How Much Time Should She Do?

Pro-choice activists often ask what the punishment for abortion will be for the women who seek them should it be made illegal. The large majority of pro-lifers don’t want to punish women. So far, those pro-lifers have never offered a good justification for this. If abortion is really murder, and is made illegal, how could we consistently not punish women who break the law?

The answer is simple. When deciding how to punish someone, the ultimate factor is their degree of culpability. The average person who kills another born person knows exactly what she is doing. We would say that “the prohibition against murdering born persons is written on the hearts of all men”, so to speak. Or, we would say that it is “innately obvious” that murdering born people is wrong. Everyone knows that it is.

This is not the case with abortion, though. Unlike murder or maternal infanticide, the knowledge that abortion is wrong is not innately obvious. People do not automatically know that it is wrong any more than they know that jaywalking is wrong.

There is a reason for this. Any morally sane person knows that murdering born people is wrong, ultimately because of the way evolution played out. During evolution, the genes of our ancestors and groups of our ancestors who killed born members of their species were selected against (for the most part). Long story short, they evolved to feel bad about murder, because those who did not were selected against. This trait eventually got passed down to use. This is how we know that murdering born people is wrong.

But this never could have happened with abortion. Unlike murder, induced abortion did not exist during evolution for natural selection to act on. Our ancestors had neither the intelligence nor the technology to perform them. Since it did not exist for natural selection to act on, our ancestors never could have evolved any particular distate for it, as they did for murder. They could never pass a distate for it down to us, that would translate into an innate moral knowledge that it was wrong to do. This is why the fact that abortion is wrong can be known only through reason. We wouldn’t treat abortion differently from murder because women are too stupid to understand what they’re doing.  Theyr’e not. We would treat abortion differently ultimately because our ancestors were too stupid to know how to perform them.

Abortions, illegal abortions in particular, are generally acts of desperation, like self-mutilation or suicide attempts; and as I said, it is not innately obvious that it is wrong.  When you combine these two facts, you have a solid justification for not punishing women who have illegal abortions. This justification does not require us to infantalize women, or to be inconsistent with our claim that abortion is the human rights equivalent of infanticide.  When abortion is made illegal, women who try to obtain them anyways should be treated the same way we treat people who self-mutilate or attempt suicide.

Personhood Amendments and Contraception

First of all, Personhood Amendments would not immediately ban abortion. At first, all they would do is prevent government money from funding abortions in their particular state. These Amendments would work by giving the states a “compelling state interest” in banning it, which they would not have otherwise. But what about contraception? It can work as an abortifacient, and it often does.

Hormonal contraception works as an abortifacient. NFP does not. It is as effective as most hormonal contraceptives – when used correctly, it has a .5% failure rate. That means that for every year you use it correctly, you have a one in two hundred chance of becoming pregnant.

In any case, Personhood Amendments would not necessarily make abortion or even abortifacient contraception illegal. They would prevent government money from funding them though. They would give the People the opportunity to decide abortion democratically, without having to overturn Roe or Casey. I can’t say for sure whether or not the courts would interpret these Amendments as giving their states a compelling state interest in banning all forms of hormonal contraception, although the correct answer would be “yes”. But since public support for hormonal contraception is so high to begin with, I doubt it would really matter.

Rendering the Constitution Dead: A Radical Proposal

Judicial activism didn’t start with the 1st Amendment obscenity cases in the fifties.  It didn’t start with the expansion of the 8th Amendment in the twenties.  It started in the very early 1800s, when the Supreme Court unconstitutionally granted itself and the federal courts the power of judicial review in Marbury v. Madison.  After this case, things worked surprisingly well for over a hundred years.  Marbury didn’t start a slippery slope – at least not immediately.  Problems arose surronding the New Deal programs and the court-packing scheme, but, for the most part, there were no serious problems with the Supreme Court until the 50s.

The Supreme Court decided that they were going to treat the Constitution as a “living document”.  That is to say, they were going to interpret the Constitution based on public opinion rather than the text and good precedents.  They ignored how Jefferson had made made it perfectly clear that the Constitution was to be interpreted “…according to the safe and honest meaning contemplated by the plain understanding of the people of the United States, at the time of its adoption”.  They also ignored how  Hamilton had explicitly warned against their method, and how his writings in the Federalist Papers presupposed that everyone in his time would have, without question, considered reliance on public opinion a bad idea.

