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Constitutional Deadlock Over Privacy: A Third Way?

photograph of protest sign in fron of Supreme Court

Following the overturning of Roe v. Wade, a great deal of media attention has been focused on what comes next. The right to an abortion, granted by the original landmark case, was founded on the basis of a constitutional right to privacy. But it has already been made clear that similar rulings regarding a constitutional right to privacy, such as Griswold v. Connecticut could be at risk of being overturned as well. In addition, the Supreme Court has attracted controversy for several other controversial decisions as well, prompting proposals for how to reform the Court or how to reverse these decisions. But with confidence in the courts falling to historic lows, many such proposals would likely only make the situation worse and undermine confidence in the courts even more.

Perhaps it is time to stop worrying about what policies we want courts to protect and to start thinking about finding broad support for changes in process in the form of constitutional amendments.

The recent decision from the Supreme Court regarding abortion combined with rulings on school prayer, concealed guns, voting rights, and worries about future rulings once again reignite debates about whether and how the Supreme Court should be reformed. The impeachment of justices who some feel misled Congress has been floated, and the topic of court-packing has resurfaced again. The constitution does not specify the number of judges on the Court, so Congress could simply pass legislation creating more positions and then have those positions be filled by left-leaning justices to re-balance the Court. Term limits for Supreme Court justices would mean that there would be more turn over, preventing the Court from becoming too ideologically lopsided.

In addition to proposing reforms to the Courts’ makeup, some have proposed reforms to the powers of the Court. Some now propose that Congress strip the Supreme Court of its jurisdiction for hearing certain kinds of cases, or that legislation could be passed requiring a supermajority of justices to strike down federal laws. It has even been suggested that if a particularly controversial ruling comes from the Court that Congress or the President simply ignore it, under the constitutional theory known as departmentalism which holds that each branch of government may decide on its own how to interpret the Constitution. In addition, there are several proposals to create mechanisms for Congress to override the Court if it wanted to, not unlike Canada’s notwithstanding clause.

While many of these proposals might appease in some areas, they all have problems when it comes to putting them into practice.

After all, abortion rights proponents now find themselves in the same position as anti-abortion advocates did in the 1970s, and it took almost 50 years for them to get what they wanted. Proposals like court-packing simply do not have enough support.

It is important to note that much of the Supreme Court’s power is based on the confidence the public has in it. The Constitution does not prescribe many powers to the Supreme Court, and even its power of judicial review is based on the precedent Marbury v. Madison, and as it has become all too clear that precedents are not set in legal stone. If people do not feel like the Court is impartial, they will be less inclined to heed its pronouncements. While some would like to see justices impeached or the court packed, this would only serve to undermine the confidence in the Court from those on the right, likely prompting retaliatory measures. This would weaken perceptions of impartiality of the Court even more, effectively transforming the Supreme Court into a very exclusive legislature.

Meanwhile, having Congress override the Courts’ decisions risks undermining the commitment to minority rights.

Fundamental protections would become a flimsy thing, being reversed whenever the opposing party comes to power. Limiting the High Court’s jurisdiction risks similar problems, simply offloading the same basic problem to an alternative body that the parties will shape so as to achieve their preferred policy objectives. All these efforts to manipulate the judicial system in order to secure specific political outcomes will only undermine overall public confidence in the Court.

Perhaps an alternative to such a standoff is to stop thinking about desired result we wish courts to deliver and start thinking about broader legal principles to embed in the constitution that could appeal to people on all sides of the spectrum. The legal issue underlying so many contentious issues like Roe v. Wade is the issue of privacy. Abortion opponents charge that because privacy isn’t explicitly established in the Constitution, it isn’t protected. Rather than dealing with legal debates about implied rights, why not amend the Constitution to explicitly include privacy rights? Polls show that a vast majority of Americans are concerned about privacy issues. And with the rise of surveillance capitalism, and of AI accessing vast datasets, there may be room for broad support for proposals to embed some kind of privacy protections in the constitution.

While getting the support needed for constitutional amendments is difficult (the last amendment was ratified in 1992), the increasing importance of privacy to broad segments of American society may create room for bargaining and compromise on these issues by both the left and the right. Recently, constitutional-law David French opined that the Court’s overturning of Roe v. Wade may actually help de-polarize America. Because the pro-life vs. pro-choice debate largely centered around Roe v. Wade, sides had to defend a precedent, not a specific policy. But as French observes,

Is there a hope that you would have something along the lines of a democratic settlement to the issue that makes abortion so much less polarizing in other countries around the world? Europe, for example has long had more restrictive abortion laws than the United States, but the United States couldn’t move to a European settlement because Roe and Casey prohibited that.

Indeed, polls show that Americans have fairly nuanced views when it comes to abortion. Few people would favor an outright ban on the procedure, so it may not be so difficult to imagine a compromise proposal for adding privacy to the Constitution that would not only protect abortion rights, but other rights like access to contraception, gay marriage, and protections from online surveillance. Such a move would not only allow Americans to address newly emerging privacy issues but also settle old disputes. Abortion rights passed through constitutional amendment would also have a legitimacy that Roe never did amongst abortion opponents, preventing back-and-forth sniping at the Court for not upholding preferred policies.

While a constitutional amendment would take time and a lot of negotiation, it may yield a far more stable and broadly satisfying solution to the abortion debate compared to the previous alternatives while not undermining confidence in the Court system itself. So instead of looking to courts to reach specific policy outcomes, perhaps the attention should be focused on building coalitions of support for broad legal principles that people can agree on.

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.

Why Misleading Is Wrong (but Isn’t Perjury)

photograph of Kavanaugh being sworn in with hand on Bible

In the wake of the Supreme Court’s recent ruling in Dobbs v. Jackson (where the Court overturned national legal protections to abortion rights codified by 1973’s Roe v. Wade), several justices have faced heavy criticism for comments they made during their confirmation hearings about Roe and stare decisis (the legal practice of ruling on cases according to established precedent).

According to critics, multiple justices lied during their job interviews about their commitments and principles, not only misleading the politicians who supported them, but theoretically making them liable to impeachment.

As talk show host Stephen Colbert put it, “if these folks believe that Roe v. Wade was so egregiously decided, why didn’t they tell the senators that during their confirmation hearings?”

There are at least two ways to answer Colbert’s question and, importantly, neither of them entail that any of the justices lied under oath — but that’s not to say that Gorsuch, Kavanaugh, or others didn’t speak immorally nevertheless. Consider how someone can manipulate or mislead another by carefully speaking in a way that is not technically untruthful, using insinuations, suggestions, and even silence to push their audience into believing something: in so doing, the speaker is unethically violating conventional expectations about trust and good-faith communication, even if they never speak a falsehood.

Indeed, “telling a lie” and “misleading an audience” are substantively different and although both speech-acts are unethical, only the former is clearly illegal while giving sworn testimony. But whether justices were carefully following the “Ginsburg rule” during their hearings (that requires a judicial candidate to give “no hints, no previews, no forecasts” of their potential rulings) or whether they were shrewdly avoiding a clear answer that might sour their chances of confirmation, it’s not clear that any of them lied to Congress.

