Philosophy: June 2009 Archives

Perhaps future-Justice Sotomayor's judicial inclinations on abortion will be tested relatively soon once she assumes Justice Souter's now-vacated (as of today) seat on the Supreme Court (pending her all-but-assured confirmation by the heavily-Democratic Senate). The 4th Circuit decided a case last week that considers the constitutionality of a Virginia abortion ban that in almost every respect is just like the federal law that the Supreme Court narrowly upheld in an opinion written by abortion swing-voter Justice Anthony Kennedy.

The federal law and the Virginia law differ in one respect. The federal law bans deliberate partial-births (defined by delivery up to a certain biological point) in order to kill the fetus. That procedure is outlawed as a method of abortion. The Virgina law bans one further thing. If a doctor is carrying out an abortion by another method, and the fetus happens to get past that point of delivery defined by the law as a partial-birth, it is a crime to kill it via any method. In other words, once the fetus reaches the point defined by the federal law as a partial-birth (whereby it's a crime to deliver the fetus to that point in order to kill it), it counts in Virginia as a crime of a similar level if the doctor goes ahead and kills the fetus whether the intention was to abort it that way or another way earlier in the process.

In other words, the difference between these two laws is that one does not criminalize deliberate attempts to kill the fetus after it reaches the relevant partial-birth stage as long as the doctor had planned to kill the fetus earlier but failed to do so. The other does criminalize that. Which law is more consistent? Surely the Virgina one. It criminalizes any killing past that point, whether there was an intention of killing beforehand or not. Compare the laws against disposing of an infant born from a failed abortion. The U.S. Senate unanimously supported such a law. It doesn't matter if the doctor intended to abort the fetus. If it got to the point where it would normally be illegal to kill it, the fact that it was born as a result of a failed abortion doesn't make it legal to kill it. This just extends the same sort of reasoning to the partial-birth abortion ban the federal government passed that the Supreme Court has declared constitutional. So it seems as if it's actually the logical implication of the federal law, even if the federal law didn't go this far. It basically relies on the principle, found in Judith Jarvis Thomson's famous 1972 paper defending abortion, that a woman doesn't have a right to the death of the fetus just because she has a right to be rid of it from her body.

The 4th Circuit vote was narrowly-divided 6-5 along lines that happen to correspond with the party of the presidents who appointed them. Judges don't often follow a narrow ideology reflecting exactly that of the president who nominated them, but in this case it did work out that way. One judge was appointed by President Clinton as a recess appointment and renominated by President George W. Bush as a courtesy (as presidents do from time to time for previous presidents of another party), but he really counts as a Clinton appointment, since Clinton appointed him initially. Those appointed by Presidents Reagan, Bush, and Bush signed the opinion that upheld the law. Those appointed by President Clinton signed the dissent (none remain from Carter and Obama's one nominee to that court hasn't been confirmed yet).

In effect, the Democratic appointees on the 4th Circuit Court of Appeals have endorsed the view that a woman not only has a right to be rid of the fetus but also has a right to its death if being rid of it most of the way doesn't kill it. Otherwise they have nothing to complain about if they're really following Supreme Court precedent (which does bind them). The dissent here strikes me as a pretty obvious case of ideology trumping the law, even granting all Supreme Court precedent as the law. I really hope that if the Supreme Court hears this case it will affirm the 4th Circuit judgment by a 6-3 margin. It will likely not get more than that since three justices remain who will likely seek to continue their opposition to laws like this, but I suppose it's barely possible even if extremely unlikely that Justices Stevens or Breyer will defer to precedent they didn't original support. But no one has any clue about Judge Sotomayor's views on this sort of issue. She could be well to the left of anyone on the Supreme Court for all I know, but it's certainly possible that she's even to the right of Justice Kennedy for all that she's written about the issue (which is basically nothing besides issues relating to the free speech of abortion protesters).

One of the problems with Facebook's latest version is that it's no longer possible to import blog posts and keep them comment-free while directing comments to the actual blog. So I've got Facebook friends who comment in Facebook on my blog posts, and those comment threads never appear on my actual blog. One recent comment thread on the Facebook import of this post led to my observing something that hadn't occurred to me before about some of the strange new dynamics of developments in how affirmative action is practiced.

