Bars on the Window

by Jay Johansen

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The Pro-Choice Argument

There's an argument for abortion that I've been hearing a lot lately. It goes back, to the best of my knowledge, to an article by Judith Thomson in 1971. (Yes, ancient history!) Her version went like this:

If the room is stuffy, and I therefore open a window to air it, and a burglar climbs in, it would be absurd to say, "Ah, now he can stay, she's given him a right to the use of her house--for she is partially responsible for his presence there, having voluntarily done what enabled him to get in, in full knowledge that there are such things as burglars, and that burglars burgle.'' It would be still more absurd to say this if I had had bars installed outside my windows, precisely to prevent burglars from getting in, and a burglar got in only because of a defect in the bars. It remains equally absurd if we imagine it is not a burglar who climbs in, but an innocent person who blunders or falls in. Again, suppose it were like this: people-seeds drift about in the air like pollen, and if you open your windows, one may drift in and take root in your carpets or upholstery. You don't want children, so you fix up your windows with fine mesh screens, the very best you can buy. As can happen, however, and on very, very rare occasions does happen, one of the screens is defective, and a seed drifts in and takes root. Does the person-plant who now develops have a right to the use of your house? Surely not--despite the fact that you voluntarily opened your windows, you knowingly kept carpets and upholstered furniture, and you knew that screens were sometimes defective. Someone may argue that you are responsible for its rooting, that it does have a right to your house, because after all you could have lived out your life with bare floors and furniture, or with sealed windows and doors. But this won't do--for by the same token anyone can avoid a pregnancy due to rape by having a hysterectomy, or anyway by never leaving home without a (reliable!) army.

Judith Jarvis Thomson, "A Defense of Abortion", Philosophy & Public Affairs, Vol. 1, no. 1 (Fall 1971)

I think the analogy is weakened by the whole discussion of floating pod people. The whole point of an analogy is supposed to be to take a case that is simple, clear, and/or familiar to establish a general principle, and then apply that principle to a case that is complex, confusing, and/or controversial. You say, for example, "Hey, we've all seen rocks fall when you drop them. You know that if you hold a rock at arms length and let it go it will fall to the ground. Well, it's the same way with ..." and then proceed to some complex situation. But if you start out with a weird science fiction scenario, how does that help establish a common sense principle? But whatever, let's just ignore that part.

The key to the analogy is: Suppose burglar broke into your house. Would the fact that he is now in your house mean that you are obligated to let him remain, to feed him and give him clothes and generally provide for him? Of course we would all say no. You have every right to throw him out, and to get the police to help you throw him. In the same way, the argument goes, just because an unborn child enters a woman's body doesn't mean that she should be obligated to allow him to remain, and to allow him to use her body to sustain his own life. This is especially true if the woman has gone to every possible effort to prevent pregnancy, namely, if she has used contraceptives.

But an analogy is only valid to the extent that thing A really is like thing B. It doesn't have to be alike in every way, of course. If it was exactly the same, then we would no longer have an analogy but a restatement of the original issue. But it has to be the same in all relevant ways. And this analogy fails on several important points.

Intent to Harm

First, an unborn baby is not like a burglar in that a burglar is intending to do you harm, while an unborn baby is not. There's a big difference between a burglar who breaks in to your house planning to rob you and maybe rape or kill, and someone who carelessly wanders onto your property because he thought it was a public park.

The unborn baby clearly is not intending to cause harm. In some cases pregnancy can endanger the mother's health or even her life. But let's deal for now with the simple, common case where it does not. The baby is not threatening her. Even in the cases where he is endangering her, it is not a deliberate act of malice.

Ms Thomson glosses over this point so I can't say just what she was thinking. But to make the analogy fair, the person breaking in has to be completely innocent of any intent to do harm. Given that the whole point is to discuss abortion, let's suppose that the person breaking in is a small child, maybe 5 years old.

Instant Death

Second, abortion is the deliberate killing of a baby. It is not just throwing a tresspasser off your property. It's killing him.

In some parts of the United States it is legal to shoot a burglar, because the very fact that he has broken into your house is taken as reasonable cause to believe that he intends to do you physical harm. You don't have to wait and see if he has a weapon and if he tries to attack someone. The act of breaking in is taken as an attack of itself.

But this is a controversial question. In many parts of the United States and the world, you do not have the legal right to use deadly force against someone who is trespassing on your property unless you can prove that he was trying to do you physical harm. Many places have laws requiring you to try to run away if at all possible rather than kill someone, even in self-defense.

To make the analogy fair, we have to imagine a situation where throwing the trespasser out will result in his immediate death. Perhaps rather than a house, we should suppose that this is a boat in the middle of the ocean, so that if you throw someone out, he will quickly drown.

