Roe and Privacy: Defending Palin (!)
Some folks are complaining that Palin claimed to believe in an implicit right to privacy in the constitution despite the fact that she's anti-Roe.
But there's no contradiction there. In fact, one of the standard knocks against Roe is that it involves a misuse of the right to privacy. Palin's position is consistent.
Some folks are complaining that Palin claimed to believe in an implicit right to privacy in the constitution despite the fact that she's anti-Roe.
But there's no contradiction there. In fact, one of the standard knocks against Roe is that it involves a misuse of the right to privacy. Palin's position is consistent.
posted by Winston Smith at
8:42 PM
12 Comments:
WS writes:
"[O]ne of the standard knocks against Roe is that it involves a misuse of the right to privacy"
I'm not familiar with this argument -- can you give (or point to) a summary of this position?
(I did not find it from a quick search with Google.)
Goes like this:
Stipulate, for the sake of argument, that there is a right to privacy in the Constitution. Note that this does not protect all private actions. It would not, e.g., protect infanticide. Suppose abortion is the moral equivalent of infanticide (as many anti-abortion folks believe). Conclusion: abortion is not protected by the right to privacy.
Note that I am not defending this argument, but merely pointing out that it is non-contradictory (and non-insane).
Got it. The "argument" is that exercising one's right to privacy does not allow one to commit murder.
This is a red herring. To the best of my knowledge, no one claims that the right to privacy would permit abortions even if a fetus was legally considered a living person.
(More specifically, I don't believe anyone with regular, widespread exposure in public political debate contends that the right to privacy would permit abortion even if a fetus was legally considered a living person.)
Well, I'm no expert on this, but there are certainly those who claim that abortion (and even abortion-on-demand at least in, say, the first trimester) would still be permissible even if the fetus were a (full-fledged) person. Take Judith Jarvis Thomson's famous "A Defense of Abortion" takes this line, as do many others. As I recall, she doesn't appeal explicitly to privacy rights in her argument, though she does appeal to other rights that are taken by many to be roughly equivalent to or grounding of privacy rights--e.g. something like property rights.
But, again, this is hardly my area of expertise.
I believe Winston is correct. Which leads us to examine the right's most common arguments for the illegality of abortion, which consist of two broad equivocations:
1) Convert an epistemological question (fetal personhood) into a moral one and then
2) conflate morality and law in an attempt to protect the fetus
OR:
1) Convert a moral belief (fetal personhood, derived from religious belief) into an epistemological one, then
2) Claim personhood-based rights for the fetus.
Read carefully through this thread and you'll see what I'm talking about:
http://philosoraptor.blogspot.com/2006/02/all-your-uterus-are-belonging-to-us.html
Jim--
Yeah, I didn't intend to speak to the goodness or badness of the argument. Rather, the point is just: you can hold both: (a) there's a right to privacy and (b) Roe sucks.
Heck, I'm inclined to think that. Though I'm (rather tentatively, uncertainly, and guiltily) pro-choice, and I think there's a right to privacy, I don't really see any way to get the former from the latter.
WS posts:
"you can hold both: (a) there's a right to privacy and (b) Roe sucks."
Absolutely, for the reasons you state!
In an earlier comment, WS cited the example of the essay by Judith Jarvis Thomson, one I am sadly unfamiliar with.
Lewis is, I believe, on target when he points to the core to the anti-abortion position as being the issue of fetal person-hood.
FWIW, I have known enough women who have had abortions (both legal and illegal), and have either seen (or had them tell me) the affect the (il)legality of abortion has had on their lives, to make me a supporter of abortion rights.
Having said that, I am an equally ardent supporter of age-appropriate sex education, and ensuring that sexually active teens and adults have access to contraceptives.
Lewis,
I hope I've posted this quick enough that you haven't yet given up on this thread for lack of activity.
I read through your conversation with TVD on the thread you linked to, and was very intrigued. I do not think, though, that the usual argument against legal abortion involves the kind of equivocal conversions that you indicate; or the kind of total conflation of morality and law that you argue against.
I take the following to be the standard argument against the legality of abortion:
1) If an action denies someone one of their human rights, then that action should be illegal.
2) Killing an innocent person denies that person their right to life.
3) A fetus (or blastocyst, depending on how far you go back) is an innocent person.
4) Abortion is the killing of a fetus (or blastocyst, etc.)
