“Abortion and Rape”: A Response to Catiline

Roderick Long recently posted a short essay on Facebook called “Abortion and Rape,” by a pseudonymous author named “Catiline.”  Rumor has it that Roderick is Catiline and vice versa, but we don’t traffic in rumors at PoT, so “Catiline” it is.*

The essay is structured as a response to this anti-abortion argument (hereafter, “the Argument”):

  1. Abortion involves killing an innocent person.

  2. It’s always wrong to kill an innocent person.

  3. Therefore abortion is wrong.

According to Catiline, the Argument is valid but unsound: both premises are false. “Abortion and Rape” proceeds by making a case against each premise, followed in the discussion of premise (2) by answers to objections. If the Argument is the most plausible or typical sort of anti-abortion argument out there, and it fails, we can infer that the pro-choice position has in some way been vindicated by its failure. At a bare minimum, it’s won round 1 in a long battle. QED.

I agree with most of that. I agree that the Argument is valid, and that both premises are false. I agree that the failure of the Argument amounts to at least a first-round vindication of the pro-choice position.  I agree with the entirety of Catiline’s argument against premise (1), and so, won’t discuss it here. I also agree with the basic idea or strategy behind Catiline’s argument against premise (2), so I won’t discuss that, either. Since I agree with Catiline’s response to the second of the three objections re his discussion of premise (2), I’m going to ignore that as well.

That leaves us with “disagreements” (if that’s the right word) with the first and third objections to the rejection of premise (2). Even there, my disagreements are a mix of agreement and disagreement, so there’s the real danger that everything I say in this post is a pointless academic quibble. But what are friends for?

I’m presupposing that anyone reading this post has already read Catiline’s essay, and for that reason won’t bother to summarize things that ought to be obvious to anyone who has read it. If you haven’t read it, some of what I say will come across as cryptic or elliptical. But that’s your problem.

Premise (2), Objection 3

Here is one of the objections Catiline discusses re premise (2), followed by what Catiline refers to as the third of three problems with it.

A different objection may be that by voluntarily having sex (assuming it was indeed voluntary), the woman has consented to the possibility of a pregnancy and so cannot claim that she is being subjected to the fetus against her will; in effect, she has contractually obligated herself to her potential offspring. But there are three problems with this line of argument. …

And third, even if there were such a contract, some rights – like the right to bodily integrity – are inalienable and so cannot be surrendered via contract. In the words of Benjamin Tucker, “no man can make himself so much a slave as to forfeit the right to issue his own emancipation proclamation.” Just as I cannot legitimately sell myself into slavery, so I cannot waive my right not to be raped or tortured

My comment here is really less a disagreement than what I think of as a request for what might be called a conceptual price tag. What are the broader implications of taking a somewhat paternalistic view of this kind?

Don’t read that last question as a veiled criticism: I agree with the Tucker-inspired principle that Catiline invokes here, as well as the application to the case at hand. I’m curious, however, how far Catiline would take things. The two cases I have in mind are what I call pornographic violence and gladiatorial violence. Both happen in the real world; neither is purely hypothetical or thought-experimental.

Suppose that the right to bodily integrity can’t be alienated, as Catiline (and Tucker) suggest. Forced pregnancy aside, what counts as an exemplification of that principle?

Example 1. Suppose that Ann decides to sign a contract to act in a pornographic rape film. To make the action believable, the director stipulates that Ann will actually be raped on set. She considers this, signs on, and is raped on set. The film is then marketed, and she pockets her payment. Would Catiline regard this contract as unconscionable, hence illegal? Would he be willing to enforce laws that pre-empted the making of such contracts from the outset?

Example 2. Now suppose that Becky signs a contract not to be raped, but to be beaten up–to have the shit kicked out of her–on set.  And suppose that the contract specifies that she must passively sit there and take the beating without resistance. Same problem.

Example 3. If the right to bodily integrity can’t be alienated, what about the right to mental integrity? Take Cathy, who signs a contract to have sex with animals on set. Even aside from the question of animal consent (if the animal is in heat, perhaps it approximates “consent”), this seems demented: there is at least a likelihood worth investigating that Cathy is suffering from a serious mental disorder which is being exploited by her employer. Same problem.

