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A “Rogue Court”?: Integrity and Majority Rule

photograph of curtain drawn to inner chamber

Ever since the decision in Dobbs was handed down, there’s been a great deal of ink spilled about the Supreme Court “going rogue.” Whatever image those words are meant to conjure, it can’t be that simply by contradicting popular opinion justices act wrongly. Indeed, to do its job and fulfill its essential function – safeguarding individual rights and acting as legal backstop and ultimate umpire for conflicting claims to basic protection – the High Court must be able to act in opposition to the majority’s will. We should all be relieved that when it comes to who receives a fair trial or who may cast a ballot, we don’t simply put the matter to a vote (or do we?).

We think that the fundamental liberties that citizens enjoy are not the kind of things that should expand and contract with the ebb and flow of favorable representation in Congress.

As Evan Arnet argued yesterday, sometimes the sausage that our legislature – held hostage by party politics – produces simply won’t do. Everything can’t depend on a mere up or down vote; some things must be guaranteed. Enter: The Supreme Court.

In no small part, our need for the High Court to chaperone the legislature stems from the fact that the masses are deeply misguided when it comes to the facts on the ground (see The New York Times’s recent moderated discussion with pro-life and pro-choice focus groups where multiple respondents on both sides thought that abortion was more physically dangerous than childbirth for a woman and estimated that 30-40% of abortions take place after the first trimester – when in reality it’s less than 10%). What we require is a final ruling made by legal experts standing above the political fray who see the matter clearly and can anticipate the legal implications that we mere mortals hardly perceive.

So rather than the common complaint about the justices being out of step with the court of public opinion, the real trouble with the Courts’ recent pronouncements must lie elsewhere

– perhaps in its shifting attitude toward the separation of church and state (Kennedy v. Bremerton School District), toward precedent (Dobbs), and toward interpretive consistency (Bruen).

These are all significant complaints to be sure, and each warrants careful consideration. But rather than taking up these criticisms in isolation, I’d like to point to an overarching picture that paints these seemingly disparate complaints as a constellation of related concerns. The public’s historic lack of trust in the Supreme Court may indicate, as Ronald Dworkin once suggested, that “Integrity is our Neptune” – a celestial body we discover only by first recognizing that it’s missing.

So, what is integrity? Simply put, integrity demands that the law be created and adjudicated in a consistent way. Dworkin insists that proper legal interpretation requires commitment to moral coherence. We should strive to comprehend our legislative and judicial history as one of continuity. Judging, Dworkin claims, is not unlike being a writer of a chain novel. You’re tasked with interpreting the major, minor, and latent themes running through the narrative to date and contributing to that tale in a way that does honor to what’s come before – you situate decisions so as to present our legal history in the best possible light.

Ultimately, integrity represents a compromise between the weightlessness of a living constitution and tyrannical rule of a dead hand from a bygone era.

Both of these can devolve into judicial activism and thus commit the gravest of grave sins: legislating from the bench – either by a complete reimagining of the Constitution and our legal history, or by an outright refusal to appreciate the needs of our evolving and ongoing story.

What makes integrity important? The Supreme Court’s legitimacy relies on appearances. We expect justices to rule according to the law and not their politics. The trouble is that it’s extremely difficult to disentangle the two. Do one’s legal convictions shape their political leanings, or does one’s politics dictate their judicial positions? Demonstrating that fidelity to law comes before party loyalty requires a kind of sacred devotion to impartiality and detached public justification (or perhaps simply a renewed commitment to better covering one’s tracks). For if judicial review – the power of unelected judges to strike down the popular will – is exposed as nothing more than partisan warfare by other means, then the game is lost and the lie of democratic representation is exposed. The emperor has no clothes.

How do we know when the clothes (integrity) aren’t there? Dworkin offers a thought experiment: Imagine a law that made abortion criminal for women born in even years but permissible for those born in odd ones. Such a policy might accommodate the 60/40 split in public opinion on the issue.

Allowing each of two groups to choose some part of the law of abortion, in proportion to their numbers, is fairer (in our sense) than the winner-take-all scheme our instincts prefer, which denies many people any influence at all over an issue they think desperately important.

Still, Dworkin thinks, there’s something that rubs us the wrong way about  such a compromise. We seem to reject the Solomonic solution of simply cutting down the middle and giving both sides a little of what they want. So what explains our discomfort? Why is this kind of “fairness” not enough? Why do we turn our nose up at “checkerboard solutions” like this one?

Certainly, the decision to kick the abortion question to the state legislatures looks an awful lot like a checkerboard solution – and one that sits uncomfortably with both sides.

It’s hard to see how that ruling fits within our judicial history that treats similar rights (similar to either the right to reproductive autonomy or the rights of the fetus) as national concerns. Such a ruling appears a significant break with traditional practice.

Just last week, Benjamin Rossi gestured at several potential futures for the current political compromise neither side finds tolerable. Pro-life advocates motivated by Body Count Reasoning (explained here by Dustin Crummett) are unlikely to be satisfied with half-measures. Meanwhile, pro-choice proponents decry the unequal burdens arbitrarily foisted upon residents of different states concerning a basic good: health. (Jim Harbaugh can encourage his players to encourage their partners to go ahead with an unplanned pregnancy and offer to adopt all those children all he wants, but the fact remains that pregnancy is not without risk and the decision to go forward is not simply about whether one has “the means or the wherewithal.”)

