I have on numerous occasions written of the contrast between the world-historical economic, social, and political movements and events about which I offer my opinions on this blog and the tiny, insignificant actions that I can actually take day to day. Yesterday, the contrast was called to my attention most strikingly. Depressed though I was by the evidences of irreversible climate change, by the rise of fascism United States, and by the ever-increasing economic inequality across the globe, I managed in my own private life to achieve a triumph that left me delighted and empowered. The matter is too trivial even for this blog save as an example of that contrast. Let me explain.
Some time ago, I bought a new shower curtain, a sparkling
white shower curtain to replace the dingy shower curtain with which I had been
living for five years. It was a source of considerable pleasure to me each
morning as I took my shower, but a month or more ago it began to accumulate
dark splotches of dirt left when the water of the shower evaporated. I tried
scrubbing the curtain with a sponge to no effect. Yesterday I removed the shower curtain from
the shower rod – no simple matter given my physical disabilities – and ran it
through the washing machine, also with no effect. And then I had an idea. I
placed the dirty shower curtain in the bathtub, turned the bathwater on hot and
while it ran I took a bottle of Clorox Clinging Bleach Gel and sprayed it all
over the shower curtain, using up almost half of the bottle. I pushed the
curtain around in the water, turn the tap off, and left it there. An hour
later, when I returned, the shower curtain was sparkling clean and white. I
rinsed it off and reattached it to the shower rod. I was inordinately pleased
with myself.
I think that captures quite nicely the limits of my ability
to actually change the world.
91 comments:
Lady MacBeth engineered regime change but couldn't get out a damned spot. Bravo, Bob!
Thank God for small victories.
As I predicted, the dismantling has begun. In a 6-3 decision, the S. Ct. just held that a prisoner whose Miranda rights were violated cannot sue for the violation of his 5th Amendment right under Miranda v. Arizona. The flood-gates are starting to open.
So, it appears the S. Ct. is poised to protect the lives of fetuses so that they can later be shot and killed by the use of a concealed weapon if they venture into New York Insane!!!
* Protect the lives of unborn human beings while additionally protecting their future right to defend their lives against known criminal elements of our society.
There, fixed it for you!
By the way, the conceal carry laws have clearly been working great in Chicago!
To RPW: fyi, the current issue of Harvard Magazine has an obituary for Peter Marcuse.
Anonymous,
No, they have only protected fetuses, which are not human beings, but potential human beings, who, when they become human beings will have to live in fear that they, or someone they love, will be killed by someone who obtained a right to carry a concealed weapon without first obtaining a license to do so, and, in order to protect themselves against such a possible event, will have to decide whether or not to arm themselves as well, increasing the likelihood that they will accidentally kill someone they love, or kill someone whom they have mistaken as a threat, or own a weapon which someone else whom they love will use to commit suicide.
So, this is my grotesque prayer - May Justice Thomas, and Justice Roberts, and Justice Kavanaugh, and Justice Gorsuch, and Justice Alito, and Justice Barrett live to regret their decision today, when someone they love dies at the hand of someone using a concealed weapon to snuff out their loved one’s life.
anon, check out the distance from Indiana to Chicago.
Bill Edmundson the perfect response to a light hearted post. Thank you
Whoops. That was me. RPWOLFF
"So, this is my grotesque prayer..."
We are dealing with revolutionary cadres so eggs, omelets, God's will.
On the topic of the original post…
I can also attest to the disproportionate satisfaction of seeing bleach work its magic on mold (it wasn’t dirt btw). In my experience it’s one of the few places bleach really works like a miracle. You spread it on some blackened grout in the shower and when you come back it’s pearly white!
To Marc:
I know what you mean when you say that fetuses are not human beings but just potential human beings. You are using "human being" to mean "individual member of the human species who already has the actual properties that ground the prima facie right not to be killed." And that is a perfectly sensible use of "human being." We use it in that morally charged way all the time: "That was the human thing to do" or "Have you no humanity?" and so on.
So, I know what you mean, but in the context of the dispute over abortion it is not rhetorically effective to defend the practice by saying that human fetuses are not human beings, for anti-choicers are likely to protest: "Of course they are! They are, after all, human fetuses, and human fetuses are human beings. What else could they be?"
Now, you know and I know that when they say this they are talking in bad faith, since they know perfectly well how the pro-choicer is using "human being." But rather than give them this rhetorical edge, may I make a terminological suggestion?
In any event, we need a distinction here between a biological term that designates species memberhood (and nothing else) and a moral category that designates any creature, human or not, that has the actual properties that ground the prima facie right not
to be killed. "Human being" does nicely for the first and "person" for the second.
So, I (and many others) propose that we pose questions about the morality of abortion in those terms: When, if ever in gestation, does a human fetus, i.e. a fetal human being, acquire the actual properties that ground any person's prima facie right not to be killed?
In this way we do not allow the anti-choicer to beg the question against the morality of abortion in his very terminology, by suggesting "Of course, abortion is wrong from the moment of conception because from that moment on there is a human being and all human beings have a prima facie right not to be killed."
With distinction in hand, the pro-choicer gets to say clearly: "Yes, fetal human beings are by definition members of the human species; that is just a biological fact. But are they persons? That is, do they yet have the actual properties that ground the prima facie right not to be killed? We say no-- because early human fetuses cannot feel pain and mora mature human fetuses do not have the capacity for the kind of self-awareness that grounds the rights of paradigm persons." (Then we have to say something about the morally relevant distinction between late term human fetuses in utero and new born infants... but I'll skip that part of our argument here. It turns on the significance of viability and Judith Thomson-style arguments about possible conflicts between maternal and fetal interests.)
Marc...I hope that you find my terminological suggestion plausible. The dispute over abortion is already difficult enough without giving the anti-choicers a rhetorical edge that they do not deserve.
Cheers,
David Z
David,
I appreciate your terminological clarification and you point is well taken. The term “person” has qualitative aspects which the biological term “human being” lacks.
That said, I am not confident that using the word “person” would alter the opinion of a right-t0-life advocate, though it is worth the try. Part of the problem is that the central constitutional provision in this debate is the 14th Amendment, which attributes the rights of life, liberty, and property to “persons,” and the S. Ct. has inexplicably held that corporations constitute “persons” under the Amendment. So, the right-to-lifer is likely to say, why not fetuses?
By they way, my invitation to move/visit Michigan in order to avoid the calamities of climate change is open to you as well, I believe you are living in British Columbia, and I do not know what the predictions regarding rising sea levels have in store for British Columbia. Plus, you already know your way around Ann Arbor, and although it has changed since you last visited, there still remain many places which I am sure you would enjoy revisiting, e.g., Hill Auditorium. having breakfast at Angelo’s, and dinner at The Gandy Dancer. Plus, I would really love playing a game of Scrabble against you (I use the Super Scrabble board, which has more squares, and more double and triple word scores).
Best,
Marc
Well they did it. They just overturned Roe v. Wade, 6-3.
Damn.
Howard: The Rabbis say we should observe the laws of the nations where we live.
