This article was originally published on No Termination Without Representation and is reprinted in part here. The rest of the original post will be printed in part II. Only slight changes in formatting have been made; otherwise, the integrity of the content of this article is the same as the original.
7. Although the concept of bodily rights is often expressed as a very simple principle, and sometimes as an absolute principle, when people actually apply it to different real-life situations, we see a patchwork of different attitudes, each depending on the 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 relevant, is inconsistently related to the degree of trespass on the body – the degree of trespass being morally irrelevant 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. We could speak of the situational nature of the strength of bodily rights.
First let’s make it clear that we can’t seriously call bodily rights an absolute principle. In 4 above I gave the example of someone touching your hair or giving you an unwanted hug. The point is that merely because the nature of the offense is offense to the sense of body ownership, the impact of the offense wouldn’t have to be big. So it would not always be wrong to commit such an offense if it had to be weighed against other offenses. It would not mean that such an offense need be given more moral weight than other offenses, particularly the taking of a life. Society should expect anyone to tolerate an offense whose nature is a violation of “bodily rights,” if the offense is low in degree, before taking innocent life.
A recent internet comment said, “‘I do not want to be pregnant’ is sufficient reason to abort.” Such expressions are common from pro-choicers who use the bodily-rights argument. But does such an assertion express accurately the importance that need be accorded to the sense of body ownership? Suppose the reproductive function of the human race evolves. The uterus as we know it has become extinct. A sperm introduced into a woman’s body meets an egg somewhere, and the resultant organism travels and implants among the skin cells behind the woman’s shoulderblade. After ten days, the skin loosens and the embryo falls out. Placed in a bucket of milk, it will grow till it is fully viable, and then it can be removed from the milk and its breathing started. This is the process by which we all got here. No woman has ever been known to suffer any physical harm or discomfort from the ten-day gestation process, but removing the growing organism during that period would involve killing it.
Among pro-choicers who concede the personhood of the unborn (at least for the sake of argument), I have not yet known anyone to say clearly, “The woman cannot be legally prevented from killing that unborn child lodged harmlessly for a brief time behind her shoulderblade.” This shows that there is no absolute bodily boundary-defined right to refuse the uninvited use of one’s body. To everyone’s genuine intuitions, the degree of harm, and ultimately the cumulative degree of harm – the physical harm of pregnancy and delivery, tangible mental harm if any, and mental harm in the form of offense to one’s sense of ownership – is the real issue. It is the real yardstick of the justifiability or unjustifiability of refusing to let one’s body be used by someone who needs it – not boundary-defined “bodily rights.”
As regards the harm in the form of psychological offense, we will see in this section 7 that each specific kind of trespass of bodily boundaries is likely to carry a sense of offense of a unique degree, that cannot always be predicted by comparing with the offense felt in the cases of other trespasses. And of course, as mentioned under 5 above, the strength of the sense of body ownership itself must vary from person to person and from culture to culture, and therefore society’s laws and customs must reflect its perception of a kind of average strength for that society.
I have by now given some examples in which the offense to the sense of body ownership is low in degree. But there are certainly examples of violations of bodily rights that, even without causing significant physical suffering, cause mental suffering, in the form of that offense, of high degree. Think of the Abu Ghraib image of the naked prisoners in a pyramid. No one may be touching the topmost prisoner, and none of them may have been injured at all, and the trespass of their bodies was not deeply internal, but the offense to the sense of body ownership was reportedly, as you might expect, very high. Rape may sometimes be painless and physically non-injurious, and yet it is considered worse than any painful slap, because of that sense of ownership. A forced donation of bone marrow could cause mental suffering of high degree. An important question for this essay is whether the prevention of abortion would necessarily cause mental suffering of similar degree.
Pro-choicers will normally agree that society should sometimes require people to use their arms and legs. Parents should be required to use their arms and legs to take care of their children. But when pressed about that lack of absolutism about bodily rights, they usually say that no one should ever be compelled to use their internal organs, or allow use of their internal organs.
In our sense of ownership of our bodies, discussed in 4 above, we finally found some meaning and usefulness in the concept of bodily rights, that is, we found “potential for harm to be done that is defined solely by trespass of one’s bodily boundaries.” But as mentioned earlier, “the current concept of bodily rights. . . . 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” – harm in terms of offense to one’s sense of body ownership. The deeper in the body that the trespass goes, or the more vital the organ that is affected, the greater that harm should be, it is said.
