Tuesday, October 30, 2012

The Priority of Life-Rights Thesis

One thing that is never clearly stated in the abortion controversy, but underlies a lot of the discussion, is what I would call the Priority of Life-Rights Thesis, or PLT. That is, while some rights can be overriden in order to protect other rights, when a life-right is at stake, that life-right always must be defended by the force of law, and all other rights (quality of life rights, privacy rights, etc), have to take a back seat to life rights. To some people, this is so obvious as to not even need argumentation or defense. Hence, once you call something murder, it is somehow logically incoherent to be against making it illegal. By murder, here, I will waive the question of criminal intent, and simply define it as homicide without adequate moral justification.


As a philosopher, I see this as a loose end in the discussion that bothers me. How should it be defended, or should it?



23 comments:

finney said...

Not sure that the life-right always takes priority over the quality of life. Especially when the quality is of such character that it alters the nature of the life being protected.

BeingItself said...

"One thing that is never clearly stated in the abortion controversy . . .is what I would call the Priority of Life-Rights Thesis"

And it still hasn't.

Daniel Anderson said...

"Hence, once you call something murder, it is somehow logically incoherent to be against making it illegal. By murder, here, I will waive the question of criminal intent, and simply define it as homicide without adequate moral justification. As a philosopher, I see this as a loose end in the discussion that bothers me. How should it be defended, or should it?"

Let me make sure I understand this. The loose end is the jump from the thesis to legal recognition of the thesis? In other words, just because abortion is wrong does not mean that we must legislate against it?

Victor Reppert said...

It doesn't automatically follow from

X is wrong

to

X should be legislated against.


But many actions are morally wrong that we ought not to legislate against.

The range of justifiable homicide is pretty limited, but I can imagine it being wider than it is. Are there some homicides that should be legally justified even if they are not morally justified?

Someone could say "Yes, abortion is murder. But a woman has a right to do as she pleases with her own body, and if there is a fetus in that body, then she should have the legal right to murder that fetus, even though it would be morally wrong. A woman's right to privacy trumps the fetus's right to life."

I realize that, to many people, this is counterintuitive, because of PLT. But, is it obviously tru?

B. Prokop said...

Victor, I applaud your sensitive handling of what is all to often a conversation-stopping issue. Anyone who denies that this is an incredibly complex matter with all kinds of shades of gray is either kidding himself or is a hopeless ideologue.

Personally, I have long believed that all the effort and emphasis on the law has been misguided and a mistake from the start. People on both sides of the issue should have been concentrating on winning hearts and minds. It's not to late to start.

Daniel Anderson said...
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Daniel Anderson said...

Victor, I respectfully disagree. Couldn't we say the same thing about Civil Rights issues? I could say, "I personally believe blacks should be treated equally, and I think it is immoral to treat them unequally, I just don't believe the Dred Scott decision should be overturned." I fail to see how it is fundamentally different. I have trouble seeing how the alternative follows from recognition of a woman's autonomy - that somehow a woman's autonomy should be valued in a way that grants it the choice to terminate the unborn and therefore should not be legislated against.

For example, should we legislate against partial birth abortion? Or, legislate against terminating infants which survived an abortion (botched abortions)? I have met a few people alive today who survived such circumstances (like Melissa Ohden or Gianna Jesson). Where is the line for woman's autonomy in relation to the unborn? As long as it is "inside" should the woman's autonomy be given right to choose termination? If not, then why?

It seems to me, that for such views to be valid one has to view the unborn as an exception to the rule - because it doesn't seem to apply with things like slavery, civil rights, or other human protections and rights.

Daniel Anderson said...

Bob, on "changing hearts." I have went over this with you already. Most pro-life groups that I know look to fulfill their mission through legislation/activism, education, and health support or support for particular health organizations. We don't have to choose to "change hearts" or "legislate," we can do both! That was certainly the case with other "moral legislations" like civil rights or ending slavery.

Besides, many people rate the morality of their actions based on what is and is not illegal (constant naturalistic fallacies). If the speed limit is 65 then many people will go 80, but not many will go 120. The law provides a particular type of conscious action that can limit wrong or the permitting of evil. If Roe V. Wade was overturned we could, through public conscience, provide a nation that doesn't validate abortion in all circumstances. That could change quite a few hearts.

Papalinton said...
This comment has been removed by the author.
Papalinton said...

Roe v Wade is the most sensitive, mature, informed and just decision ever to have been handed down by the SCOTUS. It is a finely tuned and delicately balanced position emblematic of the great wisdom of Solomon. You will recall that pericope.