It had some extremely good immediate effects, however.  Jim Crow laws and racially segregated schools were unconstitutional under the living constitution.  Had we stuck with the correct method of interpretation, these things would have taken much longer to get rid of.  When we got rid of slavery, and gave women the right to vote, we did it by the Constitution.  The courts didn’t twist the meaning of the Constitution to “fit with the times”, so to speak (although they did consider doing this for womens’ suffrage, but decided against it).  It took longer than it would have otherwise, but it was done by the law and by the Constitution.  Since Brown v. Board of Education and the other desegregation cases became so popular, they gave the living constitution a good rep.  Now, the Supreme Court could do what it wanted.  Invent a right to abortion, or contraception?  Hey, we’re just doing what we did in Brown – inventing rights that are nowhere to be found in the Constitution.  And you don’t have a problem with Brown… right?

In any case, there is far more to be said on this issue, but I’d like to cut to the chase.  The precedents set as a result of the living constitution ultimately gave the judges almost unlimited discretion to judge as they pleased.  In any given case, a judge can decide to either stick with the textually incorrect living constitution precedent, or overturn it.  If you’re a judge who likes contraception, then Griswold is “settled law”, i.e. a good precedent.  If you don’t like it, then it’s a result of “judicial activism”, and it can be overturned.  This is true for almost any imporant issue today; when it comes to these issues, there is really no objectively right or wrong way (legally!) of deciding.  Needless to say, our Supreme Court is very liberal, so liberals certainly have no problem with the Supreme Court possessing this amount of unbridled discretion.

The correct method of Constitutional interpretation is what I call “hard originalism”.  It completely ignores public opinion, and interprets only the text – with a reliance on stare decisis only when it is pragmatically necessary to avoid legal chaos.  In theory, it is by far the best method of constitutionalism, as long as the original public meaning can be ascertained.  It produces more or less objective results.  But for now, it is an absolutely impossible method. When the Constitution is treated like a living document, no one bothers to amend it, and update it to fit with the times.  For example, since we expanded the meanings of the 8th and 14th Amendments to fit with the times, there was no need to go to all the trouble of properly amending the Constitution – so technically, public flogging, handbranding, public hanging, executions for petty crimes, and racial segregation are all perfectly Constitutional according to the “original public meaning” of the text.  Living constitutionalism therefore results in what I call “Constitutional neglect”.  Obviously, this renders hard originalism impossible. 

The closest feasible alternative is “soft originalism”, which, as Jack Balkin has aptly noted, relies heavily on the political views of the Justices in deciding which living constitution precedents to regard as settled law, and which to disregard.  But the problem is, it cannot really claim to be the objectively correct method.  It cannot be shown to be better than the “living” interpretation; in fact, it is often criticized as simply being a watered down, half-hearted ripoff of it.  The results it produces are on a legal par with any other method of interpretation.  This isn’t bad only for soft originalism - it is absolutely devestating for democracy and Constitutionalism.  Think about it: there is no right or wrong way of interpreting the Constitution.

As far as I can see, there is only one possible solution.  The Supreme Court should compile a list of every single significant case that was ever decided wrongly according to the text, starting with Marbury.  They will then issue a statement to Congress and the public: “In ten years, we’re switching to hard originalism.  At that point, any of these decisions that are not written into the Constitution are gone.”  A ban on racial and gender discrimination would easily make it in; I imagine that a prohibition on public hanging and the like would, as well. We would be able to keep the “good stuff”, like racial equality, without the oh-so-unfortunate side effects of Roe, Alberts v. California, and the like.  Also, we would finally get to decide issues like abortion democratically. This would also fix one big problem with the Constitution: it is oftentimes incredibly difficult to ascertain what the original public meaning was of a text written 200 years ago; hard originalism is often criticized on these grounds, and rightfully so. But if we updated the Constitution with a series of amendments, this would no longer be a problem.

Proponents of the living constitution are quick to point out how much good it did for the civil rights movement.  Few would disagree.  For all the good it did, it brought with it a number of serious and unacceptable problems.  Now, we can repair the Constitution and restore judicial restraint and objectivity to the federal courts and the Supreme Court, and still reap all of the benefits and positive social change that the doctrine has brought us.  In addition to restoring an absolutely enormous amount of objectivity to Constitutional interpretation, hard originalism would restore democracy to our country and to our people.

Update: I emailed the link to this blog posting to a number of prominent liberal legal scholars. So far, only Sanford Levinson (!!!) has responded. Here’s what he said:

(I edited out irrelevant parts of the emails, and I have made minor edits to my post since our exchange.)

