Wednesday, September 28, 2005

What Deterring Abortion Means

Hugo Schwyzer is talking about Proposition 73 out in California, the referendum that would require that parents be notified if an underage child of their's seeks an abortion. Hugo plans to vote no on the proposition. His reasoning for doing so is heartfelt, thoughtful, and completely respectable. And also wrong. He writes:

"Do I want to see an end to abortion in this country? Yes. Am I willing to advocate for laws to restrict access to abortion to adults or minors? No. Despite my own history, I've flirted in the past with supporting anti-abortion regulation. My faith informs me that all life is equally precious, including life in the womb. But with great heaviness of heart, I've come to agree that it's destructive and pointless to try and end abortion legislatively....If my daughter were pregnant, I would want to know. Perhaps I would want her to keep the child, or choose adoption--though those would not be my decisions to make. But even greater than my desire to know, I would want her to be safe. Ultimately, it wouldn't be about me, but about her and her needs. And if for some reason she felt she couldn't tell me or her mother, I would want her to be able to turn to medical professionals."

I added the final emphasis there, because Hugo's comment touches on the delicate, difficult heart of what deterring abortion--assuming one wants to deter abortion, which Hugo surely does--plausibly may sometimes mean. Not that I fault him for pulling back from this aspect of the debate; I actually tend to think that parental notification laws, and similar laws which have nothing to do with the procedure itself (like the partial-birth abortion rigamorale, which--however disturbing the surgical act itself may be--I think to be a distraction that generates legislative grandstanding mostly irrelevant to the real issues at hand), but which rather concentrate on the actual choice of abortion, are the most difficult parts of the pro-life agenda to get past. Unfortunately, I also think they are the most important; if we can't agree on this, then the widespread practice of abortion is never going to go anywhere. (This, of course, assumes I'm speaking to other opponents of abortion; in other words, this is an intra-faction argument.)

One commenter on Hugo's site observes that "the fact that not all parents are 'good' enough to allow their kids to go through with [abortions] without objection is a feature, not a bug." He puts it crudely, but correctly. The reason parental notification laws are even debated is because they presume the legitimacy of the interference of others (particularly parents) in a choice that is nominally guaranteed but regarded by many as morally wrong. To require notification (not consent, mind you; the proposition only mentions notification, and it allows for legal alternatives for those who come from abusive or dysfunctional homes) means the state is officially saying to those under the age of 18: "We are not going to let choosing abortion be easy. We will make it, possibly, burdensome. We will make it other peoples' problem, not just your own."

The question must be asked of those of us in agreement that abortion is often wicked and always tragic: is it an evil that is nonetheless so thoroughly tied up in complicated facts of embodiment and gender and power that any attempt to interfere with the ability of anyone, including (or especially!) a minor, to choose it is unwarranted? Or can we make our way through that tangle, and attempt to at least instantiate some sort of deterrence of abortion? For many opponents of abortion, apparently including Hugo, the integrity of the individual's choice (even if their choice is a poor one) is a fundamental that must be protected at all costs, because otherwise the risks are just too painful to imagine (foolish teen-agers with mean parents clearly being the absolute least of it). So the only alternative available to those who come to such a conclusion is persuasion, example, and taking positive steps--economically and otherwise--to try to make abortion every bit as "rare" as Bill Clinton said he wanted it to be. This is a legitimate pro-life position, I think, and I respect people who hold it--indeed, I wish more social conservatives would acknowledge it and copy from it, because the dominant "conservative" pro-life position in this country all too rarely thinks about all the positive financial and educational steps that could be taken to help women choose otherwise than many of them currently do.

