Part 1: The Groundwork

● Central Argument
○ (1). If McFall does not have the right to use Shimp’s bone marrow to go on living,
then the fetus does not have the rights to use the pregnant woman's uterus to go
on living.
○ (2). McFall does not have the right to use Shimps bone marrow to go on living.
○ C1. The fetus does not have the right to use the pregnant woman's uterus to go
on living.
○ (3). If the fetus does not have the right to use the pregnant woman's uterus to go
on living, then abortion(at least in typical circumstances) should be legal
○ C2. Abortion(at least in typical circumstances) should be legal
● McFall v. Shimp
○ “Robert McFall was an asbestos worker from Pittsburgh. In 1978, he was
diagnosed with aplastic anemia. The doctors told him he’d die if he didn’t get a
bone marrow transplant. And they said he needed one soon.
○ Preliminary tests for tissue compatibility were quickly conducted. Only one
promising candidate was found: a cousin of McFall’s named David Shimp.
○ Before additional tests could confirm his compatibility, though, Shimp had a
change of heart. He refused to submit to further testing. And he declared that he
wouldn’t give McFall any of his bone marrow even if it was needed to save
McFall’s life.
○ Running out of options at that point, McFall decided to sue Shimp. In the motion
filed by his attorney, McFall asked the court to order Shimp to undergo the
additional testing and, if the results were positive, to order Shimp to give him the
bone marrow he needed. The case of McFall v. Shimp was heard in the Common
Pleas Court of Allegheny County by Judge John P. Flaherty Jr. in July of that
year.
○ Judge Flaherty wasn’t impressed by McFall’s petition. While he clearly felt sorry
for the man, he just as clearly felt his lawsuit was absurd. For the state to force
Shimp to give McFall the bone marrow he needed, the judge wrote in his
decision, “would change the very concept and principle upon which our society is
founded,” a principle, as he put it, of “respect for the individual.” In fact, Judge
Flaherty went even further than this, adding: “For a society which respects the
rights of one individual, to sink its teeth into the jugular vein or neck of one of its
members and suck from it sustenance for another member, is revolting to our
hard-wrought concepts of jurisprudence.”
○ Needless to say, he denied McFall’s request for an injunction against Shimp.
Judge Flaherty’s ruling was issued on July 26, 1978. Fifteen days later, Robert
McFall was dead.” (Beyond Roe, 3-4)
● Lesson from the Case
○ “The state didn’t have the right to force Shimp to let McFall use his bone marrow
because McFall didn’t have the right to use Shimp’s bone marrow. If McFall did
 have the right to use Shimp’s bone marrow, after all, it’s hard to see what would
have been wrong with the state stepping in to enforce that right.
○ There are two other claims that are not in dispute. First, McFall was a person
who had a right to life. Second, McFall needed Shimp’s bone marrow. So there
are now three claims: McFall was a person, McFall needed Shimp’s bone
marrow, and McFall didn’t have the right to Shimp’s bone marrow.
○ If you accept these three claims, you’re now in a position to draw an important
conclusion: being a person doesn’t give you the right to use another person’s
bone marrow even if you need to use it.
○ But there is nothing exceedingly special about bone marrow. Suppose McFall
had needed one of Shimp’s kidneys or one of his lungs. If you agree it would
have been wrong for the state to force Shimp to give McFall some of his bone
marrow, I assume you’ll also agree it would have been wrong for the state to
force Shimp to give McFall one of his kidneys or one of his lungs.” (Beyond Roe,
7-9)
○ Bottom Line: The fact that someone is a person with a right to life doesn’t mean
they have the right to use another person’s body even if they need to use that
person’s body in order to go on living.
● The Explanatory Gap in the Pro-Life View.
○ It is not sufficient for the Pro-Life advocate to assert that the fetus has a right to
use the pregnant women’s body to continue surviving simply in virtue of
personhood or the fetus having a right to life.
○ Otherwise, McFall would have had the right to use Shimps bone marrow since
McFall was a person with a right to life.
○ The Pro-Life advocate must identity some morally relevant difference between
the case of McFall v. Shimp and the case of pregnancy such that the fetus has
the right to use another person’s body to go on living, but McFall *does not* have
the right to use another person’s body to go on living.
○ In other words, there is an explanatory gap between the claim that the fetus is a
person and the claim that the fetus has the right to use the pregnant woman's
body to go on living.
○ Unfortunately for the Pro-Life advocate, this explanatory gap cannot be
overcome.

Part 2: Attempts at Bridging the Gap

● Voluntary action: The fact that the pregnant women preformed a voluntary action(sex)
that caused the fetus to start to use her body means that the fetus has the right to
continue using the pregnant women’s body.
○ Suppose that McFall is plugged into a bone marrow extraction machine when
Shimp is nearby.
○ Shimp performs a voluntary action by plugging himself into the bone marrow
extraction machine. Now, McFall is dependent on Shimp’s bone marrow for
survival as a direct result of Shimp’s voluntary action.