—–Original Message—–
From: “Sanford Levinson”
Sent 9/13/2009 8:09:10 PM
To: “anedved”
Cc: “jack.balkin@yale.edu”
Subject: RE: “Final Exam Question, Con Law I” and originalist cherry-picking

This is an interesting post. One immediate problem, incidentally, is that the Supreme Court has very often been controversial, well before the 1950s, and accused of being “activist,” etc. A good short book is Robert McCloskey’s The American Supreme Court; there are also two books published this year by Scot Powe and Barry Friedman, both of which offer good overviews of the history of the Supreme Court. I also suspect, incidentally, that you’d like Randy Barnett’s Restoring the Lost Constitution, which he published several years ago.

As to your proposal, aside from the fact that there is no consensus about which decisions violate “original public meaning,” is the near impossibility of actually amending the Constitution. One reason, frankly, for our accepting a fairly latitudinarian approach to constitutional interpretation is the realization that, without it, it would be almost literally impossible to bring the Constitution “up to date.” As Houston political scientist Donald Lutz has demonstrated, we have the most difficult-to-amend constitution in the entire world, and people on all sides agree that there are at least some parts of the 18th century Constitution that are dysfunctional and best changed through a mixture of congressional and executive action and then judicial legitimation. Steve Griffin’s posts on Balkinization right now discuss the enhanced executive power as a “living Constitution” response to the Cold War precisely because it is unthinkable, to many, to live in a legal universe created under the geopolitical assumptions of 1787.

In any event, I enjoyed your posting.

 

I responded:

From: anedved [anedved@udallas.edu]
Sent: Sunday, September 13, 2009 8:56 PM
To: Sanford Levinson
Subject: Re: “Final Exam Question, Con Law I” and originalist cherry-picking

Thank you for taking the time to read my post.  I know that the Supreme Court has been controversial before the fifties; my point was, that while it certainly wasn’t perfect before then, judicial activism really got kicked into gear when the SC officially started interpreting the Constitution as a “living document”.  Our Constitution is difficult to amend, but I don’t necessarily see the problem with that, unless you insist on rapid social change.  And as for there being no consensus on which cases violate the original meaning, I imagine that we’d leave that up to the Supreme Court when they compiled the list.  You said,

“…people on all sides agree that there are at least some parts of the 18th century Constitution that are dysfunctional and best changed through a mixture of congressional and executive action and then judicial legitimation.“

If it’s widely agreed upon, then it would not be hard to get an amendment fixing those dysfunctional parts, if the SC said they were switching to hard originalism in ten years.  This is bordering on self-defeating, but perhaps we could amend the Constitution to make it easier to amend in the future? That way, when we stuck with hard originalism after the ten years, the Constitution would not be unamendable and overly resistant to social change.  In any case, I don’t see how something like a ban on racial segregation or some sort of gender equality amendment would fail to make it in.  Everyone is agreed to these things.  A right to abortion, on the other hand…

Look at the 18th and 21st Amendments, for example. The states ratified a Constitutional amendment, and after a mere fifteen years, those same states repealed it.  I think that goes to show how amendable the Constitution can theoretically be, when it isn’t expected to be interpreted as a living document.  Part of the reason that the Constitution is so hard to amend is because of the “constitutional neglect” resulting from living constitutionalism - the idea of amending the Constitution to fit with social change isn’t even on the political radar as a result of it.  When was the last time anyone even mentioned amending their state constitutions? Ironically, the only time states amend their constitutions today is to deter potential or actual judicial activism! (think of proposition [eight])
 
Anyways, I just figured I’d try my luck sending a link to my blog out to a ton of prominent liberal scholars in the off chance that they would read about my idea and respond to it. Thank you very much for taking the time to read my blog and email, and for recommending those books – I’ll definately read them when I get the chance.

 

He responded:

—–Original Message—–
From: “Sanford Levinson”
Sent 9/13/2009 9:09 PM
To: “anedved”
Cc: “jack.balkin@yale.edu”
Subject: RE: “Final Exam Question, Con Law I” and originalist cherry-picking

I do think you underestimate the difficulty of amending the Constitution.  I’m not sure, incidentally, that requisite supermajorities agree on the precise elements of the Constitution that are dysfunctional; my point is that much of the unhappiness with the contemporary American government, on all sides of the political spectrum, can be traced to aspects of our unrefomed 18th century Constitution. 

All the best,

sandy levinson

 

**********************************************

Well, there you have it.  He’s obviously extremely busy, and I’m sure has better things to do than read my blog and respond to my emails, so our exchange is over.  Now I know - I need to do much more research on:

1) What implications a hard originalist approach to the Constitution (as it stands today) would have for our nation,

2) If the SC were to actually go through with this, how it would play out in reality, and

3) What would and would not, in all likelihood, be amended into our Constitution.