Unfortunately, whichever way the Dobbs fallout is eventually resolved is likely irrelevant to the larger problem. Unless and until we begin to conceive of our legislative and judicial history as a shared project of public justification, there will be no restoring public faith. Without courts committed to something like Dworkin’s idea of integrity, even term limits cannot save us.

Nationwide Prohibition: The Next Step for the Anti-Abortion Movement?

image of 1919 NYT front page with map of prohibition states

In 1919, on the eve of the passage of the Eighteenth Amendment prohibiting the manufacture and sale of alcohol, twenty-three states had already voted themselves “dry.” Yet for the temperance movement, the piecemeal, state-by-state approach to prohibition was never more than a tactical gambit; the ultimate goal was always national in scope. In the wake of the U.S. Supreme Court’s decision to revoke its recognition of a constitutional abortion right, twenty-six states are likely to severely restrict or outright ban abortion.

But as with the temperance movement, there is every reason to think that the anti-abortion movement will not rest content with the devolution of abortion policy to the states

— at least, not insofar as devolution would allow the decriminalization, legalization, or even constitutional protection of abortion in many states. Indeed, The Washington Post recently reported that anti-abortion activists and Republican legislators have started mobilizing around federal legislation to outlaw abortion after six weeks of pregnancy, and in late June, Mike Pence called on anti-abortion activists to work to ensure that “the sanctity of life is restored to the center of American law in every state in the land.” In this column, I will explain why and how the anti-abortion movement, with help from the GOP, may seek to install a nationwide abortion policy.

Within the context of our constitutional order, the moral logic of the anti-abortion movement militates strongly against allowing the “people of the various States” to “evaluate [the interests of a woman who wants an abortion and the state’s interest in ‘potential life’] differently,” as the majority opinion in Dobbs put it. The anti-abortion movement believes that abortion violates a basic right to life. With respect to fundamental individual rights, our Constitution tends to favor not allowing a majority vote in each state to determine whether or not these rights will be respected in that state — though states may decide to protect these rights more robustly than the federal “floor” requires. Thus, the rights-talk employed by the anti-abortion movement strongly suggests that abortion policy should be national.

On a more pragmatic note, the availability of abortion pills and abortion clinics in neighboring states may undermine the efforts of states hostile to abortion to restrict their citizens’ access to the procedure.

For example, some studies suggest that once Texas banned abortion after around six weeks of pregnancy, abortions among Texas women did not decline as sharply as previously thought because many traveled to clinics in nearby states or ordered abortion pills online. Even with twenty-six states banning abortion, there is no going back to the pre-Roe days — and anti-abortion activists know it.

Thus, a national abortion policy is more consistent with anti-abortion ideology and could overcome the practical limitations of a twenty-six state ban. There are four main avenues for instituting such a policy.

THE FIRST is to pass abortion bans in every state legislature. Pence’s remarks suggest that this is the policy favored by at least some in the anti-abortion movement. But this strategy has at least three drawbacks from the anti-abortion perspective. First, state houses in very liberal states are very unlikely to support anti-abortion legislation, and unlike the U.S. Congress, they are reliably pro-abortion across time. Second, a state-by-state approach is unlikely to issue in a uniform national policy, particularly not one that is as stringent as anti-abortion activists would prefer. Finally, this approach may be unsatisfactory to that portion of the anti-abortion movement that seeks to enshrine the fetal right to life as a constitutional right.

THE SECOND OPTION is to pass an anti-abortion bill in the U.S. Congress. Because Congress can act only under the authority of one of its enumerated powers, it would have to select an appropriate constitutional “hook” that plausibly empowers it to make law respecting abortion. Two possible powers are the Commerce Clause — abortion is a service sold in interstate commerce — and Section Five of the Fourteenth Amendment, which gives Congress the power to enforce Section One of that amendment through appropriate legislation. Ironically, the latter approach would require Congress to stake out the position that the fetal right to life is a fundamental right protected by Section One’s Due Process Clause — the sort of right that the right to abortion was but is no longer following Dobbs. A major advantage of the general congressional approach is that all it requires is a majority vote in the House and sixty Senate votes. That seems like a much easier lift than the other political options discussed in this column. On the other hand, the relative impermanence of this solution may worry some activists: any congressional act is, of course, potentially subject to repeal. Furthermore, the political wrangling necessary to pass a bill may ultimately issue in a watered-down policy.

THE THIRD OPTION is to try to obtain recognition of the fetal right to life as a constitutionally-protected right through the courts. The major problem with this approach is not that the U.S. Supreme Court is unlikely to recognize a fetal right to life as one of the unenumerated rights protected by the Fourteenth Amendment’s Due Process Clause. Based on the majority opinion’s reading of the common law and nineteenth-century state statutes in Dobbs, the conservative justices may welcome such an argument.

Instead, the problem is that recognition of this right probably would not empower the Court to require states to make abortion illegal, or empower Congress to pass legislation requiring the same.

The reason is the so-called “state action” doctrine: the fairly well-established principle that the Fourteenth Amendment protects against state-caused harms, not harms caused by private actors. If the Supreme Court were to recognize a fetal right to life, it could on that basis prevent state institutions from performing abortions, and perhaps even private institutions that receive state or federal funding. But it could not prevent a private clinic from performing abortions.

