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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.

Confirming Amy Coney Barrett: Against Secularism or For Religious Freedom?

photograph of Trump and Judge Barrett at nomination ceremony

On September 26, President Trump announced he would be nominating Amy Coney Barrett to fill the Supreme Court seat recently vacated by the departed Justice Ruth Bade Ginsburg. This decision is not only controversial considering the fact that recent political precedent would imply that the winner of the upcoming election should choose the next Justice, but also because of the perception that Barrett is not only under qualified to sit on the Court, but also potentially unfit considering her strong religious views. Barrett is a stout Catholic, member of the spiritual group People of Praise,  and has been vocal about the influence of faith on judicial ethos. Various politicians, activists, and even those with personal ties to Barrett have expressed staunch opposition to her nomination, most strongly on the basis of her perceived bias. However, in response to this criticism, many have come to her defense, arguing that not confirming Barrett on the basis of her religion is in fact religious discrimination.

Are these critics right to assert Barrett’s religious views are a conflict of interest? Are her defenders right to argue religious discrimination? And which is the correct interpretation of the First Amendment: secularism or religious freedom?

Secularism is informed by secular ethics, which derives morality from the human experience and rationale, rather than perceived higher powers or specific religious text or tradition. Secular states are countries guided by secular values in the political and governance process, neither favoring nor discriminating against any specific religion. The majority of countries in the world are considered secular states, including the United States.

The majority of the arguments over Barrett concern different interpretations of the principle of secularism. The principle of secularism aims to separate the state from any religious guidance or influence. In the United States, this concept is often boiled down to the “religious freedom” communicated in the First Amendment of the United States Constitution. Republicans, and others defending Barrett argue that to use her faith, or its influence on her, as a ground for not approving her is in itself religious discrimination. Critics, though not Senate Democrats specifically, are wary of Barrett because of their concern that her entire judicial philosophy is anti-secular if it is influenced by her faith.

This is not the first time that Barrett’s religious views have been brought up in the context of her judicial discretion. In 2017, Barrett was nominated for a federal judicial appointment by President Trump. During her confirmation hearing, Democratic Senator Barbara Feinstein expressed the concern that “The dogma lives loudly” within Barrett. Feinstein’s comment was simultaneously blasted as an expression of religious discrimination and rebranded by Catholics across the internet proudly. After Barrett’s nomination, this interaction has been visited again by Democrats and Republicans alike, by the former to reassert concern for her religious bias and by the latter to imply that much of the criticism of Barrett results from religious intolerance. Both of these concerns can be backed up by evidence. On the one hand, the current Supreme Court hosts 5 Catholics, by far more than any other religion. Despite this newfound domination of the bench, historically only 13 Catholics have ever sat on the Supreme Court, despite making up roughly 20% of the United States population. Some, such as law professor Cathleen Kaveny argue that the recent appointment of so many Catholics to the Supreme Court is a “victory over historic prejudice.” While Catholics do not face much modern day social persecution in the United States, that has not always been the case. Between the late 19th century and early 20th century, Catholicism in America was associated mainly with immigrants from Northern and Eastern Europe. These groups were discriminated against not only due to their immigrant and ethnic status, but also on the basis that Catholicism was morally perverse. Historically, Catholics were one of the groups targeted by the Ku Klux Klan, though this is not necessarily the case in modern times.

On the other hand, a Supreme Court made up of staunchly religious Justices, or too many from a certain religious faith, arguably stands in direct opposition to the principle of secularism. This guiding principle, most commonly associated with the separation of church and state, has been highly regarded since the formation of the United States. While the separation of church and state is often brought up in reference to legislative attempts to favor or discriminate on the basis of religion, the Supreme Court’s role in consistent affirmation of secularism is paramount to its existence. The Court regularly makes judicial decisions which involve the First Amendment, for example, recently in American Legion et al. v. American Humanist Assn. et al. Having a court made up with even a few deeply religious justices could impact the judicial philosophy of the most powerful court in this country. This alone a cause for concern considering the fact that certain religious traditions take hard, and sometimes unpopular stances on highly debatable moral issues. This is especially true of the religious group that Barrett identifies with, the People of Praise, which has been criticized for its reinforcement of gender roles and female subordination.

Outside of her possible beliefs, Barrett has been vocal about how her faith guides her stance on abortion, despite the fact that the majority of Americans support a woman’s right to choose. While the popularity of a certain legal stance does not necessarily speak to its morality, there is certainly an ethical value in having a judicial system which is fairly representative of the moral inclinations of the majority of the population. While the Supreme Court is not meant to be a political or moral institution, there are certainly righteous ethical concerns about our Justices sitting on the extreme end of the moral spectrum and serving to guide the legal interpretation and judicial discretion in every courtroom in America.

Barrett’s faith is not the only aspect about her which could guide one’s moral stance on her fitness to serve on the Supreme Court. Her age, gender, and even personal life might also be taken into account when deciding how one feels about her nomination. However, as long as discussions about her faith dominate political and media debate, our moral inclinations about her religious views will likely guide whether or not we believe she should be confirmed.

Removing Slavery from Textbooks

Earlier this academic year, Roni Dean-Burren, a Houston mother, posted on Facebook in response to a passage in her ninth-grade son’s history book, which referred to slaves—not as slaves—but as “workers” and “immigrants.” The post went viral, influencing the publisher “to apologize, correct the caption and offer — free of charge — either stickers to cover it up or corrected copies of the book to schools that want to replace their old ones.” They did not issue a recall of the misleading, erroneous books.

Continue reading “Removing Slavery from Textbooks”