In order to actually tell a lie, someone must:

1. Know the truth,
2. Assert the opposite of the truth,
3. Act with the intention of getting their audience to believe the opposite of the truth.

Suppose that Bill tells Calvin that their automatic garage door opens because a guy lives in the attic to operate its movement. This claim is not true, but if Bill genuinely believes it (violating Condition #1), then he hasn’t lied — he’s simply incorrect. Similarly, if Bill violates Condition #2 and phrases the speech act as a genuine question (“Do you think that someone lives in the attic?”), then he hasn’t lied either. And, crucially, if Bill is just making a joke or is otherwise speaking ironically (and doesn’t actually mean for Calvin to form a belief in an attic-dwelling door-opener), then he is violating Condition #3 and has also not explicitly told a lie.

But suppose that Bill simply implies that someone lives in the attic and misleads Calvin to form such a false belief — maybe Calvin asks Bill if such a person exists and Bill responds with “It is metaphysically possible for such a person to live in our attic.” This response isn’t technically false (because, although it is wildly unlikely, it is possible), so Bill hasn’t technically lied. Granted, Calvin would have to be exceedingly gullible to be misled by Bill in this way, but Bill could be guilty of trying to mislead Calvin nonetheless.

As MIT philosophy professor Sam Berstler explains in a recent paper, both liars and misleaders violate social conventions about the trustworthiness of speakers in conversations (where we typically assume that our interlocutor is acting in good faith), but only the former also violates expectations about truthfulness.

Put differently, liars fulfill conditions (1), (2), and (3); misleaders fulfill only conditions (1) and (3).

And, crucially for the present conversation, the legal definition of perjury requires that someone fulfill (2).

So, what did the SCOTUS justices actually say about Roe before being confirmed to the bench? Speaking in 2017, Neil Gorsuch repeatedly referred to the precedent set by Roe, calling precedent the “anchor of law” that functions as “the starting place for a judge”; when pressed about whether or not he accepted that a fetus is not protected by the 14th Amendment, Gorsuch replied “that is the law of the land. I accept the law of the land.” The following year, Brett Kavanaugh infamously told Senator Susan Collins in a private conversation that he considered Roesettled law,” but in his sworn testimony he again referred to it as “a precedent of the Supreme Court, entitled the respect under principles of stare decisis” and, like Gorsuch, repeated that “the Supreme Court has recognized the right to abortion since the 1973 Roe v. Wade case. It has reaffirmed it many times.”

This is clearly true: prior to June 2022, SCOTUS had indeed repeatedly looked to Roe’s precedent as the law of the land — but SCOTUS is also empowered to overrule precedent: as Gorsuch said, it is only the starting place for a judge.

Which means that Gorsuch and Kavanaugh’s sworn testimony (as well as that of the other four justices who overturned Roe) is fully compatible with the present Court overturning that precedent: it was the law of the land during their confirmation hearings, but now it is not.

Put differently: because no Supreme Court justice explicitly asserted that “I will not ever vote to overturn Roe,” none of their speech acts fulfill Condition #2 and so qualify as neither lies nor perjury.

However, to reiterate, this does not mean that the justices are above reproach here (despite what some pundits have suggested): misleading your audience — as Gorsuch and Kavanaugh (and others) apparently did by giving well-crafted, technically-not-perjuring responses that still prompted senators to form false beliefs about their later intentions — is unethical in a host of ways. In particular, being misleading violates expectations about your trustworthiness and integrity: this is something close to lying, even though it is not illegal. A key difference, however, is that your audience also bears some responsibility for their naivety, ignorance, or lack of epistemic diligence that allowed them to be duped (something particularly damaging to the credibility of the justices’ audiences, given that U.S. senators should be familiar with the stereotypical double-speak of lawyers and politicians — to say nothing of the other evidence available prior to the confirmation votes).

But there’s little formal recourse for shamefulness.

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.

What If a Fetus Were a Person?

POV photograph of blood donor with another patient in blurry background

The recent Supreme Court draft opinion leak indicates that Roe v. Wade will soon be overturned. If this happens, the legality of abortion will no longer be a constitutional affair; it will become a decision for politicians and voters. And both sides of the debate have wasted no time making their cases.

The legal status and the moral status of abortion are, of course, separate issues (some think, for example, that abortion is morally wrong but ought to be legal to reduce the harm associated with illegal, unregulated abortion). But the new political fight over abortion’s legality has also brought the moral debate back into the spotlight.

Moral disagreements about abortion are typically about how we morally conceptualize the fetus.

Pro-life advocates often claim a fetus is a ‘person’ or at least a ‘human being’ or a ‘baby’. On the pro-choice side, it is common to use biological terms such as ‘zygote’, ‘embryo’, and ‘fetus’. To talk of killing a person, a human being, or a baby sounds, at first glance, terrible. Talking of terminating a pregnancy or aborting a fetus, on the other hand, sounds much less morally dubious.

These are not just empty word games; the difference in word choice reflects a deeper moral disagreement – disagreement about the moral status of a fetus: Does it have the same rights as any other person? Or does it merely have the same rights as other clumps of cells?

But I want to sidestep this familiar impasse and instead ask a different question:

What if a fetus were granted the same moral status as an ordinary adult human being? What would the ethics of abortion be then?

The answer might seem very obvious. If a fetus is morally equivalent to an adult human being, it would seem wrong to kill it in just the same way that it would be wrong to kill an adult human. But things are not this simple.

The philosopher Judith Jarvis Thomson imagined the following case:

You wake up in the morning and find yourself back to back in bed with an unconscious violinist. A famous unconscious violinist. He has been found to have a fatal kidney ailment, and the Society of Music Lovers has canvassed all the available medical records and found that you alone have the right blood type to help. They have therefore kidnapped you, and last night the violinist’s circulatory system was plugged into yours, so that your kidneys can be used to extract poisons from his blood as well as your own. [If he is unplugged from you now, he will die; but] in nine months he will have recovered from his ailment, and can safely be unplugged from you.

Is it morally permissible to unplug yourself, even though it will surely cause the death of the violinist?

It would certainly be morally admirable to stay plugged in. But it seems like someone who stayed plugged in for nine months would not merely be doing their moral duty; they would be going beyond their moral duty. It would be like jumping on a grenade to save your comrades: more than anyone could reasonably expect. Moral philosophers call these kinds of actions, that are so morally good that they go beyond moral duty, “supererogatory” acts. Refusing to perform these kinds of morally heroic acts is morally permissible. And refusing to stay plugged in also seems morally permissible. We couldn’t blame someone for refusing the violinist, and walking away to continue their normal lives. It’s your moral right to choose to leave.

This is interesting because we all accept that the violinist has the right to life. “Everybody must refrain from slitting his throat, everybody must refrain from shooting him” writes Thomson, “and everybody must refrain from unplugging you from him.” But the violinist’s right to life does not entitle him to the use of your body. Therefore, his right to life does not make it wrong for you to unplug yourself. “If you do allow him to use [your kidneys],” says Thomson, “it is a kindness on your part, and not something you owe him.”

Likewise, even if we assume that a fetus has the same right to life as an adult human, that alone does not necessarily make it wrong to withdraw the use of your pregnant body, even if it causes the death of the fetus.

