Monday, October 10, 2005

More on Abortion

First off, I have to apologize for letting the argument get a bit muddy at the end there. I was focusing on the moral arguments for and against abortion and then I jumped to the legal issue, which is, of course, the most pertinent issue for a law student.

I’d also like to point out that I don’t think the abortion debate is pointless. The more we talk about it, the more people think about it. And the more people think about it, the closer we can get to a conclusion. (Hopefully.) The danger that I preach against is flame-wars, as they are known on the Internet. I want people to get down to the real issues, the beliefs that people assume, and not jump to conclusions, inflammatory language, and name-calling.

Also, if you're interested, here are some posts my friends and I have made over the past few months on this issue:
Untitled
Untitled II
Erratum
Untitled III
Abortion Paper, 2004
Untitled IV
Untitled V

The Moral Issue vs. the Legal Issue

These are not one and the same. As I pointed out earlier, simply being a moral issue does not preclude the government from regulating the issue. At the same time, the conclusion that something is immoral does not mean that the government should prohibit it. If you don’t have a grasp of the complexity of the issues that legislators would face were Roe v. Wade to be overturned, read the rest of this section for just a taste. If the issue doesn’t interest you, skip down to the next headline.

There are consequences to illegalizing abortion. Yes, people will get illegal abortions. In fact, as the Language Guy mentioned, it may confront the nation with another Prohibition-like general disrespect for the law, which is something to avoid.

The legal issue that I addressed to my satisfaction was whether the Supreme Court has the power to prohibit the prohibition of abortion. My conclusion was that the esteemed Court does not have this power under the Constitution.

This, however, does not compel the conclusion that abortion should be illegal. There is no argument that one can make from this premise to that conclusion.

How Should Legislatures Handle the Issue?
There are many good reasons that legislatures could have for keeping abortion legal. In some states (notably California) the pro-life cause is unpopular, and voting to make it illegal could make someone lose the next election. In other states (for example, Nebraska) failing to do that could lead to the same result. There are economic concerns in favor of legalized abortion. Women who don’t have to take time off from work can be more productive, and women who have children too young may be prevented from going to school and thereby getting a better job. There is also the obvious public health concern over back-alley abortions. In addition, the state could tax abortions and put the money into education

Even concluding that abortion should be illegal does not end discussion. What should be the penalty? Who should be criminally liable? Should there be no criminal, but only a civil remedy? Who should have that remedy, if anyone?

It would be very hard to hold a doctor liable for 1st degree murder for performing an abortion. Could you imagine the public outcry? It’s also hard to hold someone liable for something that a large percentage of the American people find to be a good thing. Assuming that abortion is illegalized, forfeiture of medical license would be a perfectly reasonable punishment. And if someone performs an abortion without a license, the punishment would be the same as for the unlicensed practice of medicine.

Is there a good argument for a heftier penalty? Maybe. This is really a judgment call that is better left to the people that generally make those kinds of decisions, not for lawyers.

As far as civil remedies, there are only two tenable claims. The first would be a claim by the state against the practitioner. This is obvious and easy to implement. The second would be a claim by the father of the unborn, but there are two major problems with this. First, damages would be difficult to calculate. This could be solved by simple statutory damages (a flat number for all such claims). Second, it would it some cases be difficult to determine whether the father objected to the abortion (or perhaps he should be presumed to have objected unless he signed a form stating otherwise).

(As a side note, I had an amusing thought: assume abortion is legal. X shoots a pregnant woman in the belly, killing the fetus. Can he be prosecuted for practicing medicine without a license?)

Another issue for legislators: should abortions always be illegal?

Is Abortion Ever Moral? Is the Religious Position Inconsistent?

I’m not really sure how all religions address this issue, so I’ll start with my own. As I was taught in confirmation class, the Lutheran Church, Missouri Synod generally condemns abortion, except in three cases:
1. In cases of rape
2. In cases of incest
3. When the mother’s life is endangered by the pregnancy
The first case seems reasonable, at first glance. If it’s rape that’s involved, then it’s not the mother’s fault for getting pregnant. But wait a minute: if you accept the arguments that I laid out below (Arguments 1 and 2 on the pro-life side) then the reason abortion is immoral has nothing to do with the mother. The reason for it is that the fetus is human and hasn’t done anything wrong. How, then, can it follow that it becomes okay to kill the fetus? I can think of no logical extension of those arguments that would lead to this exception to the immorality of abortion. This is an example of an inconsistent religious argument. Hopefully I can find more. The same reasoning is lacking in the second case.
Outside of the religious context, these two cases can be justified. If you assume that you are balancing the interests of the unborn against those of the mother, the mother’s case is stronger when she had nothing to do with becoming pregnant. Here it seems less compelling to force a woman to go through with the pregnancy for the sake of the infant. The argument:

P1: The fetus has the right to live.
P2: The mother’s rights normally do not give her the right to kill the fetus.
P3: It is unfair to force someone into a situation when they did not bring about that situation.
C: If a woman is forced into becoming pregnant (as in rape cases) her interest in choosing abortion is stronger, and may override the rights of the fetus.