Nonetheless, it's not my position. I recognize that a whole lot of people--and specifically, young women--out there face terrible, unjust, ugly choices. But I do not understand how the problem that their choices pose to society are made any easier by refusing to allow any kind of social consensus, any kind of deterrence, any kind of interference, to present itself in between the individual and their choice. If you think abortion is a bad choice, and if you agree that majorities of one's neighbors also think it is a bad choice (and there is scads of polling data which backs up that second claim), then I am at a loss as to why one would think that abortion cannot be a focus of social expression through law. Not any law, to be sure: Roe v. Wade and Planned Parenthood v. Casey are still the law of the land, meaning their are constitutional concerns that must be satisfied. (And I'm not just dodging the issue by saying that; I have plenty of complaints with both Roe and Casey, but neither do I think that the constitutional interpretations--specifically about the limits of moral consensus in a liberal society--they laid down can or should be easily dismissed.) Moreover, whatever majorities may exist that are troubled by and support discouraging abortion, such support certainly does not exist at present (except perhaps in a few small regions of the country) for laws that would actually make the choice of abortion, in practice, impossible. Abortion is widely accepted as legitimate alternative. But does that also mean that nothing can or should be done to communicate that it is a disapproved of alternative? That you don't think any person, or any two people, ought to be allowed to make this choice entirely on their own? That the weightiness of the decision ought to be prolonged and made more tangible and pressing? If, I suppose, you think that the pain and harm and burden of abortion is ultimately, and solely, the province of the person having the abortion--that is, if your baseline reading of the situation is, "Who's the chooser here?"--then of course you musn't attempt to complicate or interfere with her choice; that would be oppression. But if, on the other hand, your basic framing of the problem is one that denies that abortion is wholly within the realm of the private, then the (limited, carefully legislated, intelligently enforced) expression of mild public concern--and compared to the actual disciplinary powers of the state, what could be more mild for 99% of those minors who seek abortion then to oblige parental involvement?--is a no brainer, assuming support for such exists.

So why is it so hard to accept, then, even for those opposed to abortion rights? Because we're individualists at heart, and we have a terrible time getting free from the feeling that when someone--especially someone whose situation is sympathetic, someone who we want to protect--feels no alternative but to do something that we rightly consider shameful and sad, perhaps we ought to support them in their (unwarranted but understandable) wish to tell the rest of the world to get lost for a while and leave them alone. Moreover, and more importantly, we worry about that 1%, or maybe it'll be more than 1%--the young women (often just girls) who have been raped, perhaps even by a family member, or more likely are simply (but no less tragically) so fearful of their parents, or so distraught by their situation, that they'll seek whatever unclean, unskilled abortion services they can find when confronted by the formal demands and interference of society. Yes, those cases exist, and in all likelihood more of them (probably not very many, but likely at least a few) will be brought into existence by a parental notification law. Hugo says that above all else, he wants the girls and young women of California to be safe. He doesn't trust this law will be enforced as it ought, and even if it is, the fact that it just may be that someone's choice will be made less secure, less smooth, and less safe by it is, he thinks, reason enough for him, an opponent of abortion, to nonetheless oppose it.

It's not. It's not because to hold to such a position is to claim that one's opposition to abortion is every bit as private as the choice one attributes to the person in the sad state of needing or wanting or being compelled (sometimes by one's boyfriend, or father, or friends, or peers) to seek an abortion. It is, other words, to say that one's opposition to abortion arises from a personal squeamishness, a distaste. (Which for a lot of pro-lifers is, unfortunately, quite accurate: again, one of the reasons that I think so much time and energy has been lavished on the partial-birth abortion debate is because, fundamentally, talking about how one socially discourages a choice is hard, while showing off terrifying bloody photographs is easy. It's the difference between those principled abolitionists who spoke of the ruined dignity of the slaves, versus those who just went around telling scandalous, disturbing stories about whips and leg chains, and who opposed slavery because Harriet Beecher Stowe's Uncle Tom's Cabin kept them up at night.) If opponents of abortion cannot engage the idea that there is a collective concern here--call it a moral principle, a natural law, a religious imperative, whatever--then the ability to articulate that truth is going to be forever held hostage to the undeniable, unavoidable reality of every single real of hypothetical tragedy out there. In which case, politics really must be just about the management of incidentals, with all the serious questions safely privatized away.