It is a powerful argument, but it must be acknowledged that Thomson’s analogy, like all analogies, is imperfect.

Being plugged into a stranger in a hospital bed for nine months is perhaps more burdensome than the average pregnancy. If we only had to stay plugged in for a few minutes to save the violinist’s life, then you might consider it immoral to unplug. So the seriousness of the burden of pregnancy seems like a potentially important consideration. Complicating things further, the burden of pregnancy is highly variable. Perhaps Thomson’s violinist case even suggests that aborting the “easiest” pregnancies is morally impermissible while aborting more difficult ones is permissible.

Another challenge to Thomson’s analogy arises from the fact you have nothing to do with the violinist’s unfortunate situation or your kidnapping. This seems like an important detail. It helps explain why you don’t owe the use of your body to the violinist. But things are less clear than this with many cases of unwanted pregnancy. Unwanted pregnancy is generally the result of consensual sex. Pregnancy is a known risk of sex, even with contraception. Even if a pregnancy is fully unintended, and even if sensible precautions are taken, most pregnant women have made choices which at least raised the chances of a fetus requiring the use of their bodies for nine months. Perhaps this makes them partly responsible. Some think this is enough to make pregnant women more morally entangled with the fate of their fetuses than you are with the fate of the unfortunate violinist.

Others, including Thomson, disagree and think that the sheer bad luck of having an unwanted pregnancy creates no special moral duties toward the fetus. She gives the following analogy:

If the room is stuffy, and I therefore open a window to air it, and a burglar climbs in, it would be absurd to say, “Ah, now he can stay, she’s given him a right to the use of her house – for she is partially responsible for his presence there, having voluntarily done what enabled him to get in, in full knowledge that there are such things as burglars, and that burglars burgle.” It would be still more absurd to say this if I had had bars installed outside my windows, precisely to prevent burglars from getting in, and a burglar got in only because of a defect in the bars.

Perhaps, particularly if contraception has been used, the foreseeable risk of pregnancy isn’t enough to create a special moral duty for the mother — a duty to provide the fetus with the use of her body.

The wider point is this. We often assume that the fetus’ moral status, its having or lacking a right to life, is the beginning and end of the abortion issue. But this assumption is wrong. Even if we grant a fetus the same moral rights as an adult human, we still need to answer this; how much can one person’s right to life reasonably demand from another person?

Roe v. Wade and the Meaning of a Right

image of United States map divided into blue and red polygonal shapes

On May 2nd a draft of a Supreme Court decision written by Samuel Alito was leaked. It challenges the core holding of Roe v. Wade – that there exists, unenumerated but implicit, a constitutional right to an abortion.

If something like the draft became law, it would represent a drastic overhaul of the legal landscape for abortion in the United States.

Thirteen states are waiting with currently unenforced “trigger” laws on the books, that will go off and ban abortion even during the first trimester. And yet, in other ways, even the elimination of a constitutional right to abortion is not a cataclysmic shift, but instead a continuation of the slow erosion of access to abortion that has characterized the past several decades.

The case currently under review at the Supreme Court is Dobbs v. Jackson Women’s Health Organization. Notably, Jackson Women’s Health Organization is the only licensed abortion clinic in Mississippi; they only provide abortion up to 16 weeks, patients are required by state law to have an ultrasound and make two separate trips at least 24 hours apart, and underage patients require parental consent. Moreover, Mississippi provides public funding only in cases of life endangerment, rape, or incest, and health insurance sold on state exchanges does not cover most abortions. Such a highly restrictive environment for abortion access is not unique to Mississippi, but characterizes many states. This is with Roe v. Wade intact.

In the initial 1973 decision, the now famous “trimester” framework of Roe v. Wade was set out based largely on balancing an unenumerated constitutional right to privacy, various health and safety considerations, and a state interest in protecting potential life. It specified a federal level framework under which state laws could be implemented. During the first trimester (around 3 months) of pregnancy, abortion must be legal everywhere and would only be subject to basic medical safety regulation. During the second trimester, abortion could not be banned but it could be subject to reasonable regulation that promoted the health and safety of the parent. During the third trimester, abortion could be banned by state law.

Under Roe v. Wade, proposed regulations on abortion would be subject to the highest standard of judicial review – the strict scrutiny standard.

To evaluate constitutionality of a proposed regulation under this standard, a court first checks to see whether a regulation pushes a compelling state interest and then whether that regulation is appropriately precise or if the state interest could be advanced in a less restrictive way.

Regulations like the current Mississippi requirement for a clinically unnecessary ultrasound prior to abortion would almost certainly fail this standard. However, this is no longer the standard of judicial review that is in use.

While Roe v. Wade is the most famous case concerning abortion, and clarified that it is a constitutional right, the details of abortion law in the United States have been superseded by a later Supreme Court case, the 1992 Planned Parenthood v. Casey. This decision changed the legal landscape in two fundamental ways. First, it ended the trimester framework replacing it with a pre-viability, post-viability of analysis. (Viability is when the fetus can live outside of the womb albeit with medical support and generally occurs around the 24-weeks mark.) Second, it changed the standard of judicial review from strict scrutiny to the weaker and less common “undue burden” standard. Under this approach, regulations of abortion could be implemented even pre-viability as long as they did not provide an undue burden to those seeking access to abortion.

However, what constitutes an undue burden is contentious and highly dependent upon parental resources. Intentionally or otherwise, this new standard opened the legal floodgates to state level regulations that often had an explicitly anti-abortion intent, e.g., that abortion clinics must be subject to the same architectural guidelines as full surgical centers at hospitals despite no clinical need for this policy. Some of the most onerous regulations were deemed to in fact be undue burdens in the 2016 Supreme Court decision Whole Woman’s Health v. Hellerstedt, but many remain.

But beneath this legal dispute is a larger question of what it means to have a right at all.

Is a right to an abortion constituted simply by a prohibition on explicitly banning abortion, or does it require that people regardless of income actually be able to travel a reasonable difference, enter a safe and clean facility, and get an abortion? Does someone in Texas still have a federally protected right to an abortion if they have to travel to New Mexico to get one? Similar considerations are at play with other rights. Is a right to free speech secure if people must get free speech permits and can only protest in designated free speech zones? More generally, what legal, political, and social setup is required such that rights exist not merely as abstract metaphysical entitlements or legal stipulations but as meaningful parts of our lives? For many women, substantive access to abortion does not hinge on a looming Supreme Court decision but was lost decades ago.

Some reproductive rights advocates, like the SisterSong Collective, have criticized the mainstream pro-choice movement for being too narrowly focused on abortion as opposed to reproductive rights more generally, and abortion law as opposed to abortion access. They seek a broader movement around reproductive justice which they define as “the human right to maintain personal bodily autonomy, have children, not have children, and parent the children we have in safe and sustainable communities.” The understanding of rights at play is not a narrow legal one, but rather demands the commitment of resources such that reproductive rights are socially and materially supported. A hospitable legal landscape for abortion is part of this, but only part.

