Beyond Roe: Why Abortion Should be Legal--Even if the Fetus is a Person

by David Boonin

Most arguments for or against abortion focus on one is the fetus a person? In this provocative and important book, David Boonin defends the claim that even if the fetus is a person with the same right to life you and I have, abortion should still be legal, and most current restrictions on abortion should be abolished. Beyond Roe points to a key legal McFall v. Shimp. In 1978, an ailing Robert McFall sued his cousin, David Shimp, asking the court to order Shimp to provide McFall with the bone marrow he needed. The court ruled in Shimp's favor and McFall soon died. Boonin extracts a compelling lesson from the case of McFall v. Shimp--that having a right to life does not give a person the right to use another person's body even if they need to use that person's body to go on living-and he uses this principle to support his claim that abortion should be legal and far less restricted than it currently is, regardless of whether the fetus is a person.By taking the analysis of the right to life that Judith Jarvis Thomson pioneered in a moral context and applying it in a legal context in this novel way, Boonin offers a fresh perspective that is grounded in assumptions that should be accepted by both sides of the abortion debate. Written in a lively, conversational style, and offering a case study of the value of reason in analyzing complex social issues, Beyond Roe will be of interest to students and scholars in a variety of fields, and to anyone interested in the debate over whether government should restrict or prohibit abortion.

Genres: Philosophy, Nonfiction, Politics, Science

225 pages, Kindle Edition

Published February 1, 2019

Reviews

[Caro · Rating 3 out of 5]

Ok so here’s the thing...the actual information in this book is wonderful. I enjoyed seeing a pro-choice argument from this perspective and could absolutely see using these points in a rational discussion about abortion. My hang up with the book is the writing style itself. This book was an absolute slog. Yes, I understand it’s written as a scholarly book that’s likely used for philosophy and ethics classes, but knowing that I was genuinely interested in the subject and still struggled to get through it makes me worry about its ability to reach audiences. That being said, I’m glad I finished it and I really wish I’d been reading it for a class because I would love to be participating in a discussion about this book.

[Malola · Rating 5 out of 5]

Excellent book. Worth reading regarless if you're pro-choice or pro-life.

i) This is an introductory book, but his circumlocution will drive you insane. :v
Why does he repeats every single idea in different order and for every single argument? For the obvious reasons: (a) he's painstakingly thorough (he is a philosopher), (b) he wants to drill in one's head his point making it clear that he's not contradicting himself, (c) while closing every possible hole for the skeptic reader that might look for a "gatcha!" moment.

ii) I would have hoped that he gave ground on metaethics, but so far he's kept his writing according to what he said he'd do in the preface. That's good enough for me.

iii) He mostly focused on our moral intuitions, though the book makes a legal case (that is, philosophy of law) not really a moral one.

iv) He's well organised. In his gedankenexperiments he uses fake names while discussing differences in the types of pregnancies, so he goes alphabetically with:
-Alice/Al and Alison/Alvin. (Symbolising rape, sexual relations non consented.)
-Barbara/Bob. (Symbolising contraceptives that didn't work properly.)
-Carol/Carl. (Symbolising abortion as a type of contraception.)
-Dororthy/Daniel. (Symbolising sex selective abortion.)
-Elaine/Evan. (Symbolising abortion of a fetus with an abnormal condition.)
-Francine/Frank. (Symbolising abortion as killing if the fetus when it is viable.)
-Gloria/Gabriella. (Symbolising infanticide.)
-Heather/Heath. (Symbolising feticide, here Boonin makes a case that some might argue that feticide laws are in contradiction with pro-abortions laws.)
-Jane/John. (Symbolising a case of teenage pregnancy and the "need" of parental consent/notification.)

v) Issues like consent, intend, natural purpouses, the type of relationship mother-child is, etc... are overall well argued, except for...

vi) The fact that he says that maybe the elements that he has picked one by one could be defeated if we add them together. I quote: "Maybe no one difference between the two cases is enough to make a difference, but some combination of differences is enough to make a difference. (...) Combining one irrelevant difference with another irrelevant difference is just going to result in a bigger irrelevant difference."
Yeah, no... I could make a case that X element is NECESSARY, but NOT sufficient to tip the balance, therefore SEVERAL (or at least an especific combination) elements could result in giving the anti-abortion argument soundness.
As some who's pro-choice, I agree with him in his stance of abortion. But I do think that particular point he set there is not accurate.