There's an interesting phenomenon now of colleges having higher standards for Asian applicants than they do for white applicants in order to keep the numbers closer to where they want them to be. The diversity argument for affirmative action is now being used to justify discrimination against Asians. Since the diversity argument is the only one the Supreme Court has been willing to recognize as constitutional, none of the other arguments for affirmative action can be used to make this unconstitutional (e.g. remedying past discrimination, counterbalancing current discrimination at other levels of society, reparations for past mistreatment). That makes this perfectly constitutional in its justification, as far as the Supreme Court is concerned.

But I'm wondering if it's against the spirit of the Supreme Court's official stance. The diversity justification is supposed to support the favoring of sufficient diversity in the academic environment, not to ensure exact representation of each group according to any prejudged percentages. Unless the number of Asian students at the higher levels of higher education is so high that it's hindering diversity, I suspect the architects of current case law (Justices O'Connor and Breyer) would frown on admitting Asians at lower rates. It might look a lot more like the quota system that the Supreme Court has declared unconstitutional rather than giving underrepresented groups a leg up to make sure they have a seat at the table. They're already doing that with non-Asian non-white groups, and it's not as if whites need a leg up to have a seat at the table.

I'm thinking the same thing is true about the schools that are lowering standards to admit more male students, given that women are becoming a noticeable majority in higher education. It's not as if men are in danger of losing a seat at the table or as if diversity is really threatened at this point by some lower numbers of men in higher education. This seems to be motivated by a desire to have the number of each sex be closer to their representation in society at large. Doesn't that seem to be the spirit of quotas that the Supreme Court has consistently affirmed as unconstitutional? I'm pretty sure at least six of the current members of the Supreme Court would take that view, given what I've seen from them on previous opinions. But I've never heard of anyone even suggesting that someone initiate a lawsuit to challenge these practices on these grounds.

One of the most reprinted articles on abortion in applied ethics anthologies is Mary Anne Warren's 1973 article "On the Moral and Legal Status of Abortion". Her general approach is to claim (without argument) that moral status has to do with personhood and then to claim (without argument) that personhood consists of having certain characteristics chosen in order to get the result that a fetus isn't a person. She does argue for the first claim in other work, particularly her discussions of animal rights, where she basically explains the heightened moral status of adult human beings in terms of pragmatic, non-intrinsic value (which I have to say isn't very satisfying as an account of moral rights, even if it might work for legal rights). But there's no actual argument for either claim in this article. She just takes it to be obvious that what opponents of abortion have long taken to be obvious is just false. Her account has always seemed to me to be question-begging, since the pro-lifer might not grant either premise.

But it's one thing to present a question-begging argument. It's quite another to misrepresent the opposition and to assert obvious falsehoods, and Warren does both. There are two real howlers in her article, and it amazes me that it gets as much attention as it does. I know of no better article defending the general approach she takes, so I continue to use it, but this isn't because I think her article is remotely good. It's because the position she defends probably has no better defense, and thus if I want to represent it among the possible views I'm going to discuss in class I might as well choose the most easily-accessible among the presentations of views like hers (particularly if I also teach her position on animal rights, where she does at least give some argument for the first premise). Plus, I spend enough time reading through new readings and preparing new material to teach whenever I use a new book in my endless quest to fight the rising textbook prices and the urge of students not to buy the books when the prices get too high. If I can limit the number of new readings I do, I will usually do so. So I continue to teach her article.

The two biggest problems in Warren's article are these:

(1) She gives an absolutely terrible argument against the view that potential personhood grants moral rights, one that grossly misrepresents even the crudest versions of such a view.
(2) Her view of personhood leads to some outrageous claims about moral status than no reasonable person should accept, and it's not even clear that her position is consistent in the end.

Late-Term Abortions

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I wanted to post on this over a week ago, but computer difficulties ensued, and my file of stuff to blog about was inaccessible. Bruce Alderman offers a fairly careful explanation of why some people who are otherwise inclined toward pro-life directions on abortion might allow for abortion in some late-term cases. He even goes far enough to say that most of the late-term cases should be less-controversially ok than even many of the earlier-term cases.

