Friday, March 30, 2018

The real argument of Roe v. Wade: Abortion and the burden of proof

People tend to assume (I used to) that the legal debate about Roe v. Wade parallels the moral arguments about abortion and fetal personhood. We typically think that those who support the decision accept arguments like those of Mary Anne Warren or Judith Jarvis Thomson that abortion is justified, and opponents of the decision advance arguments like those of John Noonan, or Francis Beckwith, or Scott Klusendorf that fetuses are persons and therefore Roe has to be wrong.

Actually, the debate over Roe doesn't turn on that. This is my best reconstruction of it.

1. There is a constitutionally guaranteed right of privacy, of which we can be certain.
2. In the case of abortion, the right of privacy must prevail unless there is a countervailing right of which we can be certain, such as the fetus's right to life. This protects a woman's right to consult with her doctor and decide whether or not to get an abortion. Just as it is a violation of privacy rights to make birth control illegal, it violates privacy right to prohibit abortion, unless a countervailing right can be established.
3. But the fetus's right to life cannot be established. Reasonable persons can disagree as to whether fetuses have a right to life or not. One may, based on one's religion perhaps, believe that they have this right, but this right cannot be demonstrated in the same way that the right of privacy can be demonstrated.
4. Therefore there is a Constitutional right to abortion.

All attempts to oppose Roe that I know of, starting with the Rehnquist dissent when the original case was argued, argue not against 3 but against 1. Scalia in one interview refused to refer to himself as a pro-life justice. All he argued was that the right of privacy on which the decision as based was made an absolute when it should not be, and that therefore abortion should be a matter of democratic choice.

It seems you can accept the Roe argument even if you, in your own viewpoint, believe that fetuses have the right to life and that abortion is always wrong. The question is not whether abortion is justified, the question is whether the fetus's right to life is as evident as a woman's right to privacy.

Is the right to privacy really in doubt? If not, do arguments like the SLED argument meet the requisite burden of proof? It would have to be so strong that it would be irrational to reject it.

See the discussion here.

17 comments:

Legion of Logic said...

"But the fetus's right to life cannot be established."

If ignoring facts casts the truth in doubt, perhaps. Judges can decide legality, but not truth.

abcde234324 said...

Based off the good arguments I’ve read from Beckwith, I cannot agree with your premise 3. “Reasonable people” used to exclude others from rights as well.

I’ve never understood how the argument hinges on privacy. Such a red herring. Right to privacy somehow doesn’t equal right to do any drugs or commit suicide. Can’t privately end your toddler’s life. Etc.

bmiller said...

It seems you can accept the Roe argument even if you, in your own viewpoint, believe that fetuses have the right to life and that abortion is always wrong. The question is not whether abortion is justified, the question is whether the fetus's right to life is as evident as a woman's right to privacy.

This really doesn't make sense to me.

If I believe that an unborn baby has the right to live then *I have already decided that it is evident*. So no, someone who believed it was evident that the unborn are human beings with full human rights could not accept the dichotomy as presented. If the unborn baby is a human being with the right to life, then it follows that if the woman has a right to life and privacy, so does the other human being we are discussing.

It could only seem reasonable to someone who doesn't think the unborn have a right to life and wants to avoid mentioning their position.

But aside from that, the dissent regarding the 14th amendment centered mostly on "due process" argument of the majority and the type of judicial scrutiny that had been historically applied in cases of that type since that was the reasoning of the majority. The majority applied "strict scrutiny" rather than the traditional "rational relations" scrutiny applied in due process cases. That and the fact that the framers of the amendment and those who ratified it did not perceive abortion to be a "right" when they passed it since abortion was illegal in the states in 1868 and remained illegal till the 1960's.

Victor Reppert said...

We believe lots of things, in many cases with good reason, which we may not consider to be evident to all reasonable persons. Not every theist believes that all atheists are irrational, and not ever atheist believes that all theists are irrational.

Victor Reppert said...

Here is the argument I am inclined to make on Roe: Either abortion is a right protected by the Constitution in all states, or the fetus's right to life is protected by the Constitution in all 50 states. If the pro-life arguments work to the level they need to be in order to make a case against Roe, (and some of you think it does) then most will argue that life rights outweigh privacy rights, and the fetus, from conception, has a Constitutionally protected right to life. To make it a matter of state choice, which is what Rehnquist and Scalia's arguments entail, strikes me as a violation of the equal protection clause.

Legion of Logic said...

Victor: "Either abortion is a right protected by the Constitution in all states, or the fetus's right to life is protected by the Constitution in all 50 states."

