Sunday, March 14, 2010

What should Roe have said?

If Roe v. Wade is a mistake, what is the mistake?

One argument is that Roe simply failed to recognize the fetus's right to life. But if that's the argument, then what it should have done is rule that fetuses are 14th Amendment persons.
Two competing conceptions of the career of a person exist: one views the life of the person as a series of events in the existence of a continuing biological object, and the other sees the life of a person as a series of mental events. (Somewhat paradoxically, it's the "physicalist" model that better supports the pro-life position). Neither of these models is provably true or provably false, so far as I can see.
It is perfectly coherent to place a moral value on something without placing the same level of moral value on it that we place on the life of a human person. That which, through natural processes, becomes a person, has value on that account.

People who are pro-choice, I think, are split between those who really believe that the life of the unborn has no value, and those who think it does have value, but not sufficient value to justify protection by criminal law.
However, the Roe justices couldn't figure the question of fetal personhood out, and I don't have any arguments sufficiently strong on that matter that ought to have persuaded them.

They also said that they did know that a woman had a right to privacy, and on that they had the precedent of the Griswold case. Conservative jurisprudence says Griswold went wrong in affirming a right to privacy, since it doesn't say p-r-i-v-a-c-y in the constitution. I'm skeptical of the anti-privacy argument, so even if I were thoroughly pro-life, I would have a problem with voting for politicians who would nominate justices who were going to overturn Roe via the anti-privacy arguments, since to my mind that would be to use a bad argument to reach a good end. There's nothing inconsistent about a pro-lifer rejecting the anti-privacy argument. It makes things less convenient for his position legally, but the considerations in the privacy debate are logically independent from the considerations in the abortion debate.

I take the deer hunter argument seriously here, and the problem is more acute for me than it would be for atheists, because I think I will eventually have to look into the eyes of Jesus and will then see which conception was right.

But what should Roe have said? Even if you accept the deer hunter argument for the sake of moral contexts, you are asking a court to set aside a right that it believes to clearly exist (a woman's right to privacy in reproductive matters), on the basis of a right (the right of the fetus to life), which is in doubt. The argument then, I suppose, would have to be that the right to life has a "trump card" status amongst our rights, such that we ought to protect it in cases of reasonable doubt even if it means denying a right that we can be sure of. But I don't know if there is anything in the constitution that would justify this kind of a move from a legal standpoint.

There also seems to me to be a severe moral cost in outlawing abortion and enforcing those laws. Government has to get really intrusive in order to prevent abortions, and has to intrude into areas which we are inclined to think of as private. Further, while in my father's day, a working class family could survive on one income, in today's economy this won't work.

There is also the fact that while lawmaking bodies are mostly male, the burden imposed by pregnancy, for obvious reasons, falls on women and not on men. I can't see in good conscience making this burden heavier than it now is without doing whatever we possibly could to ease the burden on women in other ways. Feminist concerns that outlawing abortion will push women in the direction of barefoot and pregnant in the kitchen are legitimate and would have to be addressed.

The other part of it is, I think we as a society have a resposibility to enhance the choice of life, whether or not we use the coercive powers of law to prevent abortion, but especially if we do outlaw abortion. That is one reason why I support health care reform. But I think there are a lot of things we could be doing which could make the choice of life the more appealing choice to more women, which are things that people who think abortion should be safe, legal, and rare, and people who think that abortion should be illegal and not occur at all, should be able to agree on.

We can't rely on the law to be our moral compass. Strict constructionists have to be open to the possibility that a moral outrage might exist, but the Constitution doesn't provide a way of addressing it.

In the area of marriage, for example, it's perfectly legal to commit adultery, leave your spouse and marry the person you were committing adultery with. It's also horribly immoral. But the law shouldn't be involved in preventing it. The law can only do so much, and I would have thought the people who have the most to say about limited government would realize that.


Anonymous said...

Bob Prokop writing:

Sorry Victor, but I still hold that the deer hunter argument is utterly bogus. Take it seriously, and you'd be afraid to do anything at all, even to move, for fear you might somehow cause harm through ignorance.

Whatever one's personal views on abortion (I personally generally don't approve of it except in cases of rape, incest, gravely ill or malformed fetuses, and danger to the mother), as long as you cannot PROVE BEYOND A SHADOW OF A DOUBT that the fetus is indeed a person, then it should be legal in all cases. Otherwise you are forcing upon others through legislation your own opinion.
"Pro-life" people should make it their aim to reduce or eliminate abortion through education and societal support mechanisms, and not by means of law.

Roe erred greatly, not because of its outcome, but rather because its reasoning is, frankly, incoherent.

Timothy D. Billingsley said...


Can we prove beyond a shadow of a doubt that a fetus isn't a person? If not, wouldn't it be best to err on the side of personhood? If not, why?

Anonymous said...

