Feminist Philosophy Quarterly 

Volume 5 | Issue 3 Article 1 

 

 

Recommended Citation 
Pascoe, Jordan. 2019. “On Finding Yourself in a State of Nature: A Kantian Account of Abortion and Voluntary 

Motherhood.” Feminist Philosophy Quarterly 5 (3). Article 1. 

2019 

 

On Finding Yourself in a State of 

Nature: A Kantian Account of Abortion 

and Voluntary Motherhood 
 

Jordan Pascoe 

Manhattan College 

jordan.pascoe@manhattan.edu 



Pascoe – On Finding Yourself in a State of Nature 

 

Published by Scholarship@Western, 2019  1 

On Finding Yourself in a State of Nature: 
A Kantian Account of Abortion and Voluntary Motherhood 

Jordan Pascoe 
 
 
 

Abstract 
In this essay, I draw on Kant’s legal philosophy in order to defend the right to 

voluntary motherhood by way of abortion at any stage of pregnancy as an essential 
feature of women’s basic rights. By developing the distinction between innate and 
acquired right in Kant’s legal philosophy, I argue that the viability standard in US law 
(as established in Planned Parenthood v. Casey) misunderstands the nature of 
embodied right. Our body is the site of innate right; it is the means through which 
we can set and pursue ends in the world. The law, therefore, cannot adjudicate the 
relationship between the will and the body: it cannot require us to allow our bodies 
to be used against our will. By comparing unwanted pregnancy to sexual assault, I 
problematize the notion that consent to pregnancy, like consent to sex, can ever be 
conclusive. I examine Kant’s own account of unwanted pregnancy, in which he 
describes mother and child finding themselves “in a state of nature” in order to 
rethink the status of the fetus in law, and I argue that we should understand the 
fetus’s right to life as provisional, rather than as enforceable by law.  

 
 

Keywords: abortion, voluntary motherhood, feminist philosophy, Kant, Kantian 
philosophy, embodied right, innate right, viability, fetus, feticide, infanticide, 
epistemic authority, philosophy of law, doctrine of right 

 
 
 

Introduction: You May Find Yourself Chained to a Hospital Bed  
When Laura Pemberton opted to deliver her second baby at home after a 

hospital refused her a VBAC (vaginal birth after C-section), the sheriff came to her 
house. While she was in active labor, he put her in custody, strapping her legs 
together and driving her across town to the hospital, where a hearing on her right to 
refuse a C-section was hastily convened (Paltrow and Flavin 2013, 306–307). The 
judge ordered a C-section; later, when Pemberton sued the hospital, the judge 
denied her claim, arguing that “whatever the scope of Ms. Pemberton's personal 



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constitutional rights in this situation, they clearly did not outweigh the interests of 
the State of Florida in preserving the life of the unborn child.”1  

Pemberton’s story illustrates the ways in which the debate over abortion 
demands a broader reckoning about reproductive justice and women’s rights to 
their bodies. The legal framework of abortion in the United States, which organizes 
itself around viability, frames the right to an abortion as a “balancing test” between 
a woman’s right to privacy and the state’s interest in protecting the life of the fetus. 
Viability—or the point at which a fetus might survive outside its mother—operates 
as the tipping point beyond which a pregnant woman’s privacy and right to her own 
body may be supervened by the state in a variety of ways. The legal requirement 
that state interventions should not create an “undue burden” 2 for a woman are 
undermined not only by legal restrictions to abortion access but by the emergence 
of fetal protection laws in a majority of US states (National Conference of State 
Legislatures 2018). These laws often extend the reach of child abuse and homicide 
laws, defining the fetus as a “person” within the meaning of those statutes.3 But in 
many cases, the law may override a woman’s choices about her own body in a 
myriad of ways, whether, as in the case of Tamara Loertscher in Wisconsin, she is 
forcibly hospitalized because of a suspicion of drug use (Glenza 2014), or in the case 
of Samantha Burton in Florida, she is sentenced to court-ordered bed rest after a 
ruptured membrane (Cantor 2012). In these cases, the state may provide an 
attorney for a fetus, effectively requiring women to testify against the fetus inside 
them (Glenza 2014; Paltrow and Flavin 2013). Even as fetal protection laws often 
explicitly exempt the pregnant woman from prosecution for homicide, they frame 
pregnant women’s bodies as terrain into which the law can and must reach in order 
to protect fetal life, undermining women’s basic rights in significant ways.4 

 
1 Pemberton v. Tallahassee Memorial Regional Medical, 66 F. Supp. 2d 1247 (N.D. 
Fla. 1999). 
2 This legal standard was strengthened in the 2016 case Whole Woman’s Health v. 
Hellerstedt (579 U.S. ___ (2016)).  
3E.g., Code of Alabama 13a.6.1: “(3) PERSON. The term, when referring to the victim 
of a criminal homicide or assault, means a human being, including an unborn child in 
utero at any stage of development, regardless of viability.” See 
http://www.ncsl.org/research/health/fetal-homicide-state-laws.aspx. 
4 In Pemberton’s case, the judge agreed that her First, Fourth, and Fourteenth 
Amendment rights were at stake; he denied, however, her claim that the forced C-
section had violated her Eighth Amendment rights by way of “cruel and unusual 
punishment.” In 2009, the Eighth Circuit Court found that shackling a woman in 
labor did constitute a violation of Eighth amendment rights (Griggs 2011, 252; 
Nelson v. Correctional Medical Facilities, 583 F.3d 522 (8th Circuit 2009)). In a more 



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In this paper, I will defend the right to voluntary motherhood5 by way of an 
abortion at any stage of pregnancy as an essential feature of women’s basic rights. I 
argue that we need a better account of the embodied experience of pregnancy, as 
well as a more rigorous account of the relationship between our bodies and our 
exercise of rights. To do this, I propose subjecting pregnancy to the same scrutiny as 
other instances of embodied consent, such as the evolving legal frameworks around 
sexual consent. To think about pregnancy in these terms, however, we need to push 
back against an abortion discourse that demonizes and infantilizes pregnant women 
and to instead insist that pregnant women are rational, autonomous beings with 
epistemic authority over their own embodied experience. I will show that the tools 
we need to make these moves can be found in Kant’s legal philosophy, where he 
considers a story about unwanted pregnancy that offers insight into what a Kantian 
account of abortion might be. 

In drawing on Kant to make this argument, I am pushing back on 
interpretations of Kant’s legal philosophy as it pertains to abortion, which have 
either rigorously argued against abortion (Gensler 1986; Hare 1989) or offered an 
argument in line with the viability standard.6 I will argue that a Kantian account of 
bodily autonomy and embodied consent requires us to defend a right to abortion at 
any stage of pregnancy, and that this right must be particularly rigorously defended 
when women find themselves in unjust circumstances, such as lack of access to 
reproductive freedom, coercive sexual and marital relationships, poverty, or lack of 

 

recent case, Judge Brett Kavanaugh—now a Supreme Court justice—held that being 
forced to undergo an unwanted pregnancy or sent back to a hostile country in which 
abortions are illegal in order to obtain an abortion was not an “undue burden” on a 
17-year-old immigrant in detention (Garza v. Hargan, 874 F.3d 735 (D.C. Circuit 
2017)). These arguments point to a consistent denial of the ways that pregnancy and 
birth are often used as disciplinary tactics against women—as a form of cruel and 
unusual punishment.  
5 I build on Angela Davis’s (2003) use of this term. 
6 The viability model has been defended by contemporary Kantians, who largely 
accept the competing rights framework on which it is based. Lina Papadaki (2012, 
145) draws out the difficulties of prioritizing the rights of the woman and the fetus 
from a Kantian perspective. Helga Varden (2012, 44), who develops a Kantian 
defense of the legal right to an abortion, draws the line at viability, arguing that “the 
state can rightfully determine the time at which the embryo/fetus acquires some 
legal rights.” Varden argues that the state can set some point in pregnancy as the 
point at which the fetus is recognized as “a minimally acting human being” at that, 
beyond this point, legal restrictions on abortion are justified, provided that certain 
criteria of justice are met.  