 

I looked into how hard it was to amend the Constitution, and this is what I found out: In the 1960s thirty-three states petitioned Congress for a convention on a constitutional amendment permitting one house of a state legislature to be apportioned on some basis other than population. In the 1970s and 1980s thirty-two states petitioned for a convention on an amendment requiring a balanced federal budget.  More famously, they did pass a Constitutional Amendment because they had gotten sick of Congressional pay raises.  For issues relating to federal budgets and the manner in which the house of a state legislature is to be apporitioned, the US came two or three states away from calling a Constitutional convention; on the principle of a matter, they actually amended it.  But if the Supreme Court threatened to overturn Brown, Reed, Mapp, and Miranda (among countless others), and say that the Federal government couldn’t print money, the states would not call a convention?  Now I don’t think that this is what he was saying – he probably meant that the convention wouldn’t produce enough amendments for hard originalism to be feasible.  Still, I find that pretty hard to believe.  I imagine that anything that was hopelessly out of date would be fixed – Congress isn’t that stupid.  However, I can think of at least one thing that wouldn’t make it in.

 There was one part of his response that really confused me.  When he criticized my idea on the grounds that,

“…there is no consensus about which decisions violate “original public meaning,”

was he saying that he had a problem with too much judicial discretion?  There would be far less of it in deciding which cases violated the “original public meaning” of the Constitution than there is when the Supreme Court decides cases today, because at least they would all be using the same method of interpretation.  First, he praises a latitudinarian method of interpretation, and then criticizes one that would be far less subjective on the grounds that it would be too subjective.  Call me arrogant, but I’m really starting to think that there actually might be something to my idea.

Also, David Luban responded to my email – he’s lecturing in Beijing, and for some reason, can’t access my blog.  He said he’ll read it when he returns.  I’ll keep this post updated. This post was last updated:

9/14/09

How Not to Talk About Abortion

When talking about abortion, there are several extremely important things that we must remember:

There is no such thing as a safe abortion.*

An operation in which 50% of the people involved die is never safe. We can speak of it being safe or unsafe for the woman, but we can never allow ourselves to refer to “safe abortions”. There is no such thing, and it is an insult to the millions of human beings killed this way each year to use that term.

There is no such thing as a right to abortion.

There may be a legal right to abortion, but since abortion consists of the violation of another’s rights, there can be no such thing as a “right” to it, per se. For example: in the 1920s, the US government may have had a legal right to forcibly sterilize the mentally disabled, but we would never say that the state ever had an actual right to sterilize those people.

Abortion is not “health care” or a “medical procedure”.

Medical journals and liberals alike may refer to it as such, but that certainly doesn’t mean that’s what it is. The medical community may have referred to forced sterilizations and such as being “medical procedures” in the past – it doesn’t mean I’m going to.

I know these semantics may sound frivolous, but they absolutely are not. For example, feminists make it a point not to refer to raping an unconscious woman as “having sex” with her, and call out anyone who does. (I wholeheartedly agree with them on this – and, needless to say, we must all agree as well.) When speaking of human rights violations, it is extremely important to avoid wording the violation of those rights in a way that legitimizes them. I have no idea why this has taken so long for conservatives to pick up on.

 

*If they say “tell that to the 70,000 women every year who die from illegal abortions”, respond with “I’ll start out with the hundred thousand something people who are killed every day by it.”

Six Things Every Conservative Should Know About Abortion

1) Supporters of abortion regularly use statistics from impoverished countries in order to support the claim that making abortion illegal doesn’t reduce the abortion rate, or that massive amounts of women kill themselves as a result of anti-abortion laws. Whenever you talk about making abortion illegal in the US, call them out on using these sorts of statistics. They are not indicative of what would happen in this country. (I’ve even seen a feminist use statistics from Brazil that are irrelevant by a factor of three hundred!)

2) According to the Journal of the American Medical Assocation, about 110 American women killed themselves trying to induce abortions in 1970, and this number was steadily declining. This number is probably a bit low, but in any case, it was under 1,000 per year. Compare this to the one thousand women in the US each year who are killed by medical contraception. (Switching to NFP would solve this.) In any case, abortion is usually legal in wealthier countries, and illegal in poor countries. The rate of maternal deaths from illegal abortions is very high in poor countries, but extremely low in wealther ones.

3) The abortion rate increased by several hundred thousand abortions per year in the first several years after Roe v. Wade. Once again, making abortion illegal in poor countries is not nearly as effective at reducing the abortion rate as it is countries with economies like ours.

