In the comments at Winds of Change, WoC reader “Lili” writes:
The only thing I really disagree with here is saying that “men” may not legislate. As I wrote in the comments there, I think it’s a mistake to make it about the sex of the legislators.
In most ways I agree with Lili. I don’t think the legislature has a moral right to force pregnant women to bear children against their will. Every sane individual adult has the right to own their own body and make essential medical choices for themselves; women don’t give up that right by becoming pregnant.
But individual women would have that moral right even if the legislature was 100% female (statistically, women in the US are about as likely to be pro-life as men). The right to reproductive choice is not dependant on the sex of the people in Congress. So when some feminists suggest that male legislators in particular have no right to outlaw abortion, I think they’ve moved away from the central issue, which is that no politician should force childbirth on an unwilling pregnant woman.
* * *
There’s also the question of “should the father have a say”? Morally, I’d say sure; aside from those fathers who are abusers or rapists, I hope that women considering having an abortion choose to consult with the father. But legally, men should have no rights to a voice in the abortion decision. If the father and mother disagree on if a pregnancy should be aborted, there is no compromise position available; someone has to have the final legal authority to decide.
And that someone has to be the woman, because it’s her body. The alternative is to give the father a veto – which is to say, men would have the right to force their girlfriends to give birth. That’s not acceptable..
I have to agree. I’ve found in my own personal experience (not that that counts for much) that women are equally likely to be crazy fucks who want to impose their beliefs, however gut-felt and illogical they may be, and even their whims, on other people regardless of the cost to those other people’s lives as men are.
To say that women would more fitly govern, even over the issue of women’s bodies, is to make the rather dangerous assumption that there is some intrinsic difference between the way men govern and the way women do; or, at the very least, it is to make the rather dangerous assumption that women would look out for other women’s interests, either because their policy would (or could in theory) affect the governing women themselves or because of some kind of empathy with their fellow females.
Total lack of empathy with other human beings is not a male-dominated sphere, let me tell you.
It might be a different case for those poor women who are “forced” to get pregnant if pregnancy were a truly random occurance unconnected to any other decision. Should a woman be “forced” to live with the natural consequences of decisions made by her own free will? Is there any reason why not?
Sam,
Pregnancy is not, and should never be used as, punishment for sex. That is the reason why not.
Ok, I’ll try a smoother approach…
Sam Barnes sez:
“Should a woman be “forced” to live with the natural consequences of decisions made by her own free will? Is there any reason why not?”
Well because science now allows her to undo such accidents, putting her on the same level of freedom as men. Of course when you speak of consequences it assumes something worthy of punishment was done. What might that be? Unprotected sex? Well unprotected is foolish, but it hardly merits having your entire life derailed and being “punished” with a child she will never be able to adequately take care of. I think the inconvenience of organizing an abortion is “punishment” enough.
And what of women who used protection that failed through no fault of their own? Should they be “punished” too? I don’t think that’s fair.
Sam,
“He chose to ski down that dangerous slope. Why should he be allowed to seek treatment for a broken leg? He should be forced to live with the consequences of his actions! Is there any reason why not?”
The reason why not is that freedom is better than not-freedom. That’s not an absolute case; there can be compelling reasons to limit or take away freedom.
But it should be up to those who want to take away freedom to make the case. Individual freedom should be the default in a free society; in the case of abortion, that means that every individual woman should be free to make her decision, in consultation with her doctor, her God and her conscience.
So the real question is, is there a compelling reason why women should not be free to end her own pregnancy, if that’s what she chooses?
Which brings us to all the usual arguments about the personhood of the fetus, the right of bodily autonomy, and so on.
Ooops, I just realize we cross posted ADS, and I just want you to know my first line isn’t talking about you. I was referring to another thread where I voiced a desire to change methods.
Huh. Maybe men should be “forced” to be pregnant when they foolishly have sex, too. Oh wait…..
I think that part of the reason that people wistfully think that if only female legislators were allowed to decided….is because in a society where women dominated power like men dominate now, abortion rights probably wouldn’t even be a controversy. Women are against abortion, sure, but for the same reason some women were against the vote for themselves. Disempowerment means a certain percentage of is going to “agree” to their oppression.
DRA,
Okay, thanks for letting me know. I was wondering what about what I said wasn’t “smooth.” :)
How this, us men and the chilln’s vote to live, then later we can vote to sell youuse murderous beeaches to a Saudi prince.
Do you know the difference between “consequences” and “punishment?” There is one. Consequences are the effects of a cause-and-effect relationship; in this case, becoming pregnant is a possible, foreseeable consequence to having sex. It is not punishment, unless you have a fairly unorthodox view of natural biology. Likewise, it is biology that determines that women, not men, get pregnant. If you choose to view this as a cosmic injustice, well, good luck with that. I don’t answer that phone.
The analogy to a broken leg on a ski slope was revealing, but not helpful. I’ve never heard of someone arguing for “bone-crack rights” as if cracks in bones might in some ways be similar to unique individuals.
Freedom is an excellent thing. Unfortunately, libertarian first principles have nothing to do with abortion. The crucial question is whether a given entity has the rights of a person. That’s a first-principles sort of question–once you start talking about how freedom is good and should be maximized, you’ve already moved past the question of who fits in the category of having freedom. When the talk turns to “correcting” a “mistake,” you’ve already made the assumption that there is only one person affected by the decisions being made, not two or more.
If you subscribe to the belief that a person, complete with the right not to be arbitrarily killed, gains that status upon being born, then embrace it. Sure, you’ll have to deal with arguments from other moral positions, and I think some of them are tough to answer. But don’t avoid the fundamental question by talking up ancillary issues.