Pro-choicers who use the bodily-rights argument point out regularly that while parents may legally be required to make strenuous efforts with their extremities (their arms and legs) for their born children, they are never required to give blood, even a teaspoonful, to their born children. According to that current concept of bodily rights, obliging someone to use their body themselves may be much less a trespass of bodily boundaries than directly exploiting the material of the body in some way, and yet the latter may not demand significant time or energy of them.
This “rule” is particularly misleading – and thus the current concept of bodily rights is vague and confusing – first because depth of trespass is hard to define, but more so because even insofar as we may feel confident in defining it, the degree of psychological harm that people seem actually to experience seems inconsistently related to the depth of trespass. (We will soon give some examples.) Given how difficult it is to predict the degree of mental distress resulting from one kind of trespass of one’s bodily boundaries, by looking at the degree of such distress resulting from another kind of trespass or from a particular depth of trespass, we can see, pregnancy being such a unique situation, how trying to calculate the distress caused by unwanted pregnancy, by looking at other situations, would fail.
Now let’s see some of the examples of the inconsistency between degree of trespass into the body (depth of trespass) and degree of offense to one’s psychological sense of body ownership.
a. The same president who said “a woman’s right to choose is fundamental” had five months earlier “beg[u]n rolling out vaccination requirements for federal employees and contractors and calling on employers to do the same.” Was his zeal for abortion rights based in part on bodily rights? Even if not, just three days ago as of this writing, his vice-president said, “every woman should have the right to make decisions about her own body – not the government.” And I’m sure many politicians and other people who champion bodily rights in relation to abortion, did also support those vaccine mandates. Yet vaccines work deep within the body. And even for people who oppose vaccine mandates, I think that a significant offense to an adult or a child’s sense of body ownership is rarely the reason they oppose it. So trespassing deep within the body is not always seen as a big deal.
b. We sometimes hear that a woman has been drugged – or plied, unknown to her, with an extra-strong drink – and then sexually assaulted. Society seems to react with more shock about the sexual assault, even if it is something less than rape, than about the drugging. Yet the drugging was an unlicensed use of the woman’s brain, which would seem logically to be the true sanctum sanctorum of the body. Sexual molestation (which as usually defined is less than rape) takes place only on the surface of the body, yet deeply offends the victim’s sense of body ownership.
There may be some parts of the body for which we have more sense of ownership than others, for which we have an intense sense of private property – “our privates”. “Anglo-American law has consistently recognized the right of a woman to defend herself against rape, even by killing her assailant.” There may be no clear logic in these matters. A victim of male homosexual rape, or even of some lesser homosexual assault, may often be less forgiving of his assailant than if the man had punched him in the jaw causing a concussion to his brain. The offense to his sense of body ownership is greater (independently, I would think, of any culturally-originating shame involved) in the former case.
c. We often find it amusing when one person scares another. Parents sometimes deliberately scare their children, or take them to scary movies. Perhaps this is even growthful. Yet the fight-or-flight response affects the heart, adrenal glands and other things while playing with various hormonal levels. If pro-lifers are forced-birthers, then such parents are forced-heart-palpitators. The heart is a deeply-located and vital organ of the body, yet society deems that little if any offense has been committed to the child’s sense of body ownership. Whereas if the school bully lands a punch on their child’s exterior, which may not particularly have scared him, parents who think in terms of bodily rights would call that a violation of those rights, an offense to the child’s sense of body ownership (quite apart from the possibility of its being a source of mental injury of other kinds, and physical injury).
d. In some countries military service is compulsory, and in a peaceful country beset by aggressors, I would be supportive of such compulsory service. Think what the soldiers may have to give of their body organs. When a person is conscripted into an army, he or she risks all his body organs being blown to bits. (Different cultures vary greatly in their acceptance of military conscription, by the way.)
So each kind of trespass of bodily boundaries is likely to carry a sense of offense of a unique degree, that cannot always be predicted by comparing with the offense felt in the cases of other trespasses. Neither can it be predicted by trying to equate the degree of that mental harm with some measure of how greatly it has trespassed bodily boundaries and how deeply it has operated within the body.
