The latest philosophical notion* to have reached street level is personhood. Virginia's HB 1 declares:
Rights of unborn children. Provides that unborn children at every stage of development enjoy all the rights, privileges, and immunities available to other persons, citizens, and residents of the Commonwealth, subject only to the laws and constitutions of Virginia and the United States, precedents of the United States Supreme Court, and provisions to the contrary in the statutes of the Commonwealth.Gone are the good old days (of 1972) when Elizabeth Anscombe could write that:
some may doubt (it's a rather academic question, I think, an intensely academic question) the good sense of calling a fertilized ovum a human being.One nice thing about Anscombe's paper is that she makes it clear how fundamentally Christian her position is:
Christianity taught that men ought to be as chaste as pagans thought honest women ought to be; the contraceptive morality teaches that women need to be as little chaste as pagans thought men need be.
And if there is nothing intrinsically wrong with contraceptive intercourse, and if it could become general practice everywhere when there is intercourse but ought to be no begetting, then it's very difficult to see the objection to this [i.e. the pagan, contraceptive] morality, for the ground of objection to fornication and adultery was that sexual intercourse is only right in the sort of set-up that typically provides children with a father and mother to care for them. If you can turn intercourse into something other than the reproductive type of act (I don't mean of course that every act is reproductive any more than every acorn leads to an oak-tree but it's the reproductive type of act) then why, if you can change it, should it be restricted to the married? Restricted, that is, to partners bound in a formal, legal, union whose fundamental purpose is the bringing up of children? For if that is not its fundamental purpose there is no reason why for example "marriage" should have to be between people of opposite sexes.The purpose of HB 1, of course, is to impose a Christian morality on people. Its backers, though certainly lacking Anscombe's intellectual firepower, are to some extent aware of the logic of her argument. They see a clash of value systems and want to go as far as they can toward enforcing theirs on everyone else. It's understandable that a Christian would want everyone to live according to Christian morals. But there are (at least) three problems with this proposal, as I see it.
1. The language of personhood is quasi-technical, philosophical language. It is not the same as Anscombe's talk of "human beginning." It is a legalistic term that does little to help either side in the debate about the ethics of abortion, as Ronald Dworkin and Judith Jarvis Thomson (who I would guess had Anscombe in mind when she wrote her defense of abortion, with its echoing reference to acorns and oak trees) have shown. Arguably the best (non-religious) pro-life argument, that made by Don Marquis, does not involve the question of fetal personhood. There is no good reason to think that talk of personhood will help honest thinking about abortion.
2. The First Amendment. The people who talk up the US Constitution when it suits them cannot in good conscience seek to establish their religion by law.
3. It is un-Christian to try to instill shame in people through humiliation. A companion bill, HB 462, requires all women seeking abortions, for whatever reason (including rape), to undergo an ultrasound. This procedure is presumably intended to make women feel guilty about having an abortion. And that seems incompatible with sincere belief in Matthew 7:1 ("Judge not") and Romans 3:8 (true Christians do not do evil in order to bring about good). "Judge not" is an easy line to trot out, of course, but I think this effort to shame is noticeably less Christian than simply banning abortion would be. That might be tyrannical, but it isn't manipulative exactly.
Whatever the rights and wrongs of abortion, this legislation is philosophically unsound, un-American (insofar as it's good to be American), and un-Christian (if there is such a thing as a good kind of Christianity). It's anti-women, too, of course. But apart from that, just fine.
*I hope it's a legal notion of personhood that's really to blame, but maybe the philosophers can ride to the rescue. Not that I would count on any but a political defense in response to this kind of attack.
This is less obviously relevant but comes to mind because of the lines "Tell me where it all went wrong" and the one about acting like a man who's cross with every woman he's never had:
Duncan,
ReplyDeleteThere's a lot here to mull over, but one thing I wonder about is why opposition to abortion would be described as inscribing religion in law. It seems that only opponents of legalized abortion are objected to in this way, and that supporters of legal abortion are not objected to on the basis that they might have motivations that are (at least in part) religious. This is also true for issues besides abortions-- how often are civil rights advocates (such as Dr. Martin Luther King, Jr.) who frequently appealed to religious motivations criticized along these lines?
My sense, based on the above, is that the objection frequently heard isn't so much about 'legislating' one's religion or morality, but rather about the content of the proposed legislation.