This isn't a call for hard-heartedness or realism, much less extreme disregard for costs. We have to be consciously engaged in trying to work out the best and most responsible and humane ways to formulate this expression of concern, this relatively minimal but still vital insistence that those who are still legally their parents' children not be able to act otherwise when confronted with such awful choice. And let me be forthright--it's not like I've followed all the ins and outs of the debate over Proposition 73. Maybe it's a lousy law; maybe it doesn't seem likely to even be able to do what its proponents claim. That would be one reason to oppose it. Or maybe an abortion foe could oppose it by arguing that, before parental notification become mandatory, the possible exceptions be better supported and more widely distributed; interference would therefore have to wait on changing society so that the costs of interference would be even less than they might otherwise be. Again, a reasonable argument, and within limits a responsible and necessary one (though if relied on too often, it begins to sound like an argument that Martin Luther King responded to, in essence, when he insisted that the moral cause of civil rights ought not be forced to "be patient" while the white power structure slowly "moderated" itself). But Hugo doesn't make those arguments; instead, he mournfully allows that, given the world we do have, it's just too destructive to presume to implicate the choices of individuals (or at least this special, terrible, particular kind of choice) in our morally worried social reality. I respect Hugo tremendously, and have enjoyed reading his ruminations for a long time now; but for a pacifist who presumable believes that Christians can and should, in fact, as a people, proclaim peace despite "the way the world is," I can't help but think that the decision this opponent of abortion has come to on Proposition 73 is a damn odd one, to say the least.

18 comments:

Anonymous said...

Russell, can't quite figure out how to do a trackback for you. My thoughts are here:

http://lefarkins.blogspot.com/2005/09/abortion-restrictions-and.html 

Posted by djw

Anonymous said...

You may be interested in Mark Graber's work on abortion, which he summarizes here.  Of course, since he's a pro-lifer who thinks Roe  was correct, that my be self-interest on my part... 

Posted by Scott Lemieux

Tom said...

Dear Russell,

Thanks for this thoughtful post.

You ask what reasons can be given for:

(i) Thinking abortion is a bad choice.
(ii) Agreeing that majorities of one's neighbors think abortion is a bad choice.
(iii) Nevertheless holding that abortion ought not be criminalized.

Here's one reason: We don't think that we may criminalize actions just because they are the result of bad choices. If we did think that, then we'd think that we are permitted to criminalize, say, staying out late with friends and neglecting to study for next day's test. That is an action that is the result of a bad choice. But to say that it may be criminalized--as does the view that we may criminalize actions just because they are the result of bad choices--seems absurd. Surely we may not criminalize staying out late with friends and neglecting to study for next day's test.

Best wishes. 

Posted by Tom Donahue

Anonymous said...

As one on the pro-choice side, I am impressed by the thoughtfulness of this post, as well as by your comment that "the dominant "conservative" pro-life position in this country all too rarely thinks about all the positive financial and educational steps that could be taken to help women choose otherwise than many of them currently do." Surely this is the way to carve out a compromise position in this difficult issue? This is what the Germans do: they see their goal as "helping the mother to say yes to the child."

Regarding Prop 73, I have not been following the debate, but wonder if it would be possible to pass a parental notification law that allows medical professionals to make exceptions when they deem it necessary? Does Prop 73 do this?
 

Posted by A.

Ben M said...

Hi Russell, newcomer here via Crooked Timber. Thanks for the intelligent post. I'd like to point out one philosophical point, though.

The core assumption behind any opposition---the idea that the fetus has a moral value---is really purely theological. For an individual woman who does not believe  that the fetus has a soul---and there's no non-religious argument I've heard---the majority belief to the contrary should not be allowed to constrain her. How is restricting abortion any different than, say, a majority vote to ban particular sex acts? The fact that the fetus-has-a-soul belief is particularly strongly held seems insufficient, I think. Laws need to be justified by some real-world consequences, not by appeal to an abstract religious tenet.

That applies both to bans on abortion and to your carefully-calibrated discouragement of it. Either one amounts to a majority-vote, government policy favoring the view that fetuses have souls---which is a religious viewpoint, and hence unconstitutional. Applying it to juvenile cases is no different than applying it to adults, except within the normal reach of parental authority. If you wouldn't accept such a law on another purely religious tenet---"Jewish minors may not break kosher without parental notification"---you shouldn't accept it on abortion. Or, more fancifully, can you imagine a policy (in a country lacking any sort of pro-life majority) that required the opposite---that a minor, *wanting* to carry a child to term, must receive parental permission? Or a law requiring that all pregnant minors should hear anti-birth/zero-population-growth counseling?

Alternatively, if there is some societal benefit to banning abortion, other than a) preventing harm to fetuses, b) using risk to discourage sex, or c) generally false arguments involving future psychological harm and/or cancer risks, it might not run afoul of this religous test.  