Bob Prokop writing:

Oh, I love starting a fight.
The burden of proof is on the side wishing to make abortion illegal, not the other way around.
This is different from "personal beliefs", for which I refer you to my previous posting. Kindly re-read it, before anyone accuses me of taking a position opposite of what I actually do hold.

Anonymous said...

If burdens of proof are assigned by fiat, Bob, they're not even worth paying attention to. Try again.

Anonymous said...

i think that the Roe v. Wade court was inconsistent in its reasoning. It took a strict constructionist interpretation to rule out the fetus' being a person, then asserted that a woman has a right to privacy over abortions (while the court wasn't sure whether to base this right on the 9th amendment or the 14th).

Shackleman said...

The burden of proof is on the side wishing to kill baby humans, not the other way around.

See what I did there?

Shackleman said...

Dr. Reppert,

I think in most part this is a very good post from you and outlines the concerns well, even thought I don't agree with all of your conclusions.

The only thing I'd really take issue with is the notion that pregnancy is so big a burden to women, that abortion should remain an option. I know you don't intend it to be, but this is sort of revolting. If you're going to say that, then it's not too far away from saying that "old, sick people are burdens, and we should therefore make euthanasia legal".

Certainly there are arguments that can be made for euthanasia, but "burdensome old people" is definitely not one of them. That's just kind of sick.

Also, pregnancy isn't something that "happens" to a woman (rape excluded), it's something they do to themselves. Why does the feminist get to absolve herself from all responsibility? If she didn't want to get pregnant, she shouldn't have had sex. Period. It's really not that hard, and it's not the babies fault. Not ever.

Shackleman said...

eeek. Please excuse all the typos in my last. I'm not awake yet.

SteveK said... long as you cannot PROVE BEYOND A SHADOW OF A DOUBT that the fetus is indeed a person, then it should be legal in all cases.

The irony of this silly statement is that nobody has proven beyond a shadow of a doubt that adults are persons.

Anonymous said...

Bob Prokop writing:

Silly or not, I proudly stand by it. And I do so as a "pro-life" person.
Anything else is theocracy.

Mike Erich the Mad Theologian said...

If we wait until we can prove it beyond a shadow of a doubt will we ever stand against society on any injustice. It is hard for any individual who is raised as part of a society to reach the point where you can without some shadow of a doubt say that society is wrong and even if an occasional individual reaches that point it is hard for him to gain any kind of a following if everyone uses this kind of criterion. And how many people need to reach this point before society should actually change. This makes it hard to oppose not only abortion but slavery or suttee or burning Jews in gas ovens. It is difficult to know when a conviction of right and wrong should be made a law but if we wait until all or the majority are convinced beyond a shadow of a doubt that change is needed we will end up carving the status quo in stone.

Victor Reppert said...

Bob: There's always a shadow of a doubt. Try refuting the brain in the vat hypothesis if you doubt me. Beyond reasonable doubt is a far better formulation.

Anonymous said...

Bob Prokop writing.

No, I'll stick with shadow. Reasonable is too slippery a word. It can mean whatever you want it to mean.

Victor Reppert said...

Well, we do send people to prison for life when the evidence against them is beyond reasonable doubt.

I am worried that your line of reasoning could introduce the Zombie Defense into jurisprudence. "Well, yes, the defendant stabbed ten people to death. But after all, he was convinced that they were zombies, that they didn't really have the sorts of inner experiences that you or I do. And can you prove that he was wrong beyond a shadow of a doubt? Yes, they acted as if they weren't zombies, but, then, zombies can behave just like us, can't they? We computer-simulate their behavior, couldn't we? Was there really something it was like to be these people?

Anonymous said...

Bob Prokop writing:

I don't know, Victor. I'm sure there's a name for the logical falacy you're using - something like "taking things to absurdity". If could probably use a zombie argument to "proove" just about anything. I think in any rational debate about what should be law, we should probably stick to what sane people think.

Victor Reppert said...

But that's precisely why we use terms like reasonable doubt. We are keeping it within the realm of sanity. When you use phrases like "beyond a shadow of a doubt" we philosophers conjure up a picture of Rene Descartes in our minds, who postulated the idea that an evil demon was deceving us about all our thoughts, or the infamous brain in the vat. You name it, and we philosophers can produce a shadow of a doubt for it.

The point you are trying to make is a fair one, however. Before we use the powers of the state to deprive someone of their freedom for life, or even execute them, we require there to be evidence beyond a reasonable doubt. The use of government to stop abortions legally would be the coercive power of the criminal law, with the policing mechanisms that go with that. So while the deer hunter case is weighty in moral contexts, I find it far more problematic when what is being proposed is the prevention of abortion by legal means.

Anonymous said...

Bob Prokop writing:

Fair enough. I believe that at least the two of us have reached consensus. Now if we can just spread that around to the rest of the electorate.