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public support for family leave, childcare, and health care. In other words, in 
circumstances like ours, we have a particularly strict duty to protect the right to 
abortion. 

I develop this account of the right to abortion in four moves. First, I examine 
how pregnant women are positioned in moral and legal debates about abortion, and 
develop a Kantian account of bodily autonomy in order to ground pregnant women’s 
epistemic authority over the experience of pregnancy. Second, I show that this 
account of bodily autonomy is consistent with a Kantian account of embodied rights 
and embodied consent. Third, I explore Kant’s treatment of the infanticidal mother 
and draw out the parallels between this case and contemporary abortion rights in 
order to develop a distinctly Kantian framework of reproductive rights in non-ideal 
conditions. Finally, I explore the implications of this non-ideal approach for 
contemporary abortion discourse, arguing that debates about the legality of 
abortion should more broadly engage the barbaric conditions of reproductive 
injustice.  

 
I. Infanticide, Abortion, and Reason 

In a curious passage in The Doctrine of Right, Immanuel Kant suggests that an 
unmarried woman who finds herself pregnant might be permitted to kill her baby 
(Kant 1996, 6:335–337).7 The passage is part of Kant’s famous discussion of 
retributive punishment, where he argues that, for murderers, the death penalty is a 
categorical imperative: those who commit murder must die. But he then goes on to 
consider two instances of killing that might not warrant this ultimate punishment: 
the case of military officers killed in a duel, and the case of the unwed mother who 
commits infanticide (6:336). In both cases, Kant makes a striking claim: there is a 
sense in which these acts of killing take place outside the law, in a state of nature, 
and cannot therefore be called murder (6:336).  

Kant’s central concern in this strange passage is the limit of law. In imagining 
the dueling soldiers and infanticidal mother in a kind of pop-up state of nature, Kant 
admits that there are times when unjust social conditions place one, in a sense, 
beyond the justice dictated by law. The infanticidal mother, like the dueling soldiers, 
is caught between a barbaric social order and a rigid legal code. In this context, he’s 
not arguing that infanticide—or abortion, for that matter—is not awful. It is. But he 
recognizes that the full grappling with what’s at stake is simply not something the 
law can do. Only the woman can know the details of the predicament she finds 
herself in, and only she can make the terrible choice of how to proceed. Kant says 

 
7 Throughout this article, I refer to Kant’s works in the Prussian Academie 
pagination. All references to The Doctrine of Right refer to Mary Gregor’s translation 
in Kant: The Metaphysics of Morals (Cambridge: Cambridge University Press, 1996). 



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that in the case of the infanticidal mother, “penal justice finds itself very much in a 
quandary,” so that the law must be “either cruel or indulgent” (6:336). Kant’s point is 
not that the infanticidal mother’s action is not criminal but that her choice is forced 
on her by unjust circumstances: a pregnancy against her will in a social order that 
will punish and ostracize her and her baby. Seen in this way, infanticide is not a moral 
problem faced by the mother alone but a problem of systemic social injustice, 
exacerbated by a rigid legal code. This recasting of the infanticidal woman as a victim 
of social injustice is, as Jennifer Uleman (2000, 174) has pointed out, a surprisingly 
compassionate twist on an old tale of demonization. Kant takes the monstrous 
woman intent on killing her baby and asks us to consider her as a rational agent 
committing a monstrous act because of a lack of alternatives. In embedding this 
choice within an imaginary, pop-up state of nature, he asserts the moral authority of 
the woman in the context of an unjust social order, arguing that she, and not the 
penal code, must determine the fate, and status, of the unwanted child.  

This paper is not a defense of infanticide, and I will draw a strict distinction 
between the status of the fetus and the rights of the infant. Rather, I note how the 
eighteenth-century debate about infanticide mirrors our own obsession with 
abortion, and how Kant’s insistence on the rationality of the infanticidal mother’s 
choice is particularly noteworthy in the context of our contemporary debates over 
abortion, which frequently undermine pregnant women’s status as rational and 
moral agents. The trope of the irrational, evil, selfish woman, which animated 
eighteenth century discourse about infanticide, continues to shape twenty-first 
century abortion discourse; legal restrictions on abortion are often justified on the 
grounds that pregnant women’s presumed irrationality requires the intervention of 
the state. In 2007, for example, the Supreme Court upheld a ban on late-term 
abortions on the grounds that women often suffer from “abortion regret.”8 The 
court argued—without any evidence whatsoever—that pregnant women’s 
emotional states were so fragile that doctors hesitated to fully explain the abortion 
procedure to them. The court held that without this information, women could not 
make informed decisions about their medical choices. Instead of requiring doctors to 
give women the information required to decide for themselves, the court banned 
the procedure. In making this argument, the court articulates the ways in which we 
do not consider pregnant women to be reasonable persons, capable of 
autonomously making informed medical decisions. The law is justified in limiting 

 
8 “While we find no reliable data to measure the phenomenon, it seems 
unexceptionable to conclude some women come to regret their choice to abort the 
infant life they once created and sustained” (Gonzales v. Carhart, 550 U.S. 124 
(2007), at 159). 



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women’s choices, the argument goes, because pregnant women are incapable of 
making good, rational choices.9 

The discourse around late-term abortion, like the eighteenth-century debate 
about infanticide, tends to assume that women who seek out these options do so for 
purely selfish reasons. In her seminal “In Defense of Abortion,” Judith Jarvis 
Thomson (1971, 66) admits that it would be “indecent” for a woman to seek out an 
abortion in her seventh month of pregnancy merely to avoid postponing a trip 
abroad. When I have defended the right to late-term abortions, I am often offered 
objections that share this assumption: what about the woman in her third trimester 
who wants to smoke crack or commit suicide? What about the woman who plans to 
give up her child at birth, who has no concerns for its future well-being and who 
therefore drinks, smokes, and does cocaine throughout her third trimester? Or the 
woman who wants to have a third-trimester abortion so she can wear a form-fitting 
dress or compete in a reality show? The women in these examples are inconstant, 
irrational, indecent. They illustrate the ways in which, within abortion discourse, 
pregnant women—like the eighteenth-century infanticidal mother—are all 
potentially monstrous. Surely, the argument goes, there are no good reasons for 
carrying a pregnancy so far and then ending it. Surely there are no justifiable liberty 
claims that allow women to endanger the well-being of future children so far into 
pregnancy. Surely we need abortion restrictions just in case women are evil.  

While I will argue that the Kantian framework has resources to respond to 
these objections,10 I am concerned first with the damage done to the discourse 
around abortion that our insistence on foregrounding these imagined cases. In these 
objections, women—and not their circumstances—are irrational and evil. They are 
wantonly enjoying the “perks” of pregnancy and then aborting the fetus; they are 
abandoning their babies at birth and so abusing them in the womb; they are 
criminals, sluts, drug addicts, mentally ill, child abusers.11 In this discussion, these 
are the cases that we get stuck on.  

I want to argue against privileging this kind of objection and instead follow 
Kant’s example in his depiction of the infanticidal mother: let us assume that most 
women who seek abortions are responsible, rational agents choosing in morally 

 
9 For an analysis of how these arguments operate under the Trump administration, 
see Cauterucci (2018). 
10 See section II, where I argue that a Kantian account of law is concerned only with 
the form, and not with the end, of our choices. 
11 Take, for example, the rumored cases of “abortion-doping” when female 
Olympian runners would supposedly get pregnant and secure an abortion before an 
important race, so that the surge of hormones would enhance performance 
(Manninen 2014, 85). 