Eric said: "... But, to take but one example, same-sex sexual intimacy in the privacy of one's home remains a capital offense in more than a dozen countries, including major US/UK/Canada allies and trading partners, such as Saudi Arabia and Nigeria (parts of northern Nigeria). In more than 60 other countries, though not punishable by death, it is punishable by imprisonment.
Even in the US, it remained illegal in many states until fairly recently, when the Supreme Court issued its ruling in Lawrence v. Texas. And even in that case, a third of the justices wanted to keep same-sex sexual intimacy illegal (or to have its legality be left to the states to decide, which is essentially the same thing in half of the states). The composition of the Court has shifted further to the right since then, and in multiple states anti-LGBT-sex statutes remain on the books and could become enforceable again should the Court overturn Lawrence.
Following local laws and customs makes a lot of sense, if we are talking about laws that prohibit littering. But on an issue such as sexual intimacy, the rabbis would not be my first choice of whom to consult for advice. Sure, many of them are very open-minded and progressive. The rest? On the whole, religious leaders exist to prop up the existing social order."
___
TODAY—
Clarence Thomas, concurring in ruling that has overturned Roe v. Wade:
"[I]n future cases, we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, Obergefell. Because any substantive due process decision is 'demonstrably erroneous' ..."
The calling of Supreme Court Justice is at heart a religious calling, at least for the conservative justices. Just look at their portraits on the Times' front page. Not to be facetious, but they are knights and all their talk of 'history' and 'tradition' just mean Christianity. I really can't help but think the Bible and the Constitution are holy books in the same sense to these people.
For all their erudition, they are barbarians, simply put
Correction. The vote was 5-1-3, with J. Roberts concurring in the judgment only, that the Mississippi statute was constitutional, but not voting to overturn Roe.
The Rabbis might want to live in Amerika, but Amerika is turning into a dystopia. Just look at what the Rabbis are doing to Israel
I tend to agree with Marc regarding "person" versus "human being." The distinction is apt for philosophical purposes, but most of the time, one expects puzzled/funny looks if one makes the statement that not all human beings are persons, or that being a human doesn't mean the same as being a person. There's a certain sloppiness about the whole business, at least in everyday talk - I often catch myself using the words almost interchangeably; similarly with "non-human" and "animal" (as if humans aren't animals), etc.
Besides, in regard to question-begging rhetorical advantages: Most pro-lifers I've seen are so thoroughly dishonest about the whole business - they might as well frame it, "When is it okay to murder your baby?" They wouldn't even flinch if reminded that their own belief system implies a conceptual difference between murder and justified killing (war, capital punishment...). Actually, I don't like to use the term "belief system" here, as that implies some measure of critical rationality on their part. What they have looks more like a senseless mishmash of superstition and reactionary cruelty.
Anyway, what terrible news. As Carlin said: "You're pre-natal, you're fine. You're pre-school, you're f@#$ed."
Thank you for your friendly message, Marc.
I certainly agree with you about the likely response from the anti-choicers to any terminological proposals. The word "person" is not going to do any heavy lifting on its own...
The real substance, of course, is in the discussion of the various proposed criteria of personhood (where that is understood as the status of having a prima facie right not to be killed). That discussion, as you are well aware, is very complex.
Some possible criteria (considered all-too-quickly):
Conception-- too "speciesist"
Implantation-- ditto
Fetal heartbeat -- ditto
Ability to feel pain --too broad for meat-eaters
Quickening-- too arbitrary (movement itself is not a morally relevant criterion)
Viability-- not relevant to personhood per se, since dependency does not cut one way or the other for personhood-- but it is
relevant to Thomson-type concerns.
Birth-- too arbitrary
Development of parts of the brain that sub-serve self-awareness --- closer, but leaves out newborns
Potential for development of the capacity for self-awareness-- promising, but needs a way to stop the "potentiality slippery-slope" all the way back to conception (There are ways--- long story)
Anyway, we both can anticipate that very few anti-choicers have much use for that kind of careful sorting through of the criteria.
And now Row v. Wade is history.
Handmaid's Tale here we come. Thanks, Susan Collins
And Roberts did not even try to do his tired "let's save the SC's reputation from itself" routine.
Dark times... in some ways the other 3 decisions they handed down this week were as bad.
Thank you, Marc, for the lovely invitation to visit AA. I wish I could.
FWIW I now live in Quebec City.
Best to you and all the other Wolff Folk in these dark times.
Cheers, David Z
"Person" is a legal term, subject to obfuscation and the twisting of simple logic and common sense with decades of contrived legalese, as is perfectly on display here. Whereas most of us know what we're talking about when we say 'human being' and that killing is killing.
Estimated over 1 million (legal) abortions per year in the US, for years - that is an industrial slaughterhouse, not a rare event. Of course there will be nothing really standing in the way of mothers killing their babies if that is what they are fully set on. Human life, in all of its forms, has value. And those without the power to stand up or speak out themselves require more protection.
Please... with opinions like those, that you do not even try to defend....
Do not hide behind "Anonymous"\."
I urge everyone who is interested in this particular issue, and in decision-making by the S. Ct. generally, to read both the principal decision and the dissent in Dobbs. This will be somewhat demanding, since the decisions, taken together and excluding the two appendices, total some 160 pp.
I particularly urge reading the joint dissent filed by J.’s Breyer, Kagan, and Sotomayor, which ends with this ominous passage:
“’[T]he Court,’ Casey explained, ‘could not pretend’ that overruling Roe had any ‘justification beyond a present doctrinal disposition to come out differently from the Court of 1973.’ … And to overrule for that reason? Quoting Justice Stewart, Casey explained that to do so – to reverse prior law ‘upon a ground no firmer thatn a change in [the Court’s] membership’ – would invite the view that ‘this institution is little different from the two political branches of the Government.’ … No view, Casey thought, could do ‘more lasting injury to this Court and to the system of law which it is our abiding mission to serve.’ … For overruling Roe, Casey concluded, the Court would pay a terrible price.’
“The Justices who wrote words – O’Connor, Kennedy, and Souter -they were judges of wisdom. They would not have won any contests for the kind of ideological purity some court watchers want Justices to deliver. But if there were awards for Justices who left this Court better than they found it? And the rule of law stronger? Sigh those Justices up.
“They knew that ‘the legitimacy of the Court [is] earned over time.’ … They also would have recognized that it can be destroyed much more quickly. They worked hared to avert that outcome in Casey. The American public, they thought, should never conclude that its constitutional protections hung by a thread – that a new majority, adhering to a new ‘doctrinal school,’ could ‘by dint of numbers’ expunge their rights. … It is hard – no, it is impossible – to conclude that anything else has happened here. One of us once said, “[i]t is not often in the law that so few have so quickly changed so much.” … For all of us, in our time on this Court, that has never been more true than today. In overruling Roe and Casey, this Court betrays its guiding principles.
“With sorrow – for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection – we dissent.”