Now suppose for argument’s sake that some combination of the preceding contracts is unconscionable. I notice that Catiline describes himself as a “revolutionary anarchist living in southeastern Alabama” (my emphasis). What is the specifically anarchist method of handling unconscionable contracts? Under government, contracts are regulated in such a way as to either rule out unconscionable contracts from the outset, or to declare them unconscionable through litigation. I’ve never understood how anarchists deal with the same problem. But it clearly is a problem. What’s the solution, or outline of one?**

You can probably see how the gladiatorial examples will go. Just take sex out of the equation, and imagine a scenario like the one depicted in Jean-Claude Van Damme’s epic film, “Lionheart”: desperate people voluntarily fighting one another to the death for pay.*** The closest real-life approximation (that is public knowledge) is MMA/UFC cage fighting (which is bad enough). But imagine a sort of MMA/UFC fighting where there are no rules, and both homicide and torture are options. Should such contracts be proscribed from the outset? If so, how does one proscribe a type of contract under anarchism?

That said, I wonder whether the possibility of death is really essential to such examples. Arguably, the dangers of serious chronic injury are present in sports like boxing and (American) “football.” Unconscionable and to-be-made illegal?

Granted, Tucker’s principle says that you can’t make yourself so much a slave as to forfeit the right to your own emancipation proclamation. But it’s unclear what that really amounts to. If you’re seventeen years old, and two seconds away from the making the tackle that leaves you paraplegic–for the greater glory of the Theodore Roosevelt High School varsity football team–maybe you are a slave of just that kind, and won’t realize it until three seconds from now. Once you make that tackle, you’ve forfeited more than you could ever have imagined when you started playing. Note, by the way, that once you become a paraplegic, you may well be enslaving your caretakers in the bargain. They can’t rightly abandon you, but they also can never lead normal lives again.

Last example, not quite gladiatorial but in the same ballpark. Suppose that Demi is a School Resource Officer. She signs a contract that stipulates that if a school shooter is present in the school that she’s been hired to guard, she is obliged to confront the shooter regardless of any considerations of danger to self, even if doing so is obviously suicidal. Unconscionable?

Premise (2), Objection 1:

Here’s the same objection again, along with the first of the three problems Catiline discusses:

A different objection may be that by voluntarily having sex (assuming it was indeed voluntary), the woman has consented to the possibility of a pregnancy and so cannot claim that she is being subjected to the fetus against her will; in effect, she has contractually obligated herself to her potential offspring. But there are three problems with this line of argument.

First, doing something that risks bringing about undesired result X does not constitute consent to X. After all, by driving a car you increase your chances of being in an accident, but that doesn’t mean that you consent to the accident, or that you shouldn’t hold another driver accountable if she hits you.

Ironically, I have for years used this very example to make almost the reverse of the point that Catiline makes here.**** So my objection here is two-fold. I disagree with the claim Catiline makes about driving, and (for that reason, I guess) wonder whether a driving example really serves to clarify anything about pregnancy.

I would say that by driving on public roads, you assume the risks consequent on any accidents that might happen to you. But by the same token, in driving, you also assume the risks of liability for any damage or injury you cause by accident (whether through merely unsafe driving, carelessness, recklessness, or pure accident).***** The conjunction implies that every driver has a right to a remedy produced by death, injury, damage, or harm caused by other drivers (where “drivers” includes private actors, corporate agents, and governmental entities).

In other words, when I drive, I consent to the possibility that someone might hit me, whether recklessly, carelessly, or purely by innocent accident. I don’t precisely consent to the accident, but I assume the risk that such an accident might happen (and in that attenuated sense “consent to it”). But I also consent to a liability regime that holds people responsible for the harms they specifically cause. In a case where I am hit by, say, a careless driver, I think it’s consistent to say that I assumed the risks of being hit by careless drivers, and am entitled to a remedy for the harm caused by the particular careless driver who hit me. This, I think, is why it’s entirely fair to compel people to have some form of auto insurance when they drive on the road: the insurance contract makes explicit the terms of a quasi-contract that was implicit all along.

Given the preceding analysis, I’m not sure the driving example is the right one to use for the topic of pregnancy, abortion, and rape. That said, I don’t think my analysis does Catiline’s argument any real harm, either. Here’s a shot at where it takes us.

In voluntarily having sex, you do (in my view) assume the risks of pregnancy–a burden that falls more heavily on those who can become pregnant than on those who can’t. But assuming that risk is perfectly compatible with becoming pregnant “by accident.” Obviously, you can’t literally consent to an accident (whether a traffic accident or an accidental pregnancy), but you can voluntarily assume the risks that lead to one. As I see it, people who voluntarily have sex do precisely that in just the way that people who drive on the roads assume the risks involved there.

Take sexual partners who self-consciously decide to use a reliable method of birth control. In this case, an unintended pregnancy is a bit like being hit by a car that’s skidding on black ice: not the other driver’s fault, but not yours, either.