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complex circumstances. Let us assume that they are persons, with full lives, difficult 
choices, and competing priorities. Like Kant’s infanticidal mother, women who seek 
abortions generally do so in difficult, if not impossible, circumstances, and the full 
range of complexities confronting them as they make this decision are more complex 
than a balancing test can incorporate. The moral questions in any given case of 
abortion are rarely actually about whether or not the fetus is understood to be a 
person or about whether the woman therefore has obligations to that fetus. To 
frame the issue in this way is to relegate the woman and her fetus to a false moral 
bubble in order to make moral equivalence easier. In reality, the majority of women 
(59 percent) in the US who seek abortions already have children, and nearly half of 
those who do live in conditions of poverty (Guttmacher Institute 2016). Abortion is 
rarely a purely moral problem and is almost always embedded in a matrix of 
systemic social injustices, which force women to make the best possible choice in 
impossible circumstances.  

While many moral defenses of abortion recognize these complexities, they 
tend to create their own balancing act between the rights of the pregnant woman 
and the duty to recognize the humanity of the fetus. Kantian moral defenses of 
abortion defend the pregnant woman’s right to bodily autonomy and to be treated 
as an end in herself rather than a means to support the fetus, while at the same time 
holding that the fetus deserves respect as nascent form of human life (Denis 2007; 
Feldman 1998; Manninen 2014; Papadaki 2012; Wood 1998). In these formulations, 
many cases of abortion will be morally permissible, provided that the woman has 
the right sorts of reasons for seeking an abortion and that she does so while 
respecting the value of the fetus’s life.12 These accounts emphasize pregnant 
women’s autonomy and capacity for making moral decisions in complex 
circumstances, and map an account of abortions that are morally permissible, and 
sometimes morally required, given women’s embodied experience and moral duties 
to themselves.13 But they also tend to follow Thomson in introducing distinctions 

 
12 Manninen (2014, 85) puts it as follows: “If a woman does choose to abort, it is a 
decision that should be reached with care, judiciousness, and ideally in situations 
where the woman has other moral obligations that parenthood would render it 
difficult or impossible to fulfill (for example, if having another child would 
compromise one’s capacity to care for existing children, or to continue in one’s 

educational endeavors).” ⁠  
13 Susan Feldman (1998) argues that if we take women—and by, extension, 
pregnancy—to be the normal, rather than the exceptional case, then it will often be 
the case that women’s duties to themselves outweigh their duties of beneficence to 
the fetus. I agree with Feldman’s moral defense of abortion but will develop here a 
legal, rather than a moral, defense. 



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between those abortions that are permissible and those that are “indecent.” While 
these are explicitly moral arguments, their assumption that some abortions are 
morally indecent is potential fodder for an abortion discourse eager to cast women 
as indecent, selfish, and immoral. They also tend to accept some variation of the 
viability standard, holding that at some point, the fetus deserves moral respect or 
legal protection, and that beyond this point, the state is justified in restricting access 
to abortion, regardless of the incursions on women’s embodied rights this may 
involve. 

In this paper, I will take a different approach, following Kant’s legal reasoning 
more closely than his moral arguments. That is to say, my concern here is not to 
defend a moral account of abortion but to emphasize the ways in which abortion 
law ought to respect the moral dilemmas of pregnancy and the moral and epistemic 
authority of pregnant women in that domain. In making this distinction between 
moral and legal questions, I will follow Kant in delineating a clear distinction 
between external freedom, which is the domain of law, and internal freedom, which 
is the terrain of morality. Kant is explicit that the law cannot interrogate reasons but 
must satisfy itself with an analysis of our external actions, particularly as they impact 
others (6:239–241). I will argue that in taking the fetus to be amongst the “others” 
who can be affected by my action, US law has misconstrued the nature of external 
freedom in a way that is deeply invasive and distinctly gendered. By clarifying the 
relationship between the body and the possibility of external freedom, and drawing 
on both Kant’s account of embodied consent and his story about the infanticidal 
mother and the “pop-up” state of nature, I will emphasize that respect for women’s 
autonomy requires that the reasons one seeks an abortion need not be intelligible 
from the perspective of law. 

 
II. The Limits of Embodied Consent 

The right to an abortion, in the US, is grounded on the right to privacy, which 
is then balanced, under the viability standard, with the state’s interest in protecting 
the fetus.14 I will argue that this framing misunderstands the nature of our 
relationship to our body and argue that there are other areas of law, like current 
modifications in sexual assault law, that are beginning to get a better grasp on how 
we should think about our relationship to our bodies, and our bodies’ relationship to 
our rights. In making these arguments, I will draw on Kant’s account of the 
relationship between our basic rights and the necessity of law. In this section, I offer 
a general account of embodied rights in Kant and show how they should apply to 

 
14 Planned Parenthood v. Casey, 505 U.S. 833 (1992). 



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pregnancy and abortion; in the next section, I take up a Kantian argument that 
applies to abortion and the status of the fetus in law.15 

Kant’s account of the purpose and scope of law rests on the distinction 
between innate right and private right—a distinction that, I will argue, is collapsed in 
the way in which current US law understands privacy. Innate right refers to the 
natural right to freedom we are born with (6:237–238); private right, on the other 
hand, refers to the acquired rights through which we are able to extend our capacity 
for action in the world (6:246). We can acquire property, rights against other persons 
(contract), and rights to other persons (as in marriage); the state is necessary to 
assure those possessive rights. In a state of nature, we find ourselves competing with 
others for rights and resources; we therefore have a duty to enter a rightful state in 
order to both assure our possessive rights and to subject them to principles of 
distributive justice that ensure that we will each have what we need to be able to 
enact our external freedom (6:237; Varden 2010). To be a rights-bearing entity, in the 
Kantian sense, is to be a being whose external freedom is reciprocally defined 
against the external freedom of others and coercively defended by law (6:231). 

But the law has a different relation to innate right than it does to private 
rights. If possessive rights are the reason we need the state, innate right is the 
reason we have standing in the state. Our body is the site of innate right in the same 
way that the world is the site of private right, but the ways in which we extend our 
external freedom out into the world are structurally different from the way innate 
right relies on embodiment to make external freedom possible. Thus, to say that 
agents must be embodied in order to enact rights is not to say that agents have 
rights over their bodies, as if their bodies were some kind of property they owned. 
To say that our bodies are our property in this way would suggest that our bodies 
could be sold, or leased, the way that other property can be. For Kant, to give 
someone else rights to my body is to give them rights to my self, since my person 
and my body cannot be separated (6:270). As we will see, this is why there can be no 
right to slavery (6:359), for example, or prostitution, since I cannot sell my body 
without selling myself (6:279).  

My right to my body is an innate right, rather than a possessive right, and this 
produces a different set of rules governing our embodied rights. And so it is 
unintelligible, from a Kantian perspective, to say that a pregnant woman houses a 

 
15 I am also offering this analysis of Kant as an intervention in reproductive justice 
frameworks, which have critiqued the privacy framework for reproductive rights in 
favor of a human rights framework; as my argument will show, if we take human 
rights frameworks to inherit the Kantian distinction between innate and possessive 
right, they may be more useful in grounding reproductive justice. For an overview of 
the reproductive justice framework, see Ross (2006, 2017). 



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fetus, in the sense that she has leased out some part of herself, or even that she 
hosts the fetus inside her: her body is simply not a thing to be disposed of in this way 
(6:270). Her body is the means through which she can act in the world, and 
therefore, part of what it means to say that she is a rights-bearing entity is that she 
has an absolute right to her body as an extension of her will. Or, to put it differently, 
the law can have no jurisdiction to adjudicate the relationship between a woman 
and her body, since that relation is the foundation of her status as a rights-bearing 
agent. 