Dear Marc
The law for me remains a foreign country- but it is clear the majority ruled against abortion purely on the basis of their consciences under the conviction the constitution just had to reflect their convictions. They are Christian zealots, and all invective aside they wage a war with modern life in America- it is for them a chaos which threatens everything they believe in dearly, which is why I claim the law for them amounts to nothing but a religious calling.
They want to drag us back to Puritanical times- next thing you know they will bring back the stock, or even slavery
This is the fight of our day- it is imperative that we stop these Jihadis in November
As opposed to the 'progressive' zealots who would invent a so-called "constitutional right" that plainly never existed in the constitution?
LOL.
David Palmeter,
The only thing arbitrary about setting birth as a defining point for personhood is custom. Prior to birth, the fetus/embryo is entirely dependent on another person's body and cannot become independent of that other person without risk to the latter's well-being. The concept of personhood implies capacity for independent existence that may be realized without posing any direct risk to the well-being of others. (Excluding consideration of conjoined twins here.)
Oops, sorry David Palmeter.
My last post should have been addressed to Prof Zimmerman.
Eric, you believe that a newborn, or infant, or toddler is independent of the mother? If it is only a question of 'capable of becoming' then the 'fetus' as you say is no different in that regard than the infant except in measurement of time.
Again, LOL.
Dear anonymous, I pass over and ignore your irrelevant comments, not anonymously, but in silence.
What do you believe in? Probably nothing because you don't even have a name, not one anyone would want to use.
I hope you choke on your heckles
Physiologically, a newborn, infant, or toddler can exist independently of the mother. That is not to say that it is not dependent on receiving some form of care, such as feeding, from others. And the physiological existence of a newborn, infant, toddler, or even a mentally incapacitated adult human being, such as an adult who has suffered a traumatic brain injury, imposes no direct risk to any other human being. The embryo/fetus is essentially a physiologic parasite (without any intention of the negative connotations of that word); the newborn, infant, or toddler is not.
Howie, you “pass over and ignore” yet respond all the same. Got it! Lots of consistency here!
Eric, be grateful that your own mother did not lop off the “parasite” / useless tumor that you once were before the magical transformation of birth whereby you gained your independence and personhood!
Eric:
I don't think I disagree with the substance of the comment you direct to me.
However, when you say -- "The concept of personhood implies capacity for independent existence that may be realized without posing any direct risk to the well-being of others"-- I think that you may be running together two distinct moral issues that arise in the dispute over abortion. Judith Jarvis Thomson makes this point in her pioneering article "A Defense of Abortion."
1. The problem of personhood: What properties (psychological, physical, etc.) ground an individual's (i.e. a person's) prima facie right not to be killed.
2. The problem of maternal vs. fetal claims: How are possible conflicts between the interests of the mother and the fetus in utero to be resolved if they arise?
These are distinct questions. Therefore, I would resist any criterion of personhood that makes life-sustaining dependency in itself the crucial factor for personsonhood. Obviously, there can be an undoubted person who is thoroughly dependent on another for survival.
Thomson's "famous violinist" is a case in point. Her thesis in the article I mentioned is that settling the question of personhood does not in itself settle the question about the morality of abortion. Even if a pro-choicer were to concede the personhood of human fetuses, that alone would not entail that abortion is morally wrong. For, the question of competing interests would remain to be settled. Does the human fetus, person or not, have a right to the use of its mother's body to sustain its life, even if she does not want to provide it?
Now, I do not for a second believe that fetuses in utero do have the sort of properties that ground the prima facie right not to be killed. But Thomson makes a powerful point: Even if I did concede their personhood I would still defend the rightness of most abortions on the grounds that the mother has a prior claim to the use of her own body. (There are complications involving maternal consent to pregnancy and the balancing of maternal and fetal interests of radically different strengths, but I will pass over them for now.)
Perhaps "Anonymous" would like to address some of these issues before he or she engages in loose talk about "slaughter."
Cheers,
David Z
To Anonymous:
I would have more regard for your comments if you actually addressed the arguments of those who defend the morality of abortion rather than just engage in invective.
Cheers (I guess):
David Z
Marc—I mean, Anonymous—
My parents had been struggling to conceive for a long while and they thought they might not be able to have children, so my mother was ecstatic when she learned she was pregnant with me.
But I would much rather she have terminated the pregnancy had she not wanted to be pregnant than been forced to carry the pregnancy to term, even if that means I would never have been born.
(Btw, how's He Man doing these days? ;-) )
Pro-lifers claim to be motivated by a desire to protect vulnerable and powerless human beings from life-destroying violence. In light of their usual views on most other political issues, I think it's pretty clearly true that most pro-lifers are seriously mistaken, if not simply dishonest, about their motivations.
Someone who supposedly wants the powerful to be restrained in their practices which are most destructive of vulnerable human lives, yet votes for the party of Trump...? I think the likelier explanation is that they don't especially care for that sort of thing; it's more like, they're reluctant to acknowledge that their views on abortion (as well as LGBT equality, as well as the right to safe, consensual, non-procreative sex) are mainly driven by their hostility to any modern understanding of human sexuality. (In other news, water is wet.)
I sympathize to some extent. I grew up in a culture characterized by a "mild" form of this hostility; people can change and reject that mentality in favor of something more socially and psychologically healthy, but it takes a lot of luck and effort to find the necessary resources, and sometimes one's more successful efforts are still very imperfect. I think I see some signs that more young people are managing to do this, but it's hard to be optimistic about the big picture.
To Eric:
I doubt that Marc S is the current "Anonymous" on this thread, since he kindly provided us with an informative comment about today's SC decision overthrowing Roe. I don't think he was recommending that we read the entire opinion (all 160 pages)and the dissent in order for us to come around to Anonymous's opinion that abortion os "slaughter."
Say is ain't so, Marc.
Cheers,
David Z
1. At this point the actual wording of the the opinions is irrelevant. Politics got us here and only politics will get us out.
2. Effectively banning abortion criminalizes pregnancy and makes women second class citizens.
3. Making doctors civilly and criminally liable for medical decisions means needlessly dead women.
4. Recent history clearly demonstrates that the state engaging too granularly in human reproduction is incompatible with human freedom.
MS, if you think it's been bad so far wait for the coming non-delegation decision.
Rather then parsing decisions perhaps its time to start talking up judicial reform. Say eighteen Circuits and eighteen Justices with automatic senior status after eighteen years on the bench.
David,
It ain't so.
I heard a commentator offer a brilliant method to side-step Dobbs. The decision only applies to the states. So, Congress could pass a statute allowing abortion clinics to operate on federal lands! Imagine an abortion clinic on Ellis Island, in the shadow of the Statue of Liberty!
Brilliant, Marc.
Thank you, David.
Abortion clinics could also be opened on tribal lands. The various tribes could thus generate funds to support the tribe by charging for abortions, as well as operating gambling casinos.
I am making my way through the Dobbs opinions.
I skipped the Alito opinion, b/c I'd read most of the leaked draft and I figure it's similar to the draft.
