“Yet because the decision will not allow the question to remain silent, and yet sounds an ambiguous note as to how it would be answered in terms of our contemporary liberalism, the decision [Roe v. Wade] ‘Commends th’ ingredients of our poison’d chalice/To our own lips’.” G. P. Grant
Although President Obama’s affirmation of “reproductive rights” appears to be the status quo, this is not a time to be silent about the sanctity of life. George Parkin Grant, the Canadian philosopher known for his penetrating insight into the connection between liberalism and technology in modern society, argued in the wake of Roe v. Wade decades ago that the reasoning given in this judicial decision undermines free societies.[1] In evidence, Grant pointed to the connection between abortion and confusion about the ontological status of the nature of human beings underlying our philosophies, but additionally he argued in a more political vein that Roe v.Wade had undermined the principle of equality under the law by stripping the unborn of the right to be represented in a court of law. He found Roe v. Wade extremely unsatisfying because it, in his words, undermined the “legal and political system, which was the noblest achievement of English-speaking societies.” Consequently, he came to consider justice for the unborn the central question facing North America, and it is not an exaggeration to say that he considered it a sign of that kind of danger to human rights that was present in Nazi Germany.
Around one million abortions are performed each year in the United States. Although that number has fallen from a high of a million and a half abortions, it is nevertheless unsettling. As has been frequently noted, no European country offers so little legal limit on abortion as does America. Anyone interested in protecting the unborn should realize that voting pro-life at the state level matters quite as much, if not more, than voting pro-life at the national level. Political scientist Michael New, University of Michigan-Dearborn, has shown that certain kinds of laws are helpful in the short term to limit the number of abortions. On the stump, however, advocates for the unborn should be aware of the kinds of argument that Grant made. They are persuasive because they make a connection between the Declaration of Independence, the founding principles of American constitutional law, and the protection of the unborn.
The fundamental question might be raised in this manner: is the unborn a class of persons who should not have the same rights as other individuals under American law? If so, then can one rest content with the fact that legalized abortion undermines the principle of equality under the law? Situated in this way, abortion is not connected to issues of sexual morality, like contraception or the nature of marriage, which, as important as they are, obscure the central legal problem. In Roe v. Wade, the court removed legal and constitutional protections from a certain class of individuals, in this case very young children, despite the fact that those same unborn children can inherit property and may be recognized as a plaintiff in a lawsuit. In connecting abortion to privacy issues, the court in Roe v. Wade gave the mother a private right to kill her child, situating within the law a private right to kill another human being. Looked at from that angle, it is clear that the right to abortion makes the idea of equal rights under the law, guaranteed to each individual, no longer the law of the land. It also created an anomaly within the law, as there was no attempt to reconcile it with standing law. This is ominous for both minorities and women, both of whom have benefited from courts adjudicating on the basis of a right to equality, a right which is now in question.
There is a related philosophical question as to how rights should be conceived under the law: is equality under the law a universal right, self-evident and permanent, or is it the product of the court decisions? The removal of legal rights from unborn children makes it appear that basic rights are now considered simply the product of courts. This position has, of course, been defended persuasively for a number of generations. The idea that courts ought to determine the outcome of cases pragmatically, that there is no higher justice, no fixed rights, and no recourse to historical legal reasoning, has its defenders within a school of thought called “realism.”[2] These include Oliver Wendell Holmes, Jr. for whom there was no law but the positive law, and who famously supported the sterilization of the unfit, a precursor to Roe v. Wade. Part of the difficulty of adjudicating on abortion is connected, therefore, to questions about the foundation of basic rights, and it is connected at least indirectly, to an approach to jurisprudence born of philosophical pragmatism.
Without describing philosophical pragmatism at length, one can say briefly that William James denied the existence of a higher law or any a priori principles of justice and truth in the name of pragmatic truth, a truth that is practically useful for people. Writing at the turn of the twentieth century, in Pragmatism, James argued that there is no objective higher realm of truth, truth claims are projections of our wills, and that what is true is true only insofar as it is useful to us. He spoke of the plasticity of truth. Historians have noted that legal scholarship was influenced by such ideas. Clearly epistemic questions about the nature of truth are connected to the abortion issue when one raises certain crucial questions: Are rights invented by courts to serve certain social purposes, or are rights received from higher principles? Are rights an expression of social desires,or are they inherited in the common law, an expression of permanent principles and, in the words of Edmund Burke, a guarantee of ‘rational liberty’? Can we know what a human being is?
Pragmatic jurisprudence has its brilliant defenders, but what they protect is not the human person because he has rights, for to speak of a given human nature is a contested, metaphysical speculation. Rather they defend the right to engage with others in such a way as to respond to real-life pressures.[3] On this account, there is no need to prove that a new right is connected to historic rights, but rather one must make an argument about the merits of the practical effect of that right. In other words, courts will protect a right if it helps people realize a certain ‘quality of life.’ Reproductive rights are pragmatic rights in this sense. Thus the language of right remains, but the content of the word right has changed, and the language of liberalism has become confused. Natural rights emerged at a time when philosophical liberalism spoke about human nature in a certain way: it was fixed, and human beings were able to know universal rights. Rights language is now connected to a metaphysical standpoint which denies this. It is this fact that places a great question around Roe v. Wade.
George Grant made the case that rights are nothing if not grounded in the permanent things. To leave the courts to decide whether a person—born or unborn—is worthy of rights endangers the rights of every person within a society. In the language of the American Declaration, rights are self-evident truths; but this presumes that truth is available to reason. The signers of the Declaration, while Christians or deists themselves, assumed that rights are universal because they thought that every person in the world, reasoning rightly, whether Christian or not, could see that equal treatment under the law is a tenet of justice. They saw in the common law the very rights they were engaged in protecting; they did not question them. The idea that each individual, qua individual, was equal under the law was self-evident because it was rational and historically grounded. So Roe v. Wade raises a serious question about the very possibility of justice as understood in Western law and it raises questions about the very nature of liberalism. It is also, philosophically speaking, connected to deeper questions about human rationality. If human beings are not rational, and if the history of the common law and the development of common law rights have no foundation in reason, then what the judges have done is, to use Grant’s paraphrase of Macbeth, “raised a cup of poison to the lips of liberalism.”