Oh, and if you still find the “men aren’t affected by the debate, so their opinions mean less” argument at all compelling, I suggest you consider the poor guy who’s paying 18 years of child support because his girlfriend chose NOT to have an abortion. Guess what? Consequences don’t just fall on the woman in this situation. If they aren’t married, his parental rights can be completely removed without his say-so, but he’ll be paying for his decision to have sex for a long, long time.
Amanda, it may be convenient to frame women who disagree with you as victims of “Stockholm Syndrome” with those evil, patriarchal men as the captors, but you’re not going to win many converts that way. I could frame you in an equally unflattering light, but that would just be name-calling, and quite unconvincing as an argument.
Sam, you and I agree on one thing: the issue is the personhood (or not) of the fetus, and how to balance the rights of the fetus (if it has any) and the mother. I’m not avoiding those key questions; on the contrary, I pointed out that those ARE the key questions this line of thought leads to, in my previous post. (“Which brings us to all the usual arguments about the personhood of the fetus, the right of bodily autonomy, and so on.”)
Secondly, you seem to think I found the “men aren’t affected by the debate, so their opinions mean less” argument compelling. That’s very odd, since the post you’re responding to is a rebuttal of a variation of that exact argument. I think you may have misread my post.
You know I was thinking of posting on an earlier thread- the one dealing with the march and the truth of Annie’s experience, but I decided not to because I decided that my reaction was too gut level and too passionate. It was not really fair.
My reaction to the abortion debate on a viseral level is that it is NO ONE else’s right, responsibility or priviledge to tell me whether I can or can’t have a child.
Specifically, I wanted to say, that until a man can carry a child to term, until a man is automatically expected to sacrifice his career, and until a man has to walk in “my shoes” as a mother and a women, he doesn’t get to legislate for me. I didn’t think that was entirely fair especially to many of the men who post here- and to my husband. It is not your fault individually that there is still a mommy track and that the conversation about who will stay home with the baby and a myriad of other child related details is not the norm So, I didn’t post it. Because I do see how important our son is to my husband- and I know many men who wish they could stay home and be a stay at home dad. I do know how powerful fatherhood is for many men. So I didn’t post it. But I feel it- everytime I read people debating about the morality of abortion.
My reaction has nothing to do with my beliefs about when life begins or about whether abortion is right or wrong. It has to do with my absolute belief in my soveriegnty over MY BODY. You don’t get to legislate my reproduction.
You don’t get to make my choices for me. PERIOD.
Sorry for the rant.
Amen Sam (the girl).
Ampersand,
I apologize for being unclear; my comment above was intended as a response to multiple people, you among them. The part you referenced wasn’t aimed at you, but I realize that wasn’t sufficiently evident.
I do think that you spent a lot of time discussing the secondary issue of the rights of the pregnant mother, though. The personhood of the fetus issue MUST be resolved FIRST, otherwise you are left with the typical case of people talking past each other with no hope for a philosophical resolution.
Sam (the girl),
Well, I’m certainly not going to try to usurp your right to have or not have a child. That’s quite properly between you and your husband. But your decision is made when you choose to have sex. Don’t want to be concerned about the potential for pregnancy? Don’t choose to have sex, or choose to use an effective means of birth control. For instance, if you and your husband decide you don’t want any more children, I’ve heard that vasectomies are pretty darn reliable–and remarkably low-maintenance.
If you think this response is unrealistic, think very carefully about what that says about your self control. Just because you want something, doesn’t mean you get it for free.
But your decision is made when you choose to have sex.
Assuming Sam (the girl) lives in the USA or some other pro-choice country, that’s simply not true. Maybe Sam (the boy) wishes that were the case, but it’s not.
Same (the boy) wrote: I do think that you spent a lot of time discussing the secondary issue of the rights of the pregnant mother, though. The personhood of the fetus issue MUST be resolved FIRST, otherwise you are left with the typical case of people talking past each other with no hope for a philosophical resolution.
Well, I’m quite willing to discuss the personhood of the fetus. But I disagree that it MUST be resolved FIRST. (Indeed, I doubt it can be resolved at all; therefore, if we only discussed other aspects of the abortion debate after resolving the personhood issue, we’d never discuss anything aside from personhood.)
There are two first issues to be discussed here: What are the rights of the fetus? And, what are the rights of a pregnant woman? Neither one can be skipped, in my opinion.
Sam (the guy) sez:
“The personhood of the fetus issue MUST be resolved FIRST, otherwise you are left with the typical case of people talking past each other with no hope for a philosophical resolution.”
Well alright Sam. I do not believe the fetus is a person. Prove to me that it is. Keep in mind I’ve been engaged in this argument for years and nothing has ever convinced me I’m wrong, so you’d better have some really good material.
Sam (the guy) sez:
“Don’t choose to have sex, or choose to use an effective means of birth control. For instance, if you and your husband decide you don’t want any more children, I’ve heard that vasectomies are pretty darn reliable–and remarkably low-maintenance.”
“Pretty darn reliable,” but not 100% reliable. And as I said before, other means of birth control also fail. Then what?
Before you repeat it, some of us don’t believe what you do, so sex stays in the picture and you cannot order us not to partake in it. That is tyranny.
Sam (the dude) argues:
This, however, misses the point of one of the common pro-choice arguments. That argument holds that whatever the personhood (or lack thereof) of a foetus, a woman still has the right to evict it from her uterine lining if she sees fit. Why? Well, she (like everyone else) owns her own body–including her own internal organs–including her own uterus. (If someone acts on the principle that you don’t own your own body, that’s a form of slavery.) Owning something means the right to exclude others from using it if you see fit; and a right to exclude a foetus from using your uterus is the right to induce an abortion.