Ironically, it has always been the more liberal justices who have played fast and loose with the state action doctrine; in United States v. Guest (1966), for example, a majority of the Warren Court concluded that the Fourteenth Amendment empowers Congress to outlaw purely private discrimination in some circumstances. In United States v. Morrison (2000), five conservative justices — including Justice Thomas — disavowed Guest in ruling that Congress did not have the power under the Fourteenth Amendment to enact the Violence Against Women Act, which allowed victims of gender-motivated violence to sue perpetrators in federal court. Such violence by private actors, the Court held, did not fall within the purview of the Fourteenth Amendment’s grant of congressional power. Could today’s conservative Court revive Guest in order to affirmatively require states to prevent private actors from violating fetus’ rights to life? Perhaps the Court will suddenly find itself less impressed with the moral distinction between act and omission, or between the state doing harm rather than allowing harm to occur.

THE FINAL OPTION is to pursue a constitutional amendment enshrining the fetal right to life. The major disadvantage of this approach is political: any constitutional amendment must garner a two-thirds majority vote in the House and Senate, plus ratification by at least thirty-eight states. Even if all twenty-nine states that have demonstrated “hostility” to abortion rights were to ratify such an amendment, that would still be nine states short. But to paraphrase Harold Macmillan, the essence of politics is events; it is not outside the realm of possibility that events could change the political complexion of nine states in a more anti-abortion direction. A major advantage of this approach is that no pre-existing limitation on Congress’s power, such as the state action doctrine, can constrain the reach of a new amendment. In addition, once a constitutional amendment is passed, it can only be repealed by another amendment. Only one amendment — the Eighteenth — has ever been repealed.

Although it seems highly likely that the anti-abortion movement will pursue at least one of these options, advocates might do well to consider the fate of the temperance movement after national prohibition was passed. Where once temperance, true to its name, had denoted to the public mind something like moderation in alcohol consumption, with the nationwide coercive imposition of prohibition it came to be associated with fanaticism and even bigotry. After the Eighteenth Amendment was repealed in 1933, the temperance movement disappeared from the political scene, likely never to return. For better or worse, Americans are, most of them, moderates; they recoil from moral extremism. Moreover, a majority say that abortion should be legal at least in the first trimester. Thus, in seeking a hardline national policy, the anti-abortion movement may very well overplay its hand.

Underexplained Concepts in the Abortion Debate

photograph of pro-life protesters with religious abortion signs

In my previous column, I tried to demonstrate that some concepts in the abortion debate, namely, the concept of moral personhood and potential lives, are often underexplained. When we analyze these concepts, we find that they are ambiguous and our attempts to define them may significantly shape our views about abortion.

The concepts I focused on previously were strictly about debates regarding whether abortion is immoral. Today, I want to change my focus and strictly consider concepts that apply directly to debates about whether or not abortion ought to be legal.

The Purpose of the Law

A common refrain among advocates of reproductive choice is that you cannot eliminate abortions by outlawing them, you merely eliminate safe abortions. Indeed, some data even suggest that banning abortions does not reduce their occurrence.

So advocates of reproductive choice instead claim that, to minimize abortion, we should favor policies that enable things like easy access to contraception and comprehensive sex education.

In other words, we reduce the number of abortions by reducing the number of unwanted pregnancies.

What’s so odd about this argument is that it should be effective. If one’s goal is to eliminate as many abortions as possible, then surely one should implement the policies that reduce it and minimize the harm they produce when one inevitably occurs. Yet this argument seems to have little, if any, purchase with anti-abortion advocates. Why might this be?

To demonstrate what’s going on here, consider a thought experiment. Imagine that we lived in a society where murder was never formally outlawed. Despite this, the murder rate has never been higher than that found in other nations – the fear of social sanction and our general apprehension towards harming others have kept most people in check. Yet our lack of anti-murder statutes has been something of a national embarrassment. You decide to join a campaign to make murder illegal.

Suppose you’re canvassing as part of the campaign. You knock on my door. I open it and listen to your spiel. However, part way through I begin to shake my head and say the following:

“No, no, no. You’ve got it all wrong. We should simply invest in conflict mediation, anger management, and self-defense courses. This is how we prevent murder.”

There’s something head-scratching about my response. You do not want murder to be illegal merely to reduce its occurrence. Rather, you seem to be motivated by a concern for what murder being legal says about our society.

How can we explain this discrepancy? Declaring something as illegal accomplishes (at least) two things. First, it coerces people to avoid doing it. In this regard, the success of a law is determined by the law’s consequences. Prohibition of alcohol in the United States was a failure due to its consequences; it led to organized crime and did not prevent drinking.

Second, declaring something as illegal sends a message. Namely, it sends the message that some particular act is unacceptable. Call this the law’s expressivist content. For instance, in Texas v. Johnson, the Supreme Court considered the constitutionality of a law outlawing the burning of a U.S. flag. Surely, the reason for this law was not to curb the negative consequences of burning the flag. Rather, the law was created to send a message: “desecrating” objects like the flag is unacceptable.

Now we can see why arguments appealing the consequences of outlawing abortion ring hollow to anti-abortion advocates.

Their concern isn’t about the consequences of whether abortion is legal. Instead, their concern seems to be primarily about the expressivist content of allowing abortions.

They view abortion as a grave moral ill and, thus, object to the tacit endorsement of abortion as acceptable that is communicated by the procedure remaining legal.

This last point, however, may come too swiftly. Even here this argument may be collapsing a significant difference together. The argument uses a moral claim and infers a legal claim from it. But this does not necessarily follow.