I read the Thomas concurrence (which calls for eliminating substantive due process completely from the Sup Ct's jurisprudence); the Kavanaugh concurrence; and the Roberts concurrence; now reading the dissent.
According to aaall, "Rather then [sic] parsing decisions perhaps its time to start talking up judicial reform."
There are a couple of things about this statement that I take some issue with.
First, reading decisions is not necessarily the same as "parsing" them. "Parsing" carries negative connotations or implications that are unwarranted here.
Second, as long as the Sup Ct occupies its current position in the polity and the way it operates, knowing what its decisions say is useful both politically and strategically, since litigation may remain a part of political strategies.
Also, some of us just happen to find it interesting to see how the Justices state their views and justify their positions.
Not going to say anything more substantive right now about that.
MS, first we need a different Congress. If we had that Congress, we could just codify access and get a better SC.
Anon, this may be of interest:
https://www.washingtonpost.com/archive/politics/1990/01/05/dictators-dream-took-harsh-toll/fa36f204-b22e-451a-ae43-93fc1fc4f195/
Your first thought will be, "that can't happen here," (I assume you're not working in a Russian troll farm). You don't understand the trajectory of American Conservatism.
Opening clinics on tribal lands isn't a solution and the laws are murky. What happens when any cases wind up at this SC?
A patient or doctor who isn't a tribal member likely isn't protected.
According to David Z: "And Roberts did not even try to do his tired "let's save the SC's reputation from itself" routine."
On the contrary: as I read Roberts's concurrence, it is basically all about the Ct's reputation. That's why he wraps himself in a Frankfurter-like mantle of judicial restraint -- he even quotes a 1955 Frankfurter opinion toward the end of the concurrence and refers to Frankfurter as a "thoughtful member of the Court." That's why Roberts would not completely and formally overrule Roe and Casey. His stated reason for not overruling them is that overruling is unnecessary to resolve the question as originally stated in Mississippi's cert petition. But the underlying reason, in my view, that Roberts voted against overruling Roe and Casey "down to the studs" (as he put it) and concurred only in the judgment that the MS. 15-week law is not unconstitutional is that he fears that overruling Roe and Casey wd harm the Ct's reputation and legitimacy.
Roberts "solution" is to (at least as a formal matter) keep the right to abortion as a const. right but toss out the viability line. MS 15 wk law is constitutional, he says, bc most women know by 15 wks that they are pregnant -- which is another of saying that in Roberts' view the 15 wk line is not an undue burden on the right. Which, in a comment in an earlier thread, is what I suggested Roberts wd have to argue if he wanted to not overrule Roe and Casey and yet uphold the MS law.
aaall,
I disagree with you.
Other than on federal lands, Congress cannot pass a statute which will pass constitutional which would protect a woman's right to an abortion contrary to, for example, the Mississippi statute. The Dobbs decision relegates to each state what its abortion laws will be. A federal statute, other than a statue restricted to federal lands, cannot override the Dobbs decision.
I also disagree with you regarding abortion clinics on tribal lands. The tribes by treaty are self-governing on their own reservations. If a tribe passes a law allowing abortions on its tribal land, the state could not override that statute. Anyone given permission to perform an abortion, or obtaining an abortion, at a tribal abortion clinic would be immune from prosecution by the state.
I just checked.
There is a Choctaw Nation reservation in Mississippi.
The following link lists the tribal reservations in each state:
https://classroom.synonym.com/
Wouldn’t it be historical irony if the various tribal nations opened abortion clinics in each of the states where there are reservations? The Wounded Knee Abortion Clinic has a nice ring to it.
LFC, my point is that there are no arguments that will prevail in a Court with a political/ideological/theological agenda. Had Equal Protection been the venue, reasons would still have been found. The only cure for that is legislative reform or lots of patience. No criticism intended if you like to read them. Reason obviously won't get one very far with this Court. The recent decision by Thomas makes it clear that they will pick an choose the history they use and arbitrarily reject the pesky parts.
correction; should read: "...fears that overruling Roe and Casey will harm the Ct's reputation..."
Dear anonymous
I follow in a long tradition of rhetoric of which you're unhappily and sadly ignorant, but my point still holds- you were engaging in a tradition of rhetoric called the straw man, or in this case a subvariation called 'I'm rubber and you're glue', which is deservedly maligned and in ill repute
If you actually want to make a real point beyond basic trolling, which is a modern and fallen form of rhetoric, please do.
There must be a reason you chose to remain anonymous. It can't be pride in your dismissive and divisive nonsense
To be clear, we're not sorted into tribes, either progressive and fascists, and you engage in a contemptible whataboutism worthy of a FOX viewer. The Democrats on the left are less extreme than the far right, in that in their regime I have ot be careful about what I say but the KKK kapos won't come my way in the middle of the night or in broad day light on fifth avenue as Trump, who you might actually be a friend of yours, might have it
Marc said:
Other than on federal lands, Congress cannot pass a statute which will pass constitutional [muster] which would protect a woman's right to an abortion contrary to, for example, the Mississippi statute. The Dobbs decision relegates to each state what its abortion laws will be. A federal statute, other than a statue restricted to federal lands, cannot override the Dobbs decision.
I think that's right. All one has to do is glance at the maj op and Kavanaugh concurrence to see the harping on giving the issue to the states and "the people" and "the democratic process" (whereas the dissent by contrast notes early on that constitutional rights are not open to abrogation by electoral majorities).
So when Biden said in his remarks at 12:30 pm E.S.T. that Congress should act to codify the right to abortion in legislation, presumably w nationwide application, all that shows is that Biden does not understand -- or is pretending not to understand -- what the Supreme Ct majority just did.
If, as the Alito opinion says, there is no const. right and it's up to the states to do what they want, then Congress can't pass a law saying, in effect, that there is a nationwide right that states have to recognize. A day after that passed Congress, some plaintiffs wd be at SCOTUS challenging it, and under Dobbs, they wd win.
The Native American tribes retain considerable control over the government on tribal lands. Here are examples of S. Ct. decisions delineating the degree of control the tribes may exercise over tribal lands, regardless of a state’s laws:
Brendale v. Confederated Yakima Indian Nation, 492 U.S. 408 (1989): The Yakima tribe had sole authority to zone property within the confines of the reservation which had not been sold to non-members of the tribe.
California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987): The State of California not Riverside County could enforce a statute or ordinance regulating bingo games against a casino on reservation property which operated bingo, poker, and other games of chance, which were participated in by non-members of the tribe who came onto the reservation.
Bryan v. Itsaca County, 426 U.S. 373 (1976): The State of Minnesota could not collect a personal property tax applied to a mobile home owned by an enrolled member of the Chippewa Indian Nation on reservation property.
Planned Parenthood should contact all of the Native American tribes and propose opening abortion clinics on their resrvations.
Correction:
California v. Cabazon Band should read: "Neither California nor Riverside County could ... "
LFC
Is the preemption doctrine a possibility-- a Federal law preempting any contrary state law?