Is that the end of the debate? Well, of course not; people who oppose abortion come up with lots of reasons to try to explain why a woman, her womb, and a foetus aren’t like (say) a man, his kidney, and some stranger who happens to need a kidney. I haven’t addressed such arguments (yet) here; the point to be raised is that this argument is something to be resolved prior to any debate about the personhood of the foetus, since if the argument goes through, then even the strongest possible case for the personhood of the foetus won’t touch the pro-choice conclusion. (N.B.: Of course, it might still be important to how we feel about abortion; if a foetus is a person that gives us a lot more reason to feel regret when an abortion happens. But it would not affect whether or not abortion is a woman’s right.)
Ampersand,
Well, that’s the problem. The personhood of the fetus is a moral question, not an empirical one. I can point out that any given unborn child is a genetically unique individual, and 50% of the time differs in sex from his mother. While that disposes of the “it’s MY BODY” argument, it cannot demonstrate that the fetus is a person in an abstract, moral sense. I believe I said this before.
That’s really the bottom line. The best argument I’ve got is “it’s a person” and the best argument you’ve got is “no, it isn’t.” So yeah, in a sense, it’s not a solvable problem.
Unfortunately, every other analysis of the question depends on this point. The women’s rights issue won’t get you anywhere either. You’re talking about personal convenience for a woman, with the attending trauma and hardship of childbirth, balanced against the theoretical “rights” of a non-person. Since “non-people” don’t really have rights, it’s clear that any analysis I can think of favors the woman acting as she wishes.
I’m talking about personal convenience for a woman, with the attending trauma and hardship of childbirth, balanced against the very life of a person who has the right not to be arbitrarily killed. Since the right of existence is the most fundamental, and without which no other rights can be exercised, I cannot imagine an analysis that would prioritize the woman’s personal convenience higher.
Can you imagine a way to harmonize these two positions without determining whether the fetus is a person? Let’s say that the measure of an unborn child’s right to life is a number on an arbitrary scale. If he’s a person, the magnitude of his right is a 1; if he’s not, the magnitude is 0. Balance that against the woman’s right, however you wish to describe it. The only way the magnitude of the woman’s right matters is if it is less than 0 (nonexistent) or greater than 1 (a human life)–and I doubt many people would accept either concept.
DRA,
Your interpretation of my words as an “order” not to have sex is cute, but unhelpful. So is the hyperbole concerning “tyranny.” What I said was that you shouldn’t have sex unless you were willing to deal with the consequences. This is wise advise on ANY topic, and your objection reveals more about your maturity than anything else.
Rad Geek,
I am aware of that line of argument. I think it is defeated by the obvious agency of the woman in creating the situation, and the obvious lack of agency on the part of the fetus. Again, like I said in my first comment, if pregnancy happened like a random lightning strike, then possibly this argument would be more fruitful.
See, a significant chunk of the pro-choice arguments rest on this assumption that women are passive victims in a big, mean world. I reject this idea completely. Your average woman is a fully capable adult, as is your average man, and they both make conscious choices about the world in which they live. Dumping off responsibility for your actions onto an innocent third party is neither responsible nor justified.
Sam (the guy) wrote: DRA: Your interpretation of my words as an “order” not to have sex is cute, but unhelpful. So is the hyperbole concerning “tyranny.” What I said was that you shouldn’t have sex unless you were willing to deal with the consequences. This is wise advise on ANY topic, and your objection reveals more about your maturity than anything else.
On one level, I agree with Sam (the guy). No one should have sex unless they’re prepared to deal with the consequences. For women, in our legal system, those consequences could include having to get an abortion.
At the same time, Sam (the guy), your last line was nothing but a personal insult, and that kind of rudeness isn’t welcome on my blog. Please keep it polite from now on.
* * *
Sam (the guy) wrote: I’m talking about personal convenience for a woman, with the attending trauma and hardship of childbirth, balanced against the very life of a person who has the right not to be arbitrarily killed. Since the right of existence is the most fundamental, and without which no other rights can be exercised, I cannot imagine an analysis that would prioritize the woman’s personal convenience higher.
Then, a post or so later, he wrote: I am aware of that line of argument. I think it is defeated by the obvious agency of the woman in creating the situation, and the obvious lack of agency on the part of the fetus.
So when you said “the right of existence is the most fundamental, and without which no other rights can be exercised, I cannot imagine an analysis that would prioritize the woman’s personal convenience higher.” what you meant was “unless there isn’t an agency issue involved, in which case the right of existance doesn’t mean much at all, and personal convience is prioritized much higher.”
You’re being inconsistant. If the right to life is so overwhelming that it can justify using government force to compel childbirth against a pregnant woman’s will, then it should be strong enough to justify compelling a far less difficult and quicker sacrifice, such as forcing a father into a blood transfer that will save his son’s life.
Finally, where did this “agency” argument come from? Where else, in our legal tradition, do you see people losing the right to control their own bodies based on agency? If I’m driving and I hit a pedestrian, injuring her kidney, do you think the goverment has the right to force me to donate my kidney to save her life?
* * *
Okay, that said: let’s look at personhood. Here, I’ll start us off:
There’s a difference between personhood and individuality. A complex, human-style cerebral cortext doesn’t develop until the 20th week of pregnancy (and even then, it’s not complete). For me, the capacity for thought is an essential part of personhood; but no human can think without a cerebral cortext; therefore, until the 20th week of pregnancy, I don’t think it’s possible for the fetus to be a person.
One final question regarding agency: Would you say, therefore, that a fetus concieved in rape has less right to live than other fetuses?
Birth Control is not 100% absolute. My child is the result of a birth control failure.
