Tacit Consent to Pregnancy? No!

 Posted by on 28 January 2013 at 10:00 am  Abortion, Activism, Personhood, Rights
Jan 282013

This short commentary raises an excellent question about the “if you have sex, you’re consenting to pregnancy” argument against abortion rights.

According to many pro-lifers, when women consent to sex, they thereby consent to (and commit themselves to) bearing any resulting children. And so, in deciding to having sex, these women have in effect voluntarily waived their right to get an abortion.

Now, I find this pro-life claim utterly baffling: consent to sex is clearly different from consenting to anything further, many women deliberately use birth control to avoid pregnancy, many women plan on getting an abortion if they should end up pregnant, etc. According to this pro-life claim, it seems, we are supposed to interpret the act of consensual sex itself as involving some sort of mysterious tacit consent and occult commitments that are not only morally significant, but so overwhelmingly morally important as to completely override the actual preferences of the woman. I don’t think actions carry occult commitments, and this all seems like superstition to me.

But here’s my question. Let’s suppose for the sake of argument that actions do carry occult commitments. Even granting this, we still need a way of telling what those commitments are. Without a method of interpretation, we’re utterly in the dark. For example, a typical pro-lifer might say that the act of consensual sex carries the commitment to bear the child, waiving one’s right to an abortion. But a more radical pro-lifer might say that the act of consensual sex carries the commitment to bear and raise the child, waiving one’s right to an abortion as well as one’s right to put the child up for adoption. My question is: how are we supposed to tell which interpretation is correct, and which occult commitments are (and are not) carried by the act of consensual sex?

Ultimately, all arguments against abortion rights — including the argument from tacit consent — depend on the claim that the fetus has a right to life. Ari Armstrong and I refuted that argument in our 2010 policy paper, The “Personhood” Movement Is Anti-Life: Why It Matters that Rights Begin at Birth, Not Conception. If you’ve not yet read it, be sure to check out the section on “Individual Rights and Abortion.”

That being said… over the past few months, I’ve been thinking off and on about how to defend abortion rights in a way that’s more persuasive than the standard pro-choice arguments, including the better arguments of Objectivists. I want to find a way to make my own view resonate better with reasonable people of the “but it’s a baby!” mindset. So if you have any thoughts on more effective rhetoric on this issue, I’d be interested to hear that in the comments. I’d be particularly interested to hear from people who switched from “pro-life” to pro-choice views: What convinced you?

  • http://www.facebook.com/people/John-Pryce/100001075335339 John Pryce

    I actually believed something similar to this, but not with regards to abortion. I’m…. not exactly sure what it was supposed to apply to.

  • Tjitze de Boer

    I think I once raised the question of if according to their logic a mother who has a miscarriage is guilty of manslaughter. And that that did do something to illuminate the things they are implying with their arguments.

  • choiceone

    There are two main arguments that enrage anti-abortion advocates because of their potential as legal arguments: the arguments of Judith Jarvis Thomson (A Defense of Abortion) and Eileen McDonagh (Breaking the Abortion Deadlock: From Choice to Consent). These do not depend on asserting that the zygote/morula/blastocyst/embryo/fetus is not a live human being with the legal status of a person and so reveal why fetuses are unqualified for personhood. Critiques of these arguments seem weak from a legal perspective.

    Human zygotes, morulae, and blastocysts do have human DNA and biological life in separation from women’s bodies because they can be grown in lab dishes. Though the law does not allow us to grow them thus longer than 14 days, mammalian ones provided with ordinary nutrient with oxygen have the same life spans there as before implantation. An artificial supernutrient can double a zygote~blastocyst’s life span and so for human case we could expect extension of the life span to 16-2 days. However, without implantation in the body of a female member of the species, this is most we can expect. And after implantation, up to viability, an embryo/fetus will die if the woman does, just as her limbs and organs do, so the embryo’s life span is being extended by the woman’s own life because her blood oxygen, nutrients, and antibodies are transferred out of her blood to the embryo.

    In Thomson’s argument, persons have their own life and take oxygen and nutrients from common sources, for even medical help does not require the use of the blood or body of any person who refuses consent to their use. In her philosophical experiment, the violinist who cannot live without being medically hooked up to your body for nine months does not have the right to forcibly effect or maintain such a connection. In fact, US law does not allow the government or anyone else to force you to donate blood or an organ or be biologically linked to your body even to save a born person’s life, including the life of your own born child. The truth is that, if we changed the law so as to force a woman to continue a pregnancy to save the life of the embryo inside her, we would have to accept eventual change in the law so as to force any person to donate blood or an organ or be biologically exploited to save the lives of any humans.

    The reason the argument is compelling is because the possibility of such an eventual change in the law, which would be the logical result of claiming that a human right to biological life takes complete precedenceover all other rights of persons. It is possible to imagine a nation in which your liberty, privacy, and health could be continuously violated for years in order to keep some unconscious person’s body biologically alive. Involuntary servitude is the logical outcome of the pro–life camp’s claim that the right to life is hierarchically more important than the right to liberty.