MS, the law is not that simple and I don't believe that tribal law can exempt non tribal members from a state's jurisdiction for acts that are felonies in the state in which the tribal lands lie even if the act occurs on tribal lands and is allowed by tribal law. The laws that allow for private enforcement would wind up in the Circuits. Wonder how the Fifth CCA would rule?
https://www.tribal-institute.org/lists/jurisdiction.htm
Matters concerning the tribes is subject to congressional and judicial muckery and the concerned states tend to be hostile to tribal sovereignty.
McConnell has already indicated that he is open to a federal law banning abortion. A Republican Congress would likely pass such a law and A Republican president would sign it. Such a law could easily be included in the Major Crimes Act (see 18 USC 1151ff) which would settle matters.
As for codifying Roe, the Congress can do what it wants, ditto the SC.
@ D Palmeter
I doubt it, in this context, but am not totally sure.
David,
Under the Supremacy Clause, a federal statute cannot preempt a S. Ct. decision interpreting the Constitution.
Regarding my tribal lands proposal, it is not without its critics:
https://www.cnn.com/2022/05/22/us/tribal-lands-abortion-safe-havens-cec/index.html
aaall
Of course the Congress can pass whatever it wants. Question is how long wd it stay on the books.
DP, the current bill that the House passed is based on preemption doctrine"
"(25) Congress has the authority to enact this Act to protect abortion services pursuant to—
(A) its powers under the commerce clause of section 8 of article I of the Constitution of the United States;
(B) its powers under section 5 of the Fourteenth Amendment to the Constitution of the United States to enforce the provisions of section 1 of the Fourteenth Amendment; and
(C) its powers under the necessary and proper clause of section 8 of Article I of the Constitution of the United States."
https://www.congress.gov/bill/117th-congress/house-bill/3755/text
Btw the dissent days there's nothing in Alito's opinion to stop Congress from passing a nationwide abortion ban, but it seems to me that wd be contrary to the subtext of the ruling, if not the letter. Don't know whether Marc or anyone else has thoughts on this.
LFC, how long depends on the Congress being able to reform the Article Three courts. Also, if Dobbs effects the mid-terms and provides a majority for the bill I referenced and the Supremes then ax it, that would be more grist for the reform mill. The polling on the SC is already dropping...
aaall
Congress has no authority under the 14th Amendment sec 5 to enforce rights that are not actually covered by the 14th Am. And a 5-justice majority has just ruled that the right to choose is not in the 14th Am., or anywhere else in the Const. So at the very least, reason (B) is going nowhere.
aaall
I understand your strategy. Maybe it will work. I guess we'll find out.
Marc,
But the Court didn't create any rights, it simply said there no right to abortion and the states may regulate as they choose just as they may regulate, e.g., seat belts in cars. But a Federal statute regulating seat belts in cars would preempt a contrary state law. Why couldn't a Federal statute on abortion be treated the same way?
I am positive that it will not work. In Flores v. City of Boerne, 73 F.3d 1352 (5th Cir. 1996), the City of Boerne in Texas had enacted Ordinance 91-05 in order to “protect, enhance and perpetuate selected historic landmarks” and to “safeguard the City’s historic and cultural heritage.” The Archbishop of San Antonio authorized the parish of Saint Peter Catholic Church in Boerne to construct a larger facility. The church applied for a building permit to allow it to add an addition to the church which would not affect the facade of the church. The City denied the permit, invoking the provisions of the Ordinance. The church filed suit in federal court, claiming that the denial of the permit pursuant to the Ordinance violated the Religious Freedom Restoration Act (“RFRA”), a stature which Congress had passed to overcome a prior Supreme Court decision.
The trial court dismissed the lawsuit, holding that the RFRA was unconstitutional because, by seeking to legislatively overturn a Supreme Court decision, it had violated the separation of powers. 877 F. Supp. 355 (W.D. Tex. 1995). The 5th Circuit Court of Appeals reversed, holding that Congress had the power to enact the RFRA pursuant to Section 5 of the 14th Amendment, and therefore the statute was constitutional. 73 F.3d 1352 (5th Cir. 1996).
On appeal, the Supreme Court reversed, stating, in relevant part, 521 U.S. 507, 519- 536 (1997):
Congress’ power under § 5 ... extends only to “enforc[ing]” the provisions of the Fourteenth Amendment. The Court has described this power as “remedial.” ... The design of the Amendment and the text of § 5 are inconsistent with the suggestion that Congress has the power to decree the substance of the Fourteenth Amendment’s restrictions on the States. Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause. Congress does not enforce a constitutional right by changing what it is. It has been given the power “to enforce,” not the power to determine what constitutes a constitutional violation. Were it not so, what Congress would be enforcing would no longer be, in any meaningful sense, the “provisions of [the Fourteenth Amendment].”
While the line between measures that remedy or prevent unconstitutional actions and measures that make a substantive change in the governing law is not easy to discern, and Congress must have wide latitude in determining where it lies, the distinction exists and must be observed. There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. Lacking such a connection, legislation may become substantive in operation and effect. History and our case law support drawing the distinction, one apparent from the text of the Agreement.
. . .
(Continued)
... Sweeping coverage [under the RFRA] ensures its intrusion at every level of government, displacing laws and prohibiting official actions of almost every description and regardless of subject matter. RFRA’s restrictions apply to every agency and official of the Federal, State, and local Governments. ... RFRA applies to all federal and state law, statutory or otherwise, whether adopted before or after its enactment. ... RFRA has no termination date or termination mechanism. Any law is subject to challenge at any time by any individual who alleges a substantial burden on his or her free exercise of religion.
. . .
It is for Congress in the first instance to “determin[e] whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment,” and its conclusions are entitled to much deference. ... Congress’ discretion is not unlimited, however, and the courts retain the power, as they have since Marbury b. Madison, to determine if Congress has exceeded its authority under the Constitution. Broad as the power of Congress is under the Enforcement Clause of the Fourteenth Amendment, RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance. The judgment of the Court of Appeals sustaining the Act’s constitutionality is reversed. (Emphasis added; citations omitted.)
Any efforts by Congress to get around Dobbs will most definitely fail, just as the RFRA failed, regardless what provision of the Constitution Congress invokes, including the Commerce Clause.
The desperate flailing and foaming at the mouth on display here is a bit pathetic.
"2. Effectively banning abortion criminalizes pregnancy and makes women second class citizens."
lol. What an absolutely absurd claim.
Anonymous... You have been doing your share of "foaming at the mouth."
Project much?
No cheers,
David Z
Perhaps we are well past the time of second guessing ourselves because the Supremes. We don't want to second guess ourselves into authoritarianism. Pass a popular law and dare the Supremes to ax it. Point out that the current Court is an institution dominated by a radical majority that has been nominated by minority vote presidents and confirmed by Senators representing a minority of the population (also Bush v. Gore was a coup).
Marc,
aaall's strategy is not basically legal. It is political, treating the courts as entirely political institutions. Expand the courts enough, put the "right" judges on them, and they'll rule the way you want.
The ruling in Dobbs itself is arguably evidence that this kind of a political strategy can work, and constitutional law is sufficiently malleable that, over enough time, doctrines are almost infinitely elastic. Or so it could be argued.