4) There is a subtle yet crucial difference between reducing the number of abortions, and reducing the abortion rate. If you reduce the number of abortions without reducing the abortion-to-live-birth ratio, you have not reduced the abortion rate. If you reduce the “X out of one thousand” number of women per year who have abortions without reducing the abortion-to-live-birth ratio, you have not reduced the abortion rate.

5) While countries with increased access to contraception and comprehensive sex ed may have lower abortion rates, they often have fertility rates well below replacement.  Also, their divorce and out-of-wedlock birth rates are pitiful.  For example, the Netherlands has an incredibly low abortion rate – one in ten pregnancies are aborted.  But their divorce rates are ridiculous.  The top four reasons for divorce are clash of characters, adultery, different plans for the future, and – I kid you not – “bored with each other”.

6) Federally funding abortions and repealing parental notification laws increases the abortion rate, and almost all liberals support doing it. We don’t support going the hedonistic route of the Netherlands, despite how effective it can be at reducing the abortion rate – but no liberal can criticize you for your unwillingness to do this if they support funding abortions and repealing the notification laws.

Moral Nihilism and Moral Hedonism

Let’s say that we completely got rid of moral absolutes. There are no objective moral truths; they are either subjective, or nonexistent. The only universal (or near-universal) thing that would remain about morality is this innate desire humans have to be a good person, or to do the right thing. Once objective moral truths are gone, there is no right or wrong way of satisfying that desire. Also, there would be nothing particularly important about it. Since it isn’t a particularly potent desire, it would probably rank beneath sexual gratifiation, for example. The only rational thing to do would be to “properly order” the desire so as to prevent it from interfering with the satisfaction of other desires.

Have you ever noticed how there are virtually no people who think abortion should be illegal who identify as pro-choice, and yet there are pretty decent number who think that abortion should be legal, and yet still call themselves pro-life? Apparently, the pro-life label is more effective at satisfying the moral desire than the pro-choice label (what does this tell you?) If you can support sexual hedonism and still satisfy your moral desire at the same time, all the better!

Moral subjectivism and moral nihilism are inherently dishonest; because in order to satisfy the moral desire in this way, you cannot actually admit to yourself or to others that this is what you are doing. The second you realize or announce “I’m going to treat right and wrong as mere desires that need to be satisfied, and I’m going to arrange my conception of right and wrong so I can support sexual hedonism (or any other selfish thing), and still keep my moral desire satisfied!”, you will no longer feel good about yourself. To maintain the illusion, this ethical system (or lack thereof) must lie about its principles. If you want to take a common-sense approach to ethics and put any ethical system through what Kant called the “test of openness” (any actions/principles must be openly admitted and never hidden), moral hedonism fails like it was the Hindenburg. Denying objective moral truths will ultimately end in dishonesty and deception.

Abortion: Guilt-Free Maternal Infanticide

We feel much worse about infanticide than abortion.  Many people take as a sign that there must be an enormous difference between the two.  However, as I have argued in an earlier post, there is no ethical difference between them.  There does seem to be a pretty big emotive difference between the two.  Why is this?

First, we need to know how and why we just innately know that maternal infanticide is wrong.  The answer to this is extremely obvious.  During evolution, any ancestors we had who did not feel bad about infanticide died out quickly.  Natural selection acted swiftly on the genes of any creature who felt no attachment to their born offspring.  Whatever gene or trait caused our ancestors to feel attachment or love for their born offspring propagated itself very quickly.  Feeling love for your born offspring, and feeling guilt over killing or abandoning them, would obviously have had an enormous evolutionary advantage.  In other words, a moral prohibition against infanticide had a tremendous evolutionary advantage.

In simpler terms: if you didn’t love your born offspring, your genes died out.  If you did love them and felt guilty about not caring for them, your genes spread very quickly.

So if abortion and maternal infanticide are really the same thing, why don’t we feel bad about abortion?  Simple.  During evolution, our ancestors were not capable of inducing abortions.  They had neither the intelligence nor the technology to perform them.  Induced abortions, unlike infanticide, simply never existed for natural selection to act on.  Organisms won’t evolve a psychological resistance towards a sort of behavior that doesn’t exist.  So unlike murder or infanticide, we never evolved an innate moral prohibition against abortion.  The prohibition against abortion was never “written on the hearts of all men”, so to speak.  (For what it’s worth, this translates into an absolutely enormous difference in culpability between the woman who has an abortion, and the person who commits infanticide.)

Culpability differences aside, the only real difference between infanticide and abortion is that we do not have to feel particularly guilty about the latter.  If you reject the idea “if we can find a way of committing an evil act that does not make us feel bad or guilty, the act would be permissible on those grounds”, and would find applying that concept to maternal infanticide absolutely vile, you ought to view abortion and infanticide as being one and the same. There is no other reason to treat them differently.

