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Underexplained Concepts in the Abortion Debate

photograph of pro-life protesters with religious abortion signs

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

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

The Purpose of the Law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Morality & Legality

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

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

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

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

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

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

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

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

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

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

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

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States of Exception

photograph of Chechpoint Charlie memorial site today

Now, many weeks into the rolling global coronavirus outbreaks, large-scale community lockdowns, and broad economic shutdowns; through a plethora of views on what the longer-term outcomes of this situation may be, it is clear that we are living through exceptional times.

Globally, as governments scramble with varying degrees of success to get a hold of the crisis, many countries have declared states of emergency.

Emergency decrees involve assuming certain types of exceptional powers by a government for the duration of a national emergency. Certain rights and civil liberties are curtailed and the protection of certain basic rights is suspended in order to ameliorate the threat.

Currently, in response to the global coronavirus pandemic, roughly one third of the world’s 7.5 billion people are in lockdown or under some form of ‘physical distancing’ restriction on free movement and association. In many areas authorities are enforcing curtailments.

We know from infectious disease experts that these measures are essential – the human population has no immunity to this novel coronavirus and a vaccine or effective treatment may be some way off. The only strategy we have is halting its ability to spread by our behavior.

Nevertheless, the question of how states of emergency are instituted and maintained raises important ethical questions in which the relationship of the state to its citizens is at issue.

Emergency decrees are quite obviously a potential problem in places where authoritarian governments and heads of state are already actively seeking means to extend or consolidate power, and for whom emergency decrees represent an opportunity to legitimize extraordinary levels of state coercion and control.

But even in the most “functional democracies” civil libertarians are counseling us to be vigilant. Even where people recognize the necessity of social distancing and accept the curtailments that states of emergency place them under, it is vitally important to remain conversant with the pressures this puts on our political and social order.

The modern democratic state is founded on ethical principles of rights and personal/individual freedoms. It gains legitimacy from democratic participation of citizens, and is based on a concept of the ‘social contract’ in which there is a tacit agreement by individuals to submit to the sovereign or state. The rule of law offers individual protection of rights and freedoms and endeavors to provide public goods like social harmony.

So the modern democratic state is built on the (ethical) notion that individuals have rights and duties in respect of each other. These rights and duties are mediated by the state, so that individuals have rights and duties in respect of the state under the social contract. The social contract is submission to, and protection under, the rule of law.

The primary function of the state should be to strike a balance between the ethical imperatives of freedom and ‘common good, as the rule of law.

Under what is described by Carl Schmitt in legal theory as a ‘state of exception,’ the sovereign possesses the ability to transcend the rule of law for the public good.

What is the ethical character of the state of exception? States of emergency or states of exception put a certain pressure on the social contract and represent an ethically dubious space.

The particular concerns that civil libertarians have around the use of emergency decrees all converge on this question of what sort of ethical zone a state of exception is, as a zone where the contract has to be temporarily renegotiated and a new balance has to be struck between individual freedom and common good.

There is a general concern that such a balance should err on the side of protecting privacy, freedom of expression, and other basic tenets of liberal democracy.

The important political and ethical question at the center of the state of exception is: how does the exception relate to the norm?

If the norm is the rule of law, then is the state of exception to be inscribed within it, and curtailed by it, or does the state of exception itself stand outside the rule of law?

In the first case, the state of exception is ‘built in’ to the state – so that checks and controls are placed upon exceptional state measures.

But if this is the case, then it is hard to see how it remains exceptional rather than becoming the norm, since building the exception into the state itself leads either to an infinite regress (by seeking exceptions to the exception), or cancels out the exception altogether by constitutionally inscribing the exception into the state as the norm.

In the second case, the state of exception is ‘extra-juridical’ in character – according to the argument that it is not desirable to control executive action in emergency with standard judicial accountability mechanisms.

But here, state power begins to exceed state power, so to speak, and not being subject to juridical order it represents a zone wholly external to the rule of law and the protections and rights and responsibilities that the rule of law enshrines. It is therefore difficult to see how the social contract can be said to hold under such a situation.

If the sovereign’s exceptional decree is not subject to constitutional constraint, the power to decide on the state of exception is therefore the power to decide what should count as a state of exception, potentially maximizing the state’s capacity to function outside the rule of law.

The Italian philosopher, Georgio Agamben, has argued that the state of exception is a zone which is not properly ‘internal’ nor ‘external’ to the state, but represents a kind of political, juridical, and ethical gray area where the distinctions between ‘inside’ and ‘outside’ are blurred, and that it in fact represents a realm of human activity not subject to the rule of law.

While there may not be sufficient evidence for Agamben’s claim that the modern democratic state is in a permanent state of exception, this accompanying claim bears thinking about: The state of exception assumes a fictitious political character in which the vocabulary of war is maintained, to justify recourse to government powers. Agamben believes the state of exception is a fiction sustained through military metaphor.

I do not here claim that the current emergency decrees across the world are fictions, yet it bears noticing that vocabularies of war are certainly sustaining them.

For Agamben, the stakes are high, and the danger is the slow disappearance of meaningful political action, because the attempt to encompass states of exception into the rule of law by legitimizing them represents a recognition of what is outside the law, and prompts sovereign attempts to encompass that very outside within the law. As a legal category, the state of exception therefore extends and completes the law’s empire.

What, then, is the peculiar ethical space of a state of exception, and what does that mean for us?

It is unclear what relation the exception has to normality, and what relation it has to the rule of law. Part of the point is about the possible erosion of civil liberties, but Agamben’s deeper worry about the slow disappearance of meaningful political action suggests that even as we remain committed to the truly monumental global effort to stem the tide of the coronavirus pandemic, we still need to pay attention to the pressures that government control of these measures places on the social contract between the state and its citizens, and to what it means for political discourse.