Thanks, Matt. Yes, I've thrown a lot of stuff in here without explaining or defending much of it at all well.
ReplyDeleteI wouldn't describe opposition to abortion as inscribing religion in law. If I said that above then I take it back. I think, for instance, that abortion might be outlawed on the kind of grounds that Marquis suggests, and this would not be religious. (I tend to assume that anyone reading this knows Marquis' argument, but just in case I'm wrong: Marquis says that what makes killing wrong (when it is wrong) is that it denies the victim all the good experiences he or she would have had in the future otherwise. Abortion does this (he thinks), and therefore it is wrong for the same reason that murder is wrong. There are some problems with this argument (see here), but it's neither religious nor obviously hopeless.)
What I think is essentially religious is defining personhood or humanity in the way that HB 1 does. The first sentence of House Bill No. 1 reads: "The life of each human being begins at conception." So the bill imposes (if it ends up being passed as written) on Virginia a particular understanding of a contested concept (what a human being or person is). And it seems to me that the conception of humanity in question is a religious one.
By this I don't mean that it is based on a religious text. Nor that it is a position one arrives at because of "motivations that are (at least in part) religious." I mean, rather, that regarding an embryo as a human being involves a kind of reverence for life that is distinctively religious. Can I prove that religion must be understood in this kind of way (and not, say, as the kind of metaphysical muddle that professional atheists typically treat it as)? No, at least not easily. Can I prove that there couldn't be a kind of non-religious ethical view that regarded all human life as 'sacred' in much the same way? No, at least not easily. But this is what I believe, and I think that a case could be made for it.
I think you make some very good points. The religious issues aside, another puzzling thing about HB 1 is that the idea that unborn children should "enjoy all the rights, privileges, and immunities available to other persons, citizens, and residents of the Commonwealth, subject only to the laws and constitutions of Virginia and the United States, precedents of the United States Supreme Court, and provisions to the contrary in the statutes of the Commonwealth," seems odd because it runs every kind of legal distinction between differences in the rights and privileges of various groups together. Maybe that's supposed to be addressed by the "subject only to" rider, but I don't know. Children don't enjoy all the same rights and privileges of adults, resident aliens don't enjoy all the same rights and privileges as naturalized citizens, etc. It would be less confusing to assert that unborn children should enjoy all the same rights, privileges, and protections as "born" children. But since Roe v. Wade seems to recognize a difference in the status of unborn children than "born" children, HB 1 doesn't obviously have the teeth to prohibit abortion anyhow--the bill IS, after all subject to the precedents set forth by the Supreme Court. So would this actually change anything?
ReplyDeleteThat's helpful, thanks.
ReplyDelete"So the bill imposes (if it ends up being passed as written) on Virginia a particular understanding of a contested concept (what a human being or person is)."
Besides the possible inconsistency I mentioned earlier (i.e. liberals tend to reject only conservative impositions of religion, and mutatis mutandis for conservatives), I also worry that the kind of imposition you have in mind might simply be inevitable. That is, laws cannot avoid taking stances on some of these questions. If a bill claimed that an early embryo is not a person, and so should not receive much in the way of legal protection, that too might involve a claim about sacred value-- a claim that sacred value is not present (rather than the claim that it is, as in the personhood bills).
A great deal of law would seem to be made on the basis of something like sacred values, and I'm not (yet) prepared to object in a general way to laws being made in that way.
Maybe part of the issue is whether the sacred values in question are widely shared or not. For example, maybe our laws pertaining to murder are based in some way on a reverencing of human life as sacred, but that particular sacred value (as applying to adults, at least) is so widely agreed on that no one finds it objectionable. Once the value is not so widely shared, maybe the legislation becomes problematic. In that case, I'd raise again the point about inevitability: if an issue is contested, taking a liberal rather than conservative stance is just as controversial.
Thanks. According to this article, the bill would make some types of contraception illegal (although Republicans deny that it bans contraceptives, so either this is semantic obfuscation or else there is disagreement about the implications of the bill). Let me just quote a bit from the article:
ReplyDeleteOpponents of the personhood bill decry the legislation for curbing women's rights to contraception, and argue that the bill is meant to serve as a "trigger ban," which would make abortion illegal immediately in the event that Roe V. Wade is overturned.
[...]