Are rights a projection of the will of the courts or the majority and nothing more? Have we, like Macbeth, turned against ourselves? Are we now coming to the end of the great “English-speaking drama” which once was, and is no more, the bulwark of Western liberties? While ontological issues are at stake and the greatest questions regarding the very existence of rights are being argued in the universities, at the same time, it is also true that ordinary persons still speak and think as if they have rights. This is no small thing; the reasoning of ordinary human beings today, as at the time of the Magna Carta, informs them that equal treatment under the law is a fundamental tenet of justice.
In the universities, of course, it is rather important and useful to consider the impact that progressive and pragmatic ideas have had on the courts and ponder the merits of progressivism and philosophical pragmatism. One must consider the effect that these larger ideas have had on the western legal tradition, and also how such thinking will affect laws connected to euthanasia and care for the mentally handicapped. At the local and national level, bright young people should run as pro-life candidates because this issue offers an entry into making the kinds of arguments that will preserve liberal justice—“rational liberty,” as Burke once termed it. These are the kind of liberties that were central to justice as it was conceived in the West for centuries.
Roberta Bayer is Assistant Professor of Government at Patrick Henry College, where she teaches medieval and contemporary political thought. Dr. Bayer edits the magazine of The Prayer Book Society of the United States, The Anglican Way. Her recent work includes Reformed and Catholic: Essays in Honor of Peter Toon (Wipf and Stock, 2012).
[1] George Parkin Grant, English-Speaking Justice, (Notre Dame: Notre Dame Press [1974], 1985), and “Abortion and Rights,” in Technology and Justice (Notre Dame: University of Notre Dame Press, 1986).
[2] See: A. J. Beitzinger, A History of American Political Thought, (Eugene, Oregon: Wipf and Stock, 1972, reprint) ch.22.
[3] Stanley Fish, Richard Posner, and Richard Rorty, for example, have taken up the question of pragmatism in legal terms. See: Fish, Doing what Comes Naturally, (Duke U.P., Durham, 1989).
126 comments
Tony A.
Art,
Siarlys is a he, not a she, although you are quite right in his propensity to say nonsense with righteous fervor . . .
Art Nesten
I reject the notion that anyone, man or woman, has any right to murder an unborn person in utero, or that the prevention of such murder takes away “rights” of a man or a woman. Such “rights” do not exist nor can they be argued to exist, any more than a right for a parent to intentionally starve his child to death. Rather, parents have both a right and a responsibility to care for their children at all stages of their childhood.
Art Nesten
Siarlys Jenkins: ” There has never been ANY precedent that a fetus is a person.”
Yes, there has.
http://en.wikipedia.org/wiki/Laci_Peterson
http://en.wikipedia.org/wiki/Unborn_Victims_of_Violence_Act
Feel free to ignore Siarlys Jenkins’s comments on this thread, everyone. She doesn’t know what she is talking about, but says nonsense with such righteous fervor it’s unlikely you’ll get through to her.
Ahunt
Yeah.
So Anymouse, would you at least agree then that a married woman has no obligation to engage in procreative type sex with her husband unless she wants to be pregnant? Yes, no, maybe?
Siarlys Jenkins
Let me briefly note that I find nothing illogical about the pro-life position. Assuming the premise that a new independent human life deserving of full legal protection exists from the moment of conception, all else in the pro-life argument follows logically and inexorably. It is the premise that divides us.
Tony, you’re losing the argument and casting up classic straw men to try to retain your own sense of righteousness. Nothing I said is subjective. I’m looking at (a) the absence of ANY nervous system initially, then (b) the rudimentary nature of what nervous system there is, lacking the dense concentration of nerve cells forming a central nervous system capable of directing the other organs and sensing the whole. Its really quite quantitative. AFTER the quantitative development is passed, things do get quite subjective and nebulous, which is why I err on the conservative side by saying twenty weeks, not end of second trimester.
The state has an interest in the protection of the baby once a baby has in fact been formed, precisely because it is no longer a cell, a clump of cells, or the incomplete outline of differentiating cells that are not yet an organism. Its not a hard distinction to understand, unless you are running away from the obvious.
Anymouse is of course entitled to his opinion. He doesn’t present much danger of being able to impose that opinion on the rest of us, but if he did, that’s why we have
a) the First Amendment, and,
b) the Second Amendment.
The government he envisions would be truly tyrannical and worthy of armed resistance.
Anymouse
That statement is truly absurd, and worthy of ridicule.
In what way was our pre modern society tyrannical? I see nothing tyrannical about a society where a maiden can seek a husband without the need for her parent’s approval, and a youth need not worry about being sexually humiliated in front of his sister, wife, or mother as punishment.
I do see something tyrannical about a society where a maiden can be forced to suffer the abortion of her fetus, be prevented from gaining any legal recognition of any marriage she engages in, and a man can be sexually abused for engaging in behavior that would be acceptable for someone a few years older.
So we can have a nice long discussion about tyranny, if you wish.
Anymouse
The same as a man getting a vasectomy.
Anymouse
I would, in fact. As would most traditional Christians.
Ahunt
“I wouldn’t think that Rob or I were the first ones to notice an inherent, natural connection between sex and babies”
Yes, we get this.
But let me just check one thing …no one here has any objection, say, to a married woman who has birthed all the children she intends getting herself a tubal ligation, correct?
Rob G
“In the end, you’ve admitted A) that your views concerning the criminalization of abortion are rooted in your Christian convictions, and B) that you are generally unwilling to accept that the Constitution could say anything different from what your religion teaches.”
Regarding A, I guess I’m not very good at compartmentalization, thanks be unto God, although one can certainly make a natural law argument against abortion that wouldn’t depend on specifically Christian teaching. Regarding B, of course I accept that the Constitution and Christianity can differ. But for the believer, the latter must trump the former when they do. The two things don’t exist in separate hermetically sealed chambers.