The issue of self control and the choice to have sex or not, is a moral one and once again, you- and no other man/person has the right to tell me what my choices should be. My choices about how I decide to deal with my body are mine.
Now, that said, because I am who I am, those choices involve my partner and my family. However, that should not be legislated. It is private.
The issue of personhood of a fetus is not relevant because the right to privacy trumps it. Until that fetus is capable of living outside of my body, it is part of me- and it is my PRIVATE choice about whether to carry it to term or not.
Sam, you talk blithely of the hardships of pregnancy and refer to abortion being for the covnienence of women- once again, until you go through those hardships yourself, don’t make condescending statements about them. Childbirth can be lifethreatening. It is physically debilitating- sometimes permenantly. It is emotionally traumatic. It takes a long time to recover from both physically and mentally. (I say this and I had a relatively easy pregnancy and childbirth- and I have an amazing son; I couldn’t be happier. I say this because it is not your right to force anyone to choose to go through with this- and because you trivialize the experience.)
If you want to stop abortion or reduce the numbers, which I think is a worthy goal, then go at in a different way. Teach young women to respect themselves as women. Teach young women that they are more than sex objects. Get rid of reality television where women vie to get a man or put themselves through painful surgery to be “beautiful” (for a day.) Give women power over themselve, and power to make their own choices. Help to build a society where men and women can talk freely about sex and are equal partners in relationships. Help build a society where women are not economically and socially dependent on men- because despite how far we have come in those senses, we haven’t come far enough.
Until you can do these things, abortion is a choice that some women will be forced to choose.
Basically, criminalizing abortion is not going to stop it. Moralizing about sex being wrong is not going to stop people from having it. It is too simplistic a solution to say- oh, we must stop abortion by making it illegal. Not going to happen.
I merely wrote that last line to pre-empt your first logical response to my “Then what?” qestion Sam (the guy). Obviously you don’t have the authority to stop anyone from having sex, but the society you envision would have a chilling effect on heterosexual sex anyway.
Amp sez:
“A complex, human-style cerebral cortext doesn’t develop until the 20th week of pregnancy (and even then, it’s not complete). For me, the capacity for thought is an essential part of personhood; but no human can think without a cerebral cortext; therefore, until the 20th week of pregnancy…”
Which is still irrelevant if you don’t have something to think about. You need the raw materials of experience from which to start building a sense of self and self-interest.
DRA said: Well because science now allows her to undo such accidents, putting her on the same level of freedom as men.
Same freedom as men? Nope, much greater. As has been pointed out, men can be forced to provide for children via child support for 18 years, and they have absolutely no choice in the matter. If the woman decides to have a child and ask for child support, there is no way that the man can say, “Sorry, I choose to abort any fatherhood responsibilities starting today.” Why not? All he’s doing is refusing to pay; he isn’t literally killing the baby.
It’s not “Stockholm Syndrome”. It’s “I’m a woman and I know from experience it’s easier to agree with a man sometimes than put up with the pouting, whining and accusations of being a ‘man-hater’ or a dumb female” Syndrome.
And the argument that “well, men have to pay for babies women choose to have” is great as long as you persist in ignoring the physical reality of pregnancy. I fully support a man’s right to terminate a pregnancy in his own body, and I feel that he should respect the right for me to make decisions about my bodily autonomy.
I find it interesting that one argument against abortion is that women shouldn’t have sex if they don’t want to get pregnant and then the other argument is poor, poor men don’t have any choices. Why can’t men refrain from having sex in the first place, too?
On the consequences of having sex: You think it’s reasonable to be bound by a consequence you had no means of foreseeing?
I’ve heard of transmen who got pregnant because they genuinely believed they wanted to have babies. Once pregnant, they realised they couldn’t cope with what it did to their bodies. I don’t see any way they could have reasonably predicted that before becoming pregnant.
Nick sez:
“I’ve heard of transmen who got pregnant because they genuinely believed they wanted to have babies. Once pregnant, they realised they couldn’t cope with what it did to their bodies. I don’t see any way they could have reasonably predicted that before becoming pregnant.”
Don’t forget that women can also discover that they can’t cope with what pregnancy does to their bodies. Others are raised to be oblivious to the costs in terms of time, energy, money, and self-fulfillment until they get pregnant and start doing the math. (Then of course there are those who only discover after the baby has arrived, and are then stuck in the unenviable position of simultaneously loving and resenting their children, which can’t be good for the kid either).
DRA, I know this, but I chose the case of transmen as being more extreme and thus more rhetorically satisfying.
Sam, (the boy)
You, in your original comment, did not discuss the personhood of the fetus, which is why I did not address the question. You discussed “forcing” women to live with the consequences of their actions, i.e., having sex. However, as Amp said, having children is not the inevitable consequence of having sex, and since women have been having abortions for thousands of years, it really hasn’t been that way for a long time. Suggesting that it should be the inevitable consequence, and that a woman who finds herself in that position should be “forced” to live with those consequences is about as close to synonymous with punishment as you’re going to find.
As for the personhood of the fetus, a fetus doesn’t grow itself. A fetus drains nourishment and energy from its carrier, causing physical changes in someone who is clearly a person with their own rights. Until that fetus can live outside the body of its carrier, it doesn’t qualify for its own rights. Until then, it remains a part of its carrier’s body, and she maintains rights over it, just as she would over an organ, or a tumor. That is my legal view of the matter. My moral one differs, but we don’t legislate morality in this country.
Many responses this morning…I’ll try to respond to as much as I can.
Ampersand,
I don’t appreciate being called a tyrant; in fact, I consider it rude (yes, I know it wasn’t you, but it was what I was responding to). It would be nice to see some balance in critiquing what you term as “personal insults.” I will work on ignoring that kind of provocative insult in the future.
