Consenting to Pregnancy: Rethinking the Political Ethics of Abortion Rights

• In Event: Autonomy and Consent after ‘Roe’ and #MeToo

Abstract

One of the most influential pieces on the ethics of abortion is Judith Thomson’s “A Defense of Abortion” whose central thought experiment is a person kidnapped to provide life support for a famous violinist. While that analogy has been interpreted as a defense of abortion in the context of rape, Thomson suggests that abortion in cases of consensual sex is also permissible, using an analogy of leaving a window open and a burglar stealing one’s belongings. But, as anti-abortion commentators have argued, an embryo does not commit a crime by coming into existence and the very innocence of the fetus renders consent to sex consent to pregnancy as well, negating any abortion right. Some feminists like Catherine MacKinnon avoid this ethical conundrum entirely, arguing both that almost all heterosexual sex under patriarchy is coerced and that even if a fetus is a human life, women, like men, ought to be able to make life and death decisions. This article departs from both MacKinnon's claims of forced sex and Thomsonian claims of the political irresponsibility of bodily autonomy to ask the direct question of what consenting to sex could justify vis a vis legal obligation during pregnancy. While the question of the legitimacy of criminal abortion statutes is central here, the question also pertains to the legitimacy of fetal protection laws, such as prohibitions on drug use during pregnancy, and employment bans applying to pregnant women based on fetal endangerment. I argue that an account of relational autonomy supports the conclusion that criminal laws concerning fetal protection and abortion are illegitimate because how we are held accountable for the outcomes of consensual sex is also constitutive of the political agency of potentially pregnant agents, thus implicating the status of consent itself. Or, to put it more plainly, women’s political agency is overdetermined by reproduction and thus criminalization of reproductive acts renders her a subject unable to consent on equal terms. Even if we disagree with MacKinnon’s claims that under patriarchy, sex is inseparable from domination, the presence of laws that criminalize pregnancy or its cessation constitute a different form of domination that makes consenting to pregnancy distinct from consenting to sex.

Author

• Claire C. McKinney, William & Mary