Therefore, 5) Abortion denies someone one of their human rights.
Therefore, 6) Abortion should be made illegal.
I take it that the most contraversial premise is #3, although I'll take Thomson's article as a kind of argument against premise #1. Maybe, Lewis, your argument about keeping morality and law separate also argues against step 1? I'm inclined to think not, given that you seemed to be separating the demands of a person's rights from the demands of morality in your conversation with TVD. Maybe not - I can try to respond later if you think it does. I always felt that there was a stronger responsibility for the lives of others than Thomson's article allowed for, but I'll leave her to the side for now (with the willingness to return to her, should the need arise).
This leaves premise #3, that the fetus is a human person. I take it that this is the real crux of the issue. Murder is a sufficiently grave moral problem that, if we were to uncover an instance of it, it would be appropriate to pass a law against it. The argument over abortion therefore boils down to the argument over whether or not it constitutes murder - and that question is essentially the question of fetal personhood.
Given that the answer to the question of fetal personhood is at least potentially affirmative, the question is one which must be answered to some degree of satisfaction. But the degree to which the question can be satisfactorily answered seems to be a low one. For the question of fetal personhood involves many other difficult and only provisionally unanswerable questions - the essence of personhood chief among them. Given this, we must determine the side on which the burden of proof lies most heavily.
I maintain that the burden of proof in this question lies on the side of those who would deny fetal personhood. First, the consequences of being wrong are more dire in the case of denying such personhood than in the case of affirming it. If we affirm it wrongly, the consequences will be: unnecessary (admittedly grave) personal hardship (including death for some) for some of the mothers (sometimes fathers) of the aborted fetuses. The number of men and women thus affected is likely to be less than the number of aborted fetuses. Thus, if we wrongly deny fetal personhood, we allow for the death of each aborted fetus. In both quantity of those affected and in the quality of the harm, wrongly denying fetal personhood is a worse possibility.
Furthermore, there is at least a prima facie case to be made that the fetus is a human person. Whatever a human person essentially is, at certain point it becomes uncontroversial that the thing (that was) in the womb is one. The fetus naturally develops into something that is uncontroversially a human person. Barring nutrition, oxygen, and shelter, the fetus (indeed, the blastocyst) has everything it needs to make this transition under its own power. Moreover, the fetus is, from the moment of conception, genetically human. That the fetus is already uncontroversially human on some level (human personhood is controversial; I take it genetic humanity is not), added to the fact that, under its own power, it will eventually attain a form which is uncontroversially a person: these two facts, to my mind, form a strong prima facie case in favor of fetal personhood.
This prima facie case, combined with the analysis of the possible worst case scenarios given above, forms a strong presumption in favor of fetal personhood. Given the difficulty of the problem, this presumption is about as strong an answer as the question admits of.
Therefore: Insofar as it can be answered at all (and it must be answered, if I am right above), the central question of the abortion debate must be answered with premise #3 above. But, given premise #3 (and sidestepping the possible challenges to premise #1 for the moment), abortion should be made illegal.
Or, at least, so go my thoughts about the matter. A few potential problems:
1) I may be misunderstanding your objection about the dual equivocations, and thereby falling into that trap unknowingly.
2) One might ask whether the degree of certainty of which the question of fetal personhood admits
is simply insufficient for legal action. After all, if that degree is low enough to admit of reasonable dissent, it would seem to require the prosecution of women for a crime which one might reasonably doubt ever ocurred in the first place.
I'll leave the first of those problems to you, Lewis, if you think I've misunderstood.
As to the second, I would say: I have simply never heard any arguments that the fetus is not a person. Assertions yes, arguments no. (That may, of course, be due to the fact that this is such a volatile issue that you rarely get actual arguments in regular conversations about the subject.) If I am right about the burden of proof, then a lack of argument on this point would have to allow for a conclusion thicker than mere agnosticism on the subject.
So, there you go. I'd be interested in the aid of that rigor, clarity, and knowledge which you have consistently shown in every one of your posts.
Although that was addressed to Lewis, I'd be interested in anyone else's help on thinking through the issue, too. I don't know if James is still around on this thread.
Spencer,
Thank you first of all for the kind words, and also for the cogent argument.
I think you properly hit on a crucial point when you said "This leaves premise #3, that the fetus is a human person. I take it that this is the real crux of the issue." Now, this morphs into a semantic question, because he who gets to define *person* kind of gets to make the rules, a la Humpty Dumpty in the brilliant work of my namesake.
