Criticism of the Good Samaritan Thesis
Thomson’s argument has attracted a considerable amount of criticism in the time since it was written, with the violinist analogy coming under attack on multiple grounds. Boonin devotes a large portion of his book A Defense of Abortion to defending the kernel of the GST against sixteen major objections that have been levelled at Thomson’s particular version. I will not be tracing all sixteen, but will try to make sense of some of the main reasons why many think Thomson did not manage to show that if the fetus is a person, abortion is still almost always morally permissible.
Typically, responses to Thomson’s argument challenge either the strength of the analogy between pregnancy and the violinist scenario or the conclusion about the violinist case Thomson is so confident we will reach. That is, they suggest either that aborting a pregnancy is, in some very important respects, not like unplugging the violinist, or that we cannot be so sure that unplugging the violinist in such circumstances really is morally permissible.
Boonin highlights a third common source of objection, rooted in a more general scepticism that an analogy as odd as Thomson’s can elucidate anything about the rights and wrongs of abortion. The ‘weirdness objection’, as he calls it, ‘simply reject[s] the authority of such arguments from analogy to begin with’, on the ground that the scenarios imagined are weird, whereas pregnancy is not38 Pregnancy is a normal occurrence, and currently the only way of reproducing our species. The violinist scenario, on the other hand, is quite extraordinary. Perhaps this means we cannot rely on it as a guide to the morality of abortion.
The weirdness objection could, of course, be directed at any number of exotic examples conjured up in abortion ethics more widely. In its most developed form, that objection is the more thoroughgoing challenge that all analogical reasoning about abortion is an unhelpful diversion because the pregnancy situation is so
18 ibid 139.
unique. I will say a little more about this kind of objection in chapter 4, but for now let it suffice to say that unless all analogical reasoning in this topic is to be dismissed as invalid, the force of the weirdness objection against Thomson’s analogy may have to depend on further argument about the moral relevance of some realities of pregnancy for the GST.
Characterizing continued pregnancy as an act of good samaritanism, and of abortion as the mere failure to save, has significant ramifications for the correct legal analysis of abortion when the personhood proviso is adopted. The law treats acts of killing as very different from the failure to render life-saving assistance. When accompanied by the intention to kill or cause grievous bodily harm, a positive act of killing is murder according to English law, unless a defence can be raised. But only very specific failures to lend positive assistance can ever amount to murder or manslaughter in the law, chiefly when the person who refuses life-saving assistance has a pre-existing responsibility for the victim, arising out of a familial or social relationship, or a voluntary undertaking of responsibility towards her.  The mere failure to lend easy, life-saving assistance to someone in mortal peril does not attract any criminal sanction in Anglo-American law (although the duty of ‘easy rescue’ has been recognized in some other jurisdictions, and the failure of Anglo-American law to impose it has been the focus of some pointed academic criticism2°). Consequently, if abortion really is only the refusal by a pregnant woman to be a Good Samaritan, its criminalization would not appear to fit with the law of omissions liability in the United States and in Britain as it stands, even if the fetus were a person.
When examining Thomson’s argument, it helps to keep in mind what it would take for it to fail. Thomson believes she has a way of showing that the fetus is not entitled to the continued use of a woman’s body for survival owing to the situation it finds itself in relative to the woman, regardless of its hypothetical equal moral status. The benefit of the violinist analogy is to provide an analogous situation where the equal moral status of the dependent party is not in any doubt, and hence controlled for. If at any point then, the argument appears to smuggle in a judgement of the fetus’s lesser moral status for its sustainability, Thomson will have failed in her stated task.
Next, The GST claims that, if anything, the duty not to abort is the duty to render positive assistance to another—the duty to help rather than to refrain from harming—but that no such duty is owed to a human fetus by a pregnant woman. The thesis will therefore appear to be wrong if either one of two things is true:
- 1. There is almost always a positive obligation on a pregnant woman to continue to gestate a fetus-person through to birth, or
- 2. Aborting the fetus is not an omission, a failure to save the fetus, but an act of killing, in prima facie breach of the negative obligation to refrain from seriously harming others.
If either of these propositions were true, continuing an unwanted pregnancy would not be an act of good samaritanism. It is my contention here that the second proposition is true—that is, that abortion is not the mere failure to save a fetus but the positive act of terminating its life. If this is right, it will be enough on its own to refute the GST without needing to establish any positive obligation on the part of a pregnant woman to aid her fetus by gestating it. Indeed, the second proposition holds that continued gestation is never the fulfilment of a special, positive obligation to aid, because the alternative abortion scenario is not the mere withholding of aid, but the act of killing, in breach of the negative obligation to refrain from killing other persons. Because I think the second proposition correct, I will not attempt to make a strong case for the first. However, I think it still worth addressing some aspects of the debate surrounding the question whether a pregnant woman might be obligated to continue to gestate a fetus-person, were the morality of abortion a matter of positive duties to aid.
-  Boonin (n 11) chapter 4.
-  See, R v Stone & Dobinson  1 QB 354; R v Gibbons and Proctor (1918) 13 Cr App Rep 134;R v Instan (1893) 1 QB 450.
-  2° See, Andrew Ashworth, ‘The Scope of Criminal Liability for Omissions’ (1989) 105 LawQuarterly Review 424, and Joel Feinberg, ‘The Moral and Legal Responsibility of the Bad Samaritan’in Joel Feinberg (ed), Freedom and Fulfilment: Philosophical Essays (Princeton University Press 1994).