The Alito draft overturns even a minimal understanding of the constitutional right to an abortion, and would permit individual states to ban abortion from conception onward. What this means is going to depend on where people live and their ability to travel. People in California need not worry about their state banning abortion; people who want access to safe abortion in Jackson, Mississippi should be more concerned. It could also start a national level legislative discussion about abortion – something a very risk-averse Congress has been loath to take on as long Roe v. Wade stood. (Although, of course, potential national legislation may not be in the interest of abortion rights.) More interestingly, a legislative conversation about abortion would not necessarily concerns rights at all, and could bring in aspects of the broader abortion debate such as public health and questions of fetal personhood that have been left out of often arcane judicial decisions concerning substantive due process, stare decisis (respect for precedent), and constitutional interpretation.

Constitutional Interpretation in the Roe Reversal

photograph of Authority of Law statue facing out from Supreme Court building

On May 2, Politico published a leaked draft opinion of the Supreme Court of the United States in the case Dobbs v. Jackson Women’s Health Organization. The case concerns the constitutionality of Mississippi’s Gestational Age Act, which would prohibit abortions in the state after fifteen weeks. The appearance in the press of a leaked draft opinion of the Court is a highly unusual event unto itself, the exact circumstances of which are not yet known by the public but are currently the subject of investigation and speculation. The draft opinion, authored by Justice Samuel Alito, would not merely uphold Mississippi’s restrictive abortion law. It would overturn Roe v. Wade and Planned Parenthood v. Casey, and thereby rescind the constitutional protection for the right to privacy with respect to abortion that has been in place for nearly half a century.

Much of the public discussion about legal challenges to the right to privacy with respect to abortion in the press and in the confirmation hearings of Supreme Court nominees has, rightly or wrongly, focused on the doctrine of stare decisis. From this perspective, since the Court had already recognized and reaffirmed the right to privacy with respect to abortion, the key question was whether the Court would abandon that precedent and under what conditions the Court had a legitimate basis to do so. These issues also came up in oral argument in Dobbs. In electing to overturn precedent, the leaked draft opinion provides the following rationale: Roe and Casey were “egregiously wrong” decisions that “must be overruled” because the recognition of the constitutional protection of the right to privacy with respect to abortion was an “abuse of judicial authority” wherein “the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people.”Alito concludes that “the authority to regulate abortion must be returned to the people and their elected representatives.”

It is first worth noting what the draft opinion does not say. It does not address the issue of whether, as a matter of basic justice or as a matter of political legitimacy, the right to privacy with respect to abortion requires constitutional protection.

This is because, notwithstanding the abstract moral provisions of the constitution, the theory of constitutional interpretation espoused in the draft opinion presupposes that these are mostly irrelevant considerations with respect to determining whether an unenumerated right is a candidate for constitutional protection. While it is presumably the case that Alito thinks abortion is some kind of grievous moral wrong, the draft opinion does nothing to support that conclusion other than to indicate that some people hold that opinion. Its primary aim is to demonstrate that the right to privacy with respect to abortion does not satisfy two key criteria it claims are necessary for an unenumerated right to require constitutional protection: that the right is “deeply rooted in [our] history and tradition” and compatible with a scheme of “ordered liberty.” According to Alito, the right to privacy with respect to abortion does not satisfy these criteria, and therefore the authority to regulate abortion must be left to the states.

It is worth contemplating just what the supposed restoration of the authority of the people to regulate abortion would constitute. This would grant states, in principle, broad police powers with respect to abortion. The people of the states could, of course, limit these powers by entrenching statutory or constitutional rights against their exercise, but they could also reserve such powers to the legislature. Some of these powers are the obvious ones that the opponents of safe and legal abortion desire: the authority to severely restrict or outright ban abortion within a state, including the authority to impose criminal penalties on women and their physicians if they are so inclined.

But it would also entail, as the late legal philosopher Ronald Dworkin pointed out, the authority to compel abortion so long as doing so promotes a legitimate state interest. This point was reiterated in Casey, which notes that but for the right protected by Roe, “the State might as readily restrict a woman’s right to choose to carry a pregnancy to term as to terminate it, to further asserted state interests in population control, or eugenics, for example.” A draft opinion which, if it does become the decision of the Court, would authorize state policy requiring compulsory abortion or would permit the institution of a scheme of licensure for the privilege of bearing children, including the imposition of fines or penalties for failure to make use of abortion services in the absence of such license is of great concern.

I mention this not because I think this is a likely prospect — I take no position on that question — but because it suggests that the draft opinion is prima facie defective.

And while jurists are generally less willing than philosophers to contemplate what they presume to be unlikely or fanciful consequences, or “hypotheticals,” it does not require any imagination to realize that such policies are not unheard of. These were effectively part of China’s One Child Policy, for instance. Once this dimension of the right to privacy with respect to abortion is acknowledged, it becomes clear that if the Court, in overturning Roe and Casey, primarily looks to a litany of 19th Century statutes restricting or prohibiting abortion as a basis for such a determination, it has not taken its analysis of “history and tradition” very seriously.

I have postulated that the same constitutional right to privacy that protects a woman’s right to choose whether to have an abortion also protects a woman’s right to not be compelled to have an abortion. It might be claimed that this point is irrelevant because it is possible to have one without the other: it is possible to jettison the right to choose and retain the right not to be compelled. It is certainly possible to conceive of a legal regime that is barred from compelling a woman to have an abortion without that woman having an individual right against such compulsion. For instance, if the state restricts itself from exercising that prerogative, or because it would violate the rights of someone else, e.g., if an embryo or fetus is considered to be a rights-bearing person, or if a woman’s body is considered the property of another person, and so on.

However, I would suggest that if a woman has an individual right not to be compelled to have an abortion, or, in other words, if such an invasion of her body by the state is an injury to her, as it plainly is, then, ex hypothesi, her right against such compulsion, whether described in terms of liberty, autonomy, privacy, or bodily integrity, also entails that she has the right to choose to have an abortion.

If this is the case, it follows that if the right to not be compelled to have an abortion meets the criteria for constitutional protection, then the Court is making a grave error in rescinding the right to privacy with respect to abortion.

The draft opinion is also concerning due to the precedent it sets for privacy rights in general. In a recent essay, the constitutional scholar Akhil Amar attempts to assuage these concerns. He aims to defend Alito’s claim that “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” According to Amar, overturning Roe and Casey would not imperil other privacy rights because, first, the public statements of sitting Justices indicate that they are not inclined to rescind other privacy rights, (e.g., the right to privacy with respect to contraception and the right privacy with respect to interracial marriage), and, second, because the recent legislative agendas of the states suggests that there is little to no public support for doing so.

The basic idea is that, unlike other privacy rights, the right to privacy with respect to abortion remains controversial, as evidenced by the persistence of legal challenges by various states. Therefore, other rights are unlikely targets for rescindment.

But this point is cold comfort for those who take the right to privacy with respect to abortion to have the same foundation as the other privacy rights. Perhaps the current composition of the Court can make peace with the apparent interpretive inconsistency of recognizing some privacy rights and not others, of declaring some privacy rights fundamental rights and treating the recognition of others as tantamount to judicial usurpation. But that does not prevent a future Court from using the reasoning in this draft opinion, if it does become the decision of the Court, as precedent for such judicial misadventure. (Of course, no precedent can prevent a majority of the Court that is willing to dispense with precedent altogether from imposing its interpretation of the Constitution on the nation.)