Let me be more clear on the agency point–Rad Geek put forward the position that (summarizing) the personhood of the fetus conundrum can be avoided by considering the woman’s right of physical autonomy. In other words, a pregnant mother is not _obligated_ to remain pregnant against her will.
My response was no, she IS obligated, by virtue of the decision she made to have sex. This obligation is independent of the personhood of the fetus, so it is not contradictory. You may disagree with this assertion as a moral point (I expect you do), but it is actually internally consistent.
Dealing briefly with the rare exception, yes, the above is not an adequate response to the case of rape. In that case, the only counterargument rests on the personhood of the fetus, and the corresponding right not to be arbitrarily killed. There is a _crucial_ distinction between abortion and the blood transfusion example you give–comparison to a passive status quo. It is a perfectly intelligible position to say that the State may step in to prevent an active attempt to kill a person, but may not require an active attempt to save a person’s life. (As an aside, I think this position doesn’t exactly reflect the legal realities in this country, since the presence of Good Samaritan laws do, in certain cases, mandate active attempts to save others’ lives.)
Clearly, I agree that there is a difference between personhood and individuality. Individuality can be defined in an empirical, scientific manner. Personhood cannot, since it is a moral/philosophical concept, and it is personhood that encompasses other moral/philosophical concepts, like rights. Evidently, you believe that there is a connection between the acquisition of personhood (moral) and the development of brainwaves (physical). I disagree, but I can’t prove my position any more than you can prove yours, since the connection between the moral and the physical is itself a moral question.
Sam,
So we come to a dead end on the issue of personhood and thus the moral implications of abortion. Now what? Is it possible to come to an agreement on the best way to deal with the reality of abortion?
What I mean is, should your beliefs (which we admit are unsupportable by fact as are mine wrt personhood) be forced on those who disagree? Or should we let individuals make that choice for themselves? In the absence of proof one way or the other, I hold that the moral & constitutionally consistent position is to let each individual decide for themselves.
Sam (the guy) sez:
“I don’t appreciate being called a tyrant; in fact, I consider it rude…”
Are you or are you not trying to make us all live by your definition of morality despite our wishes? You have conceeded that there is no way to prove the “personhood” of the fetus, so therefore the entire issue is up to personal belief. If you and your ilk are not tyrants, you will allow others to make their own decisions.
Sam (the girl),
I was not trivializing the hardships of pregnancy or childbirth. I think that mothers should get more respect than they do, since without them, none of us would be here (trite, but true). My approach is characteristically analytical; I’m sorry if it comes across as cold.
I’m not exactly enchanted by your “create a utopia” solution to the problem. Yes, progress can be made on each of those fronts, but even the status quo isn’t as bad as you’re painting it. The U.S. today has the most opportunities for women of any society in the history of the world–are things perfect? No, there is easily more room for improvement.
I do not propose to wave a magic wand, make abortion illegal, and all the problems disappear. Not going to happen. I do propose to return the issue substantively to public debate, in the hopes that we, the people, can hash out a workable solution.
Someone noted that “you can’t legislate morality.” This is laughably untrue. EVERY law on the books derives some element of its justification from a moral source. Why are murder, theft, arson, etc. illegal? Because they violate basic moral rights that we recognize, and “governments were instituted among men” to protect those rights. This doesn’t mean that everything found to be immoral must also be made illegal, but it does mean (at least to a first approximation–no system is perfect) that things which are illegal have been found to be immoral, and worth proscribing, by the majority.
Jake Squid,
No, the appropriate resolution for moral questions in public policy is through the normal process–democracy. Everybody is welcome, pitch your best argument, persuade as many people as you can. The status quo, however, is not neutral on the question, and there is no way for it to become so. Right now, the legal position of the American government is that personhood attatches at birth.
(As an aside, Roe vs. Wade is not controlling law on this point–the Roe decision more or less links personhood with viability. The practical effect of subsequent decisions has been mostly leftwards, principally due to the influence of Justice O’Connor.)
The problem is, a substantial majority of Americans disagree that personhood attatches at birth. Ampersand, for example, suggests a linkage when measurable brainwaves have been generated. I believe it attatches at conception. DRA said something about the need for the “raw materials of experience,” but I won’t speculate as to how old you’d have to be to meet THAT qualification.
Should the moral issue be returned to the legislative process in the states, I would expect most states to establish either Roe’s viability line (around 6 months) or Ampersand’s measurable brainwaves line (4-5 months, I believe?). I could be wrong, but I have no expectation that the resulting law would conform closely to my own beliefs.
I have to disagree that, “…the appropriate resolution for moral questions in public policy is through the normal process–democracy.” I stand by what I said about allowing individuals to choose in this case to be consistent with the constitution (as I understand it). Unless the government can provide a compelling and immediate reason why abortion should be made illegal I don’t believe that any legislative body has the power to abridge that freedom of choice. That is, unless somebody can prove that personhood attaches at conception (which we’ve agreed cannot presently be done) there is no compelling state interest to eliminate the option of abortion, especially pre-viability. Isn’t this what the SCOTUS has found repeatedly over the last several decades? Haven’t they overturned legislatively created laws based on this reasoning, more or less? As I understand it, you cannot legislate around constitutional rights, you can only ammend the constitution to abridge those rights.
I could be wrong on this, not being a constitutional scholar by any measure, but that is my impression. I’m sure that Rad Geek or Lucia (who have both shown their constitutional expertise recently) will let me know if I am incorrect.
Sam sez:
“Why are murder, theft, arson, etc. illegal? Because they violate basic moral rights that we recognize, and “governments were instituted among men” to protect those rights.”