Ironically, it was that very decision that founded the growth of fundamentalism and the 'Moral Majority' as a force in American politics. That is why the Republicans know full well they will never overturn Roe v Wade because they perversely understand a significant sector of their support base will simply drift or fade away, without a cause. The rise of christian Fundamentalism was the price the American public had to pay in order for a woman to hold rights over her own body. Such decisions are best left to her and her family.

Equally ironic is the fact that conservative pro-life militants, given their views on other social and moral issues, seem to believe that life begins at conception but ends at birth. Typically, survey after survey, expose these same conservative pro-lifers are also in favour of lax gun laws or no impediment to gun ownership, are apt to blow up medical clinics, accept capital punishment as a moral right to exercise institutional murder, say no to universal health-care, deny what the sciences are telling the world about climate change, support a 'drill-baby-drill' oil exploration policy regardless of location [one's back yard or national park makes no difference], rail against environmental protection and clean air policies, among a range of protections that contribute to improving the human condition going forward.

So perhaps the honourable judges got their scale of justice just right, in discerning equipoise.

Brian said...

I take it, Victor, that the non-obviousness of the PLT is one of the main points that Judith Jarvis Thomson attempts to make in her famous paper, "A Defense of Abortion." There she grants the premise that life begins at conception, and yet tries to show that it's far from obvious that it follows that the "right to life" always trumps all other rights. Even if one thinks that her arguments do not ultimately succeed, one cannot show them to fail by appealing to the intuitive obviousness of something like PLT. It's far more complex than that.

Ron said...

Papalinton,

Where to begin? I suppose I'll take it from the top:

"Roe v Wade is the most sensitive, mature, informed and just decision ever to have been handed down by the SCOTUS. It is a finely tuned and delicately balanced position emblematic of the great wisdom of Solomon. You will recall that pericope."

Roe v Wade is in fact a decision that subverted the democratic process in social policy-making by forcing a one-size-fits-all abortion policy on the whole country.

It is simply unjust because it has deprived over 50 million humans their right to life since it was made.

"Ironically, it was that very decision that founded the growth of fundamentalism and the 'Moral Majority' as a force in American politics. That is why the Republicans know full well they will never overturn Roe v Wade because they perversely understand a significant sector of their support base will simply drift or fade away, without a cause. The rise of christian Fundamentalism was the price the American public had to pay in order for a woman to hold rights over her own body. Such decisions are best left to her and her family."

The right to an abortion is not about the right of women to have control over "her own body." Liberals never seem to really understand this point so it keeps having to be repeated. I have a feeling you won't either and will repeat it yet again in the future. Sigh. The only reason people oppose abortion is because it involves the killing of innocent human life. That's the objection. To state otherwise is not being fair or accurate. You may disagree with the assumptions behind that belief but you shouldn't misrepresent it. That's just sloppy argumentation.

"Equally ironic is the fact that conservative pro-life militants, given their views on other social and moral issues, seem to believe that life begins at conception but ends at birth. Typically, survey after survey, expose these same conservative pro-lifers are also in favour of lax gun laws or no impediment to gun ownership, are apt to blow up medical clinics, accept capital punishment as a moral right to exercise institutional murder, say no to universal health-care, deny what the sciences are telling the world about climate change, support a 'drill-baby-drill' oil exploration policy regardless of location [one's back yard or national park makes no difference], rail against environmental protection and clean air policies, among a range of protections that contribute to improving the human condition going forward. "

This is ad hominem and a red herring. Even if pro-lifers are all right-wing neocons who thirst for war, want to implement Social Darwinism, and destroy the planet it doesn't invalidate their arguments against abortion. In any case, I think you are stereotyping too much.

GearHedEd said...

Here's some fun facts about the whole abortion debate:

Plaintiff: Norma McCorvey (called 'Jane Roe' in the case filing to protect her identity), a woman, started out life as a Jehovah's Witness, later converted to Catholicism; wanted abortion to be legal. Her lawyers were Sarah Weddington and Linda Coffee, both also women.

Defendant: Dallas District attorney Henry Wade. Lawyers for the defense team were John Tolle, Jay Floyd and Robert Flowers, all men.

On the Supreme Court bench at the time, and giving their name, which President nominated them to the court, their judicial philosophy/politics, and finally their religious affiliation (in that order).