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Impeachment as a Means to an End

photograph of Capitol building with U.S. flag flying below the Statue of Freedom

As the House unrolled its impeachment inquiry despite polling evidence that public sentiment was not on its side, a slew of editorials suggested that, as with Watergate, the impeachment proceedings themselves were likely to tip public opinion. So far, poll numbers have not borne fruit. Support for impeachment seems to be eroding as support for Trump inches upward. If the Senate is unlikely to vote for conviction, the best Democrats can do is weaken Trump’s 2020 campaign. If it only seems to be strengthening his support, was impeachment a poorly calculated mistake? Only a shallow understanding of politics, however, should lead us to think that impeachment has been a political failure.

We often think of politics as the art of the possible, assuming that any political ploy that does not aim at straightforwardly achievable policy goals is misguided. But as Simone de Beauvoir already pointed out in 1945, in her “Moral Idealism and Political Realism”, this is to misunderstand what the possible is. Beauvoir struggled with the question of how means and ends relate to each other in politics. The French who collaborated with the Nazi occupation often claimed in their defense that resistance could not succeed and they did what was necessary to save France. They adjusted their means to their ends, believing that collaboration was a bow to inescapable reality.

Beauvoir takes the collaborators to task. A brazen political realism of this sort assumes that the ends and the means are separate. If the end is important enough—the defeat of Nazism, for example—it seems as if any means are good enough. Similarly, if the goal is to remove Trump from office, Democrats should pursue only the strategy best calculated to achieve it; this seemingly commonsense view also arises in voters’ oft-discussed concern with electability as a driving consideration in the primaries. Beauvoir’s response is that the means are not simply technical instruments designed to achieve a distinct outcome; they are part of the outcome.

Removing Trump from office is not in itself the goal. What has occasioned impeachment is this administration’s attempt to reduce American foreign policy to a Soviet-style crony government, where political transactions are carried on through personal influence and shadow policy entirely outside normal channels. Compared to Trump’s other impeachable offenses, like violations of the emoluments clause and obstruction of justice, this one is especially grievous because it redefines our place in the international community. That place has already been severely damaged by our withdrawal from the Paris Accords, violation of the Iran nuclear deal, support for Putin and other autocrats, abandonment of our Kurdish allies, and a host of other diplomatic malversations. But on top of that, and ultimately more politically troubling, it is now clear that U.S. foreign policy is dictated by the political and financial needs of the President and his inner circle. Corruption on this scale is extraordinarily difficult to flush out of domestic affairs once it has set in, but the difficulty is dramatically increased in international affairs, when not only our diplomatic corps but also those of foreign governments become thoroughly compromised.

The struggle for the soul of American politics is not merely a struggle for Trump’s removal. It’s a struggle to restore the idea—however flawed it may be in practice—of America as a moral leader, with the soft power capable of defending human rights, democratic institutions, and the rule of law around the world. In the current political climate, that idea has not merely evaporated; it is actively being replaced by the specter of the U.S. as a world power using its awesome capacity for incentive and disincentive to serve political cronies. This damage cannot be undone simply by changing leadership. It can be undone only through a political transformation.

That transformation isn’t simply a matter of new government. Imagine if a different president were elected in 2020. That might signal that the U.S. is ready for a different diplomatic model, but it would not restore its position of leadership. If that position can be restored, how we get there is crucial. Protest, both by citizens and members of Congress, is important, but it doesn’t signal political change. Government officials must not only pay lip service to fighting corruption, but must also act against it. To have a chance of success at winning back the mantle of moral leadership, the U.S. must show that corruption will not be tolerated. The impeachment hearings must disclose its scope, and future trials must impose consequences.

Beauvoir argues that the means are an ineliminable part of any human end: it matters not only that I receive a trophy, but that I earn it; not only that we have universal health care, but that we as a nation pass it; world peace reached through mass genocide would be a peace stained forever. In the case of impeachment, the hearings are not only a way of getting to a particular political state of affairs. They are crucial to what it could mean to reinstate a polity that both American citizens and foreign governments could rely on, because that polity would be one that is not only ruled by law, but also established and maintained by law.

This isn’t to say that we should turn to an idealism, indifferent to what it is politically possible to accomplish. Beauvoir has some strong words for moral purists whose aims are so lofty that pursuing them with clean hands is impossible, and who thus give up entirely on acting to change the world. What’s possible, however, depends on what we take to be possible. If we were to decide that the only realistic option for returning the U.S. to a rule of law were through elections, keeping quiet about Trump’s wide-scale corruption in the meantime, then what’s possible would be not the reinstatement of the rule of law, but only a change in priorities. If the end is to replace not only the corrupt regime, but also the degraded image of the U.S. on the world stage, only public investigations and trials, shored up by political will, can make that possible.

A U.S. without the Trump presidency would likely be less corrupt than the U.S. with a Trump presidency. By that logic, the removal of Trump, even without impeachment, is better than nothing. But a U.S. that has confronted corruption at the top, exposed it, and put an end to it, is a far stronger and more reliable country. It would be a country that is better equipped to fight such corruption at the top in the future (an important consideration, since allowing corruption to go unchallenged also creates future precedent) as well as one that is more strongly set against corruption in its political orientation and institutions. These two ends, in other words—Trump’s removal without impeachment and Trump’s removal via impeachment—are different from each other, because the means are part of the end result. Even if impeachment fails to lead to removal and Trump is removed instead via elections in 2020, the country would be different than if it had failed to chance impeachment at all, because it will have built the moral and political courage necessary to undertake it. Ultimately, even if Trump wins a second term, it will be in a country that has resisted and not simply capitulated, and thus a better country.