No, they are illegal because they prevent society from functioning and hinder the pursuit of happiness. The central goal of any society is to make sure that each individual can do what they want as long as no one is harmed. This goal can obviously coincide with moral codes, but is not dependent on them. If it was, then the country could be graduality taken over by a religious majority that takes the biblical permissions to own slaves seriously, and they would then “legislate the morality” of owning other people.
Sam,
In this country we legislate that which is illegal, not immoral. Many things are legal in this country that are immoral. (Adultery.) Some things are illegal that are moral. (Stealing a loaf of bread to feed a starving child. I know it’s trite, I can’t think of a better example at the moment.) What we legislate is that which infringes on another’s rights. Whatever you think morally about the personhood of a fetus, I think that in terms of rights, a fetus that is not viable outside the womb does not rate personhood with its own individual rights, because of its parasitic relationship with its carrier. (I know how that sounds, but in technical terms it’s as close as I’m going to get. I don’t think of a fetus as a parasite, but legally I think it has to be understood that way.)
That was my point.
Jake Squid,
Your burden of proof is incorrect. Nobody has to “prove” that personhood attatches at conception, viability, birth, etc. The majority just has to agree that it is so (pick a point), and that CREATES a compelling State interest to regulate abortion after whichever point you picked, since the State already has a compelling interest in protecting the security of persons within its jurisdiction.
There is currently a tension between the beliefs of the majority of Americans and the jurisprudence of the Supreme Court. I predict that the status quo will continue until it changes (duh). What will eventually happen is either the Supreme Court’s jurisprudence changes in accordance with the will of the majority, the majority’s viewpoint changes to match the jurisprudence, or the jurisprudence is overruled by Constitutional Amendment. The third option is pretty traumatic to the body politic; I think it’s the least likely. Based on the trend of popular opinion over the past couple of decades, I think the first option is more likely than the second. (This would be where retirements/appointments to the Supreme Court change its composition to the point that Roe vs. Wade and a good chunk of the subsidiary body of law is overturned. The result would likely return policy responsibility to the states, within certain parameters.)
ADS,
“In this country we legislate that which is illegal, not immoral.”
You’ve got the causality backwards. Look, “illegal” literally means “not lawful,” or in other words, contrary to law. (Yes, I’m being pedantic; there’s a point here.) What that _means_ is, if there is no law proscribing an action, it is not illegal. It may or may not be immoral; that’s a separate issue.
Let’s say there’s a state that has no law against bestiality (actually the case in Norway, I believe, up until 5 years ago). That means that bestiality is not illegal within that state. Now, I happen to think that bestiality is immoral–consent issues, etc., whatever–and ALSO that it rises to a level that it should be made illegal. So under what basis would my proposed law be made? It can’t be justified by saying that “bestiality is illegal,” because prior to a law being made, it isn’t.
It’s true that “illegal” and “immoral” aren’t totally overlapping sets, nor, really, should they be. There is, however, a relationship here, much as some people would like to gloss over it.
By the way, stealing bread to feed a starving child is a _perfect_ example of the jurisprudential maxim that “hard cases make bad laws.” This means that the example should not invalidate the general rule against stealing, but that exceptions like the above should be handled on an individual basis within the justice system, not within the legislative process, because crafting a law that accounts for every nuance of human nature is a fool’s errand.
Sam (the guy) sez:
“The majority just has to agree that it is so (pick a point), and that CREATES a compelling State interest to regulate abortion after whichever point you picked…”
I repeat, then the majority can also legitimize slavery based on a new interpretation of “morality” at some future point, and you would not be able to stop that. Trends should not be the basis for justice.
Sam (the Guy) sez:
“Now, I happen to think that bestiality is immoral…So under what basis would my proposed law be made?”
You would use the principle that the animal’s right to the pursuit of happiness is being infringed and try to argue from there. Of course this only works if your society has accepted animal rights. Otherwise it is hypocritical to outlaw bestiality but not meat eating and leather wearing, both of which would be worse crimes since they involve killing the animal rather than raping it.
You might also argue that widespread bestiality is a health hazard, and therefore a danger to society.
Sam (the guy) sez:
“By the way, stealing bread to feed a starving child is a _perfect_ example of the jurisprudential maxim that “hard cases make bad laws.” This means that the example should not invalidate the general rule against stealing, but that exceptions like the above should be handled on an individual basis within the justice system, not within the legislative process, because crafting a law that accounts for every nuance of human nature is a fool’s errand.”
Um…Sam…repeat that to yourself and then think about the topic of the thread…now, is it really so crazy to leave the issue to each individual woman?
DRA,
Sigh. Yes, future Americans could legally reinstitute slavery–it would require MASSIVE social changes and at least one Constitutional Amendment. It would be horribly unjust and immoral, but it could be done legally. What was your point? There is no way to change this potentiality without moving to a totalitarian system.
The basis of legitimacy within a democratic system is the consent of the governed. This consent is issued through democratic elections. If the consent of the governed is removed, the system loses its democratic nature by definition. No, democracies are not constrained by definition to be fair or just. Well-designed democratic systems end up being reasonably fair and just because nobody wants to create a system in which minorities get severely screwed on a regular basis when the next minority might be YOU (or, presumably, me).
I was not discussing trends as a basis of justice. I was discussing trends in terms of what I think is likely to happen in the future. I do not think that the future will be some perfectly just utopia–where did you get that idea?
You do realize that ascribing rights to animals is in itself a moral judgement, right? The value of State action to protect society from health hazards is also a moral judgement, and not one universally agreed-upon. Fairly hardcore libertarians would not agree with that one.
Regarding “hard cases make bad laws,” I do not understand your intended point. I could easily draw the lesson that a general prohibition of murder should not be discarded because some hard cases make murder attractive (vigilantism, abortion, euthanasia, etc.), but somehow, I don’t think that’s what you meant.