Presumably the reason Amar does not find the draft opinion to be concerning is because he does not see any such inconsistency. He agrees with Alito’s assessment that “abortion is fundamentally different” from other privacy rights, a point on which he is cited as an authority in the draft opinion. One reason, put forth by Alito and Amar, for the supposed distinction between the right to privacy with respect to abortion and the other privacy rights is the presence of an interest in protecting “potential life.”

The implication is that the right to privacy with respect to abortion entails unique conflicts that other privacy rights do not. But this is not plausible.

First, it is necessary to be clear about what the nature of the conflict is. The legitimate state interest, acknowledged in Roe and Casey, of protecting potential life, presents a conflict between individual liberty and public policy. When this is recognized, there is plainly no relevant difference between the right to privacy with respect to abortion and other privacy rights. All of these may be in conflict with various kinds of social policy, for instance, in regulating the “morals” of a community, as anti-miscegenation laws certainly purported to do.

The other reason, adduced by Alito and mentioned by Amar, states that the right to abortion with respect to privacy is distinct because abortion “destroys an ‘unborn human being.’” But the Court has not dared to claim, even in this draft opinion, as it could not do without venturing into a constitutional quagmire, that an unborn human being is a constitutionally rights-bearing person. So it is not clear what the point of this claim is supposed to be or how it factors into constitutional interpretation.

It remains to be seen whether the official Dobbs decision will differ in any significant way from the draft opinion. What is clear is that the Court is on the verge of rescinding the right to privacy with respect to abortion.

The Death of Roe v. Wade: What Lies Ahead?

image of US map with flag and constitution superimposed

The pro-life movement appears to be on the cusp of winning its crowning triumph — the overturning of the constitutional abortion regime established by two Supreme Court cases, Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. In oral argument last December for the case of Dobbs v. Jackson Women’s Health Organization, involving a constitutional challenge against a Mississippi law banning abortion after fifteen weeks, all of the Court’s conservative wing — with the possible exception of Chief Justice Roberts — appeared ready and willing to abandon fifty years of precedent and declare, in Justice Kavanaugh’s words, that the “Constitution is silent and, therefore, neutral on the question of abortion.” Thus, it seems appropriate to consider now how the legal landscape might shift in response to this momentous development.

In what seemed like an attempt to mollify coastal liberals, during oral argument for Dobbs Justice Kavanaugh and Mississippi’s Solicitor General, Scott Stewart, speculated as to the relatively limited fallout we might expect. Seeking to paint a rosy picture of what the future might hold, Kavanaugh asked Stewart whether, if Mississippi prevailed, a “majority of states still could or… presumably would continue to freely allow abortion.” Stewart answered that this outcome was “consistent with our view.” Earlier in the argument, Stewart suggested that a ruling in Mississippi’s favor would serve the “many people [who] vocally just really want[] to…decide [the abortion question] locally….”

But Kavanaugh and Stewart’s implication that pro-choice states could simply continue to permit abortion after the Court upholds Mississippi’s law is somewhat disingenuous. Many liberals and conservatives seem to think that if Roe is overturned, the question of abortion’s legality would automatically vest in the states. This is far from clear. Congress could, if it wished, pass legislation under the Commerce Clause that either prohibited or permitted abortion nationwide, thereby preempting state law. (The Commerce Clause is the most likely constitutional “hook” here because abortions are services sold in interstate commerce). This possibility means that the oft-repeated claim that returning abortion to the states by overturning Roe will lessen the national-level rancor surrounding abortion rests on a false premise.

When Roe was decided in 1973, thirty-one states forbade abortion in all circumstances except to save the life of the mother. Some of these states never repealed their pre-Roe abortion statutes. When the Supreme Court declares a state law unconstitutional, it is not automatically repealed; without legislative action, it stays on the statute books, unenforceable but still a part of the state’s legal code. If Roe is overturned, these “dormant” statutes could easily spring back to life. Thus, a pro-life ruling might not endanger abortion access only in states that, like Mississippi or Texas, passed anti-abortion statutes after 1973 in anticipation of the eventual overturning of Roe. Moreover, although the issue is not definitively settled, recent Court precedent suggests that its decisions about federal law have “full retroactive effect,” at least in civil cases. This raises the possibility that if a plaintiff sues an abortion doctor for conduct that took place before Roe was overturned pursuant to state law, the defendant might not be able to defend herself by claiming that her behavior was constitutionally protected at the time.

One particularly interesting exchange in the Dobbs oral argument concerned the possible effect of overturning Roe on other seminal cases involving reproductive and sexual rights, such as Griswold v. Connecticut — which declared that the right of married couples to buy and use contraceptives is protected by the constitution — or Lawrence v. Texas and Obergefell v. Hodges, which struck down bans on homosexual intimacy and same-sex marriage, respectively. Justice Barrett asked Solicitor General Stewart whether a decision in Mississippi’s favor would have adverse effects on these other decisions. Stewart replied that two features distinguish them from Roe: “Negative stare decisis considerations,” and that none of those other decisions “involve the purposeful termination of human life.” In saying this, Stewart was suggesting two lines of reasoning that the Court’s conservative majority could use to overrule Roe: that Roe doesn’t have the same precedential weight as other “watershed” decisions like Brown v. Board of Education because key elements of Roe were abandoned in Casey, and that states have a compelling interest in fetal life.

However, in a later colloquy between Stewart and Justice Sotomayor in which the latter noted that all of these decisions rested on “substantive due process,” Stewart denied that Griswold, Lawrence, and Obergefell were vulnerable on the grounds that Mississippi is “quite comfortable with Washington v. Glucksberg and how it analyzes substantive due process.” By “substantive due process,” Sotomayor and Stewart were referring to a Supreme Court doctrine according to which the Due Process Clause of the Fourteenth Amendment protects certain substantive rights, such as privacy or autonomy, and not merely procedural rights to judicial process when the government deprives persons of life, liberty, or property. In Roe, the Court held that the Due Process Clause guarantees a right of privacy that includes the right to abortion. The rationales for Griswold, Lawrence, and Obergefell all relied to one extent or another on the substantive due process doctrine. Nevertheless, the very idea of substantive due process is something of a bugbear among conservative lawyers and legal scholars, including some Supreme Court Justices. Thus, Sotomayor was pointing out to Stewart that should the Court overturn Roe by rejecting substantive due process, the other decisions on sexual and reproductive rights could easily fall with it.

Stewart’s reply was to point to the Glucksberg case, decided twenty-five years after Roe, in which the Court held that only rights that are “deeply rooted in the nation’s history” are protected by the Due Process Clause. Stewart was in essence saying that Mississippi was not arguing for abandoning substantive due process, so long as the Court adheres to the Glucksberg standard. By that standard, according to Stewart, abortion rights are not among the rights protected by substantive due process, since abortion rights do not have deep roots in America’s history. The obvious problem with this reply is that rights to birth control, homosexual sex, or same-sex marriage are also not deeply rooted in the nation’s history — a point that Sotomayor began to articulate before being interrupted and sidetracked by Stewart.

