Bodily Rights and a Better Idea

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A positive review of “Bodily Rights and a Better Idea” has appeared in Life Matters Journal Volume 5 Issue 1 — April 2016, written by LMJ Deputy Editor C.J. Williams.

 

For a reasonable number of readers, I can provide a Word version of the essay. The Word version contains bookmarks and hyperlinks to make cross-referencing different parts of the essay easy. Email me using the address on my About page.

 

George McFall clearly needed some of David Shimp’s bone marrow more than Shimp needed it. When Shimp – McFall’s first cousin – refused to give it, McFall took him to court.

The judge’s gavel came down. He wasn’t enthralled with Shimp as a person, but every speck of the bone marrow in Shimp’s body was, in the eyes of society, private property – Shimp’s private property. McFall’s eyes closed on the world, for the last time, before his 25th birthday.

A caring society views both such persons as equally valuable. Such a society has an interest in seeing both thrive and not come to harm. It would seem completely logical for society to have instructed Shimp to hand over some bone marrow, and if he did not do so peacefully, to have taken it forcibly. Why doesn’t society do that? Is society wrong not to do that?

Society sometimes grants to its citizens surprisingly strong body-related rights – body-related rights that are out of proportion to what a rational fairness would seem to demand. I don’t think that that is necessarily wrong. People are psychologically constructed with a strong sense of ownership of their bodies. [Edit: Ownership of any kind has no foundation in science, and a strong principle of individual body ownership would be very debatable philosophically, but the psychological sense is a reality. And due to sharing that sense, which is to say, due to belief in the validity of that sense – or due at least to a pragmatic recognition of the strength of that sense – society sometimes grants to its citizens surprising rights such as those of Shimp that we have just seen. A belief in the validity of that sense could also be termed a moral intuition (whether or not it is a correct moral intuition) that near-inviolable body ownership ought to be respected.]

I basically support such rights, at least in this part of this century. Perhaps Shimp should have been sentenced to a lot of community service for refusing to help McFall. But I say that I basically support such rights because I do not think he should have been tied down and his bone marrow removed forcibly.

It is important that the laws and conventions of society should give that psychological sense of ownership, and the actual ownership that society tends to think underlies it, its due. But is the current concept of bodily rights the most logical and coherent way to accomplish that?

The bodily-rights argument for legal abortion is usually advanced through thought experiments that create analogies with pregnancy – analogies in which our sympathies will be on the side of a right to refuse to let one’s body be used. And those arguments are usually contested by showing the disanalogies between the situations of the thought experiments, and the situation of actual pregnancy. In this essay, however, the approach will be to analyze the concept of bodily rights, rather than to deal with thought experiments that elicit our intuitions about bodily rights.

SYNOPSIS

I wrote, “People are psychologically constructed with a strong sense of ownership of their bodies. . . . And . . . due to belief in the validity of that sense, society sometimes grants to its citizens surprising rights . . .” I will first try to show that the current concept of bodily rights reflects some awareness of that psychological reality, but (among other problems with the concept) the awareness it reflects is an unclear one. The concept misleadingly suggests that some defined degree of trespass of bodily boundaries will always do a defined degree of psychological harm; that is, that any trespass of bodily boundaries will harm and that deeper trespass will harm more. This off-target concept of bodily rights in turn easily lends itself to a kind of absolutism about infringements on bodily boundaries, which is then used particularly by advocates of abortion rights to argue for their cause.

Bodily-rights arguments against abortion restrictions show us that denial of abortion is a degree of trespass on one’s bodily boundaries similar to the degree of trespass involved in other situations (such as the forcible appropriation of a body part) which nearly everyone’s moral intuitions agree are wrong. Bone marrow or a kidney is located deep within the body, and the uterus is located deep within the body. The arguments thus tend to persuade us that denial of abortion is also wrong. But as I will show, it is only the offense to one’s psychological sense of body ownership that is a real harm (a real mental harm) caused by trespass per se, and the degree of that offense is only partially and unpredictably related to the degree of trespass. Real mental harm is somewhat independent of the degree of trespass.

The moral intuition that body ownership ought to be respected seems to stem, as mentioned earlier, from the wish to spare our fellow human beings the mental harm of offense to their strong psychological sense of body ownership (which sense is an undeniable reality). So to answer the question whether there should be a right to refuse the use of one’s uterus – a right comparable in strength to the right to refuse to donate one’s bone marrow – we have to answer the question whether the mental harm to a woman when abortion is denied is really comparable to the mental harm that would occur if one’s bone marrow or kidney were taken forcibly. Since I think I can show that real mental harm is somewhat independent of the degree of trespass of one’s bodily boundaries, it is not enough to show that the uterus is deep within one’s body, just as bone marrow and one’s kidneys are deep within the body. Rather, the degree of real mental harm when abortion is denied could be approximately determined only by psychological study focusing on the psychological phenomenon of harm in that specific situation, not by possible biological similarities with other situations.

