Pollan talks about natural law and the naturalistic fallacy in ways that strike me as not quite right. Although I'm basically on his side, I think he is too dismissive of the natural law view of sex. The idea is not that whatever happens in nature is necessarily "moral and ethical," so that if we find animals engaging in polygamy or rape then those things must be OK for us to engage in. It's more that there is some sort of potential coherence in human life that we ought to try to find and live by. It's probably easier to believe that this coherence is there to be found if you believe that God created human life, but the attempt to live coherently seems worthwhile to me independent of the question of God's existence. And, it seems to me, this attempt involves working out or getting clear about the meaning of, for instance, sex, where by 'meaning' I mean the proper place it has in our lives.
The word 'proper' might well sound puritanical, but I mean the place that belongs to it, the most consistent part it can play in our lives. I disagree with the Catholic Church's conclusions about what is and is not OK, but at least it asks good questions. If we celebrate life as a miracle, what sense does it make to use contraception? If we regard all rape as a terrible crime, how can we not regard sex as a big deal? These probably sound like rhetorical questions inviting the kind of answer a Catholic might give, but that's not my point. My thought is more that if we want to reject the traditional Catholic answers (as, to repeat, I do) then we ought to work out better answers than are widely circulated at the moment. The prevailing liberal view seems to be that individual choice is all, so that, roughly, everything consensual is fine and everything non-consensual is bad. But this seems pretty weak to me. Admittedly I am not up-to-date on the philosophy of sex, but I suspect there is work to be done in this area. The discussion here suggests that this is the case.
Anyway, here's my response to Ekstrom:
Making Sex Inviting: A Reply to Laura Waddell Ekstrom
Judith Thomson's aim in her famous defense of abortion is not to defend abortion from all attacks or criticism but to defend it from a specific charge of being unjust. This I think she does well, meaning that opponents of abortion should try to find other grounds on which to attack it. They might follow Thomson's own admission that abortion can be selfish, indecent, or callous, and that these charges are no less grave than the charge of injustice. Professor Ekstrom, though, focuses on the question of justice, arguing that abortion is wrong because it is unjust and that it is unjust because it violates the rights of the fetus. The right in question is the right to the use of the pregnant woman's body, which the fetus supposedly has because it was granted by the woman's conscious and willing act of heterosexual sexual intercourse (with or without contraception or a desire to become pregnant). This act of sex, Professor Ekstrom argues, constitutes an invitation to the fetus to occupy the woman's body and use it as it needs.
I have three main objections to this line of argument. The first concerns the invitation, the second concerns the sexual act, and the third concerns the fetus. Ekstrom rightly points out that "Lack of invitation to a particular fetus does not entail lack of invitation." Invitations to yard sales and office hours can be quite open and still are invitations. But they are invitations made to the general public, which consists of actually existing people. Ekstrom's invitation is made to something that has only potential existence. Perhaps my fear of metaphysical murk is irrational, but I would hesitate to class potential existence as a kind of existence. And an invitation to something that does not exist is no invitation in my book. Especially when the invitation in question is neither written nor verbal but supposedly implicit.
Secondly there is Ekstrom's insistence that engaging in heterosexual genital sex is inviting a potential fetus into being. I would insist here that everything is what it is and not another thing. Sex is sex. It can be thought of as invitation, but it can equally be thought of as hosting a mixer. If a partnership arises as a result of a mixer that I threw, do I therefore have a special obligation to refrain from breaking up that partnership? Not particularly, surely. It all depends on the nature of the partnership. If it is a criminal conspiracy then I should break it up. If it is a true love match then I should not. My role in bringing it into being is neither here nor there.
Ekstrom says that the pregnant woman and her partner "caused [the fetus] to be present inside the woman's body, and they caused it to be dependent upon her for its continued life." The first part of this claim is true but the second is false. It is nature that caused fetuses in wombs to be dependent on the women whose wombs these are for their continued life.
In Ekstrom's view the following argument "has a great deal of plausibility":
"(1) If one person depends on the continued use of another person's body in order to survive, and (2) if the second person acted in a manner that brought about this state of affairs, (3) then the second person has thereby granted the right to the use of his or her body to the dependent person and would be wrong to deny the dependent person that use."
So imagine a plane crash on an icy mountain. The only food available to the passenger is the body of the pilot, who is still alive. Condition 1 is met and so is condition 2 if we assume that the crash was a result of pilot error. Is it plausible that it would be wrong for the pilot to object, perhaps on religious grounds, to being cannibalized? Surely not. One might argue that the pilot did not bring about the iciness of the mountain, but then the woman did not bring about the inability of fetuses to survive without maternal sustenance. I think this argument is in fact not plausible at all.
But of course there is much more to Ekstrom's argument than this. She agues that sex is an invitation to a fetus because pregnancy is a result of sex that is possible, non-negligible, natural, and foreseeable. By 'natural' I take it she means 'not requiring artificial help' rather than 'according to God's plan' or anything like that. All this boils down to the fact that pregnancy is a foreseeable result of heterosexual genital sex (which I will simply call sex from now on) just as getting wet is a foreseeable result of going out in the rain. Indeed this is the only natural way to get wet with rain water. Does this mean somehow that one is inviting rain-wetness if one goes out in the rain? Yes of course, but only in a metaphorical sense. And of course it is not thereby wrong to remove the unwanted water upon coming back inside.
Ekstrom's final attempt to make sex inviting (i.e. to recast the act of sex as an act of invitation) involves an analogy with starting a race by waving a flag. In the case of the race, though, there is a social convention that makes flag-waving race-starting. There is no such convention in the case of sex. For one thing, the fetus does not even exist yet and so is not part of society. For another, the only consensus about sex is that it is sex. Pro-life people might share an intuition that sex is fetal-invitation, but this intuition is not universal and cannot ground a pro-life position.
Finally I said I would say something about the fetus itself. Let us grant Ekstrom's contention that a fetal invitation has been issued. Do invitees just as such have a right to whatever they were invited to? Even Ekstrom admits that they do not. It all depends on what is at stake. So the whole argument for sex as invitation starts to look like a red herring. The real issue is whether the life of the fetus is enough to make abortion (withdrawing the invitation) unjust. Here Ekstrom relies on a well-known argument from Don Marquis.
Marquis tries to analyze what it is that makes killing people in general wrong. His conclusion is that it is primarily the fact that such killing deprives people of the future they would otherwise have enjoyed. Since fetuses have such a future, the argument goes, abortion is wrong too.
There has been some debate about whether fetuses really do have a future like ours in this respect. I contend that no one does. Again we are in the realm of metaphysics, but I would say that the future does not exist. There is no such set as the set of events that are going to take place, or that would happen if x (or if not x). I don't think I need to appeal to quantum indeterminacy in order to make my case, but I will do if necessary. Given that my future is not some thing that I now have, what it means to deprive me of it is something that needs some analysis. I suspect that "depriving someone of his or her future" is in fact simply a partial euphemism for killing someone. It will not, if I am right, do as an explanation of why killing people is wrong. Even if I am wrong about this, no such consequentialist consideration can capture the injustice of murder. Murder is not all right if the victim in fact has no future. And abortion (or miscarriage) is not much worse than the murder (or sudden death) of an adult human being, even though the fetus might be expected to have more future ahead of it than the adult. Anyone who thinks otherwise is out of step with common intuitions. So I think that Marquis's argument is not a good one to fall back on.