In an interview with Hotsheet, [Tarina Keene, executive director of NARAL Pro-Choice Virginia] argued that, beyond the potential ideological questions associated with granting a fertilized egg the same rights as people, passing the bill would yield immediate practical consequences that "we can't even fathom at this point."
Keene noted that there are more than 25,000 references to the word "person" in the Virginia legislative code, and that applying all of the laws pertaining to "persons" to all existing fertilized eggs would inevitably become complicated.
She pointed to an example in which a couple undergoing in vitro fertilization successfully becomes pregnant without using as many eggs as were fertilized in the procedure. Those additional eggs would thus be considered "persons," and the couple could use exploit those "persons" to get additional tax breaks, she argued.
Herring also argues that the personhood bill is being used as a tool by Republicans to "lay the groundwork" for overturning Roe v. Wade.
Against this view:
"This measure is about protecting innocent unborn life. If a criminal hits a pregnant mother injuring or killing the unborn child, then there would be a cause of action for that child as well," said [Republican George] Allen spokeswoman Katie Wright.
It seems fairly clear that the intent is to undermine Roe v. Wade and that the actual likely effects are unknown.
Matt,
ReplyDeleteSorry, our last posts seem to have crossed each other. So my reply above is to Matthew Pianalto, and this one is to you.
liberals tend to reject only conservative impositions of religion, and mutatis mutandis for conservatives
That's probably true, but I don't think it applies in this case. It's not a case of what motivates a decision (as Christian beliefs might motivate support for human rights or racial equality, for instance) but of the very nature or essence of the decision itself. It seems to me (and I've admitted that I would struggle to prove this, but there are things one could say) that reverence for human life from conception on is an essentially religious position. Partly I mean that it doesn't make much sense apart from something like a biblical perspective, but partly also that it is one of the defining features of that kind of perspective. Respect for civil rights is not like this. Secular ideals lend support to such rights, and there is little in the Bible about civil rights. Of course Jesus would side with the Reverend Martin Luther King, Jr., but belief in civil rights is not definitive of Judeo-Christian values in the kind of way that belief in the value of human life is, it seems to me (not that this is all there is to those values, of course).
laws cannot avoid taking stances on some of these questions. If a bill claimed that an early embryo is not a person, and so should not receive much in the way of legal protection, that too might involve a claim about sacred value-- a claim that sacred value is not present
I guess I disagree. The state can say that it is separate from religion and that, for this reason, it will make no pronouncements on sacred value. If it then does not protect fetuses this is not saying that they have no sacred value. It is just maintaining an official neutrality on the question. Now, you might think that there is something fundamentally secular about the separation of church and state, that it is a mistake for any religious believer to accept such a notion. There might be something to that. But if we accept the separation of church and state, then I think we have to oppose legislation that has nothing but a religious basis or that is in itself essentially religious.
A great deal of law would seem to be made on the basis of something like sacred values
Maybe, but it's supposed to be justifiable also by reference to non-sacred values. At least I think that's standard Enlightenment thinking.
Maybe part of the issue is whether the sacred values in question are widely shared or not.
Maybe. But I think it's also relevant whether we can make sense of them without reference to sacredness. That is by no means an easy question to answer, but it is at least widely believed that the answer is Yes (perhaps wrongly, I grant you).
Once the value is not so widely shared, maybe the legislation becomes problematic. In that case, I'd raise again the point about inevitability: if an issue is contested, taking a liberal rather than conservative stance is just as controversial.
Again, I disagree. The advantage of the liberal position is that it allows people to follow their conscience. Liberal laws allow one to live as a Catholic or as a pagan, for instance. Conservative laws, in this case, would force everyone to live like Catholics.
I suspect you may well be right that what really matters at some level is the extent of agreement or disagreement. When we all agree there's no problem in writing legislation accordingly. When we disagree, the liberal thing is to let the individual decide rather than have the state impose one vision of the good life on us all. That is liberal, I accept (and in that sense not neutral), but it's surely the kind of liberalism that the USA was founded on, for good or ill.
I wonder whether the notion of sacred at work here matters. I think there's a fairly thin sense of sacred that psychologists (e.g. Haidt) will talk about, in which what's sacred is what you won't trade off for other things. In that sense, it's probably true that most people would find human lives sacred, and it might not be problematic for some of our laws to be made on that basis.