The third option is pretty traumatic to the body politic; I think it’s the least likely.
I also think, the third option, amendment is unlikely, but not because of the “trauma” associated with amending the constitution. When Americans really want to amend the constitution for any purpose, wise or stupid, they seem to manage to amend it. (In my opinion, Prohibition was stupid. We amended the Constitution to enact it; we amended again to end it.)
I think a right to life amendment is unlikely to be incorporated into the constitution because too few American voters wish to amend the constitution for this purpose. I could be wrong on this.
Sam (the guy) sez:
“Yes, future Americans could legally reinstitute slavery–it would require MASSIVE social changes and at least one Constitutional Amendment. It would be horribly unjust and immoral, but it could be done legally. What was your point?”
The point is that your majority-morality based idea of lawmaking is flawed. I repeat, the central goal of any society is to make sure that each individual can do what they want as long as no one is harmed. This goal can obviously coincide with moral codes, but is not dependent on them.
The theoretical point of democracy is that we cannot all agree on the best way to ensure that each individual can do what they want as long as no one is harmed, so we use the democratic process to reach workable compromises. In the case of abortion the reasonable compromise has always been let each decide for themselves what is best. This way the religious types should be happy because they can choose not to have abortions, and society continues to function because abortion does not destabilize it. After all, legal or not abortion has existed for centuries without ever bringing down civilization.
Sam (the guy) sez:
“I was not discussing trends as a basis of justice.”
Yes you are, because today’s majority-morality can be tomorrow’s injustice. Slavery and denying women the right to vote were once considered mainstream moral positions upheld by the bible. We now know better.
Sam (the guy) sez:
“You do realize that ascribing rights to animals is in itself a moral judgement, right?”
I wasn’t arguing for animal rights, you were by saying they have the right not to be raped. I was just suggesting a course by which you could argue for such a right.
Sam (the guy) sez:
“Regarding “hard cases make bad laws,” I do not understand your intended point. I could easily draw the lesson that a general prohibition of murder should not be discarded because some hard cases make murder attractive…”
But murder destabilizes society and infringes on the right to pursue happiness. Abortion does not.
lucia,
No, I think you are right. I sincerely doubt that a full-on Right to Life Amendment could be passed–at least, any time soon. (The likely text of such an amendment would ban all abortions except in the cases of rape, incest, or if the life of the mother was at stake–just so we’re all on the same page as to what I mean.)
My point was more that option one could take place within about ten years. Option two would take longer, because the trend over time has been in the other direction–the cultural tide would have to reverse itself. This is quite possible, presumably, but I wouldn’t think it’s likely to occur quickly.
Option three is really only likely if the population trend continues as it has AND the Supreme Court does not change to reflect this. At some point, this schism would grow sufficiently wide that an Amendment becomes politically feasible. We’re not there yet, and I don’t think we’re all that close.
The most likely scenario to option three is either Kerry is elected this November or some Democrat in 2008, and Bush does not get to appoint any Supreme Court Justices for the duration of his Presidency. Old age and a Democratic President would likely replace Rehnquist, O’Connor, and Stevens with three young, liberal Justices. That would pretty effectively tie down Supreme Court jurisprudence for the next 10-20 years. However, like I said above, option three is the least likely to occur–this is just the most plausible path.
Sam,
Maybe I could have stated my point better, but I think it’s clear from the context that what I was saying is that we make illegal that which infringes upon other’s rights, not that which we (or someone) deems to be immoral.
As for your majority morality, I’m Jewish. Judaism states that a fetus that endangers the life and/or health of a mother is classified as a rodef, a pursuer, and is considered to be the same as a person “pursuing” the woman with the intent to maim or kill her, hence the term. In such a circumstance, you are not only allowed, but required, to do everything – specifically including hacking up the fetus limb from limb and bringing it out of the womb in pieces – to save the woman’s life and health. If we were to go along with your “majority morality” standard, in which the (Christian) majority in this country declared that the fetus becomes a person deserving legal protection and individual rights as soon as it is conceived, where does that leave me? Do you really propose that the majority of people in this country should be able to impose their religious beliefs (because that’s what we’re talking about, here,) on me and my family when we make these decisions? The Constitution says no, because it’s the Constitution that protects the rest of us from “majority morality,” and always has.
A small thing about the supposed majority belief in the personhood of fetuses–fetuses only tend to get regarded as persons if it’s a politically expedient way to attack women’s rights. I don’t remember the last time I went to a funeral for a miscarriage, and I’ll bet that no one here can either. And since women miscarry all the time without even knowing they are pregnant, it would be best if prayers were said over tampons, just in case, but you don’t see that either.
I hate to be gross, but the majority view is not nor has ever been that fetuses, especially early on, are persons in their own right.
“I don’t remember the last time I went to a funeral for a miscarriage, and I’ll bet that no one here can either. And since women miscarry all the time without even knowing they are pregnant, it would be best if prayers were said over tampons, just in case, but you don’t see that either.”
And they don’t get counted on the census, we don’t start counting age before birth, we don’t baptize them before birth, many people don’t name them until birth, etc.
It’s all just political maneuvering. Conservatives whose selfish policies would never gain the support of normal people create and use moral scandals like the “evils” of feminism and homosexuality to bamboozle the simple minded into backing them.
I don’t remember the last time I went to a funeral for a miscarriage, and I’ll bet that no one here can either.
But on the other hand, a lot of women who miscarry do grieve for the “lost baby”.
The best thing you can say about the personhood of the fetus is that it’s a grey area, which is why I don’t think it should trump a woman’s mastery (mistressy?) over her own body.