Rob G
“I wouldn’t think that Rob or I were the first ones to notice an inherent, natural connection between sex and babies”
Yes, in fact it’s the relentless effort of the modernist project to sever this inherent, natural connection that has caused the problem in the first place.
Anymouse
“Few Americans are probably interested in living under a legal regime that permits local church leaders to round up alleged wrongdoers, try them according to canon law, and burn them at the stake for not conducting themselves as good Christians.”
This is an overly simplistic description of that system, but no matter.
We are objectively at an impasse, because I consider the world of 600 years ago a far better guide to a traditional and conservative society than one invented in the context of reformation and revolution 300 years ago.
Bobby
Tony,
Also, stop putting words into my mouth. I never said that a fetus is merely a clump of cells. In fact, my personal convictions regarding fetal life are probably not too different from yours. But those convictions are based entirely on my religious convictions, and I have no expectation that the state use criminal force to further policies that merely favor my religious preferences.
Bobby
Tony,
The state doesn’t have a duty to do anything. The Constitution imposes no duty on the state to criminalize anything.
The question of constitutionality only arises once the state has taken action, for example, by enacting a criminal statute and then prosecuting someone under that statute. At that point, the defendant may raise a defense of unconstitutionality, arguing that there is no substantial non-religious purpose justifying the particular state action in question.
The Court has held that the state MAY criminalize abortion after viability because, at that point, the state is in a position to take over care from the mother (once labor is induced and the fetus is born). But prior to viability, the state cannot do this. Therefore, the state’s interest in the pre-viability fetus is too tenuous to justify the exercise of criminal force. Bear in mind, though, that the state is under no duty to protect post-viability fetal life.
The Constitution does not impose an affirmative duty on states to act in any particular sphere. Rather, it carves out a narrow sphere in which state action is permissible. Outside of this narrow sphere, individual liberties prevail.
Tony A.
I wouldn’t think that Rob or I were the first ones to notice an inherent, natural connection between sex and babies, nor do I see why noticing such a connection makes either of us “hung up on sex”, but whatever.
Siarlys, your assertion that prior to 20 weeks, a fetus is not a self-conscious, self-aware organism is ambiguous. Are you saying that prior to 20 weeks, a fetus is not an organism, or are you saying that it is an organism, but is not self-conscious and is not self-aware?
As far as the self-conscious and self-aware aspects go, since those are both by definition subjective states, how does anyone know that pre-20 weeks a fetus is not self-conscious nor self-aware? Or, conversely, how does anyone know that post-20 weeks a fetus is self-conscious and self-aware?
I understand your distinction, that before viability, the mother plays the essential role in keeping the fetus alive and she cannot pass that role on to another. But, your distinction between an insufficient state interest pre-viability and a sufficient state interest post-viability assumes the existence of a state interest in the first place. It still doesn’t explain why, if a fetus is only a ‘clump of cells’ or only ‘potential life’, the state has any duty to protect it, regardless of whether it is viable or not.
Similarly, if a fetus is only a clump of cells or only ‘potential’ life, then why is “abortion . . . a grossly irresponsible act in most instances”?
Rob G
“In contrast, the gay rights movement has succeeded precisely because they’ve marginalized the radicals (for the most part), accepted incremental gains, and focused on developing arguments that will be persuasive to the center-right mainstream. ”
It is easy to sway people when you’ve got the entire media industry on your side, and you’re paddling with the cultural stream rather than against it. Someone’s called it the “Will and Grace effect.”
They have not marginalized the radicals; the media just doesn’t let you see them. They are still there and just as active as ever.
“focuses more on moral suasion and less on trying to criminally punish alleged wrongdoers. ”
I will be anxious to see if you are just as vociferous when the punishments start being meted out against those who speak up for traditional morality, as they already are in some other countries. But be careful here. Liberalism is tyrannical, and there is always someone more liberal than you, someone who’s perfectly willing to take you to the woodshed. Or the gulag, as the case may be.
Bobby
Anymouse,
I think that’s the point. We don’t live under a legal regime where religious institutions have the kind of legal authority that they possessed 600 years ago. And, frankly, I think that’s a good thing. Few Americans are probably interested in living under a legal regime that permits local church leaders to round up alleged wrongdoers, try them according to canon law, and burn them at the stake for not conducting themselves as good Christians.
Anymouse
Actual I will rephrase things: that is indeed *one part* of undoing modernity, but not everything that is necessary for that.
Bobby
Rob,
I feel like we’ve made progress here. In the end, you’ve admitted that your views concerning the criminalization of abortion are rooted in your Christian convictions, and that you are generally unwilling to accept that the Constitution could say anything different from what your religion teaches. I suspect that that’s the case of most who advocate for the re-enactment of laws that criminalize abortion.
It strikes me that it would be more productive–for you and for society–to channel your passions on this issue into some form of advocacy that focuses more on moral suasion and less on trying to criminally punish alleged wrongdoers. Working with a crisis pregnancy center would be a great place to start.
Anymouse
That is important and necessary, but that is entirely a different matter from undoing the problems of modernity, and imagining how that might be done.
I will also point out that in the middle ages, civil law would not have needed to be dealt with concerning abortion because of the prominence of canon law, and there any unnatural interference in human sexuality was opposed.
Cult is the foundation of culture.
Rob G
“The two of you seem to be a bit too hung up on sex.”
I was waiting to see how long it took before that venerable howler was trotted out. The culture is completely hypersexualized, some of us don’t like it and call it out, and we’re the ones hung up on sex!
As far as abortion goes the camel may be in the tent for good. I do not, however, feel compelled to make him tea. Or, in the fine words of J. F. Stephen, “The waters are out and no human force can turn them back; but I do not see why as we go with the stream we need sing Hallelujah to the river god.”
I do not believe the Constitution truly allows the killing of infants in the womb (the Framers, I think, would be appalled by such a gross misinterpretation and misapplication of their document), but if it did I would simply say that it’s not Holy Writ, and therefore, the hell with it.
Bobby
Siarlys,
I agree that US antiabortion statutes largely were passed primarily for the reasons you describe. On the other hand, I believe that, at that time, the state may have had other legitimate interests for exercising such control.