This discussion has ventured into the constitutional weeds in order to illustrate the point that the ramifications of the Court’s ruling in Dobbs will crucially depend upon the precise nature of the reasoning it uses to support it. If the Court decides to overrule Roe on the narrow ground that the state has a compelling interest in fetal life, then other substantive due process rights may survive. But if the Court uses Dobbs as an opportunity to affirm and apply the Glucksberg standard, or even to call the doctrine of substantive due process into question, then these other decisions may be left vulnerable to challenge. In general, the Court likes to decide issues on the narrowest grounds possible, but there are exceptions to this rule. Moreover, as I mentioned, there are a number of Justices who are openly hostile to substantive due process as a whole. In that context, a Glucksberg-based decision that preserves substantive due process but potentially affects a host of other important cases might appear to some Justices like a reasonable middle ground. We can only speculate.

The ramifications of Roe’s death are unpredictable. In this column, I have emphasized some possible consequences that add up to a darker picture of life after Roe than even many left-leaning commentators predict. However, there are other possible effects that may be less desirable to the pro-life side. Although studies suggest that overturning Roe will, in the short term, appreciably depress abortion rates — mainly by increasing travel distances between pregnant women and abortion providers — the longer-term effects are less clear. In the years leading up to Roe, many states were liberalizing their abortion laws. As millions of women find themselves wholly cut off from access to safe abortion services, that trend may continue if Congress does not act. In the fullness of time, it is quite possible that the pro-life side will find the death of Roe a Pyrrhic victory.

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.

What Hypocrisy Tells Us

photograph of the lighted front of the Metropolitan museum of art at night

On September 13th, 2021, Congresswoman Alexandria Ocasio-Cortez attended the 2021 MET Gala wearing a white ball gown emblazoned with the phrase “Tax the Rich” in bright red lettering. The command on the dress was a reference to Ocasio-Cortez’s fiscal platform policy of increasing the tax burden on the wealthiest 1% of U.S. earners. Wearing (literal) statement pieces to the red-carpet Hollywood events is nothing new; celebrities such as Megan Rapinoe and Cara Delevingne have both attended the MET Gala in pieces protesting various social injustices, and Lady Gaga famously attended the MTV’s VMAs in a dress made of meat to protest the military’s “Don’t Ask, Don’t Tell” policy. Predictably, Ocasio-Cortez’s look immediately received a flood of attention, some positive, and some quite negative. The most prominent thread of criticism, however, was not criticism of the political position itself. Rather, critics on both sides of the aisle took issue with Ocasio-Cortez advocating for increasing taxes on the rich while attending a tax-payer subsidized event that costs a minimum of $30,000 per ticket. In other words, people were upset that someone would perform (what they took to be) a criticism of extreme wealth while attending an event that indicated they themselves had access to, and benefited from, extreme wealth. That is to say, people accused Ocasio-Cortez of being a hypocrite.

Accusations of political hypocrisy are a fairly standard complaint to make, not only of politicians and public figures, but sometimes also of a movement as a whole. Consider this critique of anti-abortion politicians by a group called Pro-Choice America. Herein, Pro-Choice America accuses politically conservative people who are against legalized abortion of being hypocrites in virtue of rejecting other policy proposals. The other policy proposals in question include: nationalized healthcare, subsidized higher education, affordable housing, eased immigration restrictions, and so on. Their insinuated argument is something like the following: if you are against abortion because you are “pro-life”, then consistency demands you also favor other political positions that would help people live better lives.

From the other side of the aisle, since the beginning of the COVID-19 pandemic, republicans have been accusing democrat politicians of hypocrisy for instances of failing to abide by the masking and social distancing rules they have signed into law. Such failures include instances of gathering indoors without masks, patronizing salons and restaurants, and hosting birthday parties with long guest lists.

But what is the purpose of pointing out apparent ideological hypocrisy of individuals or groups? If Nancy Pelosi acts hypocritically in failing to conform to mask mandates that she endorsed, does this indicate that mask mandates are not a good policy after all? There is no obvious connection between a person’s failure to act consistently in accordance with their beliefs, and the falseness of those beliefs. That is, hypocrisy on the part of advocates is not straightforward evidence against the policies they are advocating for. It may be that the policies themselves are the correct ones to implement — the advocates may be merely weak-willed. Yet, charges of hypocrisy are often brought forth as evidence against the beliefs of the would-be hypocrite. Is pointing out hypocrisy a legitimate way of critiquing someone’s beliefs or policy positions?

A common response to perceived hypocrisy is that, in acting hypocritically, we lose the right to advocate for certain beliefs or policies. For example, a politician who advocates against legal abortion may be accused of lacking the right to an opinion on the matter if it is revealed that he once procured an abortion for a pregnant mistress. Are hypocrites doing something wrong by speaking out of turn? It is hard to see exactly how one may lose a “right” to speak to an issue merely by failing to live up to their own standards. There is no commonly-recognized moral duty to only speak up in favor of behaviors that you yourself follow. Additionally, if consequences are what matter morally, then one ought to advocate for correct policies even if they are so weak-willed that they cannot follow their own prescriptions. Of course, it would be better if one could, as they say, take their own medicine, but it would still maximize the good to encourage other people to act well/implement good policies, regardless of whether they act consistently in their private life. For example, if mask mandates maximized well-being for the country as a whole, then politicians who refused to wear a mask would still (according to utilitarianism) do best to advocate for mask mandates.

On the other hand, a virtue ethicist like Aristotle might say that behaving hypocritically, either by failing to act on your convictions or by advocating for positions you do not truly accept, is a sign of vice — that is, bad character. And having bad character may incline one to believe, or advocate for, bad positions and policies. At least, we are probably more confident in the judgments of people with good character than the judgments of people with bad character. And so, if hypocrisy is a sign of bad character, this could provide some indirect evidence against the views or policies in question.

From a psychological perspective, we may infer from an act of hypocrisy that the person in question is being dishonest about what they say they believe. For example, we may suspect that someone’s true reasons for opposing legal abortion is misogynistic in nature rather than related to the inherent value of life if they advocate for other policies that fail to adequately value life. But even if someone is lying or being misleading about their true beliefs, this should not upset any additional evidence we have in favor of those beliefs or policies. Someone who thinks abortion is wrong on the basis of arguments would not be dissuaded merely because some politician lied about his desire to protect all life. Someone who believes, for social and economic reasons, that the tax burden on the top 1% of U.S. earners should be increased, would not be dissuaded from this belief even if Ocasio-Cortez acted hypocritically in attending the MET Gala.

In conclusion, charges of hypocrisy hit hard, but it is not clear exactly whether, or how, the charges constitute a criticism of the positions of the supposed hypocrite. Regardless, we would likely do better to focus more on the beliefs and policies themselves than on the fallible humans endorsing them.

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.

Why Anti-Vaxxers Are (Kind of) Like Marxists

image of anti-vaxx protestor

On February 26th, the second-oldest Roman Catholic archdiocese in the United States issued an official statement warning church members about their COVID-19 vaccine options; in particular, it labeled the recently approved, single-dose vaccine from Johnson and Johnson “morally compromised as it uses the abortion-derived cell line in development and production of the vaccine as well as the testing.” In the following days, numerous representatives of Catholic dioceses around the country chimed in to agree, not actually forbidding the pious from being vaccinated, but rather advising that “If one has the ability to choose a vaccine, Pfizer or Moderna’s vaccines should be chosen over Johnson & Johnson’s.”

