Breaking the Abortion Deadlock: From Choice to Consent

Eileen McDonagh provides a provocative defense of the morality of abortion, claiming that the foetus causes the pregnancy and intrudes on a woman's liberty.

  • Eileen McDonagh argues that the principle of consent to abortion, carries more weight than the principle of choice.
  • A woman seeking an abortion seeks to expel the coercive imposition of the one and only agent capable of making her pregnant: "the foetus."
  • To the extent that the law protects the foetus as human life, the law must hold the foetus accountable for what it does.
  • Viewing the foetus as an aggressor portrays it as a stark conflict between the woman and the foetus.
  • The reality of an abortion, is that a woman does not want to be joined to the foetus.
Feminists and abortion advocates consider Eileen McDonagh's book BREAKING THE ABORTION DEADLOCK: From Choice to Consent an original and provocative argument which, they believe, "has the potential to transform our understanding of abortion." (Patricia Ireland, US President, National Organisation for Women NOW)

As the title suggests, Eileen McDonagh argues that the principle of consent to abortion, carries more weight than the principle of choice. Plus "consent" makes it easier to secure rights to abortion and effective funding.

Before outlining her case, she describes the conundrum, or "clash of absolutes" that have defined the abortion debate for more than 30 years as follows:
  • There is a general assumption in the abortion debate, that women's rights to abortion and to abortion funding, stand or fall on the human status of the foetus.
  • Although women have a right to make choices, obviously choices cannot include inadvertently killing a human being. Hence the 'pro-choice' claims that the foetus is not a person and thus abortion does not kill a person.
  • Were 'pro-life' advocates to challenge this claim successfully, many contend that abortion rights would be fatally undermined.

McDonagh re-examines and re-frames the basic principles underlying abortion, by shifting attention from what the fertilised ovum "is", as it develops into a baby, to what the fertilised ovum "does". She states that it causes pregnancy by "implanting itself in a woman's body and maintaining that implantation for nine months"

The Nub of her Argument
McDonagh believes that by re-framing the argument, the key right in abortion is a woman's 'right' to 'bodily integrity' and a consent issue. It is her contention that the foetus causes the pregnancy, in many cases without her consent, and in doing so, intrudes on her liberty. The foetus, in other words, 'coerces' the women to submit to the pregnancy.

"The foetus is the direct cause of pregnancy," argues McDonagh, "and if it makes a woman pregnant without her consent, it severely violates her bodily integrity and liberty."

The two key components of her argument are founded on:
  1. What the foetus does to a woman, not what it is
  2. The state's job is to assist a woman in her self-defence - against a foetus's injury
She charges that to the extent that the law protects the foetus as human life, the law must hold the foetus accountable for what it does. That is when the foetus makes a woman pregnant without her consent and imposes the serious injuries of ?wrongful pregnancy' ? even if the pregnancy in question is medically normal.

Eileen McDonagh argues that the legal protections offered to other members of society should be extended to pregnant women.

For example, she points out that the law allows a person to use deadly force in self-defence, when threatened with serious bodily injury and loss of liberty, as in rape, kidnapping or slavery.

The law should also, she claims, give a pregnant woman the same grounds for self-defence, when a foetus intrudes on her bodily integrity and liberty ? against her will.

Bodily intrusion
In a medically normal pregnancy, according to McDonagh, a foetus massively intrudes on a woman's body and expropriates her liberty. Therefore if a woman has not consented to this transformation and use of her body, the foetus's imposition constitutes injuries sufficient to justify the use of deadly force to stop it.

Pregnancy is not usually seen as an injury, but that is how the law (in America) defines it when imposed on a woman without her consent. Examples would be rape, or a botched sterilization which results in a pregnancy. In these cases, the law recognizes that the women have been seriously injured.

In such cases the law labels the pregnancy, a "wrongful pregnancy", and holds the perpetrators responsible for the injuries.

McDonagh expands the concept of wrongful pregnancy to include what the fertilised ovum does to a woman when it makes her pregnant without her consent.

"It is the only entity that can make a woman pregnant. When it does so without her consent, it imposes the serious injuries of wrongful pregnancy, even when the pregnancy is medically normal."