I’ve appreciated your comments above. I too have become a bit frustrated by the discussion. In some ways, it’s not surprising. In contrast to other activist movements, antiabortion activists operate in something of an epistemic bubble, wherein they’ve failed to grasp how illogical and unpersuasive their arguments really are. In that sense, they’re much more focused on increasing intensity among those who truly believe in the cause, even if that comes at the risk of unnecessarily alienating mainstream Americans from that cause. In contrast, the gay rights movement has succeeded precisely because they’ve marginalized the radicals (for the most part), accepted incremental gains, and focused on developing arguments that will be persuasive to the center-right mainstream. The above discussion suggests to me that antiabortion activists are simply too comfortable with the bullhorn to adopt any other means of advocacy.
Siarlys Jenkins
Tony, I’ve provided plenty of argument why the viability of the fetus should matter, but you find it convenient to bypass it all with a flat denial, the better to move on to your counter-argument (and it is a counter-argument to a point clearly made).
The difference between a delivered child’s dependence on others, and partially-formed fetus’s dependence on others, is that the delivered child does not depend upon inhabiting the body of an adult person. It can be picked up, fed, hugged, sheltered, clothed, washed, by ANY willing adult, if the mother doesn’t wish to do any of the above. There are “safe haven” laws for newborn infants. There is no way to transfer a fetus to a “safe haven.
It is also relevant that a fetus prior to about week 20, if “from its mother’s womb untimely torn” is not sufficiently well formed, does not have sufficient biological integrity, to survive even if picked up, hugged, fed… its not ready to handle life outside the womb, and, its not a self-conscious, self-aware ORGANISM. I know you don’t see any difference, but that doesn’t mean that any difference others see is ipso facto invalid.
Bobby
Rob & Tony,
I have clearly pointed out in my above comments why, at one point in our nation’s history, the state may have possessed a substantial non-religious justification for criminalizing abortion. Such justification lay with the need to preserve traditional family roles in an agrarian society that depended critically upon such family arrangement. As we’ve moved from an agrarian society to an industrial society to a post-industrial society, the state’s interest in preserving certain family arrangements has attenuated. Such arrangements, while important, are no longer deemed critical to our economic security as a nation.
In our Anglo-American legal tradition, the fetus has never enjoyed the rights that the law accords to the post-birth infant. It would mark a radical break with 400 years of legal tradition to start conferring such rights on the fetus now. It is exclusively on the basis of religious conviction that one can assert unambiguously that the fetus (or a zygote) is a life in the same sense that a 6-year-old child is. The state has no business forcing such religious judgments on the population as a whole.
The state has a legitimate interest in the life of the post-viability fetus because, at that stage, labor could be induced and parties besides the mother could provide sustenance. Because the state is among the parties that could provide such sustenance, the state has a sufficient interest in the life of the post-viability fetus to justify its enactment of laws that limit post-viability abortions. This is fairly implied by the Court’s opinion in Casey. Prior to viability, however, it is impossible for the state to provide sustenance to the fetus, except by forcing the mother to do so under threat of criminal punishment. At that earlier stage, the state’s interests in the fetus are too thin to justify such exercise of force.
The two of you seem to be a bit too hung up on sex. It does seem that your opposition to abortion may be rooted, at least in part, in a desire to increase the potential consequences associated with having recreational sex. I share your concern regarding the hook-up culture, and recognize that the availability of abortion permits that culture to thrive. Even so, the state has no legitimate non-religious purpose in denying people the right to make consensual choices regarding their sex lives. This doesn’t mean that I believe that we should all live as libertines (or that I live as a libertine). It simply means that I believe that the Constitution prevents the state from restricting individual liberties in this way. This, of course, means that some people will conduct themselves irresponsibly, and will take unwise advantage of the liberties they possess. While this saddens me, I do not see that our Constitution permits the state to punish all manner of human irresponsibility.
I agree that abortion is a grossly irresponsible act in most instances. But this is a problem that is better addressed through patient moral suasion and not by the threat of criminal punishment.
Lastly, as I repeatedly have noted, criminalizing murder, theft, arson, drunk driving, etc. is justified by a litany of reasons that have nothing to do with religion. While there may be concomitant religious objections to such things, it is not on the basis of these religious objections that the state is criminalizing such conduct.
Siarlys Jenkins
Here we go ’round the mulberry bush…
It is truly amazing that discussion on this topic continues at such length and volume, with the same participants turning over the same intractable arguments. I’m game, but I have to laugh at the way we all so earnestly continue to argue. We KNOW what the fundamental point is: some consider it child murder, some don’t consider that there is any child involved.
Rob, I accept your clarified position. That’s fine with me too. If there comes a day when every woman, although free to choose abortion, chooses to carry her pregnancy to term, I will remain entirely satisfied.
However, at least concerning Anglo-Saxon common law, abortion was NOT criminalized for centuries. Laws on the books in American states were adopted in the mid to late 19th century, whereas previously, while frowned upon and far from respectable, abortion had been legally available via midwives. Statutes were more the result of doctors trying to snuff out every practice of midwifery independent of the increasingly dominant and organized medical profession, than the result of any conviction that life begins at conception.
I expect that the state of your soul depends on your own moral adherence, not on how successful you are at getting everyone else to agree.
Tony A.
Whether or why (or if it’s even possible) for the state to be as relentlessly “non-religious” as Bobby insists is certainly an interesting issue. But, it seems the “non-religious” argument against abortion is straightforward: a fetus is human, he or she is a unique being, distinguishable from his or her mother (albeit dependent upon her), therefore the state has the duty to protect that human being, as it likewise has the duty to protect human beings at any stage of development – babies, adolescents, adults, the aged . . . . How is this a “religious” argument, any more than criminalizing murder is based on a religious argument?
Neither Bobby nor Siarlys has presented any reasoned argument as to why the viability of a fetus should matter (which term itself is intentionally misleading – both a fetus and a newborn are completely dependent upon another for their survival.) The Casey decision makes no attempt to provide such an argument – it posits that the state has a greater interest if the fetus is viable, but makes no attempt to say why this is so, other than judicial fiat. If a fetus is only a clump of cells, or only “potential human life” rather than actual, existing human life, then why does the state have any interest in protecting it (I would rather say duty, than interest), regardless of whether or not he or she is considered “viable”?