The Natural Rights Objection: A Reply to Judith Jarvis Thomson’s A Defense of Abortion

In her landmark essay A Defense of Abortion, the eminent American moral philosopher Judith Jarvis Thomson argues as follows: if you were kidnapped, sedated, and attached to another person in order to serve as their kidney dialysis machine, you would not be obligated to stay connected to them – even if disconnecting yourself from them would result in their death.  Similarly, women who become pregnant should be able to detach themselves from their fetuses, since their fetus has no right to use their body without their consent. You might be doing the person a favor by staying connected to them, but, strictly speaking, you have no obligation to – and abortion is therefore morally permissible.

This argument fails to recognize the differences between normal and natural means of preservation, and artificial and extraordinary means. It also fails to recognize that while parents have no obligation to provide their children (or anyone else, for that matter) with artificial and extraordinary means of preservation, they do have an obligation to provide their children with normal and natural means of sustinence.

Imagine that there was a baby with a blood condition, and it needed a blood transfusion. Its mother was the only person whose blood type matched; the baby either got a blood donation from her, or died. Strictly speaking, she would be under no obligation to give it one. This is because blood transfusions, like organ donation, are artificial and extraordinary means of preservation.

But suppose a woman gave birth to a baby in an environment in which there was no replacement available for her breast milk; the baby either breastfed, or starved to death. After all, people do not have the right to artificially obtain bodily fluids from others for their own survival. Would the baby have a right to breastfeed?

If the mother were to refuse to allow the baby to breastfeed, she would be committing infanticide – maternal infanticide.  The situation of pregnancy is similar to this.  Therefore, abortion is no different from maternal infanticide.  The bottom line is, people do have a right to use each others bodies as a means of their own survival if it’s a part of the natural mother/child relationship (and no replacements are available, e.g. artificial wombs, wet nurses, or formula).

Another example of the distinction between natural versus extraordinary means of preservation would involve the differences between refusing medical treatment for a fatal illness and starving yourself to death. You could refuse medical treatment for a fatal illness, because medical treatments generally involve extraordinary and artificial means of preservation, which you are not obligated to provide yourself with. However, you could not refuse to feed yourself, because eating is a natural means of preservation, which you are obviously required to do.  (Keep in mind that in order for something to qualify as a natural means of sustinence, the means of acquiring that necessity must be natural, at least in principle – blood might be a basic human necessity, but since blood transfusions are always extraordinary, you would not have to recieve one.)

The point of this post is not to attack women who have had abortions, or to claim that they are as morally depraved as women who commit maternal infanticide.  They certainly are not.  They happen to be living in a time in which abortion is regarded as a fundamental right.  However, the mere fact that the person who is violating someone else’s rights is not morally culpable for the violation does not mean that their rights were not violated.  Abortion is the human rights equivalent of widespread infanticide – and we have an obligation to treat it as being no less of a human rights violation than that.

Answers to FAQs About Personhood Amendments

You have no idea how many times I have heard the same sort of objections to Personhood Amendments. There are many different bloggers (and commenters on those blogs) who ask the same questions – and not surprisingly, conservatives don’t seem to be answering them. Also, a response to the claim that Personhood Amendments will ban all medical contraceptives has been badly needed; but since it’s a relatively complicated issue, I’ve addressed it in another post.

For example, here is a series of most of the typical questions asked and objections raised by pro-choicers. Jill at Feministe asks,