Above I called for research. Specifically in relation to abortion, here is what should be researched – to whatever extent is possible, and controlling to eliminate the influence of pro-choice and pro-life hyperbole and skewed sociological frameworks on the woman’s mind – On average, when a woman is prevented from getting an abortion, is her sense of body ownership really as offended as that of a woman in whom an embryo is forcibly implanted, or who is forced to give up a kidney, presumably would be? Is she as offended by people who defend her baby as by people who try to take her body part? (She knows among other things that pro-life laws would have defended her, too, when she was unborn.) Is she as offended by people who will not let her thwart what her body wants to do, as by kidney surgeons who would partially undermine what her body wants to do?
There is an assumption that every born child should be taken care of, and that hence the child is the legitimate owner of the resources it will use even though it has not purchased them. Given the premise underlying that idea, the question of the ownership of a womb becomes a very open one. Who is to say that an unborn child is not the co-owner of its womb for as long as it needs it, and that at some level of consciousness its mother will not see it that way? (See also “The Body, the Uterus, and the Question of Ownership”.)
As I mentioned in the Synopsis, while awaiting the above research and the technology for it, we in society will have to rely a lot on our intuitions. We will 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.
“We will have to rely on our intuition about the degree of that harm.” Let’s call those intuitions “empathetic intuitions.” (The moral intuitions of all of us as members of society about the strength or weakness of bodily rights in any particular situation are based on our empathetic intuitions about the degree of psychological offense in that situation.) And the empathetic intuitions of many, many people (including of many women who have been pregnant) 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. Moreover, there are hundreds of millions of women in the world who are pro-life.
If a pro-life, pregnant woman came to know that in her political jurisdiction abortion was illegal, wouldn’t she say, “Damn right. My uterus is my baby’s only home. It’s the property of my baby as much as of me” – ? But I don’t think there are hundreds of millions of people in the world who would say that if they refused to donate an organ, it should be taken from them forcibly. And while virtually all if not all governments of the world would uphold the McFall v. Shimp ruling, many governments strongly restrict abortion.
The empathetic 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 in relation to a pregnant woman, what counts, as mentioned, is “the psychological phenomenon of harm in that specific situation,” not “biological similarities with other situations.”
This is not to say, of course, that pregnant women on average will feel no sense at all of ownership of their uterus and therefore will suffer no harm from offense to that sense. Some number of pregnant women will feel greater ownership of that body part than of a kidney. And to estimate the overall harm to such women of denial of abortion, we in society have to add to that harm all the other physical and mental harms of such denial. Though in terms of most of the harms, we unfortunately have to proceed on the basis of averages as we in society intuit them to be, in terms of physical harms caused by the pregnancy and delivery themselves, medical science can contribute a lot, and thus it is realistically possible to apply on a case-by-case basis legal provisions such as exceptions in anti-abortion laws “to avert her death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function”. (By the way, I feel that that language does not take into account the harm of offense to the sense of ownership, that is, does not take into account the woman’s bodily rights, and therefore “I personally think that we could further expand that exception.”)
I mentioned, “many governments strongly restrict abortion.” Many people will try to dismiss the laws of those countries as being religious-only. But most of those same people also say that religions are man-made, which would indicate that the religious injunctions are based on intuitions.
Pro-choicers usually try to support their claim that bodily rights always override another person’s right to life (or that a right to life simply does not extend to a right to use someone else’s body) either through thought experiments, or by appeal to legal precedent: in most legal precedent, for instance, one is not allowed to use part of someone else’s body, without permission, even after the person is dead. We could challenge the importance of legal precedent by pointing to the abundance of unjust laws in history; we could think about how human psychology might evolve in future in the direction of greater altruism than has existed in the past; but let us suppose, again for the sake of argument, that such laws actually reflect the deepest moral intuitions, which I would then consider moral absolutes (as absolute as morality can be), and which will not soon change.
The first thing to notice is that laws protecting a woman’s right to refuse the use of her uterus to her unborn have not been nearly as consistent as the McFall v. Shimp kind of ruling protecting one’s right to deny transfer to someone of various body tissues. If legal precedent were to be our standard, why look at legal precedents of merely-analogous situations (analogies always being imperfect), when there are many legal precedents regarding abortion itself? And we find that that collection of legal precedents regarding abortion represents a lot of inconsistency.