It is easy to see, however, why we make this category mistake with regards to 
pregnancy. The problem of private right arises in a state of nature only when there is 
more than one person competing over those rights (6:237; Varden 2008, 15). As long 
as a state of nature is inhabited by only one person, there is no need for justice, 
since we have no need for adjudicating rights in such a condition: we need law only 
when we are assessing competing and conflicting claims. Because our legal 
framework conceives pregnancy as such an instance of competing and conflicting 
claims, it assumes that those rights must be adjudicated, as in private right. But this 
misunderstands the kinds of rights involved: the right a woman has over her body is 
not a property right, a right over something to which someone can have a competing 
claim. It is an innate right: the right to herself. The very idea that women’s interests 
should be “balanced” with the state’s interest in protecting the life of the fetus 
fosters this category confusion, which denies women the domain of innate right. 
(And of course, this is easy to do, since we are used to thinking of women’s bodies as 
not entirely their own, given the legacies of couverture, patriarchal marriage, and 
women’s legal passivity.) In doing so, it denies her the innate right to external 
freedom, or the right to enact her will through her body. 

Innate right has two features: equality, which means that I cannot be bound 
to another in ways that they cannot be bound to me, and the right to be my own 
master, which is the right to choose actions guided by my own will (6:237–238). Both 
of these requirements hinge on the unity of the will and the body, on the necessity 
of understanding the body as the mechanism of the will. This unity has important 
implications for the limits of consent. The Kantian model of consent is complicated in 
instances of consent to make use of one’s body. Consent consists in granting 
someone else a right against me: if I consent to sell you my car, then you have a right 
against me, not a right to my car (6:275). If the deal goes south, then you may be 
able to sue me for breach of contract, but you wouldn’t automatically have a right to 
the car. Only property right gives you a right to the car; contract merely gives you the 
right to expect me to fulfill my word. Likewise, when I agree to paint a house for 
someone, or to give them a massage, what I grant them is not a right to my body, as 
a kind of property, but a right against me as a person. The right they acquire is a right 
to my labor, which unites my will and my body to fulfill the terms of the contract. If I 



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were to agree to become someone’s slave, what I would grant them is a direct right 
to make use of my body as their will dictates. In doing so, I would mistake my right to 
my body for a property right which could be transferred to another person, and I 
would unilaterally bind myself to their will, making myself a mere object at their 
disposal. Such a promise, Kant tells us, is incoherent and impossible: it conflicts with 
innate right and conflates innate right with acquired right (6:359).  

The nature of embodied rights is perhaps clearest, however, in Kant’s account 
of sex, which seems to entail giving someone a right to my body rather than merely a 
right against my will (6:278). Because sex is an embodied right in this way, Kant 
argues that no sexual contract can be conclusive. If a prostitute sells her body for 
money, this can’t give her client a right to use her body against her will: if she 
changes her mind, he has no rights to her body, since she can’t give rights to her 
body to someone else in this way. The law can’t enforce this contract; it can’t 
adjudicate one person’s right to make use of someone else’s body against their will, 
since no such right exists (6:279).16  

Kant solves the sex problem by saying that we can only rightfully have sex in 
marriage, whereby we surrender ourselves wholly to each other, and we take each 
other’s ends as our own, so that we get to make use of each other’s bodies in the 
bargain (6:278). Contemporary Kantians have argued that this outlaws marital rape: 
if we have to take one another’s ends as our own, we can’t force ourselves on each 
other against the other’s will (Varden 2006, 205). And the will is, of course, subject 
to change. So I may have said yes to sex twenty minutes ago, when we got started, 
and I may now prefer to sleep. And so, as my ends change, even if we’re already 
having sex, you are required to respect those ends and take them as your own.  

If this sounds familiar, it’s because this is indeed the reasoning that now 
informs much sexual assault law, from the “no means no” variety, that assumes I can 
rescind consent at any point in an encounter, to the affirmative consent variety, 
which means that I must actively consent throughout a sexual encounter. Our 
increasingly rigorous attention to the provisional nature of sexual consent rests on 
an understanding of embodied rights that are strikingly similar to Kant’s 
understanding of the relationship between the body and the will: you cannot have a 
right to my body that conflicts with my will.17 Embodied consent is thus never 
conclusive: you can have a right to my body until I say otherwise. This means that 
the law’s relationship to these acts of consent are very different from its relationship 

 
16 Lori Watson’s (2014) examination of the contradictions that arise if we treat sex 
work as work produces similar insights.  
17 I think that this lays the groundwork for a Kantian account of sexual consent that 
goes beyond the affirmative consent model and towards what Michelle Anderson 
(2005, 1401) calls the “negotiation model.”  



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to other kinds of agreements, such as those that organize possessive rights. In 
agreements concerning possessive rights, the law can take my consent to be 
conclusive and can hold me accountable in various ways for going back on my word; 
it can ensure that, if I rescind my consent, no one’s rights are violated. But it can play 
no such role when the consent in question deals with innate right, since innate right 
is not dictated by the law in this way. If I agree to sell you my car, and you pay me, 
and then I refuse to hand it over, the law can decide that the car—or the money—
rightfully belongs to you. But if I agree to have sex with you and then change my 
mind, the law can’t decide that you have a right to my body because the law doesn’t 
have jurisdiction over my body in this way (6:278). My body isn’t the law’s to 
distribute. The right to my body can be dictated only by my will and never by the 
law; the law must instead assume and protect the unity of my body and will as the 
basis of my external freedom.18  

But one of the curious features of affirmative, provisional consent is that we 
seem to assume that it holds for sexual use of my body but not for the repercussions 
of sex–namely, not for pregnancy. In other words, the law assumes that I can still say 
no at any point during sex, but that at some point during pregnancy, I lose the right 
to refuse to allow my body to be used against my will.19 Under the viability standard, 

 
18 Built into this framework for embodied right is a powerful argument against the 
assumption that men, or the state, can be entitled to a woman’s body. For example, 
this account of embodied right is a useful counterargument to recent moves to 
argue that sex—and women’s bodies—can be redistributed by the state. See 
Douthat (2018) and Bowles (2018). 
19 The Court was quite explicit about this in Planned Parenthood v. Casey (505 U.S. 
833 (1992), at 870), where they argued that “in some broad sense it might be said 
that a woman who fails to act before viability has consented to the State’s 
intervention on behalf of the developing child.” The idea that the right to consent 
ends when sex ends shows up frequently in abortion debates, perhaps most 
famously in Joel Feinberg’s (2002) framework for determining when women are 
responsible for their pregnancies. There, the assumption is that any act of sexual 
intercourse, even with proper use of effective contraception, operates as consent to 
carry a child to term. Even more troublingly, Feinberg argues (779) that if the male 
partner fails to use contraception properly, the woman is on the hook for his 
contraceptive failure: even without knowing he was careless about birth control, she 
has consented to bear his child by having sex with him. But the kind of passive 
consent described in Casey and in Feinberg’s framework is very much at odds with 
the critique of passive consent emerging in affirmative consent law and in public 
discourse in the wake of the recent Stanford swimmer rape case. 



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the provisional consent I grant during sex is transformed into conclusive consent to 
have my body made use of during pregnancy.  