1. How do we determine our population? If a person is a person at the moment of conception, then we need to seriously re-evaluate how we calculate the number of persons world-wide. How do we track each conception? Have women make daily doctor visits to check? Implement some sort of required daily home test?
2. How do we determine our death rate? Somewhere around half of all fertilized eggs naturally don’t implant in the uterine lining, and never develop into fetuses, let alone babies. Does our death rate just go up a few million with the passage of this amendment? The medical community has traditionally defined pregnancy as beginning at the point of implantation precisely because so many fertilized eggs don’t implant. Should we change this definition?
3. Pro-lifers claim to value each and every human life, from the moment of conception. That’s why, they say, they want abortion to be illegal — because it kills a person. And there are indeed a lot of abortions. But the abortion rate pales in comparison to the rate of fertilized eggs that don’t implant and “die” by being naturally flushed out of the body. Yet there is not a single pro-life organization (at least that I can find) dedicated to finding a solution to this widespread, deadly epidemic. The “death rate” of unimplanted fertilized egg-persons almost certainly far exceeds the abortion rate and the death rate from AIDS combined. Why the silence? Why no mass protests or funding drives or pushes for research?* Where is the concern for the fertilized egg-people?
4. Should every “human” death be investigated? If so, how? As it stands, if a person dies (and especially if they’re found dead), there’s often some sort of investigation, especially if there’s reason to believe that another person caused their death. So, first, how do we recover all the “bodies” of the fertilized egg-people? Do we insist on checking every pad and tampon for evidence of human life? Every pair of panties? Every toilet bowl? And if we find a fertilized egg, should the police be called? I mean, if you find a baby in a dumpster, you call the police. If you find a used tampon in the trash, should you do the same thing? If a woman goes to the hospital for a miscarriage, should she be investigated as a potential murderer or child abuser? Should there be laws about the proper disposal of dead egg-bodies, the way that there are laws regulating the disposal of born human bodies?
5. Should fertilized eggs and embryos get social security numbers? What benefits should they be entitled to?
6. What responsibilities and legal consequences should pregnant women face? Should Child Protective Services be able to step in if a pregnant woman does something that could potentially damage the fetus — like eat tuna or drink coffee or exercise heavily? What if a woman isn’t pregnant, but makes her body inhospitable to a fertilized egg — say, for example, that she uses birth control, which thins the uterine lining and makes it difficult for a fertilized egg to implant? What if she’s anorexic? Some anorexics may be able to ovulate, but may not be able to sustain a pregnancy, or even have enough nutrients to allow for implantation. Can such a woman be prosecuted or otherwise punished for creating an environment that was deadly for an egg-child? What if a pregnant woman had a miscarriage, and it could be linked to some behavior — going skiing or flying or not eating properly? We already prosecute pregnant women when they use drugs during their pregnancies. If a pregnant woman otherwise does harm to her fetus, should she be prosecuted for child abuse? Neglect? If she miscarries, can she be tried for homicide?
7. I’ve asked this one before, but I rarely get a straight answer: If a woman intentionally terminates a pregnancy in a pro-life nation, how much time should she do? If a fetus is a person and a woman intentionally terminates the life of that fetus, should she go to jail? Be up for the death penalty? In almost any other circumstance, a person who intentionally kills another person — or who pays someone to do the killing for them — is prosecuted. Why should women who terminate pregnancies be exceptions? And if women who terminate pregnancies should be excepted because they just don’t know better, should the same hold true for women who intentionally kill their born children? For women who intentionally kill strangers?
8. If a fetus is entitled to use a woman’s body to sustain its own life, should we begin researching other ways for humans to share bodily functions? It could save lives, after all. If, say, my kidneys fail and there is a way that you and I can be physically attached for about a year, can I can use your body to clean out my own? Sure, it will mean that you will be less physically mobile, it’ll require you to take time off of work, it will significantly alter your health, and getting me off of you when I’m ready will require you to go through a long and expensive process which re-defines the meaning of pain, but if a fetus has those rights, why don’t I?
9. Should women be liable in civil court to the estates of their fetuses or fertilized eggs? Say a woman miscarries, or her egg never implants, and one can make the argument that her actions (drinking a glass of wine or horseback riding or not eating properly or being overweight) contributed to the miscarriage or non-implantation. Should she be liable?
10. What about men? How do we establish the paternity of a fertilized egg? What obligations do men have to the eggs they fertilize?
11. What about in-vitro fertilization? Clearly it would be wrong to destroy any fertilized eggs in an IVF clinic, since those eggs are people, but what of the fact that without being implanted in women’s bodies, those eggs will never develop? Is it morally acceptable to leave those egg-people in a freezer for their whole lives, or should we compel some people to carry them to term?
12. How should we handle pregnancy-related complications? Say a woman is pregnant, and while giving birth isn’t going to kill her immediately, it’s going to weaken her body to the point that she will almost surely die within a few months of birth. Abortion is a definitely no-go, right? What if giving birth will probably kill her? We usually don’t know for 100% absolute sure that childbirth is going to kill a woman; doctors are usually only able to predict that it is likely to kill her. But of course, the likelihood — even a strong likelihood, and even a near-definite likelihood — that someone is going to kill you is not enough to pay for someone else to kill them first. And what if it is 100%? Why does the woman’s life take precedence over fetal life if they’re both human beings invested with full personhood rights? And how should we deal with ectopic pregnancies? Go the Catholic route and require that the woman’s whole fallopian tube be removed rather than just take out the egg? That still kills the fertilized egg-person.