The Casey decision does, however, make clear that – as Rob G. points out – the whole point of declaring a right to an abortion is an attempt to achieve sex without consequences. The Casey court made it clear that it was considering abortion when used as backup birth control – that it was not basing its decision on questions of rape or danger to the mother’s life.
Rob G
“Absent a substantial non-religious justification, the state simply has no business criminalizing certain conduct, even if that conduct openly flies in the face of Christian morals.”
You seem to forget that abortion was criminal for centuries, then decriminalized by the state in the wake of an anti-Christian cultural revolution. Flannery O’Connor said that rule by sentimentality (“tenderness”) would result in gas chambers. What we are seeing is that when the secular state gives the stamp of approval to a phallocentric culture the result is millions of dead babies. We have traded our posterity for the right to fornicate. Our god is not our bellies but our genitals.
Bobby
Rob,
I’m using the term “bishop” to refer to any and all who exercise ecclesiastical authority. I’m not limiting the term to literal bishops. In a congregational setting, such as that found in most baptist churches, the “bishop” would be the majority will of the voting members of a congregation.
That being said, I don’t see how you can achieve your political aims without requiring the state to placed, at least in part, in the service of the bishop. Absent a substantial non-religious justification, the state simply has no business criminalizing certain conduct, even if that conduct openly flies in the face of Christian morals. Simply put, the state cannot punish people for failing to live as good Christians, even if the good Christians in a certain locale have the electoral power to enact laws intended to have that effect.
Rob G
“Your gripe seems to be directed to the fact that, under our system, the state cannot be placed into the service of the bishop to enforce Christian morals on the population as a whole.”
Absolutely not. First of all, I’m not Catholic, which seems to be your assumption. Secondly, I do not wish Christian morals to be enforced legally, but rather, I wish that they’d not be flouted culturally, aided and abetted by the modern state. Liberalism, even that of the constitutional variety, is inherently tyrannical, and will not stop here.
“you seem to have stumbled into a bit of hypocrisy”
What I meant was that I’d never make peace with the current understanding/interpretation of the thing. I’d actually be quite satisfied with a third-trimester ban. Of course, I’d see it as a starting point only, but as I said above, it could be that legally it never gets farther than that. In which case it would be an improvement over the current situation.
“Fortunately, what you will make peace with is immaterial.”
Fortunately for my soul’s sake, it isn’t for me.
“You may rail against the night, or you may attempt to persuade those who actually have power to make a decision”
The two are not mutually exclusive, and I shall continue to do both. If I can get another Christian possibly to rethink his compromise on this issue I shall consider my “railing” to have been a success.
Siarlys Jenkins
Rob, you seem to have stumbled into a bit of hypocrisy. First, you challenge me to compromise on certain terms that you laid out with some specificity. Then I state that the line you propose to draw is one I have always supported. Then you tell us this is all immaterial and you will never make peace with what you and I had just seemed to agree on.
Fortunately, what you will make peace with is immaterial. The constitutional demarcation between the jurisdiction of The State and the jurisdiction of the individual concerned are quite clear. You may rail against the night, or you may attempt to persuade those who actually have power to make a decision — the pregnant women at issue. I wish you well in the latter endeavor, because I believe those most susceptible to your plea will be precisely those women who would later say “I regret my abortion.” And if they are going to regret it, they shouldn’t have one.
Bobby
Rob,
At least you are finally being honest. Your gripe seems to be directed to the fact that, under our system, the state cannot be placed into the service of the bishop to enforce Christian morals on the population as a whole.
Rob G
All this is immaterial. We as a society have decided that the “freedom” to fornicate trumps the lives of unborn children. Like Anymouse, this is something I will never make peace with, and no conservative, if the word means anything, should either. To the extent that some conservatives do indicates that their thinking has been affected (infected?) by liberalism/libertarianism, and Christian conservatives especially should have no truck with such syncretism.
“…states have every right and duty to prohibit third trimester abortion, based precisely on the increasing development of the fetus to near babyhood. Most states have such laws. Work on enforcing them.”
Such laws cannot be effectively enforced when “the life and health of the mother” is interpreted so broadly as to mean everything from life-threatening hemorrhage to mild depression.
Siarlys Jenkins
Rob G: You must have missed EVERYTHING I’ve ever posted about abortion. I have stated consistently that I consider 20 weeks gestation to be the appropriate dividing line, to err on the safe side of cognition, although ability to survive outside the womb without artificial life support is a bit tenuous still. Of course if it is impossible to deliver a live baby without real risk to the life or long-term health of the mother, no woman should be REQUIRED to risk her own life for her baby. Nor should any woman be denied the choice to in fact accept the risk of carrying the pregnancy to term. But I find it entirely plausible that there is genuine abuse of the standard “the life and health of the mother.” If a live, healthy baby CAN be delivered without killing or maiming the mother, then it is a delivery, not an abortion, and should be treated as such.
I am aware, of course, that there are SOME who are willing to terminate even at that stage if the mother finds it inconvenient. I’m not one of them. You can use any analogy you wish. That’s your right of free speech. I’ve put on record why I’m not impressed. ‘You can also insist that the moon is made of green cheese if you want to.
Who cares if “any on the pro abort side are willing to compromise”? Nobody is in a legal position to filibuster. The supreme law of the land is, that states have every right and duty to prohibit third trimester abortion, based precisely on the increasing development of the fetus to near babyhood. Most states have such laws. Work on enforcing them. I’m not going to argue against it, although IF you start coercing women who ARE in real danger, I will have something to say about the subterfuge.
The partial-birth abortion brouhaha was entirely bogus. IF preserving the woman’s life requires a late-term abortion, then the baby WILL be destroyed, tragically, generally in spite of the fact that the parents WANTED that baby. Who cares what method is used? IF the baby CAN be delivered alive without risking the mother’s life, then there is no legal basis for abortion, no matter what method is used. Now if you have a question whether intact dilation and extraction means that a baby being safely delivered alive is then killed, rather than, this method being a last-ditch effort to save the mother from death or serious damage, put it that way.
