Monday, April 15, 2019

Is there a dissonance between the legal and the moral arguments concerning abortion?

Roe is based on this argument:
1. The right to bodily autonomy, and privacy with respect to medical decisions (absence any superior countervailing right) is known to be established by the Constitution. For example, as decided in the Griswold case from 1962, state governments do not have the right to prohibit artificial birth control.
2. The fetus's right to life prior to viability is not a right we can be sure of. Reasonable opinion differs as to whether the fetus has such a right.
3. A right of which we are certain takes precedence over a right over which there is uncertainty.
4. Therefore, because of the uncertainty with respect to the fetus's right to life, the right of the mother to bodily autonomy and medical privacy takes priority, and a woman has a right to an abortion prior to viability.
What do you think is the bad premise in this argument, (if you think there is one)? What is surprising to me is that the anti-Roe legal arguments seem to concentrate their firepower on premise 1, but people interested in the moral issue of abortion object to premise 2. There seems to be some dissonance between the legal arguments on Roe v. Wade and the moral arguments concerning abortion. Does anyone besides me find this troublesome?

15 comments:

Legion of Logic said...

2 is the bad premise, since I'm not aware of a reasonable argument that demonstrates uncertainty. And I don't know that 1 is attacked legally beyond pointing out that the one dying is not the woman's body, so abortion is not analogous to clipping a toenail. That's why leftists who equate it to a bill that would prevent men from using Viagra are being so foolish.

bmiller said...

The legal firepower was focused on #1 because #1 was used to trump all other rights that had been left up to the states.

#1 is not "known to be established by the Constitution" otherwise laws against abortion would not have been considered unconstitutional for the first 184 years of the Union. It is known to be established by a ruling of a progressive Supreme Court.

However, concerns about dissonance between moral and legal arguments wrt abortion will likely converge soon. The constitutionality of the Unborn Victims of Violence Act of 2004 provides enough "penumbras" and "emanations" for this or a future Supreme Court to find in favor of protecting the most innocent of humans.

John B. Moore said...

Not everything that's immoral is illegal - nor should it be. The purpose of laws is not to make people moral. Instead, the purpose of laws is to keep the peace among people who disagree, in order for people to work together cooperatively and build prosperity.

Starhopper said...

When it comes to the law, I am a pragmatist. I favor whatever works over ideologically pure measures that do not.

Personally, I think a law banning all private ownership of firearms would be a Good Thing. But, I know full well that such a measure could never be enforced (a.k.a., not work), and any attempt to enforce such a law would probably be counterproductive (i.e., would result in more bloodshed than the appalling level we currently suffer from). Therefore, I would in practice oppose such a law, despite its being the more "moral" choice.

Joseph Hinman (Metacrock) said...

JBML "the purpose of laws is to keep the peace among people who disagree, in order for people to work together cooperatively and build prosperity."

right Well said. There is always a dichotomy between law and morality forthat very reason

John B. Moore said...

Thanks, Starhopper, for bringing up the gun control issue as another example. I personally think both abortion and guns are immoral. It would be great if we could get rid of both completely, but that's not practical.

On the other hand, these aren't simple yes-or-no issues. We can try passing laws that discourage certain behaviors without making them completely illegal. That way, we could achieve some progress incrementally, over a period of years to decades.

And again, the goal is not to make people moral, but to maintain peaceful cooperation in the community while building prosperity.

Maybe if we focused on the various reasons people do abortions or guns, we would see some paths toward compromise. For example, we might say hunting is OK whereas assault rifles in cities is not. Or, returning to the abortion issue, we might decide to increase sex education and the availability of contraception.

Those are just some brainstorms ...

bmiller said...

I personally think both abortion and guns are immoral. It would be great if we could get rid of both completely, but that's not practical.

Well, it's not practical to get rid of gun rights because of the 2nd amendment, but there is no explicit right to abortion in the Constitution. Longstanding state abortion laws were overturned by the judicial branch and can just as easily be allowed by the judicial branch without amending the Constitution.

If the 2nd amendment was voted out by a new amendment, law abiding citizens would obey. If Roe v Wade was overturned by a new Supreme Court decision again, law abiding citizens would obey.

There may be some citizens that might shoot at officials trying to take their guns if the 2nd amendment was voted out, but fewer people would actually die if Roe v Wade was overturned.

Starhopper said...

I am not one of those people who regard our Constitution as somehow being on the same plane as Holy Writ. It is riddled with errors, as is any purely human construct. We all know, of course, about the infamous 3/5 clause (which has thankfully been superseded by the post-Civil War amendments).

So I have no irrational attachment to the 2nd Amendment. In context (immediately after the Revolutionary War) it was probably right for the times. But it is worse than irrelevant to the 21st Century - it is positively destructive, causing needless and totally preventable tragedy.

There is such a thing as "blood on one's hands". Anyone who defends the 2nd Amendment today has on his hands the blood of Newtown, of Las Vegas, of Columbine, of Annapolis, of... of all of the senseless carnage in our schools, movie theaters, and public venues, and in every anonymous house grieving from a suicide by handgun or an accidental shooting by a toddler.

bmiller said...

Starhopper is getting bored since he swore off posting about politics.

Starhopper said...

This isn't politics. It's a parable concerning the relationship between law, morality, and pragmatism.

bmiller said...

Right. But you want to provoke a food fight by saying that innocent people who want to own guns are responsible for the guilty actions of others.

Legion of Logic said...

Anyone who defends the 2nd Amendment today has on his hands the blood of Newtown, of Las Vegas, of Columbine, of Annapolis, of... of all of the senseless carnage in our schools, movie theaters, and public venues, and in every anonymous house grieving from a suicide by handgun or an accidental shooting by a toddler.

No more than your use of the Internet makes you responsible for Russians hacking the DNC.

Joseph Hinman (Metacrock) said...

Notre Dame Burning



I am checked and saddened by the damage of Notre-Dame,as we all were. I do find some hopeful things. This is a brief reflection upon what the Cathedral means to me as a symbol I am prompted to think about not just Christianity and modernity but the contrition of Christianity to western culture via the French enlightenment. Yes that is usually seen as the rise of modern atheism and skeptics, there is more to it than that,

Joseph Hinman (Metacrock) said...

Anyone who defends the 2nd Amendment today has on his hands the blood of Newtown, of Las Vegas, of Columbine, of Annapolis, of... of all of the senseless carnage in our schools, movie theaters, and public venues, and in every anonymous house grieving from a suicide by handgun or an accidental shooting by a toddler.

No more than your use of the Internet makes you responsible for Russians hacking the DNC.

I think we can refine that testament: it;s a matter of how you defend it,

Joseph Hinman (Metacrock) said...

Well, it's not practical to get rid of gun rights because of the 2nd amendment, but there is no explicit right to abortion in the Constitution. Longstanding state abortion laws were overturned by the judicial branch and can just as easily be allowed by the judicial branch without amending the Constitution.


then why don't they?