Morality & Legality

Even though we often justify our laws on the basis of morality, morality and legality often come apart. For instance, few would think you did something seriously wrong if you, after checking carefully, ran through a red-light at 2 AM with no other drivers on the road. However, you would be doing something illegal. One might argue that tobacco companies engage in an immoral practice by selling their products – they knowingly sell goods that are physically addictive and cause serious harm to the customers. Yet, unless a tobacco company is violating regulations, they are not acting illegally.

But why allow for this difference? Why shouldn’t our laws wholly overlap with our morality? First, the law may appeal to factors that morality does not consider. For instance, laws often consider the costs and effects of enforcement. Most think that lying for selfish purposes is immoral. But enforcing a law against this would be disastrous – it would require huge disruptions of our personal lives, it would result in citizens having to report suspected liars to the police, and a very large amount of money spent on investigating these allegations.

Further, the law is (or ought to be) concerned about citizens’ ability to endorse it and justify it to others. The philosopher John Rawls introduces two concepts which are helpful to consider here: what he calls overlapping consensus and public reason.

Overlapping consensus is reached when citizens in a country are able to endorse the same laws for their own personal reasons, even if those personal reasons differ.

Consider again murder being illegal. This is a law that anyone can endorse – Abrahamic religions have commandments against killing, Buddhists think there is a general prohibition on violence, Atheists may think that murder is bad because of the suffering it causes, etc. Despite having different reasons for accepting the law, each endorses it as legitimate. Thus, overlapping consensus has been reached.

While overlapping consensus deals with our private reasons for endorsing the law, the concept of public reason deals with how we persuade others in political debates. According to Rawls, public reason requires, in part, presenting justification for laws and policies using claims that anyone can accept as true. This does not forbid anyone from, say, having a religious reason for wanting a particular law. But rather, the idea is that public discourse should rely on values and reasoning that others view as legitimate values and acceptable ways of reaching conclusions.

This demonstrates two significant problems. First, as my previous column suggested, our views on abortion depend on our views regarding numerous philosophically complicated questions. This is a problem for public discourse itself. Second, even we have worked out our own, individual views on these matters, this does not necessarily imply that we ought to outlaw abortion.

When determining what should and should not be illegal, we need to consider far more than what is moral. We need to consider what the purpose of a particular law actually is, the costs of enforcing it, or what happens if we do not allow the state to intervene.

Further, we must ask ourselves whether the reasons that we publicly present to defend our views are reasons that anyone could accept, or if they rely on some framework that other citizens do not endorse.

In closing, I want to note an under-appreciated line of thought. Judith Jarvis Thomson in “A Defense of Abortion” presents what are perhaps the most influential philosophical arguments about the morality of abortion (helpfully summarized here by Giles Howdle). Near the end of this article, Thomson distinguishes between what she calls Good Samaritans and Minimally Decent Samaritans. Good Samaritans are those who will go out of their way, perhaps at significant cost, to aid others. Minimally Decent Samaritans are those who do something to help others, even if it is not much.

Morality often requires us to be Minimally Decent Samaritans. Morality may sometimes call for us to be Good Samaritans. The law, on the other hand, does not even require us to be Minimally Decent. Indeed, unless we’re characters in the finale of Seinfeld, the law does not compel us to aid others in need even if it would be monstrous for us to remain bystanders. Making abortion illegal would be an extreme exception – it would require the pregnant person to make many significant sacrifices for the sake of saving another’s life.

Does Single-Issue Pro-Life Voting Make Sense?

photograph of abandoned pro-life signs in front of Supreme Court Building

In the U.S., twenty-seven percent of people who oppose legal abortion say they would never vote for a pro-choice candidate. (Only eighteen percent of pro-choice voters say the same about pro-life candidates.) This ensures that a large block of voters will virtually never vote for Democrats, no matter what Republicans do. I personally know a number of people who voted for Donald Trump, citing his stance on abortion as outweighing his many negative qualities.

Given the pro-life position of these people, does their stance make sense? They think that abortion is murder.

But there are many life-and-death political issues: war, the death penalty, police shootings, gun control, healthcare, climate change, pollution… Why prioritize abortion over these other issues?

A common pro-life response invokes what I call Body Count Reasoning. Body Count Reasoning suggests that, given the pro-life view, abortion should be prioritized because it affects so many more individuals. If a building is burning down and many people are trapped in one part while only one person is trapped in another part, and the fire department can only save the people in one part, it generally makes sense to do what saves the most people. In a similar way, a pro-life person might note that there are more than 800,000 abortions each year in the U.S. By contrast, there are, for instance, around 45,000 gun deaths, and perhaps as many as 68,000 deaths due to inadequate healthcare. If all, or nearly all, of these abortions really are unjustified killings of persons with a right to life, then according to Body Count Reasoning, prioritizing abortion makes sense for the same reason as prioritizing the part of the building with many people trapped. The pro-life author Jimmy Akin endorses Body Count Reasoning when he writes:

No other issue involves numbers that high. Nothing short of a full-scale nuclear or biological war between well-armed nation states would kill that many people, and we aren’t in imminent danger of having one of those.

Not even terrorists with weapons of mass destruction could kill that many people…Jobs? The economy? Taxes? Education? The environment? Immigration? Forget it… Abortion is the preeminent moral issue of our time. It is the black hole that out-masses every other issue.