 ○ Does the fact that Shimp agreed to initially support McFall through his bone
marrow give the state the right to force Shimp to continue providing his bone
marrow? Surely not. After all, if McFall didn’t have the right to use Shimp’s bone
marrow in the original McFall v. Shimp case, why would McFall have the right to
use Shimp’s bone marrow in this case?
○ But if the fact that Shimp’s voluntary action caused McFall to start using his bone
marrow doesn’t give McFall the right to continue using Shimp’s bone marrow,
then the fact that the pregnant women performed a voluntary action that caused
the fetus to start using her uterus does not give the fetus the right to continue
using the pregnant women’s uterus.
○ So the voluntary action objection fails.
● Responsibility: if, as a foreseeable result of your voluntary act, someone will die if you
don’t assist them, and if they wouldn’t need your assistance if you hadn’t done the act,
then they have a right to your assistance. Pregnant women meet these conditions in
most cases of pregnancy.
○ The pregnant woman is not responsible for the neediness of the fetus in the
morally relevant sense.
■ There are two ways to interpret the responsibility principle and only the
first entails that the pregnant woman is responsible for the neediness of
the fetus in the morally relevant sense.
● Formulation #1: if you hadn’t done what you did, this other person
wouldn’t exist. If this other person wouldn’t exist, they wouldn’t
need your assistance. In order for a person to need your
assistance, after all, that person has to exist
● Formulation #2: if you hadn’t done what you did this other person
would exist now and they’d be able to get along just fine without
you. If this other person would be able to get along just fine
without you, then they wouldn’t need your assistance. They
wouldn’t need your assistance not because they wouldn’t exist but
because they would exist and would be doing just fine without
your help
■ The moral differences between the first and second formulation.
● The second responsibility principle seems so plausible, that is,
because it rests on a principle of compensation that seems so
plausible: if you harm someone, you have a responsibility to fix the
harm and so the person you harmed has a right to your
assistance.
● But the first principle isn’t like this. They aren’t cases where the
first person has harmed the second person. Todd harmed Timmy
by shooting him, and Shimp harmed McFall by causing him to
contract aplastic anemia, but Barbara didn’t harm Bob by
conceiving him. Timmy would have been better off if Todd hadn’t
shot him, and McFall would have been better off if Shimp hadn’t
set off the fireworks near his house, but Bob wouldn’t have been
 better off if Barbara hadn’t conceived him. Bob wouldn’t have
existed at all.
● So the reason Shimp would owe McFall some bone marrow in the
version of the story where he made McFall sick doesn’t apply to
the case where Barbara causes Bob to need to use her uterus by
having sex with the guy she met at the party.
■ Two counterexamples to the first formulation
● Counterexample #1: Extending Life
○ McFall and Shimp worked together at a lab that processed
a variety of toxic chemicals. One day, while Shimp was
handling a particularly potent mix, he saw McFall choking.
It was clear that McFall was about to die, that Shimp could
save him by performing the Heimlich maneuver, and that
he didn’t have enough time to wash his hands before
performing it.
○ Shimp also knew if he performed the Heimlich maneuver
on McFall without washing his hands first, there was a
chance McFall would be exposed to the toxic chemicals
he’d been handling and that McFall would later develop
aplastic anemia as a result.
○ And Shimp also happened to know from testing that had
been done earlier that year that if McFall ever contracted
aplastic anemia, he would need some bone marrow from
Shimp in order to survive. Unfortunately, there was no one
else in the lab. So Shimp’s choices were to sit by and
watch McFall choke to death or to perform the Heimlich
maneuver on him knowing this might cause McFall to later
develop aplastic anemia.
○ Shimp went ahead and performed the maneuver and did
so successfully, but McFall was exposed to the toxic
chemicals in the process. As a result, he later developed
aplastic anemia.
○ McFall still doesn’t have the right to use Shimp’s bone
marrow against his will in this case.
● Counterexample #2: Creating Life
○ Suppose Barbara knows that kidney disease runs in her
family and that her future child would probably need a
kidney transplant in order to survive.
○ Barbara has voluntary sexual intercourse and ends up
conceiving a child in spite of using contraception.
○ Does the fact that Barbara is responsible for the existence
of a being that is “needy by nature” give her future child the
right to use her kidneys against her will? Surely not.
 ○ Even if the pregnant woman was responsible for the neediness of the fetus in the
morally relevant sense, it doesn’t give the fetus the right to use her body.
■ Suppose Shimp was driving in his car when he made a careless mistake
and ended up rear ending McFall. McFall suffers major damage to his
organs and the doctors conclude that he needs a bone marrow transplant
to continue living.
■ Would it be permissible for the state to force Shimp to donate his bone
marrow against his will because he is responsible for McFall’s needy
state? Surely not.
■ Therefore, the responsibility objection fails even if we apply the second
formulation of the responsibility principle.
● Killing vs. Letting Die: When it comes to McFall v. Shimp, Shimp merely lets McFall die.
But when it comes to abortion, a healthy fetus is actively killed.
○ Some abortions involve merely “letting the fetus die”
■ Chemical abortion: This method involves two drugs. One is mifepristone.
