By Richard McDonough

“This is an activist court. We had an established right for almost half a century … the right of women to make decisions about their own body.” —Kamala Harris, September 9

Vice President Kamala Harris, in her recent statement on the overturning of Roe v. Wade, states three theses that are either transparently false or question-begging. The first is that the current Supreme Court is an activist court. The second is that women had an established right to an abortion for almost half a century. The third is that the fetus is part of the woman’s body.

First, the present SCOTUS is not an activist court. The 1973 court that established Roe v. Wade was the activist court that simply conjured an alleged constitutional right to an abortion, under the guise of an alleged right to privacy, that is simply not present in the Constitution. Indeed, Roe was criticized by many constitutional scholars, including the beloved liberal Justice Ruth Bader Ginsburg, as poorly argued. Roe was not based on the Constitution but rather reflected the political climate at the time.

Second, the present SCOTUS did not take away a constitutional right that women had for half a century. Since the present SCOTUS concluded that Roe was wrongly decided in 1973, this means that women never had this right. Since the present SCOTUS is the ultimate court of appeal for this kind of matter, this settles the issue for the time being. That is what it means to be an ultimate court of appeal. Defenders of Roe are free to argue in front of some future SCOTUS that Roe should be reinstated. Perhaps they will be successful. However, until that happens, the highest court of appeal for such matters has settled the issue. Harris’s claim that women had this right is, therefore, without any legal basis.

Third, Harris’s claim that the right to an abortion is a woman’s right to make decisions about her own body is either false or question-begging. The central issue in the debate about abortion is whether the developing fetus is part of the woman’s body or a separate human being with separate rights developing inside the woman’s body. Consider MIT philosophy professor Judith Jarvis Thomson’s influential 1971 article in Philosophy and Public Affairs.

Although many philosophers, myself included, disagree with some of Thomson’s views, her article is a model of a serious discussion of the abortion issue. That is, instead of making transparently question-begging claims that support her own personal opinions, Thomson actually formulates the issues and provides real arguments, not bumper stickers, for her conclusion that abortion should be legal with some qualifications.

Thomson admits for the sake of argument that the fetus (the developing child) has its own prima facia right to life. The question, therefore, is whether the developing child’s life takes precedence, whether the mother’s life takes precedence, or whether some compromising balance must be struck. Being a serious philosopher rather than a partisan demagogue, she does not just assume with Kamala and other activists that the developing fetus is part of the woman’s body. Thomson realizes that this is the cardinal issue that must be faced.

In order to answer this question, Thomson makes a thought experiment, an imaginative hypothetical situation designed to put pressure on one’s legal and moral concepts in order to formulate these with greater precision. Her example is this: A woman Sue wakes up in the morning attached by tubes to a famous violinist who has been found to have a fatal kidney disease. The medical authorities have determined that Sue is the only person in the world whose blood type matches that of the violinist. In order to save the violinist’s life, they have attached his circulatory system to Sue’s circulatory system while Sue slept so that Sue’s kidneys can purify the violinist’s blood and save his life. Fortunately, the violinist need not be attached to Sue for the rest of her life because in nine months he will be fully recovered and can be safely disconnected from Sue. It is recognized that this is a grave burden for Sue, but the very life of the violinist takes precedence over a nine-month burden for Sue. It was, therefore, judged that, as unfortunate as this is, attaching the violinist’s body to Sue’s body while she slept was justified.

Thomson’s argument urges an analogy between the fetus dependent on the mother’s body and the violinist that is dependent on Sue’s body. One can flesh out Thomson’s example with additional facts to strengthen the analogy. A woman Pam has consensual sex and takes normal birth control measures but wakes up one morning to find that these failed and she is pregnant — that is, there is a body attached to hers and dependent on her for its life. Pam never agreed to this, just as Sue never agreed to letting doctors attach the violinist’s body to hers while she slept. Thomson uses the example of the violinist attached to Sue’s body against her will to illuminate the problem of the developing fetus attached to Pam’s body. Resolving Sue’s case should illuminate how one resolves the more normal case of Pam’s unwilling pregnancy.

Thomson admits that the violinist does have a right to life but that Sue still has a right to detach him from her body because there is still one thing the violinist does not have: the right to use her body to support its life! Arguing from analogy, she admits that the developing fetus has a right to life but that it does not have the right to use the mother’s body to support its own life. Thomson concludes that Pam has the right, in these circumstances, to abort the fetus.

Some critics have argued that Thomson’s argument only works in cases where the pregnancy is really unwilling, e.g., rape. Others argue that there are morally relevant differences between the two cases, e.g., that abortion intentionally kills the fetus while unplugging the violinist merely lets him die of natural causes (the killing vs. letting die objection). Philosopher Peter Singer argues that there are utilitarian considerations that imply that one is morally obliged to save the life of the violinist and, by analogy, that of the fetus. Similarly, in 1975, the West German Federal Court, in very liberal Germany, disagreed with Roe v. Wade on the grounds that abortion in the first three months of pregnancy violates the constitutional rights of the child.

These debates cannot be settled here. The present point is that Thomson is a serious thinker who actually addresses the real issue, the prima facie right to life of the fetus (developing child), and produces a serious argument for her position. Harris, by contrast, as a typical politician, employs deceptive techniques to influence the vote in the 2022 midterms that undermine a serious discussion of the issue and, in addition, divides the country. Harris should understand these distinctions and take the more honorable road of rejecting divisive demagoguery.