I could be mistaken, but personhood has typically been defined as more than *genetically human* which I take (as I kind of get the feeling you do too) as a necessary but not sufficient criterion for personhood; this is why the argument that the fetus is "human life" is insufficient, since genetically speaking, skin and hair cells are genetically human but no sane person defines them as persons. I believe personhood has also traditionally been defined as including things like sentience, the ability to form relationships, cognition etc.
So the first question is whether it can be conclusively shown that a fetus possesses all (or even any) of those attributes, especially at very early stages. I think it's at best as you describe: indeterminate.
It's at this next step where I think you make the most intuitively appealing argument that I know of against abortion, which can be succinctly boiled down to "On which side would you rather err, that of protecting what might be a person, or that of protecting the right of autonomy of a woman?"
But here's my problem with it. Because we're talking about the law, which is 1) a protection of peoples' rights and/or 2) the weighing of one person's rights against anothers, we need to address not only the presumed rights, but also the status of the rights-seeker. The latter might loosely be called *standing* in terms of the law (maybe not strictly 'standing' as it's used by the USSC necessarily).
It's here where status of personhood is crucial. While I concede that merely weighing one potential harm against the other (e.g. killing of a person vs. infringement on autonomy) results in a decided case against permitting abortion, the whole issue of standing or rights-bearing must be addressed first. So whatever the likelihood you think a fetus might be a person and therefore entitled to rights, we know for 100% sure that the pregnant woman is a person and entitled to rights. One we know for sure has *standing* in terms of rights, the other...we're not so sure. So in effect we're extirpating the rights of a 100% for sure *person* by elevating to equal rights-bearing status one who we're not so sure is entitled to those rights. I require a higher standard than that to make a woman and her doctor criminals, because that is the inescapable conclusion from assuming personhood on the part of the fetus.
This was a point I tried to make to Tom as well, by pointing out that morality is a poor rationale for making law because there isn't enough guaranteed common moral ground to use it as a rationale for the application of coercive government power. Fetal personhood is another example of personal beliefs which are not broadly enough agreed upon, but are nevertheless used as justification for certain laws. (People may or may not construe it as a *moral* belief, I'm not really sure - above my pay grade. Maybe Winston has some ideas here?)
A more formal argument might go something like this:
1) Laws are designed to protect the rights of persons and to arbitrate among the potentially conflicting rights of persons.
2) Rights apply to persons only (setting aside for a moment the strange SC precedents that discerned rights for corporations)
3) Pregnant women are persons.
4) The right to autonomy over one's own body is a right.
5) Therefore a pregnant woman has a right to autonomy over he own body.
6) There is no conclusive evidence that fetuses are persons.
7) Therefore there is no conclusive evidence that fetuses have rights.
8) Since there is no certainly that fetuses have rights, there is no legal reason to vitiate the right of a pregnant woman's autonomy over her body.
9) A woman's decision to abort a fetus should not be illegal.
I would expect that your disagreement, if I understand your thinking, would be that 7) and 8) necessarily follow from 6). But correct me if I'm wrong.
I expect you'll disagree, and I certainly respect your opinion, but I believe that personal beliefs (moral or otherwise) that are not very widely shared, are sufficient reason for determining one's personal behavior, but not sufficient reason for making laws concerning others' behavior. I hope that makes sense.
Correction: in that second-to-last paragraph it should read "I would expect that your disagreement, if I understand your thinking, would be that 7) and 8) DON'T necessarily follow from 6)."
Hi all -- I am still around, and happy to continue to throw in my 2 cents.
BTW, Spencer, I generally go by "Jim" rather than "James", not that you can tell from how Google/Blogger signs me in!
At one time I took the approach that, since the question of fetal personhood was not one that had a clear answer, abortion should be illegal so that we would avoid killing fetuses who might, in fact, be people.
As time went on, other factors became clear to me, including:
1) Abortions happen even when they are illegal. Often, the abortions are (were) performed by an MD, in a clinical setting, and are (were) considered legal, having been classed as a "therapeutic abortion".
A public heath official put this pointed question ... "Why is there such a difference in the incidence of therapeutic abortion by hospitals? ... [I]n many circumstances the difference between the one and the other is $300 and knowing the right person." What we have to admit is, as was repeatedly emphasized, - that most therapeutic abortions are in the strictest sense of the law actually illegal.