vii) It seems to me that he doesn't know how to solve the doctrine of the double effect. (Who does, BTW?)
I can agree that killing is not the same as letting die in most cases... but, I do think in certain cases, certain roles require us to think as both of these as one and the same.
He needs to fine tune that argument.
(Yes, yes... The doctrine of double effect is definitely problematic... So, yes, I'll reluctantly agree with him, but only because I can't solve that philosophical problem myself... and not because he has a better ground for his position.)

viii) His assertions about how several restrictions the State imposes on pregnant women who want to abort (e.g. mandatory ultrasounds, waiting periods, counseling and so on) are illegitimate are quite good; however...

ix) The only one that has left me in an "agnostic position" is the "parental notification" one.
ix.a) I agree that it's not completely unreasonable to make a teen notify their parents/guardian or a judge (just notify, not having their consent) that they'll want an abortion or that they had had one. (Having to notify someone doesn't mean you have to tell them before the act.)
Where I'm struggling here is with the fact that I think there's tension in this and privacy/intimacy rights. I dislike it, but given that we're talking about teens, I don't quite agree that something like this should be quite open for people who literally don't have their brains fully developed and lean towards impulsiveness.
(I definitely need to go deeper into this one...)

ix.b) Boonin here is... deflationary at best.
He makes a case arguing a) well... body autonomy, and b) granulated response where he basically goes "why should be any difference if the a girl is 17 and not 18?".
(a) is strong, I must admit; but (b) waivers...
If we're going to play that game, I can always add one more day and make a case of "why should I be considered and adult just because I'm 18? why not 18 and 1 day?"... as if all it takes is adding or substracting days fallaciously to get rid of X.
The point of legal ages is to set ranges... not to make a case of perfect ontology. I'm not less stupid for literally being one day older (i.e. legally being an adult). It's just reasonable for the State to set a minimum age for being able to make certain decisions.
If Boonin wanted to make a case there, he should have avoided his granulated response and talked about relevant differences and the necessary elements that make an adult... an adult.

x) He takes a humble position and admits that he might be mistaken... which was nice to read. He ends up recommendating books against his position and exhorting the reader to further... read and revise their own position.

xi) Chances are I'll read another of his books. At least A Defense of Abortion and The Non-Identity Problem and the Ethics of Future People.

[Lieke Timmermans · Rating 3 out of 5]

Interessant boek met goede argumenten, maar bevat ontzettend veel herhalingen. De schrijfstijl vond ik niet fijn daardoor. Jammer

[suri (tay's version) · Rating 5 out of 5]

wow, qué librazo fue este.

leer este libro fue una experiencia increíble, ver unas argumentaciones MUY bien fundamentadas, y desde un punto de vista un poco más filosófico que biológico, porque muchas veces se deja de lado el hecho de que el punto de vista filosófico, el pensar en qué es moralmente correcto, y qué no lo es, es también sujeto a la "discusión"

este es muy buen material filosófico, y te da mucho que pensar, tiene todos los argumentos que alguien que piense acerca de la moral de este tema, te pueda decir.

no creo que alguien salga de este libro con el mismo pensamiento o sin haber aprendido nada.

[Sam · Rating 3 out of 5]

This book didn't offer me very much in the form of arguments I wasn't already aware of, but there's no doubt that Boonin presents his arguments well. Sooo verbose though.

Notes I'm taking on abortion (not just this book): https://docs.google.com/document/d/1E...

[Marissa · Rating 5 out of 5]

I enjoyed the start of the book although the monotony of the writing got to me which made it hard to finish. Overall, I still enjoyed the strong arguments the author made though.