Given Kant’s understanding of the relationship between the body and the 
will, however, no such conclusive consent is possible—at any point in pregnancy. My 
consent to make use of my body is always provisional. It can be rescinded, like 
consent during sex, at any point. This means that pregnancy, like sex, operates as an 
extended domain of choice. In sexual assault law, this means that sex requires a kind 
of heightened scrutiny in order to ensure that consent is occurring. But in sexual 
assault law, that domain of heightened protection need last, at most, only a few 
hours. In the case of pregnancy, that heightened domain of choice lasts for 
months.20  

Because embodied consent can never be conclusive, the right to abortion 
cannot hinge on an analysis of how one becomes pregnant. The comparison to 
sexual consent helps to illustrate this in some classic arguments about the 
permissibility of abortion. In constructing her famous violinist example, Judith Jarvis 
Thomson (1971, 48–50) builds a case for the right to an abortion in cases where a 
woman finds herself pregnant through no fault of her own: imagine, she says, that 
you wake up one morning and find that the Society of Music Lovers have kidnapped 
you and connected you as a life support system for a famous violinist; he requires 
your support for 9 months, during which time, to unplug him would be to kill him. 
The example is meant to generate the insight that the violinist’s right to life cannot 
obligate you to remain on bed rest to keep him alive, though doing so may make one 
a “good samaritan” (62). But in organizing itself around a kidnapping, it operates as 
an analogy to cases of pregnancy by rape. Thomson goes on to say that there are 
numerous ways I can find myself pregnant against my will; I may take precautions, 
analogous to putting bars on the windows to deter burglars and may yet still find 
myself pregnant (59). If I have not consented to be pregnant, Thomson asks, or if I 
have consented to a pregnancy but not to one that will endanger my life or health, 
then do I have the right to an abortion? The question is not then whether any 

 
20 One objection to this argument is that the sexual consent and pregnancy cases are 
not analogous, since the sexual consent case concerns a specific other person 
claiming rights to my body, whereas the fetus cannot be conceived as an “assailant” 
in this way. This, we should note, is inconsistent with recent moves to give the fetus 
standing in law: if the fetus is to be construed as a “person,” subject to the 
protections of law, then it should be subject to the limits placed on persons’ rights 
to one another, as well. But the standing of the fetus is irrelevant here: whether or 
not we accept the idea that the fetus can have direct standing in law, the state, 
acting on behalf of the fetus, places itself in the position analogous to the assailant, 
claiming a right to the pregnant woman’s body against her will.  



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woman might have the right to an abortion but whether one has the right to say no 
to something one did not give informed consent to. We may apply this question of 
consent to sexual assault cases. Thomson’s article tracks cases where I have woken 
up to someone penetrating me—in which case I am being raped and clearly have the 
right to say no—and cases like Emma Sulkowicz’s (2014), who consented to vaginal 
intercourse only to find herself pinned to a bed, having anal intercourse while she 
protested. Thomson’s cases thus treat consent as conclusive, assuming that the 
relevant question is whether a woman can be said to have consented to her 
pregnancy in the first place, not whether she has the ongoing right to protect her 
body from being used against her will. 

In another seminal paper on abortion, Joel Feinberg (2002, 779) ties the right 
to abortion to this question of culpability in pregnancy. Feinberg imagines a 
spectrum, ranging from cases where a woman becomes pregnant through rape and 
is not culpable for the pregnancy, to cases where she sought out the pregnancy and 
is therefore responsible. In between, Feinberg (780) distinguishes between cases 
where properly used contraception fails (in which case the woman is not responsible 
for the pregnancy) and cases where contraception has been improperly used (in 
which case she is—even if the fault is her partner’s). In framing the question in this 
way, he ties the right to abortion to some conception of consent but assumes both 
that negligence constitutes consent and that consent to pregnancy is conclusive. In 
the sexual consent analogy, Feinberg’s argument amounts to saying that falling 
asleep at a party constitutes consent to sex, and that having consented to sex in this 
way, one no longer has the right to say no.21 

I think there are several further insights generated by this comparison 
between sexual consent and consent to pregnancy. One is that we have come to 
understand sex without consent, or past the point where consent has been 
rescinded, as a grave violation. We should understand pregnancy without, or 
beyond, consent as a similar kind of visceral violation, one that subjects women to a 
deep sense of invasion, physical and psychological hardship, and extreme pain and 
trauma, to say nothing of the deep moral burden of bearing a child one does not 
wish to raise. And we should, likewise, reframe the experience of labor against one’s 
will as one of the most extreme forms of torture a person can be subjected to.  

A second insight is that, just as I need not give reasons to say “no” to sex—
even if it is already underway—my right to say “no” to pregnancy cannot hinge on an 

 
21 Susan Feldman (1998, 271) argues that we cannot treat consent to sex as consent 
to pregnancy, any more than we can treat smoking as consent to cancer: because C 
is a possible consequence of A, it does not follow that when I consent to A, I consent 
to C. I think Feldman is right in this objection, but in making it, she assumes that 
consent to pregnancy is conclusive. 



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evaluation of my reasons for doing so. This does not mean, morally speaking, that I 
might not have better or worse reasons for terminating a sexual encounter or a 
pregnancy, but it does mean that these reasons are beyond the law’s jurisdiction.22 
This does not preclude the possibility of something like Thomson’s (1971, 62) “good 
samaritan” argument. I may, sometimes, continue to have sex with my partner 
beyond the point when doing so serves my ends, if I have taken his ends as my own. 
Sometimes, we may have, or continue, sex for reasons of duty or compassion; this 
willingness to offer ourselves out of moral feeling when doing so requires little 
enough sacrifice is something like Thomson’s good samaritan argument. We may 
find we have a duty to our partner to have sex we do not want for our own reasons; 
we may feel that we can carry a pregnancy to term at no great costs to ourselves. 
But the calculation of those costs in cases of embodied consent belong entirely to 
the person who inhabits the body in question, who is the only person in the position 
to determine the relationship between the body and the will, and to decide when 
the former is being used against the latter in a manner that constitutes a violation or 
triggers a duty to resist being used in this way. Or, to put it differently, in respecting 
my right to my body as a species of innate right, rather than private right, the law 
must grant me epistemic authority over my body, recognizing that I am in a unique 
epistemic position to determine when my body is being used against my will in a 
manner that constitutes a violation or triggers a duty to resist being used in this 
way.23  

Thus, when the law seeks to offer protection to the fetus through feticide 
law, as has increasingly been the case in US law, it violates this distinction between 
innate and private right. In holding that viability marks the point at which women 
conclusively consent to pregnancy, the law creates a condition in which a woman’s 
body can be used against her will, which undermines her innate right to the unity of 
her body and her will: it undermines her right to her person.24 In doing so, it 
misunderstands the law’s relationship to our choices: the law should concern itself 
not with evaluating the end one chooses but with the form of the choice (Kant 1996, 
6:230). So, I may want to buy something from you in order to make a profit. The law 
can protect my right to make the transaction, but it cannot protect my desired end: 

 
22 Like Susan Feldman (1998), I think the protection of the right to make this choice 
is preferable to a consequentialist defense of abortion, which may open the door to 
arguments for outlawing abortion for consequentialist reasons. 
23 Cf. Carol Hay (2013), whose argument does not examine pregnancy but whose 
framework extends to many forms of embodied and reproductive oppression. 
24 It is critical to note that the law, rather than the fetus, violates the woman’s 
innate right in these cases.  