(From a 1960 article in the American Journal of Public Health, by Dr. Mary Calderone, then Medical Director of Planned Parenthood.)
The article states that, at that time, estimates of the number of abortions per annum in the US varied from 200,000 to 1,200,000, with the figure of 1,000,000 "advanced again and again".
According to the CDC, in 1997 there were approximately 1.2 Million abortions in the US. (The data from later years excludes some states, including California). Note that from 1960 to 2000 the US population went from 180 Million to 280 Million.
2) When abortions are illegal, some women are injured or die because of illegal abortions that are either self-induced, or performed under unsanitary conditions and/or by untrained personnel. However, the Calderone article claims that the death rates among women having abortions (legal or illegal) was low by 1960.
So, the per-capita abortion rate may have gone up significantly when abortions became legal. Then again, it may have gone down. I haven't seen convincing data either way.
Conclusion: Making abortion illegal has limited efficacy (if any) in stopping abortions, while mortality from illegal abortions is limited (but not zero).
Clearly, if one wishes to minimize the number of abortions performed, it is important to promote the use of contraception by those people who choose to have sex.
3) Many of those who oppose legal abortions also oppose the use of contraception and/or educating our teens about contraceptives and their use and/or making contraceptives available to those who wish to use them. On the whole, these abortion opponents are people who also consider pre- or extra-marital sex to be immoral, and in some cases consider marital sex for reasons other than conception to be immoral.
Conclusion: It appears that at least some of the anti-abortion movement is an anti-sex movement, opposing legal abortions (at least in part) as a way to discourage people from having sex, and of stigmatizing those women who do have sex and end up having an abortion.
4) Very few of those who oppose legal abortions believe that a woman who has an abortion should be tried and, if convicted, jailed. This position is strongly at odds with a belief that a fetus is a person and therefore abortion is murder.
5) I know of no other way in which a fetus is considered, by law, to be a person. For example, a woman who is pregnant late in the calendar year, and gives birth after Jan 1 the next year, does not get to claim the unborn child as a dependent in the year before its birth.
Similarly, the fundamental document one uses to for identification in the US is the "Certificate of Live Birth." One cannot be issued, e.g., a social security number until one has a Certificate of Live Birth.
Conclusion: We are geneally agreed that a fetus is not a person, except for the question of abortion. Even those who consider a fetus to be a person for evaluating abortion, still consider a fetus to be less of a person than those who are already born.
6) Several women I know have spoken with me about having an abortion (some legal, some not), or deciding not to have an abortion. One spoke of her close friend, rendered sterile by a botched illegal abortion.
They have told me that it has been of vital importance to them that it was their choice.
I know of one woman who chose to have an abortion (she decided that she and her husband could not afford to have another child), realized that she had made a mistake, and made efforts to become pregnant again (her husband helped!).
She is adamant that it her relationship with her youngest is strongly shaped by her understanding that she really wanted to have one more child. She insists that, had she not had to choose, she would harbor resentment for the child she would have felt compelled to carry to term.
7) Wikipedia reports that the maternal mortality ratio in the US in 2000 was 17 maternal deaths per 100,000 live births. The CDC report cited earlier reports that in the 1990's there were less than 1 death per 100,000 legal abortions.
Conclusion: A woman who learns that she is pregnant is more than 10 times more likely to die by carrying her child to term than by having a legal abortion.
In short:
A) There are real psychological and emotional benefits for women to have the choice of a legal abortion.
B) A woman takes significantly greater risks to her life by carrying a child to term instead of having a legal abortion.
C) Anti-abortion laws have limited efficacy in preventing abortions.
D) Anti-abortion politics are used by some as a way to to impose their moralities about sex on others who don't share those moralities.
E) We do not legally treat a fetus as a person in any other manner, and even those who oppose abortion would treat a fetus as less than fully human.
F) When abortions are illegal, access to abortion is enhanced by social status, money, or being well connected.
The injuries and damages caused by making abortion illegal are observable, clear, and well understood. The question of fetal personhood is not. I cannot condone inflicting substantive injuries, damages, or death on a group of people (including many I know and love) to avoid killing fetuses who may (or may not) be persons.
Beyond keeping abortion safe and legal, we need to ensure that everyone has the requisite education in contraception and access to contraception.
Best,
Jim
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