Judith Jarvis Thomson has written an eloquent and timely defense of the position that it is not reasonable to impose upon women as a matter of law the belief that the fetus has the right to life and that therefore women cannot be legitimately denied the right to abortion. Thomson argues that there is no compelling case that the fetus has a right to life. Decisions about abortion are, therefore, ultimately matters of religious belief and the law cannot impose religious belief without violating the separation of church and state.
Thompson’s bottom line is closer to Dworkin’s than she seems to think.
In her essay, Thomson criticizes Ronald Dworkin’s Life’s Dominion, which forcefully defends the connection between rights and interests; according to Dworkin, there is a compelling argument against the position that the fetus is a person with rights. I agree with Dworkin on this point, and I will explain why shortly. But Thompson’s bottom line is closer to Dworkin’s than she seems to think. Dworkin’s central claim is that it would be a violation of the first amendment’s establishment clause—which enforces the separation of church and state—to legally impose the position that abortion is murder since the great religions do not agree about when life begins. Dworkin’s alternative is to develop a secular defense of the sanctity of life which would allow him to defend the right to abortion and its central importance to women’s liberty and to recognize at the same time a legitimate concern on the part of the law to respect the intrinsic value of life. Dworkin’s “metric of disrespect” allows him to distinguish between “better” and “worse” abortions and to justify some of the widely accepted exceptions to a “morally basic” objection to abortion such as, for example, in the cases of rape and incest.
Although the argument that outlawing abortion violates the separation of church and state is constitutionally sound, a stronger defense of the right to abortion is available (see my book The Imaginary Domain). I think it is not reasonable to expect women to accept the legitimacy of any legal system that denies them the right to abortion. How can I make that claim? At the heart of the Kantian conception of reasonableness—and in The Imaginary Domain I foreground and defend the political conception of reasonableness developed by John Rawls—is the argument that the rightfulness of any law should be judged by the hypothetical consent of citizens suitably represented and evaluated as free and equal persons.
The Rawlsian conception of reasonableness is inseparable from the public evaluation of our equivalent worth as persons in spite of the very real facts of our differences. What does it mean to deny a woman the right to abortion as a matter of law? It means that she is denied her equivalent worth as a person—the very moral status that rights are meant in this conception to recognize. Put as strongly as possible: the fact of a woman’s sexual difference is used to justify her treatment as a violable object. Since this treatment denies women equality as persons, it denies us the fair conditions of cooperation in which acceptance of any law as rightful could be legitimately imposed upon us. An absolute condition of the recognition of this status for women is that we are regarded as free beings, able to make our own considered decisions about crucial aspects of our lives, and therefore I strongly disagree with the Supreme Court’s decision in Casey, which permitted states to impose a waiting period on a women who has decided to have an abortion.
I agree with Thompson that the Casey decision confirms Roe v. Wade as precedent that must be followed, but as a matter of political morality the decision does so by denying women their full moral status as free and equal persons. For me it is not just a matter of who has the ultimate decision over an abortion, but of whether or not women are treated as free and equal persons capable of giving moral meaning to the act to abort without any help from the state in the form of restrictions, such as waiting periods. My argument is further developed through a legal defense of the equal protection of certain minimum conditions that can be posited as necessary for an adequate level of personal, social and political integrity. Since the body has psychic as well as physical reality, the demand for bodily integrity also requires that the woman be the arbiter of the meaning of her act to abort. A crucial aspect of developing any sense of who she is depends upon her being able to imagine herself as whole, as a being whose body is integrated through an imaginary projection of herself into the future.
Such a projection is basic to the achievement of even the most basic sense of self-hood. To deny women their bodily integrity by denying them the right to abortion severely curtails women’s ability to develop an individuated self. Thus, it has a major negative psychical impact intertwined with an explicit devaluation of our equal worth as persons. One’s psychical understanding of oneself as a whole being or individuated self demands the projection of this whole self into a future in which it will not be violated and moreover in which one’s ability to control this whole is protected by the law. Therefore, the right to abortion begins long before a woman actually gets pregnant and requires the right of abortion in the concrete. Thus all women have a strong interest in the protection of the right to abortion.
The right to abortion begins long before a woman actually gets pregnant and requires the right of abortion in the concrete.
Of course this strong interest could not be given legal recognition if abortion were murder; here I agree with Dworkin and Thompson that abortion can only be considered murder if one accepts a certain religious belief about when life begins. But I also agree with Dworkin that the fetus cannot be considered a person with interests and thus with rights. The fact of woman’s sexual differences should be taken into account in precisely this way: we must recognize in our political morality that a fetus is like no other being because it is a part of another’s body. The development of legal interests must, rather, turn on a conception of personhood in which one exists independently, and not as a part of the body of the mother.
Lastly, I want to emphasize a point that Thompson makes in a footnote. Nothing in my defense of abortion rights implies a special attitude towards the sanctity of life or the beauty of pregnancy and the experience of being a mother. Assuming the usual patterns, more than half the fetuses born between now and the year 2000 will be female. For me personally, it is as the mother of a daughter whose ability to become a person crucially depends on the legal protection of her bodily integrity that I feel so strongly compelled to defend the right to abortion.