To those unfamiliar with Catholic dogma, this warning is likely peculiar: what do abortion practices (which the Roman Catholic church officially, if not pragmatically, opposes) have to do with vaccinations? But this critique of vaccines is far from unique to conservative Catholic clergymen: for some time, critics of vaccines in general have lobbied pro-life sentiments as anti-vaccination arguments: my goal here is not necessarily to respond to abortion-based anti-vaccine rhetoric, but rather to demonstrate what else that kind of thinking might require someone to believe.

In short, it’s kind of Marxist.

Let’s back up and explain some things first. The “vaccinations-are-pro-abortion” (or even the less severe “some-vaccines-are-tainted-by-abortion”) argument is rooted in the fact that several vaccines, including Johnson and Johnson’s one-shot COVID-19 treatment, have been developed, in part, by using celluar tissue taken from an aborted fetus in the 1960s. Understandably, biomedical research often requires human tissue samples for many reasons, but it can be difficult to collect and store cellular material in a way that is both efficient and effective for long-term use; typically, human cells die too quickly to be used in long-term experiments, but fetal human cells are not only inherently capable of reproducing themselves indefinitely, but scientists have developed techniques to intentionally grow them in cellular cultures in a way that effectively “immortalizes” them. So, medical researchers studying how to cure ailments ranging from Alzheimer’s Disease to spinal cord injuries to multiple kinds of cancer to, yes, diseases susceptible to vaccinations will typically rely on several immortalized cellular lines that have been cultivated for decades in order to test their experiments.

It is not the case that the Johnson and Johnson vaccine — or any other vaccine, for that matter — contains aborted fetal tissue (that is to say: absolutely no one is receiving literal fetal cells in their arm when they get their COVID shot). Nor is it the case that abortions are being done in order to develop vaccines today (each of the cell lines now in use, such as the MRC-5 and WI-38 cultures, originate in abortions performed in the mid-20th century — often for separately tragic reasons, such as the rubella epidemic of the 1960s).

But this is not to say that there are no moral questions that arise about the use of fetal cell lines (or any other human culture) in contemporary research contexts. For example, the HEK-293 line used in the development of several COVID-19 vaccines may have come from an abortion in 1973, but its exact origination is unclear and it is entirely possible that the original cells were collected from the remains of a spontaneous miscarriage. Either way, despite the fact that HEK-293 cells have been used to develop a wide variety of medical advances and medications (including many of the various antipsychotics today used to treat diseases like schizophrenia and bipolar disorder), the original donor of those cells (or their family) has never been compensated for their contribution to an industry enjoying billions of dollars of profit. Similarly, the story of Henrietta Lacks, an African-American woman diagnosed with terminal cervical cancer in 1951, is a terrible example of how biomedical research can be built on a blatant injustice: after doctors collected a sample of Lacks’ cells without her knowledge, they discovered that the cells unexpectedly possessed the same kind of propensity for “immortalization” that makes fetal cells so useful, so they patented and commercialized the “HeLa” cell line. Despite never receiving Lacks’ consent for her cells to be used in this way (much less compensating her for her donation), the HeLa line has developed into one of the most useful (and lucrative) cell cultures on the market today; Lacks’ family never even knew the cultures existed until two decades after her death.

Setting those issues aside for now, what can we make of the claim that the conditions under which a commodity is manufactured can irrevocably taint the commodity itself with immorality? This is, I take it, a core complaint of the pro-life critic of vaccine development practices: the goals of vaccine deployment might be laudable enough (namely, reducing the spread of disease), but the methods of doing so are, arguably, associated with something purportedly inexcusable. For some, the difference between contemporary abortions and contemporary immortalized fetal cell lines originating in initially-unrelated abortions a generation ago might be sufficient to distinguish morally between pro-life commitments and vaccination acceptance — that is to say, someone could easily be a critic of elective abortion and consistently still believe that modern vaccination programs are morally acceptable. (It is worth noting that several outspoken pro-life American religious leaders, including Robert Jeffress, Al Mohler, and Franklin Graham have spoken out recently in support of COVID-19 vaccination programs.)

But let’s suppose that this is inconsistent (as many of Graham’s fans argued after he publicly surmised that Jesus would be pro-vaccine); what might we be committing ourselves to if we affirm that the use of fetal cell lines in their development hopelessly entangles vaccines within a morass of morally unacceptable problems?

Firstly, it seems like we would also need to reject many additional medical advances made over the last five decades. Anyone who rejects a vaccination against the novel coronavirus (or any other disease) because of the abortion-based critique of vaccinations I’ve been discussing will seemingly also need to reject treatments for conditions ranging from various cancers, diabetes, Parkinson’s disease, and macular degeneration to Alzheimer’s, paralysis, strokes, organ transplants, and medications for a wide variety of conditions. Without some special reason to think that vaccines are uniquely susceptible to being morally tainted via their tenuous association to past abortions, it is unclear why one could be an anti-vaxxer and not also a critic of many other elements of modern medicine.

Secondly, this whole conversation reminds me of the broader Marxist critique of capitalism in general. In his essay “Estranged Labor,” Marx introduces the idea that, under capitalism, workers are alienated from multiple things, including the products of their labor, their fellow human beings, and even themselves. A society split into different class-divisions, Marx says, necessarily prevents certain people (workers) from being able to live lives as fully realized human beings, creating and enjoying both cultural artifacts and the other people within our cultural relationships. In later works, like the first volume of Capital, Marx would develop the further critique that capitalism is not only alienating but exploitative because it, by design, transfers the value created by the labor of workers to the pockets of business-owners; for one example, consider the connection between Jeff Bezos’ wealth and the often-cataloged, but rarely-prevented dehumanization of workers in Amazon distribution centers (another is the dangerous abuses regularly perpetrated against both human workers and nonhuman animal victims in factory farms). Nowadays, this critique is sometimes summarized in the sloganized observation that there exists “no ethical consumption under capitalism” — although Marx himself never wrote those words, it is a (somewhat oversimplified) distillation of his broader point: the conditions under which capitalism operates necessarily spreads a taint of moral corruption throughout the entire line of commodity production in a manner that should provoke us to rethink the structuring of that productive system as a whole.

Of course, if someone is apt to think that products are, in a sense, insulated from the moral conditions of their production, then they would be able to quickly reject the Marxist critique of capitalism. Notice that there is at least one person who can’t do this, though: the person who accepts that vaccines are necessarily morally tainted because of the conditions of their production.

In short, if someone is inclined to believe that their pro-life commitments require them to think that vaccines are morally tainted, then they are seemingly required (upon pain of inconsistency) to believe that their anti-abuse commitments will require them to believe that many additional products, including anything produced on a factory farm and, perhaps, even all products produced by capitalists, are morally tainted as well.