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it can’t protect my right to make a profit (6:230).25 Much as the law can protect my 
right to consent to sex, but not—contrary to the wishes of the incel community—the 
right to have sex, the law can protect the form of the pregnant woman’s choice: she 
may continue her pregnancy or not. But it cannot protect the end of that choice, 
whatever it may be. A healthy baby is an end of pregnancy, but she may miscarry 
late in her pregnancy or have complications during birth. The state can have a duty 
to support fetal health, through prenatal care and labor protections for pregnant 
women, but when it does so, it places value on the woman’s innate right, which 
includes a right to choose pregnancy, rather than on its interests in protecting life.26 

In protecting the form, rather than the end, of a woman’s reproductive 
choices, the state must recognize pregnancy, like sex, as a domain of ongoing 
embodied choice. The distinction is illustrated by the legislative response to a 
feticide case in Colorado in 2015, when Michelle Wilkins, who was 7 months 
pregnant, responded to an ad on Craigslist for baby clothes and went to the home of 
Dynel Lane, where Lane attacked Wilkins and cut out her unborn fetus (Healy 
2015).27 Lane was charged under Colorado’s Violence Against Pregnant Women Act 
and faced up to 120 years in prison for unlawful termination of a pregnancy; the 
state legislature, frustrated that she could not be charged with murder, proposed a 
fetal personhood law that was rejected by voters. The VAPW law, which explicitly 
offers heightened physical protection to pregnant women, identifies the woman, 
rather than the fetus, as the victim of violent crime, emphasizing that the protection 
offered by the law should not be interpreted as granting any legal status to the fetus, 

 
25 Kant argues that external freedom is concerned with the matter of choice and not 
with a mere wish (6:230). I think we badly misunderstand the nature of pregnancy if 
we frame the fetus as a mere wish: as long as she is gestating the fetus, the woman 
is actively pregnant, actively supporting the development of the fetus, and thus 
actively engaged in the question of consent to have her body used in this way. 
26 Understanding pregnancy and labor in terms of the form of a woman’s choice, 
rather than its end, also provides a better legal grounding for protecting women 
through the process of birth, both by prioritizing women’s right to choose their birth 
plan and by protecting women from obstetric assault.  
27 Leaving Wilkins bleeding on the floor, Lane took the fetus to an emergency room, 
claimed it as her own, and told her husband she had had a miscarriage. Wilkins 
managed to call 911 and survived the attack; Lane was charged with attempted first-
degree murder and, under Colorado’s Violence Against Pregnant Women Act, with 
first-degree unlawful termination of a pregnancy and faces up to 120 years in prison. 
The VAPW, passed in 2013, distinguishes between harm caused to a pregnant 
woman by a third party, and cases of abortion, and explicitly denies that the fetus 
has any standing under the law. The fetal personhood bill was defeated in 2014. 



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and it explicitly protects women from being charged with harmful behavior with 
regards to their own pregnancy (Tuerkheimer, 2015). In emphasizing that an attack 
on pregnancy is both an attack on the woman and on her commitment to her unborn 
child—rather than an attack on the unborn child itself—the VAPW successfully 
protects the form of women’s reproductive freedom, while the defeated fetal 
personhood law would seek to protect the end of that choice. Other feticide laws, 
like the one under which Purvi Patel was charged with manslaughter for seeking an 
abortion and later miscarrying, directly protect the fetus, or the end of pregnancy 
(Bazelon 2015).28 Both Patel and Wilkins lost their pregnancies, but in doing so, they 
were not equally wronged. In seeking out an abortion, Patel enacted her right to her 
own body; in having her body and pregnancy attacked, Wilkins’s right to her own 
body and to her pregnancy as a domain of choice were violated. A law that 
designates these cases as equal legal wrongs misunderstands the nature of one’s 
right to one’s own body, and mistakes the law’s duty to protect our right to set and 
pursue ends with a duty to protect those ends. Thus, the state is required to provide 
access to prenatal care and labor protections throughout pregnancy and the right to 
access a safe, legal abortion at any point in pregnancy.29  

 
III. Pregnancy and the State of Nature 

I have defended the right to an abortion at any point in pregnancy as a 
necessary feature of innate right. But in doing so, I have said little about the standing 
of the fetus. To consider this, let us return to Kant’s infanticidal mother and the state 
of nature in which she apparently finds herself when contemplating her unwanted 
child. Kant offers this story as a complication to his theory of retributive punishment, 
wondering whether the law can duly punish the infanticidal mother or the dueling 
military officer, since their crimes are, in his terms, inspired by a desire to protect 
their own honor. 

 
28 In July 2014, Patel went to an emergency room in South Bend, Indiana, where she 
said she had had a miscarriage; not knowing what to do with the fetus, she said she 
had wrapped it in a bag and put it in a dumpster. The doctor at the emergency room 
thought that her pregnancy had been quite far along and called the police to report 
Patel for child abuse; he later joined the police in the search for the fetus in a nearby 
dumpster. When texts were later discovered in which Patel told a friend she was 
ordering abortion-inducing medication online from China, she was charged with 
illegally terminating her pregnancy (Bazelon 2015). 
29 As Helga Varden (2012) has argued, ensuring that women can in fact make this 
choice will require not only that abortions be readily accessible but that they be 
affordable: to protect external freedom, the state may be required to subsidize 
abortions just as it is required to subsidize other health care for pregnant women. 



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In describing the dueling soldier and infanticidal mother as finding 
themselves “in a state of nature” (6:336), Kant likens their cases to what he calls “the 
right of necessity,” or the right to protect one’s right to life even if doing so involves 
violence against another who has done no harm (6:235). Kant argues (6:236) that 
“necessity has no law” because the law can impose no punishment greater than the 
threat to one’s own life.30 The threat faced by the dueling soldier and infanticidal 
mother must, Kant suggests, be taken in the same spirit: these are threats to honor 
so severe that they constitute a threat to one’s life chances, so that killing in these 
cases constitutes a kind of self-defense. In making this claim, Kant recognizes that 
most women who become pregnant with an illegitimate child do so against their will 
and have few choices available to them in a social order that has no place for an 
illegitimate child or a “fallen” woman (Pascoe, 2011). Bearing an illegitimate child 
leaves her no place in the social order and thus few means to provide for her own 
survival or that of her child. In these conditions, the threat to her honor constitutes a 
subjective limit on external freedom: the challenges facing the unwed mother are so 
severe as to permanently undermine her capacity to set and pursue ends in the 
world.  

This threat is so severe, on Kant’s account, that it invokes the right of 
necessity, placing the woman and her child in a state of nature, a condition in which 
their respective rights to life become merely provisional. Because her life chances 
are so threatened by this unwanted child, she will risk punishment to save herself 
from the conditions of poverty and abjection she would face as the mother of an 
illegitimate child. In this sense, Kant’s infanticidal mother finds herself in a 
predicament akin to that faced by women who seek dangerous, illegal abortions 
rather than bearing a child they do not want and cannot support (Stephens-
Davidowitz 2016). Illegal abortion, like infanticide, tracks cases where coercive law 
cannot protect women from the threat to their life chances posed by an unwanted 
child. These actions, like self-defense on a sinking ship (6:235), arise because the 
threat to her life-chances is such that her own rights become provisional: she has 
found herself in a state of nature, which opens in the schism between coercive law 
and unjust social conditions. In this framing, it matters not whether the fetus is a 
person nor whether the fetus is an “innocent” person: the right of necessity grants 
that, in a state of nature, we are justified in defending ourselves even against 
innocent others. By refusing to protect women’s innate rights to their own bodies, 
the law treats those rights as merely provisional, and by placing those rights in 

 
30 He says, “A penal law of this sort could not have the effect intended, since a 
threat of an ill that is still uncertain (death by judicial verdict) cannot outweigh the 
fear of an ill that is certain (drowning)” (6:235). 



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competition with those of the fetus, the state forces women into a state of nature, 
an unjust condition in which self-defense is necessary to protect one’s rights. 

But this is not the only way to understand the work that the state of nature is 
doing in Kant’s argument. It also operates to explain the status of the fetus in law. 
Kant is clear that the illegitimate child has no automatic standing in the state: the 
mother would have to “smuggle” it in, as “contraband”: to be born illegitimate is not 
merely to be born outside of marriage but outside the legal framework through 
which rights and recognition are granted (6:337; Pascoe 2011). The child is, in this 
sense, born outside the law, in a state of nature.31 In such a condition, the child has 
only provisional rights, which are not subject to legal enforcement or protection.  