No, they grieve for a lost pregnancy. And that’s a different thing. I’ve known lots of women who lose pregnancies and a very few who have lost actual children. Miscarriages are abstract losses. Losing an actual, born child is grief unparalleled by any other. If a woman was to lose her mind with grief over a miscarriage and have a funeral and name it, etc., she would get hauled off to get help. Whereas heart-rending grief is just part of losing actual children, and always has been.
This is an issue that’s more clear than we’d like to admit for fear of offending somebody who might say, “Well, I grieved over a miscarriage like I lost an actual child.” To me, that is offensive and diminishes the losses of those who have actually had to suffer the loss of a real child.
Sam Barnes wrote:
“Your burden of proof is incorrect. Nobody has to “prove” that personhood attatches at conception, viability, birth, etc. The majority just has to agree that it is so (pick a point), and that CREATES a compelling State interest to regulate abortion after whichever point you picked, since the State already has a compelling interest in protecting the security of persons within its jurisdiction.”
Not to put too fine a point on it, Sam, but this is complete nonsense. If the majority agrees that there is a “compelling State interest” in stating that the world is flat, then the majority is simply wrong. Similarly, whether the majority thinks that personhood begins at birth, viability, conception, or that seductive look across the table is simply immaterial; the issue is whether it is so or not. (Perhaps you mean to maintain that personhood is strictly culturally relative. But if your argument for regulating abortion turns out to rest on wholesale cultural relativism then that seems like as good a reason as any to abandon the argument.)
In a response to several postings by Sam Barnes and lucia:
I believe that a Human Life Amendment of a very different type will become likely if certain trends continue. In 2002, the federal Born-Alive Infants Protection Act was signed into law. That law, among other things, provides legal protections to a child that is unintentionally born alive during an abortion procedure (a “wrongful birth” in the jargon of abortion providers).
So far, no controversy, right? We’ll, not so. Some of those who are strong supporters of abortion rights objected that this law was another prong in a strategy to weaken overall abortion rights in this country. (The last thing that a woman undergoing an abortion wants is a living child).
Furthermore, a respected philosopher on the faculty of Princeton University (Peter Singer) has argued that philosophically, there is no distinction between a late-term abortion (declared legal by the courts) and infanticide (not yet).
If these views become prevalent and accepted by courts, there will be swift movement to enact a Human Life Amendment. The fight will be over the point at which legal protections are conferred. The amendment may stipulate that full legal rights are conferred at the time of birth. Or alternatively, at some point prior to birth.
my comments on this thread are in a piece called the war of the mice, at vark.blogspot.com. thanks amp for linking to me.
LMA: “…a respected philosopher on the faculty of Princeton University (Peter Singer)…”
Respected? Not by folks I know. And even if HE is respected, his position on infanticide is not. Nor is it likely to become a popular opinion.
Posted by Sam (the guy):
“Nobody has to ‘prove’ that personhood attatches at conception, viability, birth, etc. The majority just has to agree that it is so (pick a point), and that CREATES a compelling State interest to regulate abortion after whichever point you picked, since the State already has a compelling interest in protecting the security of persons within its jurisdiction.”
Posted by DRA:
“I repeat, then the majority can also legitimize slavery based on a new interpretation of ‘morality’ at some future point, and you would not be able to stop that. Trends should not be the basis for justice.”
My response: The arguments of NARAL and like-minded abortion-rights groups assert that it is interfering with a woman’s right-to-choose to require that a newborn child who unintendedly survives an abortion procedure be extended life-saving measures. Furthermore, there are those (Prof. Peter Singer of Princeton University) who argue that killing a newborn is no different than aborting a late-term fetus.
Empirically, there is no way to determine who is right about personhood. Thus, I agree with Sam (the guy). Wrestle the issue from the courts, have a national dialog, come to a consensus, and implement that into law. Perhaps legal protection begins with the onset of brain waves, perhaps at viability, perhaps at birth, or perhaps 28 days after birth (the Singer school of thought). But in the absence of empirical proof, how can we possibly decide this issue other than by a societal consensus?
Don’t wave those Peter Singer vibes at me, I have no truck with that man and resent the implication.
And I think there is a very good place to draw the empirical line. Full emergence from the womb immediately begins the process of self-creation, as the infant now has light (possibly even sight), significant sound, relevant tactile experience, significant spatial relations, the reference framework of differentiated entities, and direct and measurable evidence of other living entities. By those criterions I have no trouble at all granting personhood at birth.
And most important of all, the fetus is now no longer a dependent burden on the mother. This is the line I would draw, but I doubt a “national dialogue” would yield such a reasonable and fair consensus given the high and influential presence of manipulative agenda pushers in the population.
Of course, now you’re going to start cooking up all kinds of strange and unlikely scenarios…
Response to DRA:
The “…very good place to draw the empirical line. Full emergence from the womb…” (your words) might actually be acceptable to some pro-life advocates as a “compromise”, if we could be sure that the line couldn’t be moved at some point in the future.
At the time of Roe, we thought that the line had been drawn at viability. Needless to say…
Some of us are fearful that the line might move yet again. After all, thirty years ago, who would have thought partial-birth abortion a future possibility? Thirty years from now, who knows what assertions will be made in the name of “reproductive rights”.
Some pro-lifers may be willing to accept the status quo, if it could be declared so in perpuity. The only mechanism that would suffice: an ironclad human life amendment declaring full protection at birth.
It remains to be seen whether such an amendment would be supported by the other side.
Pah, don’t worry LMA, only in a paranoid Jack Chick version of the U.S. could infanticide ever be considered seriously. You overestimate goons like Singer if you think such an idea could ever gain traction.