[Mary Khadka · Rating 2 out of 5]

Terrible argument - with two stars just for the skillful exposition. It's hard to define the specific point where "skillful" becomes better described as "dishonest." Never in this book is it acknowledged:
A) That bone marrow donors don’t have to be genetically related to the recipient, so there is a theoretically endless list of people McFall could have asked to test themselves for compatibility.
B) That bone marrow donation, while highly effective, is not guaranteed to cure aplastic anemia. I assume it probably becomes less effective the worse condition the recipient is in, so the fact that McFall died mere days after losing his case, while it supports the idea that he had very little time to find an alternate donor, also makes me question how high his survival chances were, even if the judge had ordered a forced donation, say, by ordering that Shimp be physically restrained.

It is absolutely critical to Boonin's argument that he gets his reader to assume (A) that Shimp effectively killed McFall by denying him bone marrow, and (B) that McFall had "no" right to Shimp's bone marrow. From there, we get an implied supremacy of the right to bodily autonomy over the right to life, and thus Boonin can argue that mothers should also be allowed to kill fetuses, even if fetuses are considered as being real people.

One controversial question that Boonin just completely sidelines is the question of whether, if the right to bodily autonomy is superior to the right to life, then should it also be considered superior to the right to freedom of conscience, and thus doctors should not be allowed to refuse to perform abortions? I would say that such logic is implied in his support for mandatory funding of abortion (because not funding it, while it protects the freedom of conscience of those paying, infringes on the bodily autonomy of low-income mothers) but naturally he hides from following his logic to such a controversial conclusion.

Overall, in any situation where rights conflict, we should always be asking “whose right is stronger” and then sometimes the right to life will be stronger, and sometimes the right to bodily autonomy will be stronger (and we can also factor in other rights like freedom of conscience etc. in the equation)….and of course, everyone is going to come to a different conclusion of what the right balance is.

There are many situations where we may decide that a limited amount of coercion in defense of a right is reasonable, but extreme coercion is not. For example, some people might feel it could be appropriate for Shimp to receive a positive incentive like a tax rebate (or even a negative incentive, like fining him, or making him ineligible for any future donations of blood, bone marrow or organs, should he ever find himself in need) in order to defend McFall's right to life by pressuring Shimp to donate, but NOT appropriate for him to be truly "forced" in the sense of being physically restrained.

Somewhat ridiculously, given the way that all sorts of rights are REGULARLY balanced against each other in law, Boonin tries to prevent readers from envisioning the right to bodily autonomy in any kind of limited sense: Either McFall had the right to Shimp's bone marrow (such that the state must do WHATEVER IT TAKES to get him the bone marrow) or he had NO right to the bone marrow. Assuming his effort has succeeded, he can then make the argument, as he does much later in the book, that the fact that we can pressure women not to abort by outlawing abortion clinics, rather than by physically restraining them until they deliver, is not ethically significant.

Without critiquing every claim, let me list a couple other claims of Boonin’s that either reflect a poor knowledge of legal and ethical theory, or a willful distortion of it:

1) Non-intentional killing in warfare:
In order for a bomber to be said to have “unintentionally” killed the athletes in the facility next to the munitions factory, it is important that he not know for certain whether any particular athlete is inside the facility at the moment of the bombing. If he doesn't know, then, without treating any particular human life as expendable in the interest of the common good, he can weigh the seeming near-certainty of killing some random athletes in the blast vs the seeming near-certainty of some random victims being killed by the munitions if he doesn’t destroy the munitions factory. However, if he sees some faces while dropping the bomb, AND he knows for certain the blast would be lethal to those INDIVIDUALS, then he can’t truly be said to have unintentionally killed them, even if his choice to do so was not out of personal hatred.
Sidenote: Most ethicists agree that it's worse to harm people actively [e.g. by dropping a bomb] than passively [e.g. by not taking out a munitions factory] - see my Phillipa Foot quote in the next paragraph - so, either way, dropping the bomb could still be unjustified if the net, expected gain to the common good is not certain enough or large enough!

