#1 Overview of major themes
#2 The nature of moral reasoning
#3 What Roe said and did, part 1
#4 Roe, part 2: Blackmun undercuts his own case
#5 Roe, part 3: Blackmun's viability errors
#6: Metaphysics and abortion debate
(Note: National Review has just published its own take on Defending Life.)
Frank concludes chapter 3 with a discussion of Judith Jarvis Thomson's equal reasonableness defense of abortion. Thomson, famous for conceding the humanity of the unborn in her 1971 "violinist" essay (which Frank deals with in chapter 7), concedes the reasonableness of the pro-life position. However, that does not mean she thinks abortion is wrong. To the contrary, she thinks those who favor abortion rights are equally reasonable. She writes, "while I know of no conclusive reason for denying that fertilized eggs have a right to life, I also know of no conclusive reason for asserting that they do have a right to life." In other words, those who reject a reasonable pro-life argument are not unreasonable for doing so. Thus, the issue of fetal personhood is up for grabs with no side clearly winning the day. Given this impasse, Thomson says the woman's liberty to abort must prevail. "Severe constraints on liberty may not be imposed in the name of considerations that the constrained are not unreasonable in rejecting."
Frank points out three problems with Thomson's argument. First, she does not adequately assess the strongest pro-life argument when she claims the abortion-choice one is equally reasonable. Her presentation of the pro-life view amounts to this: The fertilized egg contains a biological code that will govern its entire future development, therefore, it is already a human being with a right to life.
Though popular on the street, Thomson's summary of the pro-life argument ignores the sophisticated case some philosophers and apologists make for the full humanity of the unborn based on the substance view of human persons. That view states that a human being is intrinsically valuable in virtue of the kind of thing it is, a substance with a rational nature that maintains its identity through time and change. Put simply, the adult you are today is identical to the fetus you once were. Thus, if you are intrinsically valuable today, you were back then as well. (In short, you are valuable by nature not function.) Thomson makes no attempt to engage this metaphysically rich pro-life argument. (She's also wrong about the embryo being a "fertilized egg"--sperm and egg cease to exist at the completion of the conception process and give rise to a new human organism.)
Second, it is not unreasonable to reject Thomson's position. Consider Thomson's primary claim: "Severe constraints on liberty may not be imposed in the name of considerations that the constrained are not unreasonable in rejecting." Why should anyone believe that? She never tells us. She merely asserts it. Moreover, Thomson wants to use the law to constrain the liberty of pro-life lawmakers and activists who seek to legislate protection for the unborn--even though, as she concedes, it is not unreasonable for them to reject the abortion-choice view in favor of the pro-life one.
Third, Thomson never tells us why "liberty" is the highest good when all sides (we'll assume for the sake of discussion) have equally reasonable arguments. Indeed, if it's true that no one position--abortion-choice or pro-life--wins the day on the moral status of the unborn, this is an excellent reason not to permit abortion, because the odds are at least 50/50 that an abortion results in the death of a human entity with a full right to life. Given those odds, we should err on the side of life, not liberty. Frank provides the following example:
"Imagine the police are able to identify someone as a murderer with only one piece of evidence: his DNA matches the DNA of the genetic material found on the victim. The police subsequently arrest him, and he is convicted and sentenced to death. Suppose, however, that it is discovered several months later that the murderer has an identical twin brother who was also at the scene of the crime and obviously has the same DNA as his brother on death row. This means that there is a 50/50 chance that the man on death row is the murderer. Would the state be justified in executing this man? Surely not, for there is a 50/50 chance of executing an innocent person. Consequently, if it is wrong to kill the man on death row, it is then wrong to kill the unborn when the arguments for its full humanity are just as reasonable as the arguments against it."Finally, Thomson's own "liberty" principle--namely, "severe constraints on liberty may not be imposed in the name of considerations that the constrained are not unreasonable in rejecting--collapses into absurdity with Frank's shooting range illustration:
"Suppose that there is a shooting range in Central Texas, located only 1,000 feet from the playground of a local elementary school. The county commission, at the request of concerned parents and teachers, prohibits the shooting range to operate when the students at the school are on the playground, because there is a 1 in 100 chance a bullet will ricochet off one of the targets and hit a child. Imagine the marksmen who practice at the range, with the support of the range's ownership, employ Thomson's principle to rebut the commission's policy: "Severe constraints on liberty may not be imposed in the name of considerations that the constrained are not unreasonable in rejecting." The response on the part of the commission would likely be: "Yes, your principle may be correct, but you are in fact unreasonable in rejecting the policy's constraint on your liberty, for reason requires that you accept a public policy to protect the innocent from unjust harm even if there is only a 1 in 100 chance of it occurring."