The case for abortion funding
Building on the logic of her case, McDonagh says that the federal government, and states, are then liable to provide public funding on two grounds:
  1. By being made pregnant without her consent, the women is entitled to public funding for an abortion. This is a health benefit for wrongful pregnancy.
  2. Or the state exercises its police powers to stop the foetus as human life, intruding upon the body and liberty of a woman without her consent.
The foetus as an imposer
McDonagh claims that although the foetus makes a woman pregnant, it has no conscious intentions and cannot control its behaviour.

"It's only innocence resides in a lack of conscious intentions and its inability to control its own behavior, similar to a person who is mentally incompetent because of insanity, retardation, or youth. Born people who are mentally incompetent cannot be held legally responsible for the harm they inflict on others. Nor does a person's need for another's body, or body parts, entitle him or her to another's body without consent."

Women as Samaritans
When a woman consents to be pregnant, she contributes nurturing and caretaking activities. McDonagh views such women as good samaritans who donate their bodies and liberties to needy foetuses so that new lives may be born.

She declares that society must not go to the next step of "requiring" women to be good samaritans by giving themselves to foetuses. "Women have a legal and moral right to be a bad samaritan," she says, "by refusing to donate their bodies to a foetus, much as they have a moral and legal right to refuse to donate blood, or a kidney to a needy relative."

Eileen McDonagh identifies a third kind of samaritan. "When a foetus imposes wrongful pregnancy on a woman, it does not allow her to decide whether to be a good or bad samaritan. On the contrary, it puts her in the position of being a captive samaritan by taking her body and liberty against her will, to serve its own needs."

In this scenario she explains that an abortion neither stops the giving activity of the woman as a good samaritan, nor makes the woman a bad samaritan "who refuses to donate to a foetus." What abortion does, in her view, is it stops the foetus from taking the woman's body and liberty without her consent, and "frees her" from the "captive samaritan status imposed by the foetus."

She contends that the reason a woman chooses abortion is irrelevant because her right to kill a foetus is based on her "primary right of privacy, to be free from intrusions of her body and liberty by other private parties."

The issue missing from the abortion debate
In her book McDonagh maintains that the issue is the woman's right to be free from a captive status, not merely her right to refuse to give her body to the foetus in the first place.

"For two long the abortion debate has been governed by the issue of the personhood of the foetus. Consequently, the basic issue has remained undetected: the foetus as the cause of the pregnant condition in a woman's body that abortion terminates."

McDonagh sees abortion rights in terms of a woman's right to consent to what the foetus does to her body, and says that the fundamental issue is not merely women's right to choose what to do with their own bodies, but their right to consent to what another private party, the foetus, does to their bodies when it makes them pregnant.

The foetus as a powerful intruder
In her opinion, although the foetus is dependent on the mother's body for its survival, it should not be regarded as weak and helpless. On the contrary, preborn human life should be seen as a powerful intruder upon a woman's body that requires the use of deadly force to stop the intrusion by removing it. By making this point she puts the foetus on a level with a rapist or home invader, only worse because it not only physically changes a woman's body, it "imposes on her liberty" for nine long months.

Stating once again that the foetus should not be regarded to as "weak and helpless," McDonagh draws attention to the fact that we do not label cancer, viruses, or other diseases as weak and helpless and suggests "preborn life" be viewed as a form of alien organic life whose "effects on a woman are powerful in scope and duration, however dependent it is upon a woman's body for its own growth and survival."

She sees "non-consenting women" was the ones who are weak and helpless in relation to the foetus, at the mercy of "intrusive preborn human life" and unable to stop foetuses from crippling or even killing them. These "weak and helpless" women need the provision of state asistance, she states, to protect them from the intrusion of their bodies by "preborn human life."

Reshaping our understanding of "baby"
Eileen McDonagh accepts that the foetus as intruder, can also acquire the highly charged label of "baby''.

"While ?baby' may spark in all of us reflexes of nurturing and care, we must be cautious of our susceptibility to labels, including this one. While it is not usual to focus on the foetus, much less a baby, as an intruder in relation to a woman, in the case of abortion, we need to recognize its physical intrusion on the body of a woman."