Bobby
Tony,
I think those issues are fairly well identified in the Court’s opinion in Casey. When the Court refers to the state’s interest, it is referring to non-religious interests.
Besides, my main goal in commenting here is to help antiabortion activists to understand that Roe v. Wade is not some kind of legal outlier, and that the holding is generally consistent with basic conservative principles. I also write as one who abhors abortion and is grieved at the millions of dollars that are wasted anually in hamfisted efforts to reverse a decision that the Court got right. The money would be better spent on charities that serve the needs of those who are most likely to seek abortion services.
Further, these “mixed motive” issues interest me because I am interested in agrarianism. In an agrarian society, such as what we had in the US prior to the 1920s, the state often had a substantial interest in promoting certain social values that promoted that way of life. In many instances, those values were consistent with the values of Christianity. Of course, the same values also prevailed to an extent in many non-Christian agrarian societies (e.g., Tokugawa Japan). But as we’ve become less Jeffersonian and more Hamiltonian, the state’s interest in promoting such social policies has attenuated, thereby creating a greater tension between the social ideals of Christianity and the state’s non-religious interests in promoting social policies that align with those ideals. Like it or not, we’re all Hamiltonians now…save Wendell Berry.
Anymouse
I will freely admit to being an agrarian, not an urbanizer or a modernist. So I will happily align myself with those who are anti modern, and oppose abortion. I will never make peace with the modern state.
Tony A.
Bobby,
Earlier, you said “I think most people would be willing to permit the criminalization of abortion once the fetus has developed to a point such that it can survive outside of the womb. I don’t see that anyone is contesting that.”
What is your substantial non-religious justification for permitting the criminalization of abortion post-viability?
Bobby
Rob,
You still seem to be talking past others here. As I’ve noted above, our Anglo-American legal tradition has NEVER conferred upon the fetus the same legal rights held by a post-birth infant. Your position on that point is rooted entirely in religious dogma. And the state doesn’t criminalize something merely because it offends someone’s religious dogma, even if the majority of citizens may adhere to said dogma. If you’re going to suggest that the state should criminalize abortion, then you MUST point to some substantial non-religious reason that justifies the enactment of such a law. Your religious convictons on the issue (i.e., that a fetus is a life in the same sense that a post-birth infant is) are simply irrelevant to the question of whether the state can justify criminalizing abortion.
I don’t say this because I favor abortion. To the contrary, I generally share your religious convictions on this question and wish that there were far fewer abortions. That being said, the state has absolutely no business passing laws whose sole justification (or primary justification) lies in the realm of religious dogma. This is a battle for the church, not the state.
In the same way, the state has little business trying to control the sexual conduct of consenting adults. I agree with you that it’s better for people not to engage in the hook-up culture. But I believe this primarily because of my religious convictions. So, I see no reason why the state should enact laws that do little besides give credence to my religious beliefs. That’s not because I’m a leftist, as you suggest. Rather, it’s because I believe that it’s the legally correct result under our system of jurisprudence.
You and I are entitled to have our religious convictions. But we’re not entitled to use the force of the state to criminalize conduct that is inconsistent with those convictions, unless there is a substantial non-religious justification for such a law (e.g., laws against theft, arson, etc.). And simply put, the non-religious justifications for criminalizing abortion are too thin.
Lastly, regarding the abolitionist issue, I was simply trying to demonstrate the silliness of attempting to associate your political ambitions with those of the abolitionist movement. Frankly, it is a disingenuous distraction to try to associate your views with the successes of movements past. Your arguments for criminalizing abortion must stand or fall based on their own merits. Period.
Also, please lay off of the profanity and the silly attempts to characterize others as “lefties” or the like. I’m a churchgoing conservative. And as a conservative, I believe that our Constitution grants the states very limited authority to control individuals via the criminal law. In general, we shouldn’t be relying on criminal statutes as a mechanism for requiring people to be responsible.
Anymouse
“Rather, it’s because I believe that it’s the legally correct result under our system of jurisprudence.”
Try looking at the middle ages and the ecclesiastical courts. No divorce, no right to fornication. Things are more complicated than the Modern State vs the Individual. There is also the Church and the PreModern State.
Rob G
~~As you note, this is not a battle over the life of the fetus, but is instead a battle over “sexual liberation.”~~
True, but not from the conservative side. From my side I see it this way: modern men and women desire to engage in sexual activity without any responsibility. A pregnancy is a hindrance to this desire, and thus the potentiality of one can be a roadblock to sexual acting out. Contraceptives serve as a way around this roadblock, but sometimes they fail, at other times they are not used, etc., resulting in an unwanted pregnancy. At this point abortion is presented as an option, as a sort of contraception after the fact: “Well, we don’t want to get pregnant, and we’ll try not to, but if we do we can always get an abortion.” This is the default logic of the thing. Please do not try to tell me it’s not, as I have heard some variant of this reasoning dozens and dozens of times.
To the pro-life person, an abortion involves the death of an infant, and this consideration trumps anything having to do with so-called sexual freedom. Basically, we’re allowing infanticide so that people can f*ck more. That’s what I mean by its being a matter of “sexual liberation.”
“Social conservatives favor a legal regime where women are required to cede a certain amount of their liberty so as to serve their husbands and the nation. That legal regime has faded in the past 50 years. Social conservatives would like to restore it, and criminalizing abortion is a centerpiece of that effort. In that sense, antiabortion activists are more akin to those who sought to preserve chattel slavery.”
I know that this is the default pro-abortion boogeyman story, but it’s nonsense. Ask any of the women who run crises pregnancy centers, homes for unwed mothers, etc. What social conservatives want is for both men and women to take responsibility for their actions, in this case their sexual actions, so that fewer babies are killed each year. You lefties have an awful lot to say about personal rights, but responsibilities seem only to apply to the “1%” and to corporations.
