"My body, my choice" - consent and inconvenience in Judith Thomson’s justification of abortion

New York's Reproductive Health Act, which passed into law earlier this year, authorises abortions within 24 weeks from the start of pregnancy, or in the absence of fetal viability, "or at any time when necessary to protect a patient's life or health," liberalising the previous law which permitted late term abortions only when needed to protect the mother's life. The act reclassifies abortion as a matter of reproductive health, having formerly been a criminal matter, and so removes it from the state's penal code on homicide. The act also expands the list of professions authorised to carry out abortions to include nurse practitioners, physician assistants, and midwives, in addition to medical doctors.

The force of the standard ethical justification of abortion, Judith Thomson's violinist analogy which is outlined in the dialogue below, relies on our identification with the inconvenience that the hostage must feel when she is made to support a stranger's life for up to nine months without having given her consent. But how can this same justification work for late term abortions of viable fetuses to safeguard the health, not the life, of the mother, given that the inconvenience of time is largely removed?

Jack: Abortions are always immoral, except when there is serious medical problem with a pregnancy that put’s the mother’s life in immediate danger.

Jill: What makes abortion justified in that case?

Jack:  In my view the unborn baby is a person who has a right to life, but if a pregnancy endangers the life of a mother then an abortion would be like killing a person in self-defence, which would be justified.

Jill: I’m not sure what you mean by the ‘person’ here, but let’s assume the unborn baby is one at whatever stage of development, it seems that you’re saying that persons have a right to life except in certain special circumstances.

Jack: Yes.

Jill: OK, what about pregnancies that result from rape?

Jack: Rape is unfortunate, but the unborn person isn’t attacking the mother, so the self-defence principle doesn’t apply.

Jill: So there are no other justifications for not respecting a person’s right to life?

Jack: Go on.

Jill: Well, murderers can be executed in countries that practice capital punishment. In warfare innocent civilians don’t have this right, such as those that are the unintended ‘collateral damage’ of targeted airstrikes. Even the intentional killing of civilians during war has been justified on utilitarian grounds, such as the nuclear bombing of Hiroshima and Nagasaki during WWII.

Jack: So the killing of persons is justified in other situations, but an unborn person isn’t committing a crime or participating in a war.

Jill: But in a rape case the unborn person is depending on someone else’s life against that person’s will.

Jack: So? The baby’s right to life outweighs the concern that it is depending on the mother against her will.

Jill: What about this: imagine you are taken hostage, knocked unconscious and when you wake up you find yourself in a bed next to another person, and that your circulatory system is plugged into hers. The other person is unconscious and knows nothing about your predicament. You are told the person is someone special, a world famous violinist, although you personally have never heard of her, and that you have been kidnapped so that your kidneys can be used to filter her blood as well as your own.  If she is unplugged from you now, she will die; but in nine months she will have recovered from her ailment, and can be safely unplugged from you. In that situation, if you were free to do so, wouldn’t you unplug the violinist and walk away?

Jack: OK I’m not sure whether ‘unplugging’ here is exactly like the act of aborting a baby, but assuming that it is, then possibly…..

Jill: Would you not have a sense of responsibility for the violinist’s life, feel some duty of care toward this person?

Jack: I would, but not enough perhaps. So yes, I think I would unplug, although probably with regret that there was no other way to save her.

Jill: So abortions are morally acceptable in rape cases.

Jack. Except there’s something fishy about your analogy.

Jill: What do you mean?

Jack:  The principle at work here, it’s not just applicable to rape cases, is it?

Jill: How so?

Jack: Well if the principle in this case is that the rape victim did not consent to her body being used to keep another person alive for nine months, then that would also permit the abortion of unintended and unwanted pregnancies arising from consensual sex.

Jill: So the argument justifies abortion in general - the mother’s autonomy is what matters. Her body, her choice.

Jack: No, I don't agree. There seems to be a moral difference between abortion in cases of rape and in cases of consensual sex.