ReplyDeleteI'm struck by what you say in your last paragraph, that liberalism avoids the state imposing an idea of the good life on citizens. You're right that state can say that it's not taking a stance on sacred values, but I'm skeptical that it can actually avoid doing so (especially if we understand 'sacred' in a relatively thin sense).
Finally, let me just mention a concrete example of how liberals often end up appealing to sacred values. Consider the famous (infamous?) "mystery passage" from the Supreme Court's Casey decision: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."
Is liberty here any less a sacred value than personhood? Interestingly enough, the following sentence from Casey is about what personhood involves. At least in this case, it's not that liberals don't appeal to sacred values but conservatives do-- rather they both appeal to sacred values, and sometimes to the same ones, disagreeing about the precise nature of those values.
I guess I'm trying to tease apart objections to the use of sacred values in politics as such from objections that only target particular sacred values or interpretations thereof.
Is liberty here any less a sacred value than personhood?
ReplyDeleteAs you say, it depends what you mean by 'sacred', and I would prefer to talk about life (understood in a particular way) than personhood as a sacred value, but otherwise I think the answer is basically No. That is, I agree with you pretty much on this.
it's not that liberals don't appeal to sacred values but conservatives do
Yes and no. There is a kind of principled liberalism that might well insist on things like a woman's right to control her own body or the rights of gay couples to get married, and the principles involved are (at least roughly) the same kinds of thing as the sacred values of conservatives. It might be relevant that the conservative values are talked about in terms of what is sacred while the liberal values are usually not, i.e. the implicit reference to religion might not be merely contingent, and this might matter given the separation of church and state. But it might not matter that much, as I think you are suggesting, given that each side is talking about fundamental value judgments.
But there is also a kind of pragmatic liberalism, which operates at a different level. Imagine that a priest, a rabbi, an imam, and an atheist, instead of going into a bar, decide to found a state. Each wants to base it on his or her own most deeply held beliefs. But they don't share these beliefs, so they fight. In order to end the fighting they compromise, and agree to base the state on no ideas that they don't all share. And they build it into the constitution of their state that no laws are ever to be passed that are based on such beliefs: all laws are to be either merely pragmatic or else based on almost universally shared values ("almost" because there will always be some crazies). This is how I think of the United States. And I think in a state like this the law must always err on the side of allowing terrible things to happen rather than forbid acts that are not (almost) universally condemned. This is liberal in the sense of being tolerant, but it isn't the kind of liberalism that endorses all that it allows. Nor does it even endorse tolerance or freedom, except as better alternatives in practice to civil war.
One question this might raise is who gets to have this freedom? Should slaves be allowed to have it? Should embryos? These aren't questions we can answer just neutrally, as the liberal/Enlightenment ideal might want or expect. But, I would argue, they aren't questions about which there is much honest disagreement. Everyone knew that slaves were people, despite what some said in defense of slavery. And (at least almost) everyone knows that an embryo is not a person or human being in the fullest sense, as Dworkin and others have shown by examining the various beliefs of pro-life people and making the most sense possible of them. For instance, no one seeks the death penalty for rape victims who have abortions. There is, in other words, almost universal agreement about what is and is not murder. And abortion is not murder according to this common idea, even though many people regard it as horribly wrong in most cases. At the risk of oversimplifying, murder is murder and abortion is abortion: the pragmatic liberal thing to do is to outlaw murder but allow abortion.
[more to follow below]
(Some problems for my view: didn't I say that abortion could be outlawed without violating the separation of church and state? It looks as though I have changed my tune pretty quickly on that. And what about gay marriage? Isn't a state-sanctioned marriage going beyond mere tolerance? On the latter, I think that maybe the state should just not be involved in the marriage business at all, but as long as it is, it should allow same-sex marriage as well as the other kind. The former issue brings up legal moralism: can we constitutionally base laws on moral values alone? Or will this inevitably, in effect, establish a "religion"? I think purely moral legislation can be justified, but only when we all agree. Looks like I'm basically a pragmatist.