Of course, one way to reject the conclusion of Body Count Reasoning is to reject the pro-life view. But in “Is Abortion the Only Issue?,” a paper forthcoming in the journal Ergo, I argue that Body Count Reasoning fails, even if we grant the pro-life view. Here is why. Consider a thought experiment sometimes discussed by philosophers, the Embryo Rescue Case:

A fertility clinic is burning down. In one part of the building is a tray with very many fertilized eggs. In the other is a five-year-old child. The fire department can only save one.

In this case, virtually everyone thinks the fire department should save the five-year-old. But on the pro-life view that personhood begins at conception, the fertilized eggs are people with the same moral status as the born child. And we saw above that it generally seems that the fire department should save more people from a fire, rather than fewer. What gives?

Some pro-choice philosophers think this shows that personhood does not begin at conception after all. But pro-life philosophers usually grant that we should save the five-year-old, but argue that this is compatible with the pro-life position.

To see how their response works, note that there are things besides a difference in basic moral status which can explain why my reasons to save one individual might be stronger than my reasons to save another.

Suppose you could save me or another person from a fire, but you also know that I have a terminal illness and will die tomorrow anyway. Or suppose you know the other person is a scientist on the brink of curing cancer. In both of these cases, you should save the other person, even though we are both people with the right to life. You have stronger reasons to save the other person, not because we differ in fundamental moral status, but because their death is worse in some other way – worse for them, or for other people. Most pro-life philosophers attempt to explain why you should save the born child in the Embryo Rescue Case in a similar way. They note that the born child has a developed personality, hopes and dreams about their future, relationships with others, the capacity to experience terror and pain while burning to death, etc., and that this makes their death much worse than the death of even very many recently fertilized eggs.

But this response undermines Body Count Reasoning. Body Count Reasoning claimed you should prioritize abortion over, say, healthcare, because abortion kills about ten times as many people. But in response to the Embryo Rescue Case, these pro-life philosophers deny that you should prioritize saving very many embryos over a single born child. And if your reasons to save a born person are much stronger than your reasons to save ten embryos, even if the embryos are people being unjustly killed, then perhaps you should prioritize healthcare over abortion, even if the embryos are people being unjustly killed.

There may be further disanalogies between the Embryo Rescue Case and abortion to which a Body Count Reasoner might appeal. I try to deal with those in the complete version of my paper. And there may be other arguments for single-issue pro-life voting besides Body Count Reasoning, but if so, I do not know of any that seem plausible, even if we grant the pro-life view. So I conclude that if you are pro-life, you should not be a single-issue pro-life voter. You should instead think that abortion is an important issue, but one important issue among many others.

Bye Bye Balance: Dobbs and the Erosion of Compromise

photograph of rocky tectonic gap in Iceland

Held: The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.

Friday morning, in their ruling on the case of Dobbs v. Jackson Women’s Health Organization, the Supreme Court struck down the right to abortion in the U.S., limiting the freedoms of roughly 36 million people. Because a draft of the opinion, written by Justice Samuel Alito, had been leaked by an unknown source in May, the decision to remove what the Court saw as an incorrectly perceived right to abortion was unsurprising.

The arguments supporting the Supreme Court’s decision are, in my opinion, underwhelming. To decide the Dobbs v. Jackson case, the Court examined several jurisprudential points. At its core, however, was the question of whether the U.S. Constitution enshrines abortion as a right. Unfortunately, according to five of the nine justices – Thomas, Alito, Kavanaugh, Gorsuch, and Coney Barret – the answer was no.

The Supreme Court’s musings on abortion have been covered here at The Prindle Post before (Who’s Harmed by Abortion?, What If a Fetus Were a Person?, Roe v. Wade and the Meaning of a Right, Constitutional Interpretation in the Roe Reversal, to name just a recent few). I don’t want to rehash or redo what others have already said. Instead, now that we have the official decision, I want to look at one of the points highlighted by the minority Justices – Breyer, Sotomayor, and Kagan. That being the erosion of balance. Before doing so, however, a quick recap.

The 1973 ruling in Roe v. Wade sought to strike a balance between banning and allowing abortion. To do this, the Court used the three-trimester approach. In trimester one, the state couldn’t interfere with a decision to terminate a pregnancy. In trimester two, state regulation was allowed if it aimed at protecting the pregnant person’s health. This second trimester lasted until a fetus obtained the capacity for a meaningful life outside the womb – i.e., viability. Once reached, the pregnancy entered the third trimester, where the state could ban abortions, except when necessary to protect the pregnant person’s life or health.

Resting the permissibility of abortion upon viability was far from perfect, and plenty argued both before and after the judgment that a fetus’ perceived right to life didn’t override the pregnant person’s right to bodily autonomy (Judith Jarvis Thomson’s A Defense of Abortion, published two years before Roe, being one of the most famous).

Whilst neither side of the debate was entirely enthused with the ruling, the decision somewhat defused tensions regarding abortion’s legal permissibility. As Larry David noted, “A good compromise is when both parties are dissatisfied” and this is what Roe seemed to achieve.

The Supreme Court reaffirmed the decision in the 1992 case of Planned Parenthood v. Casey. Since then, it has been the law of the land. That is until June 26th, 2022, and the Dobbs ruling.