Note that the conclusion is qualified. It does not necessarily follow that the woman’s rights do override those of the fetus. There is a similar argument in cases of incest, usually because these cases also involve rape (in a looser sense of the word) and also because of the risk that the fetus will have complex medical problems, lessening the strength of its claim to a right to live.

The third case is perhaps a logical extension of the normal anti-abortion argument.

P1: The interest protected by prohibiting abortion is the life of the fetus.
P2: The interest risked is the life/health of the mother.
P3: The mother is already living, and society has invested a great deal into the mother’s life.
P4: People have the right to defend themselves from harm.
C: When the fetus threatens the mother’s life, she has the right to defend herself, and society has an interest in defending the mother at the expense of the fetus.

Note that this sounds dangerously like the pro-choice argument, because it balances the interests of the mother against those of the fetus. This argument has a little more push with people who accept Premise 4, which usually includes religious-types. Premise 3 is a more secular premise, and would be more in line with the general thinking of pro-choice advocates. However, to accept the ultimate conclusion you only need to accept P3 or P4, not both, so a pro-lifer can maintain this position without giving up ground.

I believe (and correct me if I’m wrong) that the Catholics reject abortion in all situations. Perhaps this is because they’ve gone through this kind of analysis and have seen that this road can give up ground to the pro-choice side. Perhaps instead it’s because they would take the chance of losing the mother’s life for the sake of the baby, and their general dislike for any practice which does anything to risk the death of anyone. Perhaps I’ll cover euthanasia and the death penalty in future posts, but the Catholics generally disapprove of these practices while many other denominations (and other religions) approve of these practices.

There are other arguments for moral situations in which to apply abortion. They are generally similar to the above situations. Examples include situations where the fetus has a serious medical issue. If it will be born without a brain and die shortly thereafter, I can conceive of no moral reason for not just ending its miserable existence and saving the family some grief in the long run. But what if the child is to be born a vegetable, but may last a long time? Or the child would be mentally retarded and therefore not as fully productive in society? Or the child would have other expensive medical problems? Here there are economic justifications for allowing abortion, but no moral justifications that I can see. This is the kind of gray area that legislators would have to deal with if Roe is overturned. In fact, it is perfectly reasonable for legislatures to require abortion in such cases, whether or not they allow it in other situations.

The Question of Humanity (and What Is Human vs. What Is A Human?)

The Language Guy made an interesting point: what we think of as human is not necessarily what we think of as a human, or rather, as an individual or a person. If one accepts this position, then it undercuts the argument that I laid out that because a fetus is human then it must be immoral to kill a fetus. Simply because a fetus is human at conception does not necessarily dictate that it is an individual with rights.
In support of this argument, he states (in the comments):
Imagine what properties you would have said an entity must have to be A human were the abortion issue never to have arisen. I suspect that these properties would have excluded the foetus from being a human.

The statement itself I expect is true. But one thing I’ve noticed in years of discussing what defines humanity is that it is an extremely elusive concept that needs to be refined each time one is confronted with a new situation. Try it as an experiment: ask a friend what makes a human, and each time he comes up with a response you should come up with an example to refute it. It shouldn’t be too hard. A human could be defined as an organism that uses language and tools. But animals (like orangutans) use tools, and some arguably use language as well. A human could be defined as an organism that is capable of rational thought, but I think that a severely retarded human does not cease to be a human simply because he is not capable of rational thought. An organism’s dependence upon outside forces for survival also does not change its status as a human, because you would exclude people who depend on oxygen tanks, colostomy bags, or feeding tubes. I think that if you come up with any satisfactory definition of “a human” then it would necessarily include a fetus, unless you add a caveat to specifically exclude fetuses (adding “and is outside the womb” or the like).

I want someone to try to prove that wrong. Every rational argument people make enriches everyone who hears or reads it.

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