Bobby
Rob,
It doesn’t seem like you’re responding to the arguments that have been made. I think most people would be willing to permit the criminalization of abortion once the fetus has developed to a point such that it can survive outside of the womb. I don’t see that anyone is contesting that.
Also, the term “pro-abort” strikes me as unnecessary. Others and I have merely made arguments that point out the difficulties associated with efforts to criminalize abortion. That doesn’t mean that any of us favor abortion. So, feel free to lay off of the disingenuous ad hominem attacks.
Lastly, the comparison of antiabortion activists to abolitionists is also disingenuous. As you note, this is not a battle over the life of the fetus, but is instead a battle over “sexual liberation.” Social conservatives favor a legal regime where women are required to cede a certain amount of their liberty so as to serve their husbands and the nation. That legal regime has faded in the past 50 years. Social conservatives would like to restore it, and criminalizing abortion is a centerpiece of that effort. In that sense, antiabortion activists are more akin to those who sought to preserve chattel slavery.
Anymouse
Precisely.
I notice no one likes to talk about the women forced into abortions by “boyfriends”, husbands, mothers, fathers, etc. In my own city a girl narrowly escaped from that fate just last year.
Rob G
Ok, Mr. Jenkins, then draw the line: at what point should abortions be illegal? Why all the pro-abort fuss over the banning of “partial birth abortions”? Why no pro-abort concern over late term abortions of viable fetuses? This isn’t just about “zygotes” you know.
I believe that many in the pro-life movement would be happy with, say, an across the board ban on third trimester abortions as a starting point in an incremental rollback. Now it may very well be that a further rollback would never occur (not that this would stop activism, etc.) but at least we’d know that we’re not indiscriminately killing viable infants.
Of course there is a segment of the pro-life community that rejects any compromise, just like there were radical abolitionists who did the same (sorry if you don’t like the comparison–I will continue to make it). But imo wiser voices would prevail after a time. The question would be, of course, whether any on the pro-abort side would be willing to compromise. I doubt it, for it would throw a spanner into the works of what this is really all about — sexual liberation.
Siarlys Jenkins
P.S. Karen, with all regard for your kind words, I sometimes have to explain to an English-speaking audience that Siarlys is a common Welsh given name, and it is male, roughly cognate to Charles. I could not myself carry a child to term, although I could have a role in conception. I have always said that if I were married, and my wife were pregnant, if I saw good cause for abortion, still, the final decision must be hers, because she not only carries the joys and risks of gestation and delivery, she also bears the direct physical and psychological risks of termination. The latter are real, and worthy of consideration. They do not, however, justify employing the police powers of the state, or the somewhat removed “It’s my baby too” claims of the husband, to force a decision upon her.
Siarlys Jenkins
It is often an easy cheap shot to label an opposing argument a straw man, but if ever there was a straw man, Rob G. has presented one for our consideration. I, for one, do not wish to treat any child like refuse, or any fully constituted human organism as a mere amputated limb. We do have a difference of premises over what constitutes a child. Rob believes that a single eukaryotic cell containing 23 unique pairs of long strings of deoxyribonucleic acid is an unborn child. I beg to differ. It takes a much larger number of eukaryotic cells, organized into a number of specialized organs, with a self-conscious central nervous system, to constitute a child, born or unborn. It is the gestalt, not the biological components, that defines a human being as something more than a lump of meat.
There is a huge difference between being child-like, and being parasitic. I have no need to indulge in anachronism, because I do not believe analogies between one political or social movement and another are particularly valid. The pro-life movement, PETA, gay marriage advocates, and others ad nauseum, have all tried to wrap themselves in the mantle of the abolitionist and civil rights movements, now that these once-controversial propositions are sanctified and widely accepted. Go make your own case on its own merits, not by calling yourselves the latest incarnation of a movement that had to fight its own way on its own merits.
Rob G
~~None of you would describe a man who wanted those same things as “selfish,” but because conservatives think of women as wombs attached to brooms and with no purpose beyond housework, women who want anything else are “selfish.”~~
Au contraire, any man who gets a woman pregnant then bolts, or refuses to support her and the child, is definitely selfish and should face repercussions. Your caricatures of conservatives are ludicrous.
“It was precisely because enslaved persons were autonomous, biologically independent, self-conscious human beings that subjecting one person to the ownership of another was so abhorrent.”
That’s an anachronistic, hindsight argument. The science and the law of the day tended to think that the Negro, while human and a “person,” was a member of a lower or lesser race that needed the paternal guidance of Caucasians.
You folks simply want the right to treat an unborn child like refuse, or like an amputated limb or removed organ. Admit it.
Anymouse
…to some degree.
Karen
I agree with Siarlys Jenkins, and repeat her statement: a zygote exists inside and as a part of a woman’s body. The slaveowner could have simply paid wages to the slave and obtained the same work, but there is no way at all to change the relationship of the zygote to the woman. It — and yes, I mean IT, as in “thing,” until such point late in pregnancy that it can be delivered safely — requires her body.
Finally, I resent the use of “selfish” to describe a woman who doesn’t want to be pregnant. Sometimes she is, but at least as often she simply wants to maintain her ability to provide a standard of living to her existing children, or finish her education, or at least wait until she’s mature enough to be a good mother. None of you would describe a man who wanted those same things as “selfish,” but because conservatives think of women as wombs attached to brooms and with no purpose beyond housework, women who want anything else are “selfish.”
Anymouse
Actually I would describe a man with those attitudes as selfish in many circumstances, so you have indeed misread me. If a man impregnates a woman I expect him to take responsibility regardless of circumstances. Even a youth can do enough work to support a wife.
Siarlys Jenkins
If slaves had been defined as chattel because they inhabited the body of their legal owner, I might seriously consider that there could be some justification for such a legal construct. It was precisely because enslaved persons were autonomous, biologically independent, self-conscious human beings that subjecting one person to the ownership of another was so abhorrent.
When the pro-life movement perfects an “Underground Railroad” capable of slipping endangered zygotes out of a pregnant woman’s womb, and carrying them off to some safe haven where they can be grown to term without her participation, I will take the facile analogy to slavery seriously. Zygotes, blastocysts, embryos, and early stage fetuses can be objectified precisely because they are not yet subjects.