The Dobbs ruling undoes this balance between interests. By making individual states the arbiters of abortion access, the Supreme Court has eroded the delicate balance it struck in Roe and Casey between the state’s interests in protecting life and in protecting pregnant people’s bodily autonomy. The minority Justices note this in their dissenting opinion, writing:

Today’s Court, that is, does not think there is anything of constitutional significance attached to a woman’s control of her body and the path of her life. Roe and Casey thought that one-sided view misguided. In some sense, that is the difference in a nutshell between our precedents and the majority opinion. The constitutional regime we have lived in for the last 50 years recognized competing interests, and sought a balance between them. The constitutional regime we enter today erases the woman’s interest and recognizes only the State’s (or the Federal Government’s).

This reluctance to engage in compromise is arguably symptomatic of the broader polarization in the political sphere over the past several years. This is something to which, in theory, the Supreme Court should be immune as it is meant to be apolitical. Indeed, even suggesting that the Court has devolved into another partisan branch of the U.S. government generates strong reactions, such as Coney Barrett’s response to that very accusation: “This court is not comprised of a bunch of partisan hacks. Judicial philosophies are not the same as political parties.” However, this desire for apoliticality from our Justices might be too much to ask. After all, they are only human and while they may do their best to set aside their baggage when they don their robes (and I’m not convinced they do), how effectively that can happen is a matter of debate and, if recent polling is to be believed, great doubt.

This rejection of compromise is a problem because we are all of us individuals with our own ideas and opinions. Yet, our survival and ability to flourish are dependent on our capacity to rely on others and live within a society. As a result, there is a constant tension between wanting to do things our way and needing other people.

This makes compromise essential. When our interests clash with those of our neighbors, we work towards a mutually acceptable outcome in order to find balance. Neither group may get exactly what they want, but they might get something approximating it.

Of course, this can only work in circumstances where it is possible to accept compromise, which isn’t true in all cases. If I don’t want to kill anyone, and my neighbor wants to kill ten people, the answer isn’t to kill five; it’s to call the police. Abortion would seem to be one of those instances where compromise might not be on the cards, especially for those at the polar ends of the debate. Right-to-lifers might argue that no abortion, at any point, is acceptable, and to compromise is to be complicit in murder. Pro-choicers might respond that any infringement on bodily autonomy, for any reason, is a grave injustice.

In this sense, Roe and Casey’s overturning symbolizes something growingly problematic: the sense that compromise is a negative thing. That it shows weakness rather than an ability to move forward and make incremental changes towards something better. A capacity to not let the perfect get in the way of the good.

This, of course, is not the biggest issue with the Dobbs decision (that would be the mass infringement on people’s fundamental human right to bodily autonomy). However, Roe and Casey’s overturning, based on dubious legal reasoning, throws away a delicate balance between competing interests, one which may not be recreated for decades, if ever at all.

Who’s Harmed by Abortion?

photograph of pro-life protestors in front of Planned Parenthood

Earlier this month, the Texas Heartbeat Act came into force. The Act empowers citizens to sue anyone assisting a pregnant person in securing an abortion after a fetal heartbeat is detectable – generally around the six-week mark. This means that anyone tangentially involved in the causal chain of events leading to an abortion can be implicated. From the clinician who conducts the abortion, to the individual or company that provides the funds to pay for the procedure, to the taxi driver who drives the pregnant person to the clinic; if you can be linked to the abortion, you could be sued. Upon a successful lawsuit, the defendant must pay $10,000 to the person who raised the case and cover the legal fees of both parties.

The Act’s introduction has generated a lot of ethical, jurisprudential, and social debate. This includes its constitutional viability in respect to Roe v. Wade, the acceptability of deputizing private citizens to enforce state law, the lack of exceptions for pregnancies resulting from rape or incest, and the fairness of the ‘six-week mark’ given that most people don’t know they’re pregnant at this point. In a previous post, I’ve highlighted the Act’s problematic use of language. However, a Wall Street Journal article stood out to me, and I wanted to examine it here.

In “The Texas Abortion Law Is Unconventional Because It Had to Be,” Texas State Senator Bryan Hughes clarifies what he believes to be the ill-informed commentary surrounding the Act. He states that the legal gymnastics conducted by the Act were essential as the Supreme Court had gone beyond its purview in its decision in the Roe v. Wade case. Hughes argues that the Court meddled in affairs outside of its jurisdiction by taking the question of abortion out of the electorate’s hands. The Texas Heartbeat Act is a response to this overstep Hughes claims, writing that, “[l]ike it or not, states will keep crafting unconventional means of regulating abortion until the Supreme Court puts the question back where it belongs.”

To support this claim, Hughes talks about the nature of the wronged party in civil cases, arguing that, “[i]n almost every case, the person wronged, and therefore the person who brings the claim, is the plaintiff.” Concerning abortion, the problem, at least as Hughes sees it, is twofold. First, the criminal law is unable to tackle the issue of abortion because of Roe V. Wade. Thus, civil law must be utilized. And this leads to Hughes’ second problem: in instances of abortion, the wronged party can’t bring a civil case against those that have done it harm, as that party no longer exists; abortion eliminates the supposedly wronged party. He writes:

In the case of abortion, the wronged party has been extinguished. If we can’t depend on criminal enforcement, even if Roe is overturned, and the party who directly suffered harm cannot bring a claim, what’s left? Someone else must enforce the law.

The idea that a gestating being is harmed is essential for Hughes. His argument rests upon the civil law being used to compensate for that harm – no harm means no justifiable civil case. Yet, it’s not clear what harm means in this context or why we should care. And it is this lack of clarity that’s fascinating.