So let's try an "adjusted" version of the analogy: You own a boat. One day you take your boat out to sea. Then you discover that there is a stowaway on board. You have no reason to believe that he is planning to kill you or do you any harm; he just wanted to ride on a boat. Is he trespassing on your property? Absolutely. Can you have him arrested once you return to shore? Certainly. Do you have the legal right to throw him overboard so that he drowns? Umm ... no. If you did, you would surely be charged with murder. Is this an unjust law? Should you have the right to kill people who steal rides on your boat? I think most would say no. He doesn't have the right to use your boat, but this is not a crime punishable by death.

Now combine this with the first point. The stowaway is not an adult trying to steal a boat ride, but a small child who wandered onto the boat while playing and fell asleep. You then left port not realizing he was on board. Does he have a right to be on your boat? Certainly not. Do you have the right to throw him overboard so that he drowns? I can't imagine who would say that you do. I think almost anyone would say that, even though he is on the boat without your permission and you never wanted him on board, that you have a responsibility to take care of this child and protect him until you can return to shore and return him to his parents. If you refused to feed him or provide him with elementary care and he died, you would be in severe legal trouble. And in my humble opinion, rightly so.

Every Precaution

Ms Thomson talks about putting bars on the window to keep the trespasser out. Her point is that using contraceptives to avoid pregnancy is analagous to putting bars on the window to keep out burglars: in each case, the person is doing everything they reasonably can do to keep out the trespasser.

But clearly a woman contemplating abortion has not done everything she could reasonably do to avoid pregnancy. She has not refrained from having sex. If she had, I can pretty much guarantee she would not be pregnant. Ms Thomson is saying that she will do everything possible to avoid getting pregnent -- except the most obvious and important thing.

Suppose someone said, "How can the police hold me responsible for drunk driving? I did everything I possibly could to avoid getting drunk. I drank lots of coffee, I splashed water on my face, I even took these pills I saw advertised on TV." "But", you ask, "Did you drink large quantities of alcohol?" "Well, yeah," he says. And then adds angrily, "Hey, I didn't want to get drunk, I tried to not get drunk, but I still wanted to have a good time! You can't expect me to never have fun, can you? And afterward I had to drive home, didn't I? So it's not my fault that I ran that old lady over." Would you accept that someone who drank large quantities of alcohol until he was drunk and then drove a car and taken every possible precaution against causing a drunk driving accident, because he drank coffee and splashed water on his face?

To make the analogy fair, we would have to say that the home-owner in fact has invited the person in, and then after this person comes to her home she decides she doesn't want him there. Or perhaps we should say that the home-owner has done something that could easily be mis-interpreted as an invitation.

So maybe something like: You tell a friend that you have just bought a boat. Her 5 year-old child hears this and gets all excited and says that he wants to ride on the boat. You tell the child, "Oh, sure, some day soon." The next day you take your boat out to sea and find that the child has stowed away. You had put up a "no trespassing" sign and locked the doors, but the child got in somehow anyway. You didn't want the child on board, but in his enthusiasm he misunderstood your statement. Now he is inconveniencing you, taking away your privacy, getting in the way. Do you have the right to throw him overboard?

Final Point

Elsewhere in the article Ms Thomson says that anti-abortion laws are the only case in any country in the world where one person is required by law to sacrifice themselves for the benefit of another person. But that's not true. I can think of many other cases. In the U.S., hospitals are required to provide medical care to anyone who comes, regardless of their ability to pay. Taxpayers are required to pay to support programs to help the poor. Soldiers are required to risk their lives to defend their country -- even if they were drafted into the army. And most relevantly, parents are rquired to take care of their own children. You don't have the right to just decide one day that taking care of your children is too much trouble and kick them out of the house. Even if you are divorced and never see your children, you are routinely required by law to pay for their support. I shouldn't even say that's an "other case". Anti-abortion laws are just a special case of this general principle: you are expected and legally required to provide for your own children, whether they are in or out of the womb.

So to make Ms Thomson's analogy truly fair, we have to assume that the person who has broken into the house despite the bars on the window is the home-owners own child.

So the real, fair analogy is this: You buy a new boat. Your child is all excited and cries, "Mommy, mommy, can I go for a ride on the boat?" "Later," you say. Then later you take the boat out for a romantic moonlight cruise with your husband or boyfriend. But then you find that the child has managed to get on board, despite locked doors and every other obstacles you can think of to keep him out. This seriously crimps your plans for a romantic cruise. Do you have the right to throw the child overboard?

Posted Nov 1, 2015.

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