It blocks the production of the hormone progesterone and causes the
lining of the uterus to deteriorate as a result. The other is misoprostol. It
induces contractions and causes the woman to have a miscarriage. The
combination of the two prevents the uterus from providing the fetus with
the support it needs and results in the fetus being expelled from the
uterus where it will no longer be able to survive.
■ Hysterotomy: A hysterotomy abortion involves removing the fetus while
it’s still alive through an abdominal incision in the uterus. It’s like having a
caesarean section, but with a smaller incision. Assuming the fetus isn’t
viable when the abortion is performed, it will die soon after it’s removed
because it will no longer be receiving the life support it needs from the
pregnant woman’s body
■ If you’re inclined to think a hysterotomy abortion would still involve killing
the fetus, then you’ll have to say disconnecting Shimp from the bone
marrow transferring machine would kill McFall and would not simply let
McFall die. After all, disconnecting Shimp from the machine would
remove the life support McFall needs just as surely as Alice’s hysterotomy
abortion would remove the life support Al needs. And if disconnecting
Shimp kills McFall, then the fact that Alice’s abortion kills Al won’t matter.
If it would be wrong for the state to prevent Shimp from being
disconnected from the machine even though disconnecting Shimp would
kill McFall, then the fact that having an abortion would kill Al can’t be
enough to make it okay for the state to prevent Alice from having an
abortion.
■ The “killing vs letting die” objection entails that all and only “letting die”
abortion methods should be legal. But since(as almost everyone would
agree) it’s false that all and only “letting die” abortion methods should be
legal, the “killing vs letting die” objection fails.
 ○ McFall wouldn’t have the right to use Shimp’s bone marrow even if disconnecting
from the bone marrow machine involved actively killing McFall.
■ Revised McFall v. Shimp
● McFall’s in a coma right now. He can’t feel a thing. If Shimp
doesn’t give him the bone marrow he needs, McFall will die before
he wakes up. The machine is designed to prevent Shimp from
being disconnected from it as long as McFall is connected to it. So
the only way the doctor can disconnect Shimp from the machine is
to disconnect McFall from it first.
● The only way the doctor can disconnect McFall from the machine
is to make a small incision in McFall’s back that will inevitably
cause an infection. Because of his weakened condition, McFall will
be unable to fend off the infection and will die as a result.
● So if the doctor disconnects Shimp from the machine, McFall will
die from the infection caused by the doctor’s act, not from the
aplastic anemia. The doctor’s act of disconnecting Shimp will
therefore kill McFall, and kill him painlessly
● If Shimp should still be allowed to disconnect from the machine,
the “killing vs letting die” objection fails.
● Special Family Obligations: Parents have special moral obligations to their children and
so the pregnant woman has special moral obligations to the fetus since the fetus is her
child.
○ There are two possible interpretations of the word “parent”. You could be
someone's parent in the biological sense or you could be someone's parent in
the social sense.
■ Biological sense
● Let’s say a mad scientist extracted sperm from Shimp and created
McFall with it without Shimp’s knowledge.
● In this case, would McFall have a right to use Shimp’s bone
marrow? Surely not.
● Hence, the biological sense of the word “parent” fails to establish
that the fetus has a right to use the pregnant woman's uterus.
■ Social Sense
● If McFall was Shimp’s adopted son, would it be permissible for the
state to compel Shimp to give up his bone marrow? Surely not.
● Furthermore, the social sense of parenthood is characterized by
special moral obligations such as in the case of adoption. So the
Pro-Life advocate can’t ground the pregnant women’s special
obligation to gestate the fetus by already assumping that the
pregnant women has special obligations to the fetus. Doing so
would be begging the question.
● Therefore, the “special family obligations” objection fails even on a
social understanding of parenthood.
● The Natural Purpose of Organs: The pregnant woman’s uterus is *for* gestating
embryos and fetuses, but Shimp’s bone marrow(or insert any organ here) isn’t *for*
keeping McFall alive.
○ Either a pregnant woman’s uterus is *for* gestating the fetuses that she herself
conceives or it’s *for* any fetus that needs to use her uterus.
○ First Interpretation: A pregnant woman's uterus is *for* gestating the fetuses that
she herself conceives
■ If a pregnant women’s uterus is *for* gestating the fetuses that she herself
conceives, then surrogate mother’s don’t have an obligation to gestate
and so it should be legal for surrogate mothers to get abortions.
■ So this option entails that abortion should be legal in all and only cases
involving surrogate mothers. But since(as nearly everyone would agree)
abortion should not be legal in all and only cases involving surrogate
mothers, the first interpretation is false.
○ Second interpretation: A pregnant woman’s uterus is *for* gestating any fetus
that needs to use her uterus.
■ If a pregnant woman’s uterus is *for* gestating any fetus that needs to use
her uterus, then consistently requires us to say that Shimp’s bone marrow
is for anyone who needs to use his bone marrow.
■ If that’s true, then McFall really *does* have a right to use Shimp’s bone
marrow after all.
■ But since McFall *doesn’t* have the right to use Shimp’s bone marrow,
the second interpretation also turns out to be false.
● Source used
○ All arguments present in this document come from the book “Beyond Roe” by
philosopher David Boonin.
○ Information present in this document come from the book “Beyond Roe” by
philosopher David Boonin