Posted by Ben M

Ananda said...

Two things to say about the above by Ben M. (I too am arrived from CT) --

1. There are at least two major secular anti-abortion arguments, namely Don Marquis' future-like-ours argument and Harry Gensler's Golden Rule argument. So it is not the case that the "core assumption" underlying an anti-abortion view is "really purely theological," since those two arguments don't involve any religious premises.

2. Ben M. appears to hold the following two highly questionable assumptions:

i. Laws cannot be justified by abstract moral or religious principles -- implying, for example, all redistributive taxation beyond that needed to prevent civil disorder is unjustified, since egalitarianism is an abstract moral principle... ditto for laws prohibiting voluntary adult incest and so forth.

ii. Non-belief that fetuses have souls is simply an expression of religious disagreement, and must be tolerated by those who disagree, but non-belief that women have souls, or that foreigners have souls, etc., is somehow more than that. Put another way, if the majority will cannot constrain the actions of an individual woman who does not believe that the fetus has a soul (or abstract moral value, to put it in secular terms), how is it permitted to constrain the actions of an individual who does not believe that SHE has a soul, and acts accordingly?

 

Posted by asg

djw said...

Ben, your premises and reasoning are fine but you're approaching the issue from a thoroughly liberal individualist frame. From a democratic communitarian frame, the individual freedom and preference maximization must be weighed against the values--and health--of the community. In other words, your response is fine, but your political reasoning has different foundational premises than Russell's. (I think the democratic/communitarian case can go both ways, as I try to show in the post I linked to above). 

Posted by djw

Sam Chevre said...

Ben,

You're only partly right in stating that The core assumption behind any opposition---the idea that the fetus has a moral value---is really purely theological.  More precisely, you are irrelevantly right. Deciding that any being has a moral value is theological in the same sense; it is not reasonably possible to argue that "the only morality that should constrain me is my own." For an individual woman who does not believe that the fetus has a soul---and there's no non-religious argument I've heard---the majority belief to the contrary should not be allowed to constrain her. This argument doesn't work; replace fetus with slave and you will see why.

In addition, there are non-religious arguments that fetuses deserve protection: here is a link  to J. David Velleman's argument to that effect on Left2Right. 

Posted by SamChevre

Russell Arben Fox said...

Wow--I should have checked my traffic stats earlier today. My thanks to Harry for the link. Glad several of you are finding Hugo's and David's and my exchange worth your time.

Tom--

"We don't think that we may criminalize actions just because they are the result of bad choices. If we did think that, then we'd think that we are permitted to criminalize, say, staying out late with friends and neglecting to study for next day's test."

Two responses. First, this argument isn't about criminalizing abortion; it is about making obtaining it even harder, even more embarrassing, and thus perhaps for some people even more dissuasive, than it already is. In other words, it's an argument about what I called in my post "social expression through law"--in this case, the degree to which we can reasonably talk about society expressing disapproval of, or dissatisfaction with, a particular choice which is, otherwise, both legal and constitutionally protected. (I say above that while I'm not complete believer in the validity of the reasoning which results in those protections and legalities, neither do I think it can just be wished away by pro-lifers; there is a point to privacy, after all.) Second, I think it wouldn't be hard to defend a position which argued that, speaking within the bounds of a well-constituted community, there are some bad choices that simply aren't worth formally dissuading people from, much less criminalizing, while there are some that would be worth it. I would argue most abortions fall into the latter category. That's not being inconsistent or introducing a slippery slope; that's just trying to treat particular harms with whatever appears to be both a moral and a prudent response.

A.--

"Surely this is the way to carve out a compromise position in this difficult issue? This is what the Germans do: they see their goal as 'helping the mother to say yes to the child.'"

I'm not especially familiar with abortion laws in Europe, but what I have read supports your claim about their ultimate intention, and it's one I agree with (though note my aside in the original post about such arguments becoming a way to avoid the heavy moral lifting real change requires). As for Proposition 73, I'm not sure what medical professionals could do that judicial waivers couldn't also; if their role would be to say, "we've medically determined that require the applicant to inform her parents will cause mental stress," well, then we're just back at square one (insofar as the pro-life cause is concerned, that is).