You might not think there’s much of a mystery here. You might say that the gestating life is harmed by being aborted, which would not be a novel line of argument. Many anti-abortionists and pro-lifers, such as Pope Francis, Marjorie Taylor Greene, and Marco Rubio, make similar claims. But, this stance isn’t without its problems.

Simply saying that something is harmed doesn’t provide us with any clear indication that such harm is morally relevant or a matter deserving retribution. Instead, it’s the outcome of that harm, qualities particular to the harm, or the experience of being harmed that conveys importance here. Thus, harm, in and of itself, is not morally relevant. To illustrate this, let’s turn to the 1995 classic Toy Story.

Sid, the film’s antagonist, is a destructive boy with a penchant for breaking toys. This habit is depicted as horrifying because the toys are not inanimate beings but are conscious, capable of possessing minds and feeling pain. Thus, their destruction at Sid’s hands is vicious, mutilative, and, yes, morally wrong. Yet, if those toys weren’t alive, Sid’s troubling actions wouldn’t be of moral concern. Thus, while he could harm the toys in terms of their physical destruction and deconstruction, it wouldn’t be harmful in the same way as one could harm another living being; Sid pulling the head off his sister’s doll would be entirely different from pulling the head off his sister.

Harm, as it concerns the destruction of an organized matter, is not inherently morally troublesome. We do it all the time when we eat or tear clothing. What matters is that action’s associations. In Toy Story, the toys are alive, so Sid should, in Woody’s words, “play nice.”

In the case of abortion, the harm is judged by anti-abortionists as being ethically reprehensible because it is harm inflicted upon a morally relevant being – the gestating lifeform. For them, the clump of cells developing in the womb is not the same as a toy, nor is it the same as other biological matter (like a puddle of blood). There is something special about gestation that confers moral importance.

But is there? Here, the idea of abortion as harm runs into another, much more substantive hurdle – what is the moral status of the gestating being?

Credit where it’s due, Hughes puts his cards on the table in his article and states, “I believe life begins at conception.” Thus, for him, the moral relevance of a gestating being begins at that exact moment. From then onwards, its moral status is considered comparable to that of any other human. This claim, derivable from the position of the Catholic Church since the nineteenth century, is one of the foundations upon which he builds his argument. Not that abortion causes the physical destruction of a complex material structure, but it harms a morally relevant being through that being’s obliteration; not that something has been destroyed, but someone has been harmed. Yet, this easy-to-understand view – that life after conception is comparable to life at any other point – leads to some counterintuitive outcomes. Namely, you have the same duties to the gestating being as you would to a fully-formed adult.

For example, imagine you discover that a fire has broken out at a fertility center, and you can hear yells coming from inside. With no one around and the fire department unlikely to arrive in time, you enter the building. You eventually find someone in one of the labs, trapped under a table. Unfortunately, freeing them will take time and risk both your lives. In the same lab, you see several trays labelled ‘fertilized eggs’, all of which contain hundreds of test tubes. As the fire intensifies, you realize that you can either save the person or hundreds of fertilized eggs, but not both. Which do you pick?

It’s a numbers game; how many lives can you save? The answer to that question depends on when you think life begins. You should grab the trays and leave the trapped individual to their fate if it’s at conception. After all, why save just one life when you could save hundreds? Yet, this would seem to be a bizarre outcome. To leave a conscious being to a painful death to save clusters of cells would strike many as counterintuitive, regardless of how many fertilized eggs you could carry. Yet, this is what Hughes’s beliefs require.

Now, that being said, I don’t think this line of reasoning inherently discredits the Texas Heartbeat Act. There are arguments, such as it being a response to the Supreme Court’s judicial oversight, which may be used as a justification for its implementation. However, trying to justify the Act as providing a necessary recourse for those who are supposedly wronged, as argued by Hughes, certainly needs refinement.

The Texas Heartbeat Act and Linguistic Clarity

black-and-white photograph of Texas State Capitol Building

On September 1st, S.B. 8, otherwise known as the Texas Heartbeat Act, came into force. This Act bars abortions once fetal cardiac activity is detectable by ultrasound. While the specific point at which this activity can be identified is challenging to pin down, it most often occurs around the six-week mark. Past this point, the Act allows private citizens to sue those who offer abortions or ‘aids and abets’ a procedure – this includes everyone from abortion providers to taxi drivers taking people to clinics. If the suit is successful, not only can the claimant recover their legal fees, but they also receive $10,000 – all paid by the defendant.

The introduction of this law raises numerous concerns. These include (but are certainly not limited to) whether private citizens should be rewarded for enforcing state law, the fairness of the six-week mark given that most people won’t know they’re pregnant at this point, the lack of an exception for pregnancies resulting from rape or incest, and whether the law is even constitutional. However, in this piece, I want to draw attention to the Act’s language. Specifically, I want to look at two key terms: ‘fetal heartbeat’ and ‘fetus.’

Fetal Heartbeat

At multiple points within the Act, reference is made to the fetal heartbeat requiring detection. This concept is so central to the Act that not only does heartbeat feature in its title, but it is also the very first definition provided – “(1) ‘Fetal heartbeat’ means cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac.” You would think that such terminology is correct and accurate. After all, accuracy is essential for all pieces of legislation, let alone one that has such crucial and intimate ramifications. Indeed, the Act itself indicates that the term is appropriate as, in the Legislative Findings section, it states, “(1) fetal heartbeat has become a key medical predictor that an unborn child will reach live birth.