McDonagh does not feel the need to 'dehumanise' the foetus because, she says, the personhood of the foetus is no longer the primary issue. What is paramount is the foetus's agency in initiating and maintaining pregnancy.

She claims that a woman may have compassion and concern for the foetus she intends to abort and even "remain respectful of the dignity and value of the aggressor."

"This approach is more consonant," she says, "with the psychological and emotional anguish actually felt by many women when aborting a foetus."

Consent to pregnancy
Arguing that a woman has the right to self-defence against the "nonconsensual use" of her body being used as a "resource by a foetus," McDonagh would like to see the term "wrongful pregnancy' expanded to include "those pregnancies imposed upon a woman without her consent."

She says that religious traditions that focus on the foetus are missing the point. By "causing" the pregnancy, McDonagh claims that the foetus makes the woman the victim. Having a status as victim is enough in McDonagh's opinion to not only entitle the woman to use self-defence with "deadly force" to stop the foetus, it should also entitle her to receive government funding to do so.

Abortion and good motherhood
Claiming that women generally have serious reasons for desiring an abortion -they do not choose one in order to vacation in Bermuda, or to go to beauty shops or on shopping sprees, she says - McDonagh rationalises their decision to stem from a desire to fulfill their traditional role as good mothers.

She concedes that the rationale of women choosing abortion because they lack economic resources has limitations and that a better answer, as opponents to abortion point out, would be to provide more resources for pregnant women to sustain a pregnancy. If the mother herself lacks the resources necessary to provide for the baby, she could make the child available for adoption.

"Killing the foetus because you love it too much for it to be born, becomes an unnecessary, if not illogical, solution to the goal of good mothering. In addition, the good mother argument provides no legal grounds for abortion funding, for the state is not obligated to fund a woman's choice of this method for mothering."

A problem of perception
Basing abortion rights on the justified use of deadly force to stop a foetus from imposing wrongful pregnancy, runs the risk of going against the grain of most of our beliefs about pregnancy. Instead of presenting pregnancy as a relation of symbiotic [shared] beauty, it portrays it as a stark conflict between the woman and the foetus. Viewing the foetus as an aggressor runs counter to traditional family values, the harmony of family life, and woman's traditional roles as wives and mothers.

McDonagh admits that the problem about presenting the foetus as an aggressor is that people are unlikely to accept such a depiction of pregnancy.

"Few people are going to be comfortable with the idea that the foetus is not innocent, but instead aggressively intrudes on a woman's body so massively that deadly force is justified to stop it."

She suggests that any policy change must involve changes, not only in law, but in culture and public opinion which will require "processes of education and communication combined with legal doctrine." Social engineering is always preceeded by verbal engineering. Read The Evolution of Terminology - Word Games here.

McDonagh realises that, by using the consent to pregnancy foundation, women are at risk of being seen as "anti-mothers," or "monsters who kill their children." As long as the foetus is seen as a helpless baby, even many abortion advocates will be disgusted by the self-defence justification for abortion.

It's taboo: maternal oppression and unhappiness
It is something of a problem to McDonagh that although pregnancy can be "oppressive" to women and "unhappiness can permanently injure a woman's health," this oppression and unhappiness of motherhood is "taboo."

"While intrusive sensations are sometimes associated with pregnancy," she says, "in most cases these feelings pale beside the more pervasive feelings of togetherness with the new life."

"Yet the reality of the experience entailed by an abortion, is that a woman does not want to be joined to the foetus. She seeks to be separated from the foetus, not to experience togetherness with it. Whatever her feelings towards the foetus, she seeks to end her relationship with it by using a technique that kills it."

To McDonagh, the primary issue is not whether the woman has a good reason for an abortion or not, in her opinion the question is to define what justifies an abortion and whether it should be paid for by the state (government).

Her final conclusion is to proclaim that abortion is justified by what the foetus does to a woman when it makes her pregnant.

The idea of a foetus being regarded as the aggressive invader of a helpless woman's body has not yet received much support.

Most people can not only realise that the 'baby' being produced by the mother's own body came to be there by the natural process of reproduction, but that this reasoning would make it acceptable for us to kill anyone who is dependent upon us, whatever their age, if that person restricted our freedom in any way.