Ben--

"The core assumption behind any opposition---the idea that the fetus has a moral value---is really purely theological."

asg, djw, and Sam have already responded to this point of yours, so I haven't much to add except to concur with them. Basically: 1) I don't agree that it is impossible to come up with a non-theological argument in favor of granting moral worth to an unborn child; 2) more importantly, I think the effort to purify all public reasoning of anything even remotely "theological" is not only a) probably impossible, but also b) far more threatening to the social order, indeed to the very idea of justice before the law, then you might at first think (Sam and asg are both right, I think, to suggest that it is not at all clear that limiting our social arguments to ones that turn on, as you put it, "real-world consequences," is going to be able to so easily avoid the trap of someone who decides that a particular gender, or a particular race, are also of no more moral worth than a fetus); finally, 3) djw is correct to observe that my paramount goal isn't preserving individual choice; it is preserving the moral power and role of the communities within and by which individuals are, in my view, enabled to make  such choices in the first place.

"Or, more fancifully, can you imagine a policy (in a country lacking any sort of pro-life majority) that required the opposite--that a minor, *wanting* to carry a child to term, must receive parental permission? Or a law requiring that all pregnant minors should hear anti-birth/zero-population-growth counseling?"

Yes, I can imagine such a policy and a community. I'd be saddened by it, and would work to change it, but I wouldn't deny that such a community can exercise (in accordance with the same principles of decency and reciprocity I mention above) some sort of moral role in the choices of its inhabitants either. I think this came up in the comments either at Hugo's blog or at LGM; basically, I'd rather deal with a community that recognizes its ability to, through the slow articulation and expression of a moral consensus, play a constitutive role in the lives of its citizens (even if I dislike the consensus they arrive at) then one where everyone must back off whenever anyone has to make a potentially bad choice. 

Posted by Russell Arben Fox

Zac said...

SamChevre,

I'm not sure I agree with you that replacing "fetus" with "slave" changes Ben's argument at all:

The existence of a soul isn't why slavery is generally frowned upon; we disapprove of slavery because it's just plain inhumane. Slaves are deprived of their self-interests, and suffer tremendously as a result. This is true whether a slave possesses a soul or not.

A fetus is entirely different. At least in the early stages of pregnancy (before the development of its nervous system and self-awareness), the fetus is incapable of possessing interests of its own. We decide what we think is best for the fetus; it doesn't know or care.

Also, at least a few of the recent comments seem to be missing Ben's point; he's not  saying that a person should be allowed to follow whatever path their morality dictates -- he's taking the much more reasonable position that our morality should be based on facts and logic rather than arbitrary religious (or, perhaps, non-religious) decrees.

His position seems, to me, more effective than the religious stance because it at least provides a logical framework for morality. Morals are determined by their real-world consequences, so they can accurately reflect what is best for society at any given time.

I happen to believe that the Christian conception of morality is mostly correct -- but by accepting it, aren't I implicitly endorsing any arbitrary conception of morality? After all, if Christians don't need to back up their beliefs, is it fair to make anyone else back up theirs? If we accept that arbitrary religious morals can be valid, how do we choose which of the dozens (hundreds, even?) of these is the One True Morality? 

Posted by Zac

Chris said...

When you say that a large majority of the (american) public is against abortion you should, I think, distinguish between two usages;
(a)abortion is wrong for other people
(b)abortion is wrong for me and mine.
Most Americans - most americans standing for president - say yes to (a) and no to (b).You might even distinguish between
(b1)abortion is wrong for me and mine in the abstract
(b2) abortion is wrong for m&m when actually faced with a problem
at which point I think the proportion drops below ten percent.  

Posted by Chrisb@ourcommunity.com.au

Anonymous said...

When you say that a large majority of the (american) public is against abortion you should, I think, distinguish between two usages;
(a)abortion is wrong for other people
(b)abortion is wrong for me and mine.
Most Americans - most americans standing for president - say yes to (a) and no to (b).You might even distinguish between
(b1)abortion is wrong for me and mine in the abstract
(b2) abortion is wrong for m&m when actually faced with a problem
at which point I think the proportion drops below ten percent.  

Posted by Chrisb@ourcommunity.com.au

djw said...

Russell, I assume you've read Waldron's Law and Disagreement ? I'm only just now giving it the serious read it's due. The latter chapters show Waldron grappling with the issues at hand here, albeit through the rather limited language of rights.