I have no liberalism to overthrow, but I can comfortably consider a biological entity that is without a functioning central nervous system, and entirely dependent upon the body it inhabits, as an objectively subordinate part of the larger (and entirely self-aware) entity, without in the least overthrowing any belief in human dignity. Anymouse can think of it any way he wants, but his syllogism doesn’t think for me.
Rob G
“But selfishness, in and of itself, is not a crime. So, while abortion may be a grossly selfish act, that fact alone does not necessitate criminalizing it.”
Yeah, but that little matter of a dead infant might. The only thing that determines the status of an infant in the womb is whether the mother wants it or not. Kind of like a slaveowner’s determination as to whether his slave will be free or not. In both instances the victim’s status as a person is entirely dependent on the will and whim of another, and both instances are therefore unjust.
Someone mentioned exposure above. It’s really no different. In one situation the child’s still in the womb, in the other he (or more likely, she) is not, but in both cases the child is treated not as a human being but as a piece of refuse.
Feminists forever moan about the objectification of women, while they themselves advocate the objectification of infants, including female ones. Pot–kettle–black.
It is because I’m against objectification of this sort that I’d like to see both pornography and abortion banned.
Anymouse
That is well stated.
Others more comfortable with objectification could easily disagree, but only by overthrowing their liberalism and any belief in universal human dignity.
Siarlys Jenkins
People must indeed learn to accept that there is inequality. What we can aspire to is equal protection OF THE LAWS. For example, it may well be true that females are less likely to aspire to, or have aptitude for, a career as an engineer. That means “disparate impact” is an inadequate measure of whether discrimination by human choices and administration is happening. It does not mean that an individual woman who aspires to be an engineer, and is capable of doing the work, should be barred on the ground that “you’re a woman.” It may even be true that in aggregate statistical average, people of African descent show a somewhat lower intelligence curve than people of Chinese descent. That doesn’t preclude that some Africans are geniuses, and some Chinese are morons. (Europeans seem to fall somewhere in between, if such statistical analysis is of any validity at all).
Women are not “similarly situated” to men in every respect. Only women can have babies, because God knew men couldn’t handle the pain. There are reasons we still have public restrooms labeled “men” and “women” long after we stopped having restrooms labeled “white” and “colored.” I have no doubt that Anymouse respects women, by his own lights, or that there are women who would appreciate the kind of respect he offers. But I wouldn’t make it mandatory for any woman to accept the place in life that Anymouse respects.
It is also true that there is a current of thought in our culture that “anything I want, I have a constitutional right to it.” This is present in the infantile narcissism of claiming a constitutional right to redefine marriage. It may have reached its ultimate expression when a group of John Gotti’s neighbors and friends picketed the federal court house where he was being sentenced, one shouting “He has a constitutional right to be not guilty.” But our constitution IS based on delineating what is legitimate exercise of government authority from what is reserved to the people (as well as dividing legitimate jurisdiction between the feds and the states — both of them potential sources of tyranny).
Anymouse considers abortion murder of a human being. That, of course, is precisely why this debate is so intractable. Some of us say, this is a human being, others of us say, no its not. It is precisely because an individual woman must carry the pregnancy inside her own body for nine months to bring it to term that I would leave jurisdiction, the decision whether to do so, up to her. Once a baby is delivered, any competent adult could raise it if the mother doesn’t want to (although at that point, I believe the father should have first dibs on adoption, if the parents are not married). But until it is delivered, no other human being on earth could take responsibility for the implications of their own principles by volunteering “I will carry this baby in MY abdomen.” There are pro-life people, even males, who would do that if they could, but it is simply not an option.
Bobby
Anymouse & Rob,
Traditionalists can be just as guilty of trying to immanentize the eschaton as progressives. In both cases, one is attempting to use the force of the state to dictate the nature of certain social relationships, instead of letting people experiment for themselves. Conservatives surely believe in studying the past and giving due weight to the lessons of the past, but we do not believe in enshrining it as a utopian ideal. It is folly to believe that the past is necessarily better than the present or the future, just as it is folly to believe that the future can necessarily be better than the present or the past.
And, yes, when you give people space to experiment, some number of folks will make unwise and selfish decisions. But selfishness, in and of itself, is not a crime. So, while abortion may be a grossly selfish act, that fact alone does not necessitate criminalizing it.
Ahunt
Rob, you are not seriously holding women responsible for both their own behavior, AND the behavior of men, are you? Be very careful here.
Rob G
“Individualism itself is the problem.”
Hear, hear. The selfishness of abortion is one symptom of an overall societal narcissism. It just happens to be one of the worst, as it kills people.
Anymouse
I must agree with what Rob has posted above…
Rob G
“Women will not return to lesser lives, lives without choices and opportunity. Deal with it.”
Up until recently it was generally males who were viewed as eternal toddlers, forever screaming “Mine!” while women, who tended to grow up more quickly, acted as a civilizing and maturing force in the culture. Now the women have caught the “Mine!” bug and the results are not pretty — a nation of young people who “want what I want and I want it now!”, consequences on others be damned.
We’ve got millions of 3 year olds in 20-something bodies. Moral idiocy, indeed. The common cultural/moral grammar no longer exists whereby we can even discuss issues of this sort with any sort of seriousness, as any attempt to convince people to restrict their choices will be greeted with screams of “Mine!!” Which is basically what all the pro-abort rhetoric boils down to.
Ahunt
In the west, I think we are well past the point where any non-religious reasons for “re-subjugating” women could possibly be considered morally rational, let alone doable.
In this increasingly individualistic world, I do wonder if Siarlys has the right concept…render the avoidance of abortion a matter of the highest self-respect, a recognition of one’s responsibilities to oneself. Sort of the flipside of the “abortion is selfish” meme that has no traction these days.
Anymouse
There is a bit too much of a focus on feminism and the subjugation of women here.
Individualism itself is the problem. Men who are cads are just as bad as sluts. Not going to deny that.
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