This is not, as I have said, a defense of infanticide; Kant’s distinction between 
the legal standing of legitimate and illegitimate children must be rejected. But the 
framework of provisional rights offered here provides a critical intervention to 
contemporary debate about the legal standing of the fetus. The state exists, on a 
Kantian account, to reciprocally enforce external freedom, grounded in innate right, 
protecting our respective capacities to set and pursue ends in the world (6:231). But 
the very idea of a fetus possessing external freedom is unintelligible on a Kantian 
account, since a fetus cannot set or pursue ends in the external world;32 it exists not 

 
31 Kant’s emphasis on the distinction between legitimate and illegitimate children 
highlights the law’s role in determining through what means new members of a 
community are formally recognized by the law. Since Roe v. Wade (410 U.S. 113 
(1973)), birth has done this work in US Law. This is borne out by the concrete 
practices of granting legal recognition to infants when they are born: the date of 
birth is assigned to mark the identity of this new person, and it is at this point that 
one becomes eligible for the various benefits and protections of the law—it is at this 
point that one is granted a social security number, for example, with the potential 
benefits that go along with it. Despite the proliferation of feticide laws, there is no 
reasonable legal mechanism for formally recognizing a fetus as a rights-bearing 
person under law. The fetus’s status as a legal entity is liminal in a manner similar to 
Kant’s illegitimate child. 
32 A possible objection to my argument here is that Kant already establishes that 
children cannot independently set and pursue ends in the world, and thus argues 
that parents must act on behalf of children through parental rights (6:280–282). 
Parents must protect their children’s future external freedom by caring for and 
educating them and taking their children’s (future) ends as their own. One could 
argue that this relation already categorizes the relation between the pregnant 
woman and fetus, such that the woman must take their fetus’s future ends as their 
own, and scholars who take this position generally cite Kant’s comment that “there 
follows from procreation a duty to preserve and care for its offspring” (6:280). In this 



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in the world but in a woman’s body. Viability claims tend to obscure this distinction, 
confusing the claim that a fetus could be viable outside the mother’s womb with the 
notion that a fetus has rights as if it were outside the woman’s womb, which it is 
not. The fetus is by definition inside the woman’s womb; the unintelligibility of 
external freedom for a fetus places it outside the scope of the law.  

Thus, the fetus exists, as it were, in a state of nature. This is not to designate 
a pregnant woman’s body a wild space but to underscore the degree to which the 
unity of the will and the body is prior to law, not subject to the adjudication of law. In 
this sense, the body is a state of nature. But we rarely have to think of it this way, 
precisely because the problems of a state of nature arise only when competitions of 
rights arise: as long as only one person inhabits a state of nature, we need no 
conception of rights, since that person could lay claim to all things. Because the 
fetus’s survival hinges on a claim to the woman’s body, it asserts possessive rights to 
that body, as if in a state of nature. But like all claims to rights in a state of nature, 
these rights can only be provisional.  

So, I think we can say that the fetus has a right to life, so long as we recognize 
this as a provisional claim made within a state of nature. The status of this right can 
be determined only by the woman, who has the sole epistemic authority to 
determine the standing of that right within her own body. It is up to her to decide if 
she has a duty to herself not to bring this child into the world, in order to retain her 
self-respect and agency in the world, and to protect her life chances. Or she may find 
that she has a duty to protect and provide for the child, regardless of its impact on 
her life. She may recognize the fetus as a beloved descendent whose ends she takes 
as her own. To say that this is her choice is to say that the provisional rights of the 
fetus are subject to the epistemic authority of the pregnant woman.  

 

case, the fetus’s future external freedom could be weighed against the mother’s 
embodied rights. But a passage just below this warns against this: Kant says that 
parents “cannot destroy their child as if he were something they had made (since a 
being endowed with freedom cannot be a product of this kind) or as if they were his 
property, nor can they even just abandon him to chance, since they have brought 
not merely a worldly being but a citizen of the world into a condition which cannot 
now be indifferent to them” (6:281). This double emphasis on the child as worldly 
being and citizen of the world suggests that Kant’s understanding of children’s rights 
must be tied to birth and to recognizable, embodied existence in the world. This 
reading, moreover, is consistent with the emphasis on external freedom throughout 
the passage on parental right: parents have a special duty to protect the external 
freedom of their children, because that external freedom is incomplete—not 
nonexistent, like that of the fetus. 



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To see what I mean, let us return to the feticide cases of Purvi Patel and 
Michelle Wilkins. Even if Patel and Wilkins were at exactly the same stage of 
pregnancy33, their respective losses would be very different. The fetus inside Wilkins 
was, to Wilkins, her future child, for whom she was procuring baby clothes. Wilkins’s 
fetus had her consent to become a baby, which means that she was already 
behaving as if she had the same duties to the fetus that she would have to her 
future child. The moment at which a woman decides to treat the fetus inside her as 
if it were her future child need have nothing to do with viability or the advancement 
of pregnancy; for some women, a sense of obligation to respect the rights of the 
fetus, and to treat the fetus as a beloved dependent, occurs from the moment she 
discovers she is pregnant. For Patel, on the other hand, her unwanted pregnancy 
produced no such sense of obligation; she did not consent to be obligated to the 
fetus’s provisional rights. Patel did not grant the fetus the status of a future child, 
and so when she miscarried the fetus, she did not—unlike Wilkins—lose a future 
child. Likewise, we can imagine a case where a woman carrying an unwanted 
pregnancy nevertheless has an embodied experience of the fetus as a being with 
rights of its own that she is bound to respect, who carries her pregnancy to term out 
of this sense of obligation, or who comes to feel, through embodied experience, that 
this unwanted fetus is indeed a beloved descendant. Part of understanding 
pregnancy as an embodied experience is granting epistemic authority to the person 
having that experience and granting that the person with the most direct standing to 
determine the status of a fetus’s provisional rights is the woman carrying that fetus. 

This argument holds, I should note, only as long as the fetus remains inside 
the woman. An infant, unlike a fetus, has external freedom, which can be coercively 
protected by law. External freedom becomes coercively enforceable not when one 
could survive outside the womb but when one does survive outside the womb. At 
this point, it becomes possible for the state to coercively enforce the infant’s 
external freedom by ensuring that someone—the parents, the state, or some other 
agent—has the obligation to take its ends as their own.34 As long as the fetus is 

 
33 They were not; Wilkins was seven months pregnant while Patel was between four 
and five months. At Patel’s trial, the prosecutors used a widely discredited “float 
test” to argue that the fetus, whose gestational age was between 25 and 28 weeks, 
had been alive at birth; other forensic experts argued that the fetus was only 23 to 
24 weeks along and not yet able to breathe independently. 
34 The parent-child relationship is an instance of “the right to a person akin to the 
right to a thing” which, like marriage, involves a robust form of end-sharing. While 
the end-sharing of married partners is reciprocal, the end-sharing of parenting 
involves, as Tamar Schapiro (1999, 735) puts it, the duty to “make it our end to do 
what is in our power as adults to help children work their way out of childhood.” But 



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inside the mother, it can have no capacity to set and pursue ends in the world; its 
right to do so is merely provisional, not enforceable.  

The provisional nature of the fetus’s rights mirrors the provisional nature of 
embodied consent: as long as it remains inside the woman, the fetus’s rights cannot 
be coercively concluded by law. As long as the fetus is inside her body, the woman’s 
consent to this arrangement cannot be conclusive. Because the law must respect, 
rather than adjudicate, the relationship between the will and the body, it must treat 
both the woman’s consent and the fetus’s right to life as merely provisional and 
protect the right to abortion at any stage of pregnancy.  