Anon, pregnancies require medical care. A miscarriage isn't an uncommon outcome of a pregnancy. Some of these laws are written in a way that a miscarriage would allow for the opening of a criminal case. Prescribing one of the drugs used for a medical abortion is also a way of treating a miscarriage. You want to be that doctor? Also ectopic pregnancies require termination. Want to be a doctor in a jurisdiction with a zealous DA? Pregnancies can go south at any time before birth. Want to have a DA second guessing your life or liberty?
Also google "Savita Halappanavar".
Marc,
I don't see the action as overturning SCt. decision because that decision merely said there is no constitutional right to an abortion. That doesn't mean there can't be a law permitting and regulating abortion. It seems to me that the decision simply returns the legal situation to what is was pre-Roe.
In thinking further about the argument, though, even if I'm right on the point above, it probably would fail for want of Federal jurisdiction. It's hard to see how Congress could justify such a statute under the commerce clause and, without that, I don't see where the Federal power would come from.
All of this has me thinking about something I haven't thought of for nearly 60 years.
LFC, this is from the abstract of a journal article that Prof. Leiter wrote:
"There, the Court operates as a kind of super-legislature, albeit one with limited jurisdiction. The jurisdiction is limited in two important ways: first, the Court can only pass on issues that are brought before it; and second, the Court is constrained, to some extent, by its past decisions and by constitutional and legislative texts. The problem, however, is that those constraints underdetermine the Court’s decisions in most cases, so the Court essentially makes its final choice among the legally viable options based on the moral and political values of the Justices, and not simply on the basis of legally binding standards."
https://repository.uchastings.edu/hastings_law_journal/vol66/iss6/6/
Putting the "right" judges on is the whole game. The Right did that and is reaping the rewards. In the present situation arguments and precedent only count for cases that don't matter all that much. In our present environment legal stratifies are for the little people ( Marshall's strategy because of reasons peculiar to the time). Not filling the Scalia seat was a political decision, likewise filling the Ginsberg seat was political, and the Kennedy strategic retirement was political.
There are two reasons to reform the Article Three courts: One is to fix the presence of a radical majority. the other is to put some order into the process. Currently we have nine unelected folks with unlimited terms running our lives. Upping the SC to eighteen solves the current political problem and term limiting them assures all future presidents having a nomination or so while making any majority less precarious.
We are in serious times. Pretending its raining when one is being spit on has never ended well.
On an unrelated matter, this is way cool:
https://www.19fortyfive.com/2022/06/watch-americas-himars-rocket-system-just-went-to-war-in-ukraine/
To the Wolff Folks who have commented on the abortion dispute:
The following exchange on CNN between a host and an anti-choice Congressman brings out clearly why we need a distinction between "person" = "individual with a prima facie right not to be killed" and "human being" = "member of the species homo sapiens sapiens."
They seem to be arguing about the biological question of when an organism is a human being. Thus the Congressman cites "scientists." And, unfortunately the host goes along with this... seeming to take the unreasonable position that a fertilized human egg is not biologically human.
But, of course, what the host should be saying is that the Congressman is trying to leverage merely biological facts into a moral position, i.e. that fertilized human eggs have the moral standing of persons, which is HIGHLY disputable.
Host: "Are you saying you believe life begins at conception?" the host asked.
Congressman: "Life begins at conception," Sen. Bryan Hughes (R-TX) shot back. "If you talk to scientists, if you talk to medical professionals, there are stages of development all the way through the pregnancy. There are stages of development after birth, little newborn babies are not fully grown, but when that human is in the womb, that's the life we want to protect, of course."
Host: "There are scientists and doctors who say life doesn't begin at conception, they don't share that opinion, they believe it's a cluster of cells and through those stages of development, eventually you can define an embryo, a fetus, potentially as life but they don't necessarily agree with your point of view," host Sanchez corrected him. "So I go back to my first question, specifically what is it that allows you to define what life is for women?"
Their dialogue is a mess of confusions.
Of course, the Congressman is right that a human life begins at conception.
But that cuts no moral ice and bakes no moral bread.
The host should not try to deny the obvious biological facts... He should clearly make the pertinent moral point about the human fetus's lack of any physical or psychological properties that can plausible be argued to ground the moral status of personhood.
Moral: People should take philosophy courses in which the morality of abortion is discussed seriously.
Political reality: Most anti-choiers could give a damn about the philosophical niceties of the dispute.....
I am not so naive as to suppose otherwise.
Cheers,
David Z
I meant that anti-choicers "could NOT give a damn about the philosophical niceties of the dispute over the morality f abortion.
Agreed. Sheesh, what a mess.
FWIW, if the host had to decide on an alternative way of framing things:
1. Remind participants that not-being-killed is an overridable right, not an unconditional right. "Pretty much" everyone (Jainists or whomever excepted) agrees that there are overriding circumstances: Violent, life-threatening aggressors normally forfeit the right; the least fortunate (least socially valuable?) parties in "lifeboat situations" may forfeit the right (debatably); non-humans that taste good and don't enjoy pet status forfeit the right (at least on one common view).
2. All that said, frame the question as: "Is this an exhaustive list of overriding circumstances, or are there more which pertain to unborn humans? (E.g., undeveloped capacities for suffering; conflicts of interest with the mother.)"
That dodges the need to explicitly stipulate a difference between "person" and "human being" (which stipulation IMO would be easy to forget, intentionally or unintentionally).
Just my preferred alternative. It has its drawbacks, too. (It's a challenge to be clear and concise about 1.)
David Zimmerman: when you say -- "The concept of personhood implies capacity for independent existence that may be realized without posing any direct risk to the well-being of others"-- I think that you may be running together two distinct moral issues that arise in the dispute over abortion. Judith Jarvis Thomson makes this point in her pioneering article "A Defense of Abortion."
1. The problem of personhood: What properties (psychological, physical, etc.) ground an individual's (i.e. a person's) prima facie right not to be killed.
2. The problem of maternal vs. fetal claims: How are possible conflicts between the interests of the mother and the fetus in utero to be resolved if they arise?
The prima facie right to not be killed turns on whether the agent's continuing to live imposes a risk to the well-being of another. A (physiologically) independently living being whose existence poses no threat whatsoever to anyone else may have a prima facie right to continue living (ie, to not be killed). But if that existence poses a threat to the well-being of any other, the strength of that right is diminished. Thomson's free-living violinist has a right to continue to live insofar as his existence harms no one else. The right of the violinist once tethered to another's body is comparatively diminished because his continued existence poses a substantial harm to someone else.
How is it that there are comparative degrees of a right to not be killed? If circumstances could permit someone to continue living with virtually no significant harm to the other, most would probably judge it preferable (indeed, obligatory) for the individual to be allowed to continue living rather than for his or her life to be terminated. But when, on the other hand, circumstances are such that the individual's continued existence poses an almost certain risk of tremendous harm to one or more others, most would probably judge the strength of the right of the individual to continue living to be reduced. Thus, almost everyone recoils in abject horror on hearing of someone described as an "innocent" stranger being killed at random by someone who says the killing was done just for a thrill; yet substantial percentages of survey participants report that killing "in self-defense" is almost always morally justifiable.