ReplyDeleteI know some disagree (including Marquis), but this looks to me to be a reductio of a main pro-choice argument:
ReplyDeletehttp://www.telegraph.co.uk/health/healthnews/9113394/Killing-babies-no-different-from-abortion-experts-say.html
It's something close to that, yes. It's also extremely close to Michael Tooley's position in "Abortion and Infanticide," except that he doesn't call infanticide a kind of abortion. In defense of Tooley, his goal (as I recall) is to defend euthanasia in cases of horrible suffering for infants. His heart, that is to say, appears to be in the right place (as I see it, anyway). But he does end up defending infanticide (and toddler-cide) in other cases, which, I agree, is something like a reductio.
ReplyDelete"Something like a reductio."
ReplyDeleteIn what ways does it differ?
In a previous comment, you write: "There is, in other words, almost universal agreement about what is and is not murder." As you say, there is widespread agreement that abortion is not murder. And I would bet the farm that there is even wider agreement that killing infants is murder. It seems, then, that the pragmatic thing to do would be to outlaw the killing of infants but allow abortion.
However, this looks problematic. These widespread agreements appear to contradict each other. On your pragmatic position, what ought we to do when faced with such a contradiction?
It differs from a reductio in the technical sense just by not being one (it doesn't assume something as true then derive from it a contradiction). It differs from a reductio in the popular sense because what we end up with is not so much an absurdity as a nightmare.
ReplyDeleteIt seems, then, that the pragmatic thing to do would be to outlaw the killing of infants but allow abortion.
I agree.
These widespread agreements appear to contradict each other.
Do they? The problem arises in this case (i.e. the one discussed in the story you pointed to) because people make a pro-choice argument based on certain ideas about personhood. That argument makes abortion and infanticide seem essentially alike. But if we reject that argument (as I do) then we don't have to treat them as being the same, and so can allow one but not the other without contradiction. Or so it seems to me.
We might still allow euthanasia in exceptional cases, although the main thing is to provide relief from pain.
Certainly, the ethicists who claim that infants can be "aborted" are not attempting to prove via a reductio that abortion is murder. But if an "absurd" conclusion follows from a premise, then this establishes the negation of the premise. And that has the form of a reductio. Whether the arguer intends this, or even sees it, is irrelevant.
ReplyDeleteAs for "absurd," there are narrower and wider versions of the reductio that have nothing to do with a popular sense. The strongest, of course, is a conclusion that is self-contradictory. But if a conclusion is reached that is patently false (ad falsum) this is also considered a reductio ad absurdum (of the wider variety).
Whatever we call it, their argument refutes itself (it seems to me).
But if we reject that argument (as I do) then we don't have to treat them as being the same, and so can allow one but not the other without contradiction.
I would be interested to hear the details of your position. As far as I can see (and, admittedly, I'm not very well-read on this topic), there is no relevant distinction between a fetus six months after fertilization and a two-month old infant, i.e., no distinction which could justify protecting the latter, but not the former (or permitting the killing of the former, but not the latter).
Whatever we call it, their argument refutes itself (it seems to me).
ReplyDeleteI agree, apart from some minor reservations about using the technical language of refutation in an area where people disagree so much. I would rather say that their argument shows itself to be wrong. But I suppose that's just a quibble.
As far as I can see (and, admittedly, I'm not very well-read on this topic), there is no relevant distinction between a fetus six months after fertilization and a two-month old infant, i.e., no distinction which could justify protecting the latter, but not the former (or permitting the killing of the former, but not the latter).
One difference is that the fetus might pose a threat to its mother's health or life that the infant cannot. That would be one reason, perhaps, for allowing the killing of one but not the other. Another might be the pragmatic or political view that controversial moral or religious views (even ones I might agree with) should not be imposed on people, combined with the fact that abortion is controversial in a way that infanticide is not, i.e. apart from a few ethicists we all agree it's wrong. There are other differences too, no doubt related to why people are more accepting of abortion than they are of infanticide, but none are the kind of thing that most philosophers would recognize as good stuff to make principles from (breathing air, being visible, making eye contact, eating, etc.).
I thought this topic would start making the rounds. Slate takes it up here:
ReplyDeletehttp://www.slate.com/articles/health_and_science/human_nature/2012/03/after_birth_abortion_the_pro_choice_case_for_infanticide_.html#comments
The cognitive dissonance on display in most of the comments is unsurprising.
Comments on philosophical issues tend to have little value unless made by real philosophers. And even then...
ReplyDelete(That's not an attack on you, by the way! I hope I don't need to say that, but you never know.)