 
IV. The Knot Can Be Undone 

In envisioning a state of nature opening up around the infanticidal mother 
and illegitimate child, Kant recognizes the impossible choice a woman faces when 
confronted with a pregnancy that will undermine her life chances. Though he 
considers mercy for a woman who kills under these circumstances, he cannot square 
this with the retributive requirement of punishment. As Kantian claims about justice 
go, it is decidedly muddy. “The knot can be undone in the following way,” he argues.  

 
The categorical imperative of justice remains (unlawful killing of another 
must be punished by death); but the legislation itself (and consequently also 
the civil constitution), as long as it remains barbarous and undeveloped, is 
responsible for the discrepancy between the incentives of honor in the 
people (subjectively) and the measures that are (objectively) suitable for its 
purpose. So the public justice arising from the state becomes an injustice 
from the perspective of the justice arising from the people. (6:336–337) 
 

Although Kant ultimately upholds the duty of the state to execute the woman found 
guilty of infanticide, his deeper conclusion is worthy of our attention: this sort of 
violence is the result of law that is “barbarous and undeveloped,” when the law and 
social custom are misaligned in such a way that justice is impossible. A perfectly just 
state would not deny women innate right in this way because the social conditions 
that produce poverty, unwanted pregnancies, and coerced and unwanted sex would 
not exist. In an actual state, which falls short of these requirements of justice, the 
law must tread carefully, using institutional transformation to produce conditions of 

 

this project of end-sharing presumes that these ends are separable; as long as the 
fetus remains inside the mother, it can have no external freedom distinct from hers. 
Any claim of legally enforceable external freedom for a fetus inside a woman’s body 
denies her innate right. 



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justice.35 Likewise, in a perfectly just state—one with adequate access to, and 
information about, contraception, as well as public policies designed to ease the 
burdens of child-rearing and so on—there would perhaps be no need for abortion. 
The injustice is not infanticide itself, nor abortion itself, but a social, legal, and 
economic condition in which infanticide and abortion are necessary. The problem is 
not that abortion is barbarous but that legislation designed to criminalize it, without 
taking on the broader social context that makes it necessary, is “barbarous and 
underdeveloped.” 

Kant’s surprising suggestion of leniency towards the infanticidal mother 
offers a vision of transformative reproductive justice as an alternative to coercive 
policies restricting abortion. Rather than seek to undermine women’s autonomy 
through feticide laws and restrictions on abortion, this vision of justice requires 
those who oppose abortion to fight for broader reproductive and gender justice, 
seeking access to contraception and health care, particularly for pregnant women 
and children, paid family leave policies, labor protections for pregnant and 
breastfeeding women, medical and legal protections for pregnant and laboring 
women, poverty relief, access to public childcare and education, as well as domestic 
violence, equal pay, and sex education policies that protect women from coerced sex 
and asymmetrical, dependent relationships. To legally restrict abortion without 
fighting for a broader platform of reproductive and gender justice is to heighten the 
discrepancy between legal justice and lived injustice, and to force women faced with 
these injustices into a state of nature. 

The implication of Kant’s argument is that, were the state just, the conditions 
that create infanticide would no longer exist, and the law could punish it as murder. I 
cannot go as far as Kant here. Even in a perfectly just state, one with an ideal version 
of reproductive rights, gender justice, and childcare access, abortion might still be 
necessary. No social policy can change the fact that the embodied burdens of 
pregnancy fall exclusively on women, and that women, alone, can consent to bear 
those burdens. But Kant’s insight is nevertheless essential to the contemporary 
debate about reproductive rights: abortion is not a problem to be solved by 

 
35 My account of institutional transformation in imperfectly just states builds on 
Helga Varden’s insight (2010, 345) that the Kantian state must provide unconditional 
poverty relief in order to ensure that all citizens have access to the material 
requirements necessary to enact external freedom. Varden’s account identifies 
poverty as a feature of all existing states, and offers unconditional poverty relief as 
an institutional mechanism for protecting external freedom, which in turn makes 
possible the political legitimacy of the state. A lack of unconditional poverty relief, 
then, is a feature of unjust states that must be institutionally remedied in order for 
the possibility of justice to exist.  



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restrictive legislation but by broad social and legislative change. In an unjust social 
and legal condition, in which women find themselves without adequate reproductive 
resources and support for childrearing, laws restricting abortion or protecting 
fetuses cannot be just. 
 
Conclusion 

In rejecting the viability standard and its extension to feticide law, I have 
defended the right to an abortion at any stage of pregnancy. This right is grounded 
on an embodied conception of innate right, which requires us to treat our rights to 
our own body as structurally distinct from acquired rights. Understood in this way, 
embodied rights require heightened legal scrutiny in order to ensure that, as my will 
changes, rights granted to my body change, too. In this sense, respect for women’s 
autonomy means respect for the form of their legal choices rather than their end. 
The Kantian argument I outline here emphasizes women’s bodily autonomy as 
unassailable at any point in pregnancy and holds that the fetus can only have 
provisional rights granted by the mother within the unilateral jurisdiction of the 
woman’s embodied state of nature. This account recognizes women as autonomous 
beings capable of setting their own ends and argues that the law’s emphasis should 
be on protecting the freedom to set and pursue these ends by emphasizing the 
importance of informed, affirmative, and retractable consent throughout pregnancy.  

By drawing on Kant’s account of innate right and comparing our rights in 
pregnancy to our rights in sexual encounters, I have argued for understanding 
pregnancy as an example of innate right. This move involves drawing not only on 
Kant but on developments in one area of jurisprudence, sexual assault law, to 
support a transformation in another. In the wake of the #MeToo moment and 
ongoing revisions to sexual assault laws on college campuses and at the state level, 
we are radically rethinking how we understand women’s rights to their own bodies, 
and there is good reason to extend these insights to how we think of pregnancy, as 
well.  

It is clear, however, that jurisprudence has moved too far in the opposite 
direction for this move to gain traction. In 2014, the Supreme Court ruled, in Burwell 
v. Hobby Lobby, 36 that the religious freedom of for-profit corporations allowed those 
corporations to deny their women employees access to certain forms of birth control 
because of religious objections. In holding that corporations could have religious 
beliefs in this way, the court extended the Religious Freedom Restoration Act’s 
definition of persons to include corporations. By extending the legal fiction of 
“personhood” in this way, the court has not merely extended those rights but subtly 
reprioritized them: as personhood rights are increasingly granted to disembodied 

 
36 Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014). 



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entities like corporations, the centrality of embodiment to the exercise of those 
rights has been systematically de-emphasized (Harvard Law Review Association 
2001). If corporate entities can have rights to speech37 and religious freedom,38 as 
well as certain Fourth and Fifth Amendment rights to privacy (Greenfield and 
Winkler 2015), the exercise of those rights is decoupled from the embodiment of the 
rights-bearing agent. And, as Hobby Lobby illustrates, these disembodied rights then 
outweigh rights to the body, since disembodied rights are then universal to this 
newly extended class of persons in a way that embodied rights no longer are.  

In this legal landscape, asserting the centrality of embodiment to the exercise 
of rights is a necessary and radical move, and one that, I have argued, finds a useful 
philosophical grounding in Kant’s account of embodiment as an essential feature of 
the rights-bearing agent. Under this framework, both the viability standard and fetal 
protection laws must be rejected, and the right to an abortion at any state of 
pregnancy must be a legally protected feature of innate right, which makes the 
exercise of other rights possible. 

 
 

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JORDAN PASCOE is Associate Professor of Philosophy and Women and Gender 
Studies at Manhattan College in New York City. She is the director of the Society for 
the Philosophy of Sex and Love and the codirector of the Lasallian Women and 
Gender Resource Center. Her research focuses on feminist philosophy, philosophy of 
sex, Kant’s political and legal philosophy, social epistemology, and decolonial 
philosophy. 


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