In 3 and 4 above I made the point that “bodily rights” only adds something to more obvious ethical notions when it relates to mental harm in the form of an offense to the sense of body ownership: the mere fact that an action (such as touching one’s hair) trespasses one’s bodily boundaries and therefore violates one’s “bodily rights” does not tell us whether the action is physically harmful to one or not, or mentally harmful in tangible terms. But here in this section, the point has been that even the degree of harm in the form of a psychological offense is inconsistently related to how deeply an action has trespassed bodily boundaries.
Let me try now for a systematic overview of the defects in the concept of bodily rights:
a. In the Synopsis I began to suggest that the current concept of bodily rights is quite confusing. The term “bodily rights” itself invites confusion, when it is a psychological reality (albeit related to bodily boundaries) that we are really addressing. The very phrasing “bodily rights” –
i. gives the wrong impression that conceptualizing the body and its boundaries and its rules is necessary to understand how harm is done when the body is injured. (Instead of saying “You should not violate my bodily rights in a way that physically harms me,” why not just say “You should not physically harm me”?) Therefore we get the wrong impression that the concept adds something, which it does not, to the idea of a right to freedom from unjust bodily harm, obscuring the fact that the real issue underlying “bodily rights” is psychological.
ii. “misleadingly suggests that some defined degree of trespass of bodily boundaries will always do a defined degree of harm” (to quote from the Synopsis). The concept suggests that it is bodily boundaries themselves that are ethically relevant, whereas it is the psychological sense of body ownership that is ethically relevant; and, as explained just above, that psychological sense operates with little consistency and much nuance in relation to different kinds of trespass of bodily boundaries. The unitary-sounding concept of “bodily rights” obscures those nuances, making it more difficult to study and understand them and apply that understanding to our ethics.
b. The concept, if correctly understood, is not as important as it might seem; for it provides less than it might seem to in terms of warranted protections not already provided by still more obvious ethical notions (see under 3 and 4 above).
c. Bodily rights is often cast as an absolute, which society’s accepted laws indicate that it is not (see under 8 below).
d. The concept is found very difficult to apply consistently. See a, b, c, and d earlier in this section 7.
Under 10 below, I will propose replacing the whole concept of bodily rights with something more serviceable.
And right now, in relation to c just above:
8. 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.
Unlike what some who use the bodily-rights argument would have us believe, our intuitive sense of others’ right to freedom from bodily trespass only extends so far in terms of precedent. It is far from completely true that in no situation other than in pregnancy does society find it necessary to dictate certain uses of, or risks, to, the internal organs of another person against their wishes. Inconsistencies a and d in section 7 give us two examples – vaccine mandates (whatever is ingested or injected in a vaccination may travel and operate all throughout the body), and military conscription.
I would support a law requiring people to give blood in certain circumstances, and would also support harvesting the organs of the dead without their consent, if that could save any of the living. (There should be a little ceremony honoring the memory of the dead person.) If population pressures anywhere in the world truly seem bound to create tremendous misery (watch out for fear-mongering here), then compulsory sterilization, though a violation of bodily rights, would be a more humane and just solution than the might-makes-right approach of abortion.
Of all the pundits who argue that bodily rights entail abortion rights, some of those same pundits defend embryonic stem-cell research – which is the ultimate compulsory body-part donation. Strictly speaking there is no inconsistency in this position unless the pundit also recognizes the early human being as a person. But the contrasts of the position are worth noting: on the one hand a woman has a right to kill her unborn even if her health is in no way threatened – it is enough that she doesn’t want the early human being using her body – while on the other hand it is okay to use the body of the early human being, without its consent, to the extent of exterminating it.
So, unlike what some who use the bodily-rights argument would have us believe, the intuitive sense of bodily ownership rights only extends so far. And as already mentioned, the strength of that sense must vary in the first place from person to person – a society’s laws and customs must reflect its perception of a kind of average strength. And in relation to abortion specifically, many, many people do not intuit that that sense does give a woman a right to abort an unborn child.
Therefore, even without argumentation based on the uniqueness of pregnancy, it would be a mistake to try to impose on society a principle, or pretend that society already holds a principle, “Using another’s body, even their internal organs, without their consent is wrong to the point of justifying lethal force.”
(Regarding moral intuitions, use the link near the end.)
As regards “a society’s laws and customs must reflect its perception of a kind of average strength” a question could be asked in objection: “Why use averages? Why should not decisions be tailored to each and every individual, King Solomon style?” But there is probably an extensive literature showing the advantages of the rule of law over the rule of men.
9. 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.
