Professor Robert Lipkin, the Concert Violinist, and Abortion
--M. Joseph Young

When I was in law school, I had the distinct privilege and pleasure of serving as research assistant for Professor Robert Lipkin, and of proofreading his fascinating response to Dworkin's Law's Empire.  I also attended his class in Jurisprudence, and a number of other courses he taught, and count him among the most intelligent and stimulating individuals I have known in my lifetime.  I trust he won't take offense to the fact that I mention him here on the Internet only to disagree with him on one point which he made in class, and of which in all likelihood he realized the shortfalls long ago.  It was an illustration which occurred to him in class, which he shared with us as it came to him.

Your contribution via
PayPal Me
keeps this site and its author alive.
Thank you.

People will sometimes argue against abortion by citing individuals who achieved greatness who might have been aborted.  Professor Lipkin raised a reply to this argument.  What if you attended a symphony concert, and then the following morning when you awoke found yourself connected by a machine to the solo violinist from the concert that night?  Suppose the doctors present explained to you that you are the only chance for survival that this man has, and that he will have to be connected to you for nine months, or he will die.  Would you not find this a terrible impingement upon your rights?  Would you not feel that this imposition was too much to ask?  Would you not insist that you be disconnected from the violinist?

It is not adequate in response to suggest that I might be willing to dedicate nine months of my life to be life support for a great concert violinist.  One cannot truly know how one would react to such hypothetical situations.  But it is clear that the illustration is quite an imposition, and is unreasonable.  But if this is unreasonable, why is it not also unreasonable to require pregnant women to carry healthy unborn children to term if it will not endanger their own lives?

I will at the outset agree that the argument against abortion based on the potential of the unborn child to be great is not in my opinion the strongest argument.  I would oppose the unjustified killing of an unborn child even with the certainty that he would amount to little in the course of his life.  I know someone who suffers from a progressive chronic debilitating condition who has lived to forty years old without holding a job for a full year as far as I'm aware; he survives on government aid and help from relatives.  But he has many times been an encouragement to me and a joy to many others in our little community and beyond.  I would not have lived as rich a life had he been aborted; and I believe he would have been less likely to have chosen not to have been born than I.  It is not greatness which makes life worthwhile.  Life is worthwhile because it is life.  But that is not the point I would make.

More to the point, any of us who awoke connected to the violinist we heard in concert the previous night would be surprised.  It has, I am sure, never happened to anyone in the entire history of the human race, and no person would in any way expect or anticipate anything of the sort happening to him.  However, I am given to understand that females have been getting pregnant for longer than humans have been walking the earth; and for the most part they are fully aware of the type of conduct which results in pregnancy, and they know that if they engage in such conduct they are reasonably likely to become pregnant.  As Professor Lipkin might have said in our Torts class, the assumption of risk is a factor in this case.  Women know that if they engage in certain conduct, they run the risk of getting pregnant; and that if they do not engage in such conduct, they have little or no such risk.  A woman who refuses to engage in such conduct to avoid such consequence is regarded as prudent.  Conversely, the risk of waking up attached to a violinist the morning after a symphony concert is negligible, and if you said you were unwilling to attend a concert because you feared this as a possible consequence of attendance, you would very likely find yourself on the psychiatric floor of a state hospital the next morning.  However, if in the program or on the ticket or at the box office there was a statement that having a concert violinist attached to you was a possible consequence of attending the concert, this would be sufficient warning that we would not consider it an unexpected result of attendance; it would decrease the surprise factor significantly.  There would now be a clear assumption of risk attached to the attached violinist, just as there is to the pregnancy.  It is also likely that ticket sales at symphony concerts would drop precipitously.

I am sorry, Professor Lipkin.  The argument is unconvincing.  It is not reasonable to expect that probable consequences of our actions will not occur, nor that we will be relieved of the burden of those consequences which we knew were likely.  This idea flies in the face of our concepts of law and equity.

See also Was John Brown a Hero or a Villain?, and articles with the Abortion tag in the mark Joseph "young" web log.

Take a few minutes to check out Multiverser.

Return to M. Joseph Young's Law index
Return to the M. J. Young Net
Your chance to talk back