So take the case of being hit by a car skidding on black ice. By driving on an icy day, you consented to the possibility that such an accident might happen. (By driving at all, you consent to the possibility of freak accidents.) But then, it’s equally true that the other driver consented to the possibility that he might cause an accident of just this kind. Since everyone knows both things ahead of time (and knows their implications, and is apprised of them before they drive, and has to take a test that involves questions about them as a condition of getting a license, etc.), I would say that everyone implicitly consents to the system we have in place for assigning liability and getting remedies.

It would certainly be greatly preferable if all of this was made (more) explicit ahead of time, but I think it’s obvious enough to most people to count as implicit consent to something. In driving on the road, we may not be consenting to every last feature of the traffic system, but it seems to me that we are consenting to its core features. This consent strikes me as being at least as obvious as the consent involved in, say, ordering food in a restaurant, or buying merchandise in a store. There is no overt act by which we “consent” to pay for either thing. The consent involved is implicit in both cases, and cases like these.

Suppose the car next to you is skidding on black ice, and imminently about to hit you. The remedy is to take whatever measures you can to avoid the accident when it’s imminent. Suppose you fail, and the other car hits you. In that case, I would say that both parties have implicitly consented to a regime or system that assigns liability and implies a pay-out for any damage.

I note in passing that one under-discussed problem in under-governed places like the West Bank is that while everyone at some level knows that they’ve implicitly consented to certain norms and rules of the road, in the absence of an enforcement mechanism, free-riding is a nearly insurmountable problem.****** If you hit my car on the road between Abu Dis and Jericho, and you lack insurance, and your license plates are fake, and there is no police to call, I have no remedy when you drive away except to hunt you down and start a feud with you. So again, I find anarchism puzzling and problematic in cases like this. But that’s in passing.

Back to pregnancy. Suppose that an accidental pregnancy is like being hit by a car skidding on black ice. The case in which the couple used birth control is the most analogous to the case of cautious drivers who happen accidentally to hit each other. But it seems to me that even then, the contexts are too distant from each other to allow for any useful comparisons. At best, I would say that if you can take measures to avoid an imminent accident, you can take measures to avoid a semi-imminent labor induced by an accidental pregnancy.

That’s obviously true if you’d been driving safely all along, but it may even be true if you hadn’t been. Again, if the driver who non-culpably hits you can be thought to assume liability for the accident he causes when he skids on black ice (compatibly with your assuming the risk for such an accident happening), maybe that suggests that a woman who becomes accidentally pregnant can assign liability to the fetus and get an abortion (compatibly with assuming the risk for being in that situation). I’m not sure, but I blame Catiline’s example for my uncertainty: I don’t think it helps.

It’s ironic that this “narrow” critique of Catiline’s essay is probably longer than the essay itself.


*By some strange coincidence, I happened to be reading Cicero’s De Officiis when I encountered Catiline’s essay. As my students say, “everything happens for a reason.”

**I’m not suggesting, absurdly, that Catiline solve the whole problem right here. I’m asking: what, in general, is the solution, and where might one go to get a better sense of it? (My own preliminary thoughts on unconscionability, in a very different context.)

***Yeah, I could have used “Fight Club.” But I have a soft spot for “Lionheart,” the film that got me into martial arts.

****The issue comes up in my applied ethics class, discussing Douglas Husak’s “Vehicles and Crashes: Why is this Moral Issue Overlooked?” Social Theory & Practice 30:3 (July 2004). Husak argues that “frivolous driving” is unethical, meaning all driving that fails to meet a rather strict criterion of “necessity.” My view is that drivers assume the risks of driving when they drive. Most passengers and pedestrians do as well. Children have to be handled separately.

*****I’m assuming that different levels of liability apply in these various cases. I understand “careless” and “reckless” driving as they’re understood in American traffic law, as implying both liability and moral culpability. Roughly speaking, careless driving is driving that causes danger through lack of due circumspection. Reckless driving is driving that knowingly causes danger through unsafe driving. Unsafe driving is a strict liability offense that involves increased risk of danger through driving that can non-culpably be attributed to a given car/driver.

******The video above doesn’t depict the aftermath of a traffic accident, but dramatizes a real possibility: suppose that Israelis and Palestinians have different, mutually antagonistic protection agencies under anarchy. An Israeli driver hits a Palestinian car, or vice versa. In the absence of a liability/insurance arrangement between the two agencies, we have an insurmountable practical problem: whose arrangement prevails? Given sufficient antagonism, and asymmetric distributions of power between the two groups, there may not be any overriding reason for the dominant side to come to an accommodation with the weaker one.

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