Majority Opinion (7 justices) in favor of the Plaintiff:

Harry Blackmun, Nixon, initially conservative but migrated to being liberal later in his tenure, Methodist.
William J. Brennan, Eisenhower, liberal, Catholic.
Warren Burger (Chief Justice), Nixon, moderate conservative, Presbyterian.
William O. Douglas, Franklin D. Roosevelt, liberal, Presbyterian.
Thurgood Marshall, Johnson, liberal, Episcopalian.
Lewis Powell, Nixon, moderate, Presbyterian.
Potter Stewart, Eisenhower, moderate, Episcopalian.

Dissenting Opinion (2 justices):

William Rehnquist, Nixon, conservative, Lutheran.
Byron White, Kennedy, moderate, Episcopalian.

All men, all Christians. Nearly half of them (4/9) confirmed during the Nixon Administration, and if you recall, Nixon was a Quaker, and a Republican.

See especially Section IX B. of the majority opinion:

B. The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, if one accepts the medical definitions of the developing young in the human uterus. See Dorland's Illustrated Medical Dictionary 478-479, 547 (24th ed.1965). The situation therefore is inherently different from marital intimacy, or bedroom possession of obscene material, or marriage, or procreation, or education, with which Eisenstadt and Griswold, Stanley, Loving, Skinner, and Pierce and Meyer were respectively concerned. As we have intimated above, it is reasonable and appropriate for a State to decide that, at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman's privacy is no longer sole and any right of privacy she possesses must be measured accordingly.

Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer. [p160] (emphasis mine)

(continued)

GearHedEd said...

It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question. There has always been strong support for the view that life does not begin until live' birth. This was the belief of the Stoics. [n56] It appears to be the predominant, though not the unanimous, attitude of the Jewish faith. [n57] It may be taken to represent also the position of a large segment of the Protestant community, insofar as that can be ascertained; organized groups that have taken a formal position on the abortion issue have generally regarded abortion as a matter for the conscience of the individual and her family. [n58] As we have noted, the common law found greater significance in quickening. Physician and their scientific colleagues have regarded that event with less interest and have tended to focus either upon conception, upon live birth, or upon the interim point at which the fetus becomes "viable," that is, potentially able to live outside the mother's womb, albeit with artificial aid. [n59] Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks. [n60] The Aristotelian theory of "mediate animation," that held sway throughout the Middle Ages and the Renaissance in Europe, continued to be official Roman Catholic dogma until the 19th century, despite opposition to this "ensoulment" theory from those in the Church who would recognize the existence of life from [p161] the moment of conception. [n61] The latter is now, of course, the official belief of the Catholic Church. As one brief amicus discloses, this is a view strongly held by many non-Catholics as well, and by many physicians. Substantial problems for precise definition of this view are posed, however, by new embryological data that purport to indicate that conception is a "process" over time, rather than an event, and by new medical techniques such as menstrual extraction, the "morning-after" pill, implantation of embryos, artificial insemination, and even artificial wombs. [n62]

In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth, or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth. For example, the traditional rule of tort law denied recovery for prenatal injuries even though the child was born alive. [n63] That rule has been changed in almost every jurisdiction. In most States, recovery is said to be permitted only if the fetus was viable, or at least quick, when the injuries were sustained, though few [p162] courts have squarely so held. [n64] In a recent development, generally opposed by the commentators, some States permit the parents of a stillborn child to maintain an action for wrongful death because of prenatal injuries. [n65] Such an action, however, would appear to be one to vindicate the parents' interest and is thus consistent with the view that the fetus, at most, represents only the potentiality of life. Similarly, unborn children have been recognized as acquiring rights or interests by way of inheritance or other devolution of property, and have been represented by guardians ad litem. [n66] Perfection of the interests involved, again, has generally been contingent upon live birth. In short, the unborn have never been recognized in the law as persons in the whole sense.

GearHedEd said...

Some more low-hanging fruit:

We will forever mourn one of the nation's most visible and strident advocates for abortion rights.

Tragically, Dr. George Tiller's life was taken as he served as an usher during morning services at his church by a cowardly assassin on May 31st, 2009.

He dedicated his life to providing women with high-quality heathcare despite frequent threats and violent attacks on him and his clinic.

Dr. Tiller will forever be remembered for his valiant efforts in women's reproductive rights for over 2 decades. And, for all those who had the good fortune to meet him, will always remember him as a kind-hearted, soft spoken gentle man with a heart full of compassion and bravery.

Our thoughts and prayers go out to his loving wife, children and grandchildren.



"...as he served as an usher during morning services at his church..."