Walgreens and the Conscience Clause

Earlier this month a woman in Arizona, Nicole Arteaga, tried to get a prescription filled at her local Walgreens. The prescription was for misoprostol, a drug that is often used to induce a medical abortion. It was prescribed to Arteaga by her physician for the reason that, after nine weeks of pregnancy, the development of the fetus has ceased. Without intervention Arteaga would have had a miscarriage, and was advised that the best course of action in her circumstances was to terminate the pregnancy early. The pharmacist, however, refused to fill her prescription, on the basis of a moral objection. Arteaga expressed in tweets and interviews afterwards that although she clearly explained to the pharmacist at the time that her situation was urgent, and while the pharmacist recognized that she was in distress, he nevertheless refused to fill her prescription. Continue reading “Walgreens and the Conscience Clause”

Opinion: Kevin Williamson Is Right (About One Thing)

photograph of an anti-abortion protest

Kevin Williamson, a flame-throwing National Review contributor for many years, was recently hired by The Atlantic as part of the magazine’s effort to include conservative voices, and then he was fired. The bridge too far was not the fact that he had once tweeted out a call for women to be hanged for having abortions, but the fact that this wasn’t just an impulsive tweet. In a podcast unearthed by his critics, he can be heard saying that he does indeed think women who have abortions should be treated however we treat murderers. He also expresses doubts about capital punishment, so—rejoice?—the bit about hanging was just a rhetorical flourish.

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Should Conscientious Objections Apply to Healthcare?

An image of a surgeon operating on a patient.

While executive orders and high-profile legislation garner the most media coverage, much of the change that comes with a new presidential administration happens in the individual departments staffed by new political appointees. The current administration has pushed far-reaching changes regarding the place of religious belief in the healthcare system through actions at the Health and Human Services Department. I’ve previously covered the administration’s decision in October 2017 to widen the scope of exemptions to the contraception mandate. More recently, NPR reported that the Department of Health and Human Services is opening a new Division of Conscience and Religious Freedom to defend health care workers who object to participating in medical care for patients because of their sincerely held religious beliefs. Notably, the establishment of the division also reverses an Obama-era rule barring “health care workers from refusing to treat transgender individuals or people who have had or are seeking abortions.”

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Iceland Has Almost Eliminated Down Syndrome through Selective Abortion. Is That a Good Thing?

Ultrasound image

A recent article from CBS News reported that almost 100 percent of pregnant women in Iceland choose to terminate their pregnancy, should a pre-natal screening test come back positive for Down Syndrome. Nearly 85 percent of all pregnant women in Iceland take this optional test. Only around one or two children are now born in Iceland with Down Syndrome per year. On the other side of the Atlantic, the Ohio state legislature is currently considering bills to criminalize selective abortion done for terminating a fetus with Down Syndrome. Obviously, opinions differ drastically on the moral permissibility of the termination of Down Syndrome pregnancies.

Continue reading “Iceland Has Almost Eliminated Down Syndrome through Selective Abortion. Is That a Good Thing?”

Abortion and the Artificial Womb

This past week, scientists have shared that they have created the most successful artificial womb yet. Lambs have been born healthily after spending up to half of their gestation in a simulated uterus.  

For now, this technology is proving to be intriguingly successful in lambs. To keep hormones, temperature, oxygen, and other life-sustaining factors stable for humans will be quite a hurdle, but scientists and spectators are already hypothesizing about what this could mean farther down the line (specialists estimate testing this technology on humans would be about three years in the future). Artificial wombs could be of help not just with premature births on the cusp of viability, but perhaps even earlier. Perhaps, artificial wombs can be of use soon after conception, or are the next stage of development for so-called test tube babies. In that case, we could develop children without the need of a woman’s uterus altogether!

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Peter Singer and the Ethics of Eugenics

Recently, students at the University of Victoria in British Columbia, Canada, gathered to protest a talk given by Princeton University bioethicist Peter Singer. First and foremost, Singer is a utilitarian who believes that the rightness of actions depends on their maximizing pleasure for sentient creatures. He is well known for his provocative utilitarian views on infanticide, animal welfare, and charitable obligations.

The UVic protestors claimed that “giving Singer a platform was implicitly supporting the murder of disabled people, and that his views supported eugenics.” Their complaint is only the most recent in a long history of protests to the work of Singer. Though questions about academic freedom and freedom of speech more generally are relevant, let’s set them aside for a moment and consider the charge head-on: what is eugenics? Who counts as a eugenicist?

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A Women’s Council, Without any Women

This past week, members of the first Qassim Girl’s Council, a provincial group in Saudi Arabia that discusses issues regarding women’s rights within the Qassim region, met publicly to begin discussions on how they can meet certain goals laid out as part of their Vision 2030 program. Despite the seemingly good intentions of a council like this, the photographs from this conference present a different narrative. The dark reality of this meeting can be seen through the photographs of strictly men sitting in on the conferences. The women that were part of the Qassim Girl’s Council were reportedly in another room being connected via video stream, adhering to the strict laws of gender separation outside of familiar ties that is practiced in Saudi Arabia. Photographs of this meeting garnered significantly more attention in the United States after being compared with the photographs of President Donald Trump signing abortion legislation while being surrounded by powerful, white, conservative males. The moral issues presented here cover a host of topics, but the main focus of this issue is whether or not men have the right and/or autonomy to govern the rights of women.

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Feminism in 2017: Inclusionary or Exclusive?

At the 2017 Conservative Political Action Conference, Kellyanne Conway revealed that she does not identify as a feminist “in the classical sense.” This seems a bit paradoxical, considering the fact that she was the first woman to ever successfully run a presidential campaign, thereby setting further precedents for what women can do. The Oxford Dictionary defines feminism as the advocacy of women’s rights on the ground of the equality of the sexes, but Conway does not believe that is how the current feminist movement is coming across. During her CPAC appearance, she cited the term “feminism” as having “anti-male and pro-abortion” tendencies.

Continue reading “Feminism in 2017: Inclusionary or Exclusive?”

On Forcing Women to Share Custody with their Rapist

As the intersection of religious, political, medical, feminist, and moral debate, abortion is one of the most divisive ethical issues in our nation. Pro-choice supporters argue that women have the right to determine the fates of their own bodies whereas pro-life activists consider abortion to be murder. An issue that looms around the discussion of abortion is the circumstance of conception from rape. Pro-life individuals may shy away from the issue or even admit rape as an exception. However, websites like Students for Life advise their readers to stand firm in opposition of abortion, questioning rhetorically, “The perpetrator must be punished to the fullest extent of the law, but does the helpless child, who is guilty of no crime, deserve death?” Claiming that abortion perpetuates the “pattern of violence and victim-hood,” Students for Life suggests that the rape victim bears the responsibility to break the cycle of violence. However, does the cycle really end for the women of the estimated 17,000 to 32,000 rape-related pregnancies who choose to keep their children? Women are not only punished for their abortions; in the United States, women may be forced to share their children’s custody with their rapists.

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The Wrong Reasons? Refusing Elective Abortion Coverage

This week, Community Health Options, Maine’s largest provider of health coverage on the Affordable Care Act’s online marketplace announced that they no longer will offer coverage for elective abortions. The CEO, Kevin Lewis, cited economic considerations, as the co-op has suffered losses that it hopes to make up by cutting some coverage. Continue reading “The Wrong Reasons? Refusing Elective Abortion Coverage”