However, there exists here a problem. For something to have a heartbeat, it must first have the valves whose opening and closing results in the tell-tale ‘thump-thump’; no valves, no heartbeat. While this may seem obvious (indeed, I think it is), it appears to be something the Act’s creators have… overlooked.

At six weeks, the point at which cardiac activity is typically detectable and abortions become prohibited, a fetus doesn’t have these valves. While a rudimentary structure will be present, typically developing into a heart, this structure doesn’t create a heartbeat. So, if you put a stethoscope on a pregnant person’s stomach at this point, you wouldn’t hear the beating of a heart. Indeed, when someone goes in for an ultrasound, and they listen to something sounding like a heartbeat, this is created by the ultrasound machine based upon the cardiac activity it detects. As such, the Heartbeat Act concerns itself with something that is entirely incapable of producing a heartbeat.

For some, this may seem like a semantic issue. After all, the Act clarifies what it considers a fetal heartbeat when it conflates it with cardiac activity. You may think that I’m being overly picky and that the two amount to roughly the same thing at the end of the day. You might argue that while this activity may not result in the same noise you would hear in a fully developed person, it still indicates a comparable biological function. However, the term heartbeat is emotively loaded in a way that cardiac activity isn’t, and this loading is essential to the discussion at hand.

For centuries, a heartbeat (alongside breath) was the defining quality that signified life. Thus, someone was dead when their heart irrevocably stopped beating. However, with developments in medical technologies, most notably transplantation, this cardiopulmonary definition of death became less valuable. After all, undergoing a heart transplant means, at some point, you’ll lack a heartbeat. Yet, saying that person is dead would seem counterintuitive as the procedure aims to, and typically does, save the organ’s recipient. As a result, definitions of death started to focus more on the brain.

By saying that cardiac activity is synonymous with a heartbeat, the creators of the Act seek to draw upon this historical idea of the heartbeat as essential for life. By appealing to the emotive idea that a heartbeat is detectable at six weeks, an attempt is made to draw the Act’s ethical legitimacy not from scientific accuracy but an emotional force. Doing so anthropomorphizes something which is not a person. The phrase fetal heartbeat seeks to utilize our familiarity with the coupling of personhood and that tell-tale ‘thump-thump.’ But it is important to remember that the entity in question here does not have a heartbeat. Heck, cardiac activity, which is at its core electrical activity, doesn’t even indicate a functional cardiovascular system or a functional heart.

Fetus

So far in this piece, I have used the same terminology as the Act to describe the entity in question, that being the word ‘fetus.’ However, much like the use of ‘fetal heartbeat,’ the Act’s use of the phrase is inaccurate and smuggles deceptive emotive rhetoric. Unlike ‘fetal heartbeat,’ however, ‘fetus’ is at least a scientific term.

There are, roughly speaking, three stages of prenatal development: (i) germinal, where the entity is nothing more than a clump of cells (0 – 2 weeks); (ii) embryonic, where the cell clump starts to take on a human form (3 – 8 weeks); and (iii) fetal, where the further refinement and development occurs (9 weeks – birth).

I’m sure you can already spot the issue here. If cardiac activity occurs typically around the six-week mark, at which point the Act prohibits abortions, then this would place this boundary squarely in the embryonic, not the fetal, stage. Thus, using the term ‘fetus’ throughout the Act is scientifically inaccurate at best, and dangerously misleading at worst. Once again, you might wonder why this matters and think I’m making a bigger deal of this than it needs to be. After all, it’s only a couple of weeks out of step with the scientific consensus. However, as is with the case of ‘fetal heartbeat’ (a term that is now doubly inaccurate as it refers to neither a fetus nor a heartbeat), the term ‘fetus’ comes packaged with emotional baggage.

Describing the developing entity as a fetus evokes images of a human-like being, one that resembles how we are after birth and makes it easier to ascribe it some degree of comparable moral worth. But, this is not the case. An embryo, around the six-week point, may possess some human-like features. However, it is far from visually comparable to a fully formed person, and it is this point that the Act’s language obfuscates. Describing the embryo as a fetus is to try and draw upon the imagery the latter evokes. To make you think of a baby-like being developing in a womb and to push the belief that abortion is a form of murder.

Wrapping it up

It would seem a reasonable claim to make that accuracy is essential in our philosophical reasoning and our legal proceedings. We want to understand the world as it is and create systems that are best suited for the challenges thrown at them. Key to this is the use of appropriate language. Whether deliberative or not, inaccurate terminology makes it harder to act morally as inappropriate assumptions often lead to inappropriate results.

The moral status of the embryo and fetus is a topic that has been debated for centuries, and I would not expect it to be unanimously resolved anytime soon. However, using incorrect language as a means of eliciting a response built solely on the passions is undoubtedly not going to help. Laws need to describe the things they are concerned with accurately, and the Texas Heartbeat Act fails in this task.

Indiana’s New Abortion Law: An Ethical, Medical, or Legal Concern?

Republican Gov. Mike Pence signed a new bill that [p]rohibits a person from performing an abortion if the person knows that the pregnant woman is seeking the abortion solely because of: (1) the race, color, national origin, ancestry, or sex of the fetus; or (2) a diagnosis or potential diagnosis of the fetus having Down syndrome or any other disability. After discovering through genetic testing that their unborn child may have a disability,women will be unable to receive an abortion legally. Pence referred to the law as a comprehensive pro-life measure that affirms the value of all human life. Continue reading “Indiana’s New Abortion Law: An Ethical, Medical, or Legal Concern?”