the fact that the state can now, with many qualifications and asterisks, compel women to sustain their pregnancy.  Nevertheless, I was interested (and frankly, disappointed) by this recent ruling and thought about what I could say on the matter, as a budding philosopher, who believes, along with 61% of the US population, that abortion should be legal in all or most cases. Where better to start then by reading the argument of someone who defends a conclusion I oppose?

The key part of Hendricks’ argument relies on an analogy between starving a newborn and terminating a pregnancy. Without repeating his argument, which is an interesting one, the upshot is this: if you believe it is okay for the state to coerce a mother to feed her newborn (assuming there is ample breastmilk or formula), he concludes that the state should most likely coerce them to continue to sustain their fetuses. This is because Hendricks believes these cases to be analogous, so, it follows that what you think should apply in one case should apply for the other case. Analogical arguments live and die by the strength of the similarity between the cases they seek to compare. The one limit on an analogical argument is that you cannot discuss cases that are the same in every way simply because the argument would no longer be analogical. So, the thought motivating Hendricks’ argument is that what you are legally allowed to do to a newborn infant is about as close to what you can do to an in-utero fetus. Therefore, assuming the analogy is plausible, he can offer us a good philosophical insight for thinking about the legality of abortion.

In the paper I wrote, my objective was just to challenge that analogy. I think my challenge was pretty intuitive: there’s something importantly morally different about the state compelling a mother to feed her newborn versus compelling a woman to take on the burdens of pregnancy. I do not need to belabor what these burdens are because presumably part of what pro-choice advocates are protesting has to do with being able to choose whether they should take up those burdens or not. If my challenge was successful, then I have offered some support for my conclusion that abortion should be legal. Of course, this is not a decisive argument and I did not intend for it to be (I assume Hendricks did not intend his analogy to be a decisive argument for his view either). Much more can and should be said and it seems like things are already getting very legally complicated in the US.

I want to end by noting that the title of my response article, ‘My body, still my choice’ was intentionally provocative. However, in some sense, the titles of these two articles, which were written by two male philosophers, are somewhat problematic. For it is not mine or Hendricks’ choice, which is why if Hendricks’ article was reworded to ‘their body, not their choice’ this would be even more objectionable. In any case, despite this recent ruling, I hope to have offered some limited support – even if it was merely critical – for the thought that it is and should be ‘their body, still their choice’.

 

Paper title: My body, still my choice: an objection to Hendricks on abortion

Author: Kyle van Oosterum

Affiliation: Faculty of Philosophy, Oxford University, Oxford, UK

Competing interests: None declared

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