2) Killing vs. "Letting die":
Very few people consider “cause of death" - in the "natural vs. unnatural" sense that Boonin describes it - to be a good summary of this difference. For example, whether you suffocate someone with a pillow, or unplug their oxygen machine, you’ll need to have a pretty good excuse for why you did it, in order not to get charged with murder, even if the latter death was in a sense “natural!”
To quote Phillipa Foot, because there is a WIDELY AGREED UPON ethical distinction between “what we owe people in the way of assistance and what we owe them in the way of non-interference” a person can get away with “leaving someone to die” in the sense of, say, passing by a drowning swimmer, typically with little or no punishment compared to the punishment that would be associated with, say, stabbing someone or unplugging their oxygen machine. Could it be because it takes more malice to commit an action that harms someone, than to refuse to commit an action to help someone? Is it because the non-interference deaths are more truly "natural?" Whatever the reason, it is a distinction WIDELY recognized in law, and abortion, however it is done, clearly falls into the category of “performing an action that kills someone” SO LONG AS the fetus is considered a “someone.”

The classic violinist argument is better, because it asks us to consider that there may be, at least in theory, a level of violation of bodily autonomy so extreme that even generally pro-life people would consider that the victim ought to be allowed to kill in order to get free. For me, I’ve never been hooked up to an ailing violinist or a bone marrow transferring machine, so I can’t answer whether those experiences would be a fate worse than the death of a person, but having experienced pregnancy myself, I don’t consider it so bad that I’d rather allow an innocent person to be killed than to see someone I love, like my daughter, forced to endure pregnancy against her will. For me, it's as simple as that.

[Peter · Rating 5 out of 5]

This is an excellent overview of an important set of issues that bear on the ethics of abortion laws. The focus of the book is the massive gulf between the claim that fetuses have the right to life and the claim that abortion should be illegal. Boonin argues that it is very hard to cross this gulf with compelling reasons. This guts the most popular line of reasoning that leads people to be pro-life and it might show that pro-choice people often hurt their own cause by ducking pro-life reasoning and resorting to other, sometimes very unpersuasive, arguments for their position. If only, voters, legislators, and judges would read this book they could avoid a deeply flawed way of thinking about abortion that college students learn about in less than an hour in a good ethics class. It is absolutely depressing how many people are pro-life or on the fence about abortion because they have fallen for some simple fallacious reasoning. And by the way, smart pro-life people admit this and try to construct much better arguments for pro-life; so don't take this review as being pro-choice. It is pro-good reasoning.

[Lenhardt Stevens · Rating 5 out of 5]

Clear and exhaustive. The go-to for thinking about the abortion debate.

[Travis Rebello · Rating 5 out of 5]

Beyond Roe aims to go beyond the legal ruling delivered in Roe v Wade in two ways. First, whereas the ruling in Roe rests on the argument that a fetus is not a “person” in the relevant sense, Beyond Roe aims to show that even if the fetus is a person, with a right to life, the state would still not be justified in preventing women from having abortions. Second, whereas the ruling in Roe was consistent with many legal restrictions on abortion, such as mandatory waiting periods and parental consent, Beyond Roe argues that several such restrictions should be abandoned—that abortion should be much less restricted than, at the time of writing, in 2019, it was.

Of course, a few weeks ago (at the time I'm writing), the United States’ Supreme Court moved beyond Roe in a very different way, by overturning its ruling that there is a constitutionally protected right to abortion. This book has something important to offer in the wake of that event. Much of the public debate about abortion is, well, unproductive, with one side insisting that the fetus has a right to life and the other denying this. In Beyond Roe, David Boonin tries to make progress by side-stepping that interminable dispute; he aims to show that a right to life does not entail the right to use someone else’s body to sustain one’s life. He thus argues that abortion should be legal even if the fetus has a right to life. In fact, he argues that abortion should be legal even if it is immoral.

The conclusion is provocative, counterintuitive, and probably sounds absurd on first hearing. But the arguments offered in support of it are clear and compelling. Boonin expresses great humility about his ability to change the reader’s mind. But his arguments are, I believe, more likely to persuade those who accept a pro-life stance on abortion than traditional arguments given for a pro-choice stance, as they appeal to premises which anyone is likely to accept, regardless of what stance they already hold. It is an excellent example of trying to achieve compromise at a time when, judging by the United States at least, the public debate about abortion laws is more a tug of war than a reciprocal exchange.