Consensual Sex Without Assuming the Risk of Carrying an Unwanted Fetus; Another Foundation for the Right to an Abortion
Alec D. Walen
Rutgers School of Law, Camden
February 8, 1997
Brooklyn Law Review, Vol. 65, pp. 1051-1140, Winter 1997
Along with a long, distinguished line of commentators on the issue, all taking their cue from the seminal work of Judith Jarvis Thomson, I argue that we can defend a moral, and relatedly a constitutional, right to an abortion under many conditions, even if we take the fetus to be a person. My aim is to reformulate a Thomson-like argument to meet the objections of its critics. In Parts I and II, I start with the core of Thomson's argument, which many accept; namely, that a woman who is raped has done nothing to assume responsibility for the fetus and therefore should be allowed to abort it. I then argue that even if a woman engages in consensual heterosexual intercourse and accidentally becomes pregnant, there may be good reasons not to treat her as having assumed the risk of carrying an unwanted fetus. After arguing that a woman does not assume the risk of carriage simply in virtue of having consensual sex, I address the gap between not having assumed responsibility for the welfare of another and having the freedom to kill, or to hire someone else to kill, that other. This part of the paper presents a two-fold argument. In Part III, I criticize and reject a faulty strategy which argues that an unwanted fetus can be killed because of the position it is in, namely the self-defense strategy. I then articulate in Part IV a better strategy which appeals to what I call the detaching/killing model. Finally, in Part V, I return to assess the factors which determine when, if ever, it is appropriate to take a woman to have assumed the risk of carriage, resulting in a waiver of her right to an abortion. I conclude that the detaching/killing model combined with the reasons not to infer that a woman engaging in consensual sex has assumed the risk of carriage, provide a more generally acceptable foundation for the moral, and relatedly the legal, right to an abortion than is found in the simple insistence that a fetus is not a person.
Number of Pages in PDF File: 62
Keywords: Abortion, Thomson, Constitutional Law, Assumption of RiskAccepted Paper Series
Date posted: February 9, 2010
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