Strict Kantian deontologists would no doubt take issue with this approach, but I think it is an accurate view of how most people view the right to life. That right is not absolute. In almost all cases, it is a matter of degree, although the degree is greatest in cases involving individuals whose existence is innocent, posing no harm to others.
The terms "innocent" and "substantial harm" are, of course, doing a lot of work here. My contention is that a being that is incapable of physiologically existing completely independently of others is not "innocent"–if that framing helps to better illuminate the reasoning. (Although innocent is typically taken as "free from guilt of a specific crime or charge, blameless; sinless; uncorrupted by evil," it also can mean "not causing or capable of causing injury or harm.")
edit: I began writing this before seeing Michael's 6:00pm post. I think he and I are on the same page with respect to his point #1. He just put it more succinctly than I.
David, Michael, Eric,
Before you even get to the question of whether an innocent individual has a right not to be killed, which, in the case of the violinist, in Prof. Thomson’s example, whose kidneys are failing and who is hooked up to the body of another person to keep the violinist alive, what are the rights of the individual regarding unhooking the body? Before you even get to the question of the right of the violinist to stay alive, you have to determine what is the right of the individual to govern his/her own body and stay alive. In the case of the abortion issue, the preeminent question is, what is the right of a pregnant woman to control her own body? Is it different than the right of a man to control his own body? The State of Mississippi has answered that question, and the S. Ct. has affirmed its right to legislate this answer, that in the case of a pregnant woman, that right disappears once she is 15 weeks pregnant. That woman loses the right to control her own body at that point, whereas a man, unless he commits a crime for which he may be imprisoned, never loses that right to control his own body.
The Dobbs decision says that under our federalism form of government, which is a confederation of 50 states, the people of each of those 50 states, through their elected legislators, have the right to determine for the women of that state how long a pregnant woman has the right to control her own body, and that the S. Ct. does not have the right to answer that question for all the women who live in the United States. Some states may decide that the pregnant woman loses that right at conception (which, by the way, is actually being contemplated by some states). Some states may decide that the pregnant woman never loses that right, even up to the second before delivery.
Which brings me back, David, to our disagreement regarding the existence of objective moral precepts, which I maintain exist, and you deny exist. You opt for making a rational argument in each case which demonstrates to a person who rejects a particular moral proposition that their position results in the contradiction of certain empirical facts which the individual does not, cannot, deny. (This is a paraphrase of your position, and if it is not accurate, you can of course correct it.) I maintain that one of those moral precepts which I maintain is true without proof is that a woman, like any other human being, has the right to control her own body, even when pregnant. That this right is only limited when the fetus in her womb reaches a stage of development at which the fetus also has a right to control over the fetus’s body. The disagreement is over at what point in time this occurs. Mississippi asserts that this occurs when the fetus is 15 weeks old. Some states will assert that it happens earlier, some later. I maintain that the S. Ct., whose duty it is to interpret and apply the Constitution, was correct to rule in Roe v. Wade, modified by Planned Parenthood v. Casey, that this point occurs, under the 14th Amendment’s guarantee of liberty to all persons, when the fetus reaches the point at which it is viable outside the womb, that at this point the fetus’s liberty interest is at least equal to the mother’s liberty interest.
(Continued)
T
The premise of all of this is my insistence that a pregnant woman has an objective moral right to control her own body, a right which only diminishes as the fetus develops, up to the point of viability. Justices Alito, Thomas, Gorsuch, Kavanaugh and Barrett have rejected this position. So, my question is, what rational argument can one make to them, without relying on a claim that there exists an objective moral precept which is true without proof, that their position results in the contradiction of certain empirical facts which they cannot objectively deny? If one were to say to them that women have the right to control over their own bodies just as do men, they would probably agree with you. If you extended this proposition to, pregnant women have the same right to control over their own bodies as do men, they would probably disagree with you. They would say, since men cannot get pregnant, you cannot compare and equate the two classes of human beings. Pregnant women are not the same as men, and therefore are not entitled to the same degree of control over their bodies that men, unless convicted of a crime deserving incarceration, are entitled to. What argument, based on empirical facts, can one offer to these Justices which would demonstrate that their position leads to a contradiction? I don’t see how this can be done without just stating, as a moral truth, that a pregnant woman has as much right to control her body as an unpregnant man. And if one is not willing to state that this is an objectively true moral precept without proof, unless one can provide an argument demonstrating the internal inconsistency of the Dobbs’ majority’s position, then one is stuck with their conclusion that, under our form of government, in the absence of an objective moral precept to the contrary, each state is entitled to make this moral judgment in accordance with the beliefs of the residents of that state.
To Eric:
You say: "The prima facie right to not be killed turns on whether the agent's continuing to live imposes a risk to the well-being of another."
Question: Do you mean to be saying that "The prima facie right to not be killed turns EXCLUSIVELY on whether the agent's continuing to live imposes a risk to the well-being of another"---??
If so, then I cannot agree. (Nor can Thomson.) The reason is that this reading makes it sound as thought there is no independent problem of personhood, i.e. specifying the physical and psychological properties that ground an individual's claim not to be killed without the strongest possible reasons.
One way of avoiding that implication would be to reformulate your claim thusly: "The right, ALL THINGS CONSIDERED, not to be killed turns on whether the agent's continuing to live imposes a risk to the well-being of another." (Sorry for the All caps-- I continue to have trouble with getting italics into the text.)
On this reading, I do not disagree with you. Nor would Judith Thomson. For, of course, ONE of the considerations that determines whether a person has a right not to be killed all things considered importantly rests on whether her continued living poses a serious risk to others. That is precisely the point of Thomson's famous violinist example.
But the way you put the point, i.e. in terms of prima facie rights, with a possible reference to exclusivity, makes it seem as though you are claiming that the issue of conflicting claims and interests supersedes the problem of specifying the criteria of personhood.
Thomson's way of posing the problem of conflicting interests and claims presupposes that "the agent" in question has already passed the personhood threshold. Her point is that the question of how to resolve conflicting maternal and fetal claims and interests is most poignant if we concede for the sake of argument that the human fetus is a person.
Of course, she does not for a moment actually concede that human fetuses are persons --- she is making a point about the Independence of the two problems, personhood and conflicting claims.
I do not think that anything in your comment undermines her point about their independence.
In any event, it is a relief that we do not seem to be disagreeing about any point of real substance. (Or are we?)
Cheers,
David Z
David,
Prof. Thomson takes it as a given that the individual to whom the violinist is attached without the individual’s permission has a right to control over his/her body. She offers no proof of this, and takes it as a given. In other words, she assumes it as an objectively valid moral precept. She then proceeds to analogize the violin case to that of a pregnant woman. She again assumes, without proof, that women have the right to control of their own bodies. This again, I maintain, is a claim that the proposition that women have the right to control their bodies is an objectively valid moral judgment.