My response:

Imagine that there was a country where human beings were not counted as persons until they were 16 (we’ll call it Singerville). Incidentally, personhood coincided with when it was practical to give them drivers’ licenses. Some people tried enacting legislation that defined personhood as beginning at birth (not conception). The opponents of this legislation insisted that we’d have to give drivers’ licenses to babies, etc.

Things like drivers licenses, funerals, being counted in the census, and being counted in the death rate are not basic/natural human rights. We can use age or any other physical attributes to determine when it is practical to give them to people. On the other hand, things such as the right to life are inalienable – we cannot say “it isn’t practical to give these people the right to life, so we don’t have to”.

Failure to implant and early miscarriages are so common, there is really no reason to investigate them. It is too frequently a natural cause of death – we may as well investigate the death of every elderly person. As far as investigating fetal deaths is concerned, I think we could limit it to performing autopsies on miscarried fetuses.

I see no problem with the massive number of early miscarriages or fertilized eggs that don’t implant (as long as it wasn’t brought about by contraceptives that cause abortions). Failure to implant, or miscarrying as a side effect of something your mother did while she was pregnant with you and didn’t know it, is a natural-and-ideal form of death – it’s like dying of old age.

We do need to switch back to the old definition of pregnancy. When you define pregnancy as beginning at implantation rather than conception, you put yourself in the very strange position of saying that you can have a child inside of you, without being pregnant!  It was extremely convenient for the medical community to change the definition, because doing so allowed them to say that hormonal contraception does not cause abortions.  It causes the embryo to fail to implant in your uterine wall, which is no different whatsoever from an abortion. Experts believe that this causes between one and four million abortions in the US per year. (So if you want to lower the abortion rate, lowering the rates of hormonal contraceptive use would be an extremely good place to start.)

Again, as long as she’s not using contraception that causes abortions, any deaths that result from a failure to implant or early miscarrige (i.e. before she knows that she is pregnant) can be categorized as natural-and-ideal. Even after this point, miscarriage is relatively common; there would be no good reason to start an investigation without any actual evidence of an illegal abortion. You might as well say that if I’m opposed to euthenasia, I would have to support launching an investigation every single time an old person dies.

I’m not really at all interested in prosecuting women who have illegal abortions. The justification for this is complicated, but it ultimately makes sense. You can read my explanation here.

IFV cannot be allowed. Snowflake adoption would work fine. There is no reason to force women to become pregnant. I think her question is implying that there’s no difference between forcibly implanting these “egg-persons” in women, and “forcing” women to carry pregnancies to term. The difference between the two is the difference between forcing people to adopt children, and “forcing” them to raise the ones that they already have, rather than abandon them.  Besides, if banning abortion is the same as forcing women to have abortions (or forcing them to become pregnant, in any case), then banning elective late term abortions because they are harmful to the mother’s health is no different from forcing abortions because giving birth would be harmful to the mother’s health.  But that is absurd.

The principle of double effect allows for most (indirect) abortions when it’s the only way you can save the mothers’ life, but it does not always. You could almost always perform abortions in such circumstances, because those sorts of abortions are typically indirect – but there would be some situations where you could not.

I’m sorry I saved #8 for last, but this is my favorite pro-choice argument to respond to (and I know it’s one of her personal favorites!) I don’t really have room for a long explanation of where this argument goes wrong on this post; this is the readers’ digest version – if you have the patience to read my full rebuttal, here’s the link.

It confuses natural means of sustaining your life with artificial and extraordinary means. People do not have the right to force other people to donate organs to them, because organ donations are not a basic human necessity – i.e., it is not a natural means of staying alive. For example:

Imagine that a woman gave birth to a baby in an environment in which there was no replacement available for her breast milk – the baby either breastfed, or starved to death. Would the baby have a right to breastfeed? After all, people do not have the right to artificially attach themselves to other peoples’ bodies and suck the nutrients out of their system.

What if the mother decided that her baby had no right to breastfeed, and then paid someone to kill it? While you could theoretically deny the natural/artificial-and-extraordinary distinction, you could not consistently argue that abortion was really any different from this.  You still could not argue that abortion was different than infanticide.

Now I’m not trying to say that women who have abortions are the equivalent of women who commit infanticide. I would never say that. Since we live in a time in which abortion is considered to be a fundamental right, women who have them (and to some extent, doctors who perform them) are not morally culpable for what they are doing. The mere fact that the person who’s violationg somene’s rights isn’t culpable for what they’re doing doesn’t make it any less of a violation of their rights. Abortion is the human rights equivalent of infanticide – widespread infanticide – so we still have the same obligation to prevent it from happening.