By Bob Hockett
Sherry’s thoughtful post last Monday, November 9th reminded me of a couple of equity-rooted considerations that have occasionally floated before my mind, in connection with the morality and legality of abortion, ever since first encountering the conscription argument in Judith Jarvis Thomson’s influential article on the subject. Perhaps these considerations will be of interest to DoL readers, and thereby contribute something of value to the conversation initiated by Sherry’s many wonderfully thoughtful essays, articles, and posts on this profoundly fraught subject.
Equity jurisprudence, our lawyer friends in particular will recall, is especially well known for the many colorful maxims and ‘doctrines,’ as well as such institutions as the trust, which it has contributed to the commonlaw tradition. Most of these contributions bear a distinct moral flavor, as manifest not only in their contents, but even in their very terms. And this for its part is no accident, as the Chancellors who long administered the courts of equity often had training in the moral theories of their day.
So the ‘fid’ in ‘fiduciary,’ for example, stems from the Latin ‘fide,’ or faith – ‘faith’ as in ‘faithfulness,’ ‘reliability,’ ‘trustworthiness.’ And this is the very faith that we have in mind when we employ the morally charged phrase ‘good faith’ whether in ordinary parlance or as a legal term of art. Like observations hold in turn of the ‘justice’ implicated by the equitable doctrine of ‘unjust enrichment,’ the ‘cleanliness’ referred to by ‘the clean hands doctrine,’ and so forth. One could adduce quite a few examples, as I shall be doing in a work I am currently drafting on the subject.
Now two equity doctrines that I find particularly attractive – and of which the law has made much use – seem to me nicely implicated by the debate occasioned by the conscription argument in discussions of the morality and legality of abortion. And what is most interesting, perhaps, is how the second one in a certain sense ‘check mates’ the first on at least one possible reading. It is this tension that I hope might occasion additional helpful discussion on this site and perhaps beyond.
First recall the character of the conscription argument, a wonderfully pregnant (sorry – pun foreseen but not quite intended) variation on which Sherry presents in her post: The argument’s guiding idea is that, even conceding that the human embryo or fetus bears moral interests – on any of what might be any number of ethically compelling grounds – this cannot of itself suffice to underwrite a claim to the effect that a woman is under obligation to make her body available to sustain and carry that 'interest-bearer' until sustained life is possible outside of the womb.
The reason is that there are literally thousands of perfectly innocent adult human beings who through no delict of their own have need of externally supplied life-sustaining functions ordinarily supplied internally by humans’ own organs. And yet very few argue that those faultlessly unfortunate persons have claims on the organs of the more fortunate. For to argue thus would be effectively to argue that the bodies of the healthy may legitimately be conscripted to aid the unhealthy. And few seem to wish to argue that.
(One legal philosopher who I think has argued this is Eric Rakowski at Berkeley. And I should confess that I myself have wondered whether there might not be a moral obligation to donate organs or the temporary use thereof even prior to death under some circumstances. But let us leave this to one side for present purposes.)
Why, then, the conscription argument concludes, should the case of the unborn be any different from that of the already born? Do we not have here further evidence of the claim that many political conservatives, who often support capital punishment and wars of choice while opposing social safety nets, are 'pro life only until you are born'? To hold that a woman must supply her body to the cause of life-support to a fetus or embryo, the conscription argument concludes, is effectively to treat her as what I'll call an 'egg-white,' affording gratuitous nourishment to the ‘yolk’ that is growing within her, until such time as a physically autonomous human life has formed.
Enter now the first envisaged intervention from equity doctrine. In a comment appended to Sherry’s Monday post, Sam Rickless queries whether the ready availability of effective birth control might not diminish the force of the conscription argument, at least in cases of voluntary sexual activity. One way of interpreting this query, I think, is as asking whether the equitable doctrine of ‘induced detrimental reliance’ might not have application in some cases, in such manner as might diminish the conscription argument ‘s force in those cases. (It would not, of course, touch other arguments for leaving the choice with the woman, which are of course many but not here under discussion.) The idea then would be that bringing the dependent life into existence through an act that could easily (and that caveat is of course crucial) have been engaged in nearly identically without bringing that dependent life into existence is somehow morally different: a contraception-based variation on the ‘you [avoidably] break it, you buy it’ idea.