So, what do we have?

Legal precedent, established by Christian jurists, in a Christian Nation, providing abortions to predominantly Christian women, and performed by Christian doctors.

Where were the atheists in this story again?

Edit Reply

Papalinton said...

Ron
"Roe v Wade is in fact a decision that subverted the democratic process in social policy-making by forcing a one-size-fits-all abortion policy on the whole country."

Your display of ignorance in understanding and appreciating the separation of powers and the role of both the legislature and the Supreme Court is somewhat disappointing. There is a reason the Supreme Court is one of the necessary institutions in a democracy. Consistent with whatever law the legislature passes on the floor of Congress, it is the role of the SCOTUS to adjudicate the functioning spirit, intent and meaning of the said law. Their decision-making is not a subversion of the democratic process. It is the final arbiter, at any point in time at which the reading of the law must clearly be spelled out if it is to function as intended.

Simply because SCOTUS did not interpret the standing or prevailing law the way you would wish it is not subversion. That is just callow hyperbole. Bush had 8 years to promulgate and to marshal the citizens to overturn Roe v Wade. He even stacked the SCOTUS with god-fearing, bible-thumping right-wing fundamentalists to ensure conservative bias in their deliberations. But he dared not, knowing full well it would not be in the best interests of the GOP, without a cause to garner the crazed, the xenophobics, the bigoted and the ultra-nationalists among the militant god botherers.

To even suggest that Roe v Wade forces " ... a one-size-fits-all abortion policy on the whole country" is a scurrilous lie. Nobody, nobody, least of all the Court's determination is ordering your wife or your family to observe abortion. The whole intent of the law the opposite. It is saying, under the constitution, any decision best resides with woman, her family and her medical professional. For Jesus H Christ's sake, even Catholic hospitals can not only refuse to accept women wanting an abortion , but can lawfully throw out the front door any woman in danger of losing her own [and in most cases including the fetus's] life if she is unable to proceed to full term. [This is a little hyperbolic, but it has been known to happen. A highly qualified midwifery nurse atr a catholic hospital was recently thrown out of the hospital and excommunicated by the catholic ArchMen's club. See HERE


"This is ad hominem and a red herring. "

No. Cannot be an ad hominem if it is factual. And no, you are wrong, it does "invalidate their arguments against abortion". "If pro-lifers are all right-wing neocons who thirst for war, want to implement Social Darwinism ,,,", etc etc, your comment clearly shows an egregious pattern of double-speak and inconsistency. You perspective clearly substantiates the observation that for the red necks, life begins at conception and ends at birth.

Papalinton said...

GearHedEd
"So, what do we have?
Legal precedent, established by Christian jurists, in a Christian Nation, providing abortions to predominantly Christian women, and performed by Christian doctors.
Where were the atheists in this story again?"


Nothing serves the community better than the truth.

finney said...

VIC:

As to the question of when a killing of a human being is justified, I'll put this answer in context of the Biden v. Ryan debate:

It seems to require a lot of mental gymnastics to hold that (1) a human being begins to live at conception (lets call such a human being "fetus"), (2) all human beings are equally protected by the law,(3) the law prohibits the intentional killing by one human being of another, and (4) a doctor may intentionally kill a fetus.

The only way out of this seems to be to qualify (3). There are exceptions to this rule of course. There are "justifications" of self-defense and self-preservation. Then there's the "excuses" of extreme emotional disturbance, insanity, and other such mitigating factors.

Daniel Anderson said...

Hey guys, I am pretty busy today but I am not done here. Be back soon.

PhilosophyKnight said...

Victor Reppert, while I no longer have his book on hand, didn't Francis Beckwith address this exact question in his book Defending Life? Would've thought that's a book you would have read given your interest in the abortion debate and Beckwith's role among apologists who you are associated with,

Victor Reppert said...

Yes, I am sure that's something he would have covered, since he rebuts JJT, who denies PLT.

Mike Darus said...

The priority of rights is a great approach. I suggest:

Life trumps privacy
Life trumps life style
Life trumps personal autonomy
Life trumps quality of life
Life trumps emotional health
Life may trump health
Life may not trump result of rape
Life may not trump mental health
Life may not trump risk to life
Life does not trump another life.

Syllabus said...

I think the first step in this discussion simply has to be parsing out all rights that are in play, whether rights of the woman, rights of the foetus, or whatever. If you keep some rights or some hierarchy or rights enthymemic, then you're never going to be able to have a clear or decisive discussion in any situation.