At one point during her argument, she compares a woman’s body to a home that she owns. She argues that the home owner has a right to exclude intruders from entering the home without the owner’s permission. She then argues, suppose the home owner installs bars across the windows to keep intruders out, and takes other measures to keep intruders out. If one of those measures fails, because of a manufacturing defect, for example, no one would argue that the homeowner has not right to expel the intruder because the precautions failed due to no fault of the homeowner. She analogizes this to a woman who uses birth control, but the birth control fails, through no fault of the woman. The woman who is now pregnant should not be precluded from having an abortion just because the precautions she takes have failed.
If memory serves, however (I cannot find my copy of her essay to confirm this, but this is my recollection), Prof. Thomson has no answer to the case of a woman who does not use any precautions to prevent pregnancy and engages in consensual sex, if she becomes pregnant, does she still have the right, at some point during the pregnancy, to expel the unwanted intruder. The right-to-lifers would answer, absolutely not. She took the risk of getting pregnant, she has to live with the consequences. I do not recall Prof. Thomson dealing with the case of a woman’s right to have an elective abortion, even if she wanted to get pregnant and then changes her mind. I believe that a woman always has the right to have an elective abortion up to the point of the viability of the fetus, even if she initially wanted to get pregnant. All of this, however, is predicated on the initial premise that a woman has the right to control her body, even after pregnancy. Prof. Thomson assumes this. I agree with that assumption, because I believe it is an objectively valid moral judgment. How does your alternative analysis which you used in the example of the slaveholder who believes s/he has the right to enslave Africans, showing an ultimate inconsistency, deal with this?
Marc
I'm not going to get into the metaethics at this point, and I don't really have the background to speak on the legal dimensions at all. (Not that those aren't important, or indeed of greater importance!) Right now I'm just looking at how people might go about discussing the morality of abortion.
But I may have a quirky way of looking at this, I don't know...
Marc writes: In the case of the abortion issue, the preeminent question is, what is the right of a pregnant woman to control her own body? Is it different than the right of a man to control his own body?
Clearly there is a right to bodily self-determination; it'd be (almost?) entirely absurd to question this. (One might get into some metaphysical irrelevancies to the effect that bodily self-determination is illusory or whatever; or one might get sidetracked by the metaethical dispute.)
However, as I see it, if the right to bodily self-determination is unqualified and unconditional, then it must be impossible for the right to be (justifiably) limited or overridden, or even to run up against conflicting considerations - and I have some doubt that this is indeed impossible. Rights - of the overridable or "prima facie" sort (I guess I don't like the term "prima facie," but "overridable" isn't much better) - can often conflict with one another, just as duties and values can similarly conflict.
(Inspired by W.D. Ross, one example would have it that "white lies" exemplify a conflict between the duties of (1) truth-telling and (2) non-injury. The question in this case is how to resolve the dilemma posed between (1) and (2). As I see it, even when the correct choice is to uphold duty (2) to the exclusion of (1), it remains true that (1) makes for a "morally relevant consideration," rather than an insignificant feature of the scenario. I'm not sure what the full significance of this is - maybe it's needed to ground the assessment of white lies as "necessary but regrettable," as opposed to the simple performing of one's duty. After all, why be ambivalent or regretful about doing what one is (supposedly) simply required to do?)
But what happens depressingly often (IME) in the most heated and divisive ethical controversies, is that the participants don't even (verbally) agree on this. For many pro-lifers (IME), it's not that abortion would be an unproblematic exercise of the right to bodily self-determination, if not for the fact that it ends the life of another distinct individual who has no choice in the matter. It's not that one morally weighty consideration ultimately overrides another. Rather, it's that "abortion is murder," period - it might as well be totally one-sided.
IME, this lack of nuance characterizes increasingly many, probably most, moral and political arguments. (Not that all sides are equally guilty, of course.) It not only discourages me - it also leaves me at a loss to progress in my own ethical thought, beyond "When values conflict and there's no clear methodical resolution, it's up to the individual to decide." But it occurs to me that this may actually strengthen the pro-choice position: Abortion would look like an ethically complex individual decision, clearly not the same thing as murder - otherwise the question would look something like, "Should we let pregnant people murder their unborn children?"
Marc Susselman: In the case of the abortion issue, the preeminent question is, what is the right of a pregnant woman to control her own body? Is it different than the right of a man to control his own body? ... That woman loses the right to control her own body at that point, whereas a man, unless he commits a crime for which he may be imprisoned, never loses that right to control his own body.
Their position is that the woman loses the right to control her own body because she is participating in a crime, namely, murder. So, not different from a man losing the right to control his own body as a result of participating in a crime. (Btw, under US laws, a man can also lose control over his own body if he refuses to participate in killing.)
Marc Susselman: my question is, what rational argument can one make to them, without relying on a claim that there exists an objective moral precept which is true without proof, that their position results in the contradiction of certain empirical facts which they cannot objectively deny?
Yours is a pointless quest. They are not operating on that level.
David Zimmerman,
No, the right to not be killed does not turn exclusively on whether the agent's continuing to live imposes a risk to the well-being of another. It is but one of a number of factors, several of which you previously mentioned.
Michael,
That is precisely the position of pro-lifers - that not prohibiting abortion is allowing women to murder their unborn children. Is there any rational argument which would persuade them otherwise? I do not believe so. My response, rejected by many who have commented on this blog, is that a woman, like men, has a right to control over her own body, and that this is an objective moral judgement that is valid without the necessity of proof. And when you say, "Clearly there is a right to bodily self-determination; it'd be (almost?) entirely absurd to question this," you are agreeing that this is an objectively valid moral judgement which is true without proof.
Eric,
the argument which you offer on behalf of the pro-lifers that a woman lose the right to choose because, like men, she is not allowed to commit murder, is a specious argument. There is no comparable situation in which a man could be prohibited from murdering a part of his body, and prosecuted for it. Even in the case of attempted suicide, if the man succeeds, he cannot be prosecuted post mortem.
To Marc:
I hesitate to try to respond to your comments about the appeal to objective moral values in the abortion controversy, because I think that I have said about all that I have to say about the ability of neo-Humean idealized preference meta-ethics to do as well as ethical intuitionism in joining the issue with those who would deny that a woman has a prima facie right to control what happens in her own body. I guess that we are just going to have to disagree about that.
What I will do is email you a copy of my lecture notes on abortion (from 2012 just before I retired from SFU) on both the problem of personhood and that of conflicting maternal and foetal claims. Throughout those lectures I try to work out a plausible case for a strong liberalism about the morality of abortion, which is at the same time responsive to conservative arguments. The rational constraints that operate are staying in contact with all the relevant empirical facts and avoiding imposing double standards on women. At no point do I presuppose any form of intuitionist moral realism. See what you think.
Cheers,
David
To Eric:
Thank you... We agree on that.
Cheers,
David Z
David,
Thank you.
I will look at the lecture notes you have emailed to me.
Marc
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