Now what to make of this argument? Well, I think it bears an initial intuitive bite like all equitable arguments seem to me to do. But now comes the second equitable doctrine, which on one reading might tend to undermine the utterability of the argument that proceeds from the first equitable doctrine - or at least to shrink the class of those who could legitmately utter it. This doctrine engages at the very moment that somebody might open his – yes, his – mouth to enunciate an argument sounding in the first doctrine.
Which doctrine? I have in mind here the venerable ‘clean hands’ doctrine, briefly mentioned above. Pursuant to this line of thought, one who is no differently situated, putative-culpability-wise, than is she whom he asserts to be culpable, simply ‘will not be heard’ – that’s how the courts put it – to lay the relevant charge of culpability. It’s a bit like a variation on the ‘people who live in glass houses’ proverb, not to mention the ‘do as I say, not as I do’ taunt, and the venerable ‘why do you find fault with the speck in your neighbor’s eye when you’ve a beam in your own?’ challenge. You lack standing to level a charge, if you too are subject to that charge, unless you level it at yourself just as readily as to another.
So how does this doctrine find application in connection with the conscription argument? Well, note that the predicate to application of the induced detrimental reliance claim just countenanced is that reliance has indeed been induced. And if indeed it has, then it would seem there is at least as much reason to say that the male party to the transaction that issued in the reliance has done the inducing as that the female party has done. (Indeed there are many cases - rape conspicuous among them - where the male is solely responsible.) Yet nobody – certainly no male – seems ever to argue that fathers are obligated to give their bodies over to fetal or embryonic life support.
Now one reason that arguments of the latter sort are not encountered obviously would be that we don’t as yet seem to have means of actually enabling male bodies to afford the mentioned form of support. (If we did, rape-caused pregnencies might not occasion the dilemma they do for many abortion-opponents.) Perhaps one day we will have such means, and perhaps, if so, that will be the day that we find ourselves able more seriously to parse out how much in the way of present day argumentation about abortion is attributable to disgusting and altogether condemnable feelings or attitudes of male entitlement, and how much proceeds in good faith from more honorable springs.
But as things stand at present, and strictly personally speaking, I find it a bit difficult, on what I suppose might be described as 'vicarious' clean hands grounds, to imagine myself saying in clean conscience to a woman, ‘you must consult not only your own conscience, but also my opinion, in deciding how to react to your pregnancy.’ At least I find this difficult while knowing, as I do, that I could be equally or more responsible than a female partner for inducing the reliance of a life upon the body of that partner herself, while not being even so much as potentially hoist by the petard of my own moral assertion.
So while I find that I perceive all life - including all nonhuman life - as sacred, at all stages from start to finish, I find also that there are some propositions concerning the decisions of others that I fear to predicate, without more, on that commitment. In Karamazovian terms, I suppose that means I'd make a better Alyosha - recall that his only reply to his brother Ivan's posing a seemingly unanswerable moral dilemma was to kiss him on the cheek - than Inquisitor.
What then do I - yet again provisionally - conclude? Well, my only ‘conclusion’ thus far is, in addition to provisional, rather more practical than theoretical in character: I have made it a practice thus far to abstain from thinking myself qualified to ‘have an Inquisitor's say’ in the deliberations of those I know (and a fortiori, those I don’t know) about what to do in response to problematic pregnancy. I confess to not knowing what more to say. Am I merely ducking a question that I ought – and am equipped – to address? Truly, I do not know. I feel a bit like Alyosha Karamazov or 'The Idiot' - Prince Myshkin - on this.
Please note that none of what I have said here is to say that I’ve not readily acted in the capacity of a loving friend and ‘sounding board’ for those comparatively few dear friends who have blessed me by actually requesting my counsel on such profoundly sacred and personal matters. It’s only to say I’m reluctant to volunteer unsolicited ethical considerations in such cases – even to myself (who feels he ought to abstain even from soliciting them from himself). Knowing as I know that at present I never could actually be in that unimaginably poignant position in which only a woman can be, even while I could be just as responsible as anyone for inducing a pregnancy, I simply don’t know what or how to opine ethically here. My hands, in a certain sense, feel as though they could never be clean in the requisite sense, and so I'm reluctant to try to employ them.
I’ll close, then, with a tentative answer to one question the title to this post might invite: Can a woman justly - equitably - be expected, on moral or legal grounds, to serve as an egg-white? Tentative answer: Well, if so, then until men can be pregnant, it probably won’t be for men to be those who say it.