    McDonagh argues precisely from the point that you have the right to refuse to have sexual intercourse. If you refuse to have sex with someone and that person uses force to have sex with you, you have the right to use deadly force if necessary against the person threatening you with rape or actually raping you, and a third party also has the right to use it to help defend you. Federal as well as state law allows the use of deadly force in cases where you perceive, with cause, a threat to your own life or that of someone else and you or that someone else has no means to retreat to avoid using this degree of force. However, it also allows such a use of force in cases where you perceive, with cause, that you or someone else is being threatened with rape, sexual assault, kidnapping, or robbery or actually being raped, sexually assaulted, kidnapped, or robbed even when you know that your life or that of someone else is not threatened, because rape, sexual assault, kidnapping, and robbery are felonies considered to inflict grievous bodily injury. However, the only real difference between rape or sexual assault and consensual sex, between kidnapping and voluntary travel, between robbery and voluntary generosity is consent.

    Is consent to sex implied consent to pregnancy? When you consent to sexual intercourse with a man, you consent to his putting one of his body parts in a specific place inside your body for one relatively brief duration. This does not imply that his siblings, friends, or born children now have consent to put their body parts inside your body or that even that man has consent to put that body part in other places in your body, other body parts in that or other places inside your body, or put that or other body parts anywhere in your body for several months or every day for a year. It does not imply that the man has consent to continue even if it causes you a pain. Each unique person has to get a separate consent. And you have the right to refuse consent to different body parts, penetration in different places in your body, different durations, and many different conditions across the process.

    How, then, does your consent to sex with one adult imply that a zygote claimed to be a unique, different person now has consent to be inside your body?

    How can it imply that the zygote has consent to be in your uterus, penetrate into your bodily tissue, use some of that tissue to make a placenta, direct that placenta to kill some of your immune cells, chemically cause some of your other immune cells to be starved of a basic amino acid and forced into latency so that they cannot protect you from invasive viruses and infections, and re-channel your blood?

    How can it imply that the zygote has consent to take oxygen, nutrients, and antibodies out of your blood, put toxic waste products into it, and leak some of its own cells and isolated chromosomes other than your own into your bloodstream?

    And how can it imply that the zygote has consent to cause you to suffer even morning sickness or to penetrate your vagina in an eventual vaginal birth or cause a medical need for the invasive surgery of a caesarian birth?

    The pro-life answer is that you knew when you had sex that you were risking procreation of a person. But that argument can’t work in cases of rape, of someone having sex with your sleeping body, of minors below the age of consent. It can’t work well where the woman insisted on the use of contraception as a precondition for sex, which was a clear statement that she did not consent to procreation. Even where no contraception was used, scientists estimate that more than 50% of zygotes/morulae/blastocysts/embryos either fail to implant or become disimplanted as early embryos and that the risk of pregnancy is about 1 pregnancy per 21 separate acts of sex, so the woman has reason to argue that she did not consent to procreation.

    The woman may also have reason to argue that, though she did not object to the zygote~blastocyst as long as it did not implant, she did not consent to providing her blood and body as life support to extend the blastocyst’s life span – that its own natural life span, even with the maximum support from science today, is shorter than the duration between normal menstrual periods.

    In fact, the entire of a non-consensual pregnancy can be claimed to constitute a threat, with cause, of the penetration of the vagina by the fetus/child in a vaginal delivery or the surgical invasion of the uterus by medical professionals in a caesarian delivery. The former actually fits the legal definition of rape and the latter fits the legal definition of aggravated sexual assault. The pro-lifer will argue that this is ridiculous because the fetus and the doctor do not intend to rape or sexually assault you. But the fetus is like a legally insane rapist and the doctor like a person hypnosized by a criminal to do his bidding – the right to stop their behavior with deadly force while they engage in the behavior does not depend on their intentions.

    So whose intention is behind the crime? Not nature, because we have the power to stop that threat. There is only way non-consensual pregnancy can be claimed to make that threat of vaginal or caesarian delivery as rape or sexual assault. Only the government that bans abortion violates the rights of the woman. It alone prevents her from defending herself against the sexual violation of her body by someone who did not obtain consent either to be in her body or to receive life support from her body. It alone threatens her with vaginal rape by the fetus/child or sexual assault by a medical professional in the delivery months later. And that government would have an intention that fits the definition in the rape and sexual assault laws.

    • truthinfacts1

      Perhaps the most excellent pro choice argument I have ever read. Well done.

    • truthinfacts1


  • ariofrio

    Here is a counterargument to the argument in section “Rights in Pregnancy” of the 2010 paper. Actually, it argues against a slightly different argument, but I think it will be relevant nevertheless. What do you think?


  • Mia

    I switched from pro-life to pro-choice. The main reason why I switched is because when I was pro-life I was young, naive, impressionable, and going off of what my former religion told me was right. I did not care if I offended anyone and I only cared about the fetus. In the past, I could careless if the woman got hit by a truck as long as the fetus was ok. Now that I’m older though, I realize how naive and ignorant I was and I’m completely pro-choice as well as perfectly ok with abortion. It is a hard choice for some women to make and it shouldn’t be taken lightly, not to mention all the circumstances that surround it. That and my views of what the fetus is have changed as well. As a woman, I can see the need for abortion and I feel that a lot of people who are pro-life do not weigh all the circumstances or even look at what happens when abortions is illegal before spouting that “the baby deserves life.”

Suffusion theme by Sayontan Sinha