Agreed. The "states' rights" argument appears to be more a strategy of undermining Roe due to the difficulty of adding constitutional amendments, rather than a philosophical position.

bmiller said...

We believe lots of things, in many cases with good reason, which we may not consider to be evident to all reasonable persons. Not every theist believes that all atheists are irrational, and not ever atheist believes that all theists are irrational.

Don't you think those who believe the unborn *don't* have a right to life should exercise the same consideration? After all the consequences for them being wrong is the intentional murder of another human being. So of course they are not weighing the scales of reason fairly and therefore are not being reasonable.

bmiller said...

Here is the argument I am inclined to make on Roe: .....To make it a matter of state choice, which is what Rehnquist and Scalia's arguments entail, strikes me as a violation of the equal protection clause.

The argument that Rehnquist and Scalia were making was based on how the framers designed the constitution. The Federal government is limited to the powers listed in the Constitution and amendments. The 10th Amendment specifies:"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Neither murder* nor abortion were listed as federal crimes, so the laws and punishments were left up to each state. With the Roe decision instead of each state legislature having the power to regulate abortion laws, or even the federal legislature having that power, the Supreme Court has taken over the legislation function and determined for everyone which of their interests are "compelling" and which aren't. That's basically what the dissent was complaining about.

Either abortion is a right protected by the Constitution in all states, or the fetus's right to life is protected by the Constitution in all 50 states.

Of course there is no specific mention of abortion being a right in the Constitution, nor is there an explicit prohibition against it. It's just the opinion of 5 people in robes.

But Victor, here is a philosophical question for you as a Christian.

Would it have been OK for Mary to have exercised her right to privacy and aborted Jesus?



*murder of federal officials being a separate matter.

Joe Hinman said...

I always wonder why Ru486 is just invisible to people on this topic,it could solve the whole issue. I wonder why people can't handle the arguments that we can;t rove when it becomes a person, and so have to make a judgement.

On Metacrock's blog:
"The resurrection: Historical or history making" This is my obligatory Resurrection pace or Easter, I use the Moltmann rules change argent to argue for the resurrection as "history making reality" rather than historical fact, This is not to say that I don't accept it as a fact,

bmiller said...

Would it have been OK for Mary to have exercised her right to privacy and aborted Jesus by using Ru486?

At the moment when the power of the Most High overshadowed her, Mary carried the Second Person of the Trinity. So to believers, there is no argument.

bmiller said...

Happy Easter to all.

He is risen!

dcleve said...

The Constitution establishes citizenship based on birth. There is no Constitutional justification to extend personhood to fetuses.

Victor Reppert said...

bmiller: At the moment when the power of the Most High overshadowed her, Mary carried the Second Person of the Trinity. So to believers, there is no argument.

Vr: But this is exactly the kind of reason you can't use to base law upon. You cannot expect the general public to know that, since it includes Jews, Muslims, atheists, and liberal Christians who don't believe in the Virgin Birth. So this is one way you might know that abortion is wrong, but be unable to expect the body politic to believe the same thing.

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

@dcleve,

The Constitution establishes citizenship based on birth. There is no Constitutional justification to extend personhood to fetuses.

As I mentioned above, neither murder or abortion are mentioned in the Constitution, so the legislation was left up to the states. Personhood also is not mentioned in the Constitution either and there is no universally accepted definition of that term if it was.

bmiller said...

Victor,

Vr: But this is exactly the kind of reason you can't use to base law upon. You cannot expect the general public to know that, since it includes Jews, Muslims, atheists, and liberal Christians who don't believe in the Virgin Birth. So this is one way you might know that abortion is wrong, but be unable to expect the body politic to believe the same thing.

Right. That statement was to Christians who support abortion and not meant necessarily as an argument for establishing laws.

But it does raise the question of what exactly is the basis of law in America doesn't it? Should we give equal deference to the laws favored by Muslim societies? Or the recent atheist communist societies? If eliminative materialists are correct, there is no me to kill, so how could that be wrong?

One Brow said...

bmiller said...
Would it have been OK for Mary to have exercised her right to privacy and aborted Jesus by using Ru486?

At the moment when the power of the Most High overshadowed her, Mary carried the Second Person of the Trinity. So to believers, there is no argument.


Really? You don't think carrying God in your womb is any sort of special case?

Numbers 5 describes the procedure for having an abortion when a husband suspects his wife has been unfaithful. If a passage describing how to get an approved abortion does not end the argument in favor of the right to an abortion for believers, you'll understand if many don't take your far weaker precedent seriously, I'm sure.