Any right is a kind of concept sustained to one degree or other by social convention. Some such concepts may be enshrined into law, that is, may become legal rights. Society needs some such concepts and some such laws. Society is free, through conscious or unconscious decision-making processes, to select which such concepts it will sustain and which it will not sustain, and which it will enshrine into law. Of course it behooves society to select the most useful concepts. Many pro-choicers want “bodily rights” to be one of society’s selected concepts, and want the term to be defined so as to mean “Using another’s body without their consent is always wrong, and a victim of such use is free to take any steps necessary to put an end to such use;” or at least they want it to be defined such that if there are any exceptions, an unborn child’s use of a woman’s body is not one of them.
Any validity that the current concept of bodily rights may have is derivative. It derives from recognizing the importance to each of us of our mental sense of ownership of our bodies. What it contains of value, and all that it contains of value, is the understanding that society should select rights so as to reflect that recognition. As we have seen in 8 above, the fact that because society decrees in many cases that a particular offense against one person’s sense of body ownership is not justified even if another person will die does not mean that society must so decree in all such cases.
10. 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 in this area of law and ethics, and society can dispense with the idea of bodily rights.
Bodily rights defined to mean “society must so decree in all such cases” has an obvious utility for the pro-choice side, but, many people feel, negative utility for society overall. When the current concept of bodily rights is demystified, the only meaningful right that it provides would best be termed (as mentioned under 4 above) a “right to freedom from the mental harm caused by offense to our mental sense of body ownership.” That is, physical harm and mental harm are both real and are both negative quantities, but “bodily rights” can contribute to the discussion only in terms of mental harm, and the current concept of it contributes only to the extent of pointing imprecisely and inexplicitly toward the psychology of body ownership. If society deepens its understanding of the psychology of ownership, including body ownership, then the present idea of bodily rights, confusing because it is so loosely and arbitrarily anchored on actual harm of any kind, can be dispensed with.
I would propose that in terms of a utility for society overall, a “right not to be unjustly harmed physically or mentally” (incorporating in the idea of “harm” an understanding of the psychology of ownership, including body ownership) would be a simpler, cleaner, more universal and more serviceable concept. Let society adopt this as a sort of master right and default right where other rights are not specified. An unjust harm would normally be a harm not outweighed by the good, or avoidance of harm, for other parties, keeping in mind always that offense to the sense of ownership is a form of genuine mental harm.
(Whether any other specific rights presently supported by society could usefully be phased out as well once this master right is adopted, is a question I have not thought through. I only know now that I would certainly propose it in the case of “bodily rights.”)
As we saw in 3-4 above, “bodily rights” as currently used aims to protect against harm to the mind that is related to trespasses of bodily boundaries, and also (redundantly, I feel) against harms to the body that are related to trespasses of bodily boundaries. A right not to be unjustly harmed physically or mentally would protect against all harms of that kind that are unjust, while protecting against all other kinds of harm that are unjust also.
I think that a thoughtful definition of a right not to be unjustly harmed would be informed by all the useful insights of a recognition of people’s sense of ownership of their bodies, and informed by all of society’s empathy with that sense, without being informed by wrong conclusions derived from the flawed idea “using another’s body without their consent is always wrong.”
Society already more or less does hold the concept of a “right not to be unjustly harmed physically or mentally;” what may perhaps be lacking is to see clearly how the truth that is genuinely present in the bodily-rights concept – our intuitive sense of people’s bodily ownership rights, based on our understanding that every human has, in turn, a more or less acute sense of ownership of their own body – should be incorporated into that simpler concept. We need to recognize clearly that when we say “One has a right not to be unjustly harmed physically or mentally,” there are in fact acute kinds of mental harm based on people’s acute sense of ownership of their own body. Recognizing this, “One has a right not to be unjustly harmed” will, for instance, protect against forcible bone-marrow or kidney donations – it will take into account the sense of ownership and go beyond “simply asking who is likely to suffer the greater bodily harm.” (And yet a mental harm that is acute because it is caused by a “bodily-rights” violation is still just one kind of harm, and, in a context of conflicting rights between two parties, does not deserve to be weighted more, under the principle “One has a right not to be unjustly harmed,” than an equally-acute harm whose acuteness was caused in some other way.)
Let’s get to the real root.
Regarding moral intuitions, see the paragraph with the heading Moral Intuitions, here.