In the present undeveloped state of psychology and neuroscience, we have to rely on our empathy and intuition about the degree of that harm, and then rely on our moral intuitions, to decide whether the degree of that harm for a pregnant woman, as we estimate it to be (taken together with all the other physical and mental harms of the denial of a particular abortion), is so great as to outweigh the harm of death for the child, with the consequence that we would feel it right to let that child die rather than to so greatly offend the sense of body ownership of the woman. To understand it in this way is to liberate our minds from the misleading features of various analogies, as we seek our most correct moral intuitions about abortion.

The intuitions of nearly everyone seem to agree that the harm of offending Shimp’s sense of body ownership by forcibly taking his bone marrow (when added on to the modicum of physical harm to him) would have been greater than the harm of death for McFall, but as mentioned, what counts is “the psychological phenomenon of harm in [a] specific situation,” not “biological similarities with other situations.” And the intuitions of many, many people (though I won’t say of everyone or nearly everyone) do NOT seem to agree that in the specific situation of a typical proposed abortion, the harm of offending the pregnant woman’s sense of body ownership (taken together with all the other physical and mental harms of the denial of a particular abortion), is so great as to outweigh the harm of death for the child.

In this essay I will not prove that abortion should be illegal, but I think I will at least show that if the virtues and defects of the bodily-rights concept are correctly understood, there is no strong bodily-rights argument against making many abortions illegal.

(The entire argument of my essay can be outlined in eleven points – see below. The foregoing three paragraphs can be broken down into points 1-9 of the outline.)

Moreover, if society holds and sustains a “right not to be unjustly harmed physically or mentally,” and the idea of “harm” incorporates an understanding of the psychology of ownership, including body ownership, that will serve all purposes, and society can dispense with the off-target and therefore sometimes misleading idea of bodily rights. (This sentence can be broken down into points 10 and 11, i.e., the last points, of my outline.)

I would like to proceed now according to the following outline:

1. Rights are only meaningful and useful in terms of protection against wrongs, that is, against unjust harm, so the concept of bodily rights can be meaningful and useful only if and as there is a potential for unjust harm to be done that is defined solely by trespass of one’s bodily boundaries.

2. Harm can be only harm to the body or harm to the mind.

3. In terms of a right to freedom from bodily harm, the concept of bodily rights doesn’t add anything to more obvious ethical notions. So though the current concept of bodily rights aims to protect against both physical and mental harm caused by trespass of bodily boundaries, in relation to bodily harm, the concept is not particularly useful.

4. In terms of a right to freedom from mental harm, the concept of bodily rights could be meaningful as one possible way of framing that right. (Even if it is not the best way.) People have a sense of ownership of their bodies, such that trespass on their bodily boundaries can be a source of mental harm, and “bodily rights” would be one way to protect from that mental harm. But it is the degree of that psychological harm (which is only partially and unpredictably related to the degree of trespass on the body), taken together with the degree of more obvious harms, that become the real yardstick of a right to refuse the use of one’s body.

5. Because of the sense of body ownership (and the actual ownership assumed to underlie it), in a situation of opposing interests between two innocent people that involves one person needing to use the body of the other, society does not make a simple decision in favor of the person who is likely to suffer the greater harm of obvious kinds — that is, of kinds other than offense to the sense of ownership. It counts that kind of mental harm as harm, which weights its decision in the direction of the person whose body stands to be used by the other.

6. Society weights its decision in this way so strongly, that in many cases it decrees that a particular offense against one person’s sense of body ownership is not justified even if the other person will die.

7. Although the concept of bodily rights is often expressed as a very simple absolute principle, when people actually apply it to different real-life situations, we see a patchwork of different attitudes, depending on each situation. This renders the concept vague and confusing as a yardstick in any situation that has not yet been resolved, such as a proposal to abort. It turns out that the degree of mental harm caused by offense to one’s sense of ownership, which society believes to be morally meaningful, is inconsistently related to the degree of trespass on the body – which is morally meaningless apart from harm. Since it is inconsistently related to the degree of trespass, the degree of that harm when abortion is denied could be approximately determined only by psychological study focusing on the psychological phenomenon of harm in that specific situation – not simply by knowing the degree of trespass.

8. Proponents of the bodily-rights argument for abortion rights claim that because society decrees in many cases that a particular offense against one person’s sense of body ownership is not justified even if the other person will die, there must therefore be a universal principle to that effect, i.e., society must so decree in all such cases – or claim at least that the situation of unwanted pregnancy should not be an exception. This claim does not hold up.

9. Some actions that trespass a person’s bodily boundaries without the person’s consent are countenanced or supported by society in general (meaning that society in general does not take very seriously any offense to the sense of ownership in such cases). In my personal view, still more such actions should be countenanced or supported.

10. What matters, in terms of the rights that society should choose to sustain in this area of law and ethics, is that those rights should reflect a recognition of the sense of body ownership and its nuances – and of the possibilities of mental harm based on that sense of ownership and its nuances.

11. If society holds and sustains a “right not to be unjustly harmed physically or mentally,”
and the idea of “harm” incorporates an understanding of the psychology of ownership, including body ownership, that will serve all purposes, and society can dispense with the idea of bodily rights.

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