The core argument goes like this--if participation is a basic right, and it's not merely instrumental (and if it is, why is it a basic right?), and people fundamentally disagree about the content and implications of rights, than it would be incoherent with the first premise to declare the interpretation of the appropriate meaning and content of rights out of the hands of democratic deliberation. This leads him to declare the right of participation the "right of rights."  

Posted by djw

Captain Cabernet said...

Yes, djw, Harry Brighouse pointed me to a more recent Waldron paper on judicial review which defends the same points against subsequent criticism.

http://tinyurl.com/7jvau

It contains a very interesting comparison of the way the US Supreme Court handled the abortion issue in Roe v Wade with the way the British House of Commons did. 

Posted by Chris Bertram

Anonymous said...

I support choice, and I appreciate arguments valuing all life. However this argument seems to be detatched from the experiences of women who must decide whether to have an abortion. It is not clear to me that a largely bureaucratic obstacle, intended to signal society's dissapproval, will have any impact on a woman's moral decision-making. The only effect I can see would be punitive, and damaging to both the woman and child.

The decision to have an abortion, with its loss of potential and anniversary effects, is morally difficult regardless of one's conception of morality. It is ignorant to assume that a notification provision will have a significant impact on a woman's moral decision making process, but obvious that such a provision will force some women to carry a child to term.
 

Posted by tib

Anders said...

"To require notification (not consent, mind you; the proposition only mentions notification, and it allows for legal alternatives for those who come from abusive or dysfunctional homes)"

Does the law call for post-abortion notification of the parents? I suspect not, and that is precisely because such laws are carefully designed to make parental consent non-optional. Parents have, in practice, almost complete power over their children and can quite easily prevent them from having an abortion. And how does the law suggest to detect whether a family home previously unknown to the authorities is in fact abusive or dysfunctional?

"... compared to the actual disciplinary powers of the state, what could be more mild for 99% of those minors who seek abortion then to oblige parental involvement?"

There is every reason to believe that those children who will not voluntarily inform their parents of their abortion (even when encouraged to do so by counselors at abortion clinics, which is common) will in far more than 1% of the cases receive punishment and abuse from their family far worse than anything the state could legally inflict upon them.


Posted by Anders Widebrant

Ananda said...

Re: Zac's post:

Also, at least a few of the recent comments seem to be missing Ben's point; he's not saying that a person should be allowed to follow whatever path their morality dictates -- he's taking the much more reasonable position that our morality should be based on facts and logic rather than arbitrary religious (or, perhaps, non-religious) decrees. 

We're not missing Ben's point at all, it's just that he offers almost no argument for it, because he just assumes (as you do) that there's this sharp, clear difference between "arbitrary decrees" and "facts and logic". But there is no such clear difference.

"Facts and logic" do absolutely no work to establish any kind of framework for morality, unless some of the facts are moral facts -- and neither you nor Ben has explained how "Fetuses have no moral value and deserve no social protection" is a non-arbitrary "fact" whereas "Women have no moral value and deserve no social protection" is just an arbitrary decree. (If your answer is that "fetuses have no interests", that's a non sequitur. Having interests does not promote them to moral consideration, as any of Jeffrey Dahmer's victims would tell you were they not dead.)

His position seems, to me, more effective than the religious stance because it at least provides a logical framework for morality.

It does no such thing, unless you covertly promote your own moral intuitions to some status above "arbitrary decree".

Morals are determined by their real-world consequences, so they can accurately reflect what is best for society at any given time.

This sentence makes no sense at all. If you're a white landowner in the 1840s American South, you may believe very fervently that slavery is "best for society" at the present time. One of the real-world consequences of abolition would be the collapse of your way of life. Why is this real-world consequence of less significance than any other real-world consequence? Why, when balanced against the suffering and indignity borne by all slaves, does this consideration automatically lose out? You can say "it just does" or "it's obvious" but now you are in the land of arbitrary decrees. 

Posted by asg

D. Ghirlandaio said...

You have not defined the difference between a personal 'taste' and a public moral position. One is merely a more formally serious presentation of the other and the difference in any case is theological.
Theology as such is irrelevent to intellectual debate in a democracy.
 

Posted by seth edenbaum