Shouldn't it be obvious that late-term cases should be more morally problematic than early-term ones? After all, those who think moral status develops from lower moral status to the full status of adult human beings will often say most of this development takes place in utero, and more pain is caused by late-term abortions as well, so those who base the moral question on how much pain is causes should think earlier abortions are not as bad. What Bruce points out, though, is that most late-term cases are often done for reasons that pro-lifers are more often willing to acknowledge as less problematic. The example he gives is of a teenager who had an abortion because her life was at risk if she continued the pregnancy. I'd be willing to guess that the exception most easily allowed by pro-lifers would be cases where it's two lives lost or one lost, and having an abortion leads to the only one lost. So I'm not sure allowing these cases leads to a view all that far removed from the typical pro-life position.

Where I think Bruce's view departs from the typical pro-life opposition to late-term abortions is that he notices that most late-term abortions are not for the typical reasons women give for early-term abortions. The vast majority of late-term abortions are to save the mother's life, to avoid pretty serious health consequences for the mother, or because some kind of major birth defect is discovered late in the game. This makes Bruce conclude that it's strange for pro-lifers to have such opposition to doctors who perform late-term abortions, as if those abortions are much worse than the early ones.

I do have a couple problems with Bruce's analysis (and the rest of this post is adapted from my original comment on his post). He seems to treat abortions having to do with life-threatening situations for the mother and those having to do with defects in the fetus as if they're in the same category. I wouldn't consider them remotely the same. I can understand an abortion to save the life of the mother, at least if she has other children to take care of. It would be a great tragedy, and I'm still not sure it's morally ok to perform an active killing of an innocent to save someone's life, but I can understand the motive.

I'm a lot less understanding of those who would have an abortion at 26 weeks just because they think there's a likelihood of some kind of disease or disorder in the child. That's no better than those who kill their child when they found out there's a risk (but certainly no guarantee given all the false positives of such tests) of Down Syndrome. That sort of act is just downright evil and cannot be motivated by anything but selfishness on the part of the parents or an extremely warped sense of what quality of life a Down Syndrome person can have. Lots of pro-choice people fully agree with me on this.

Not all cases are like this, though. Sometimes it's a matter of some condition that you know is there and that you know will not allow for continuing development past a few days or weeks. But isn't our obligation to care for such children and try to make their lives comfortable rather than killing them? The mere presence of such a child in the womb rather than having been born shouldn't change that. My suspicion is that the majority of late-term abortions are in this last category and not the life-saving category. Even if I'm wrong, they shouldn't be lumped together, and it would still follow that late-term abortion doctors would be doing something pretty seriously immoral if they do it for this reason, and most who do it are doing it for this reason at least sometimes.

That, of course, doesn't make it ok to kill doctors who perform late-term abortions, but I do think this is an important enough issue not to smooth over as if there's no distinction to be made between late-term abortions whose motivation is less bad and late-term abortions whose motivation is pretty awful.

I've been looking at the case of the moral status of animals in my summer ethics class, and I've just finished rereading a piece by Tom Regan, who argues that animals have full moral rights and thus shouldn't be treated as means to human ends, including any use in laboratory experiments, for food, as pets, or for entertainment. His is just one of several views I'm looking at, and it's not new to me, since I've taught this article or another similar one several times in the past. So I wasn't expecting to notice an argument that I didn't remember from any of the previous times I included his work, but there's an argument about souls that strikes me now as particularly bad in a way that it surprises me not to have noticed it before.

He considers and dismisses several reasons people might have for thinking humans have rights that other animals do not have, and one in the list is the view that humans have immortal souls, and animals do not. His argument against this method of distinguishing the moral status of humans and animals was simply that the issue of whether humans have immoral souls is controversial, and we shouldn't base our stance on one controversial issue on our stance on one that's even more controversial.

I can't say I'm impressed by this argument. Most people who believe in immortal souls do not do so based on the controversial arguments offered by philosophers, most notably those of Plato and Descartes. There problems with their arguments. Someone who holds an alternative view has some pretty easy dodges. They can deny a premise or point out that certain inferences don't follow if materialism is true. Of course, the derision held for mind-body dualism among professional philosophers is reserved for few views, and philosophers who find these arguments unconvincing are usually unwilling to recognize that pretty much every philosophical argument for any position that doesn't command near-universal agreement is just like that. I'm not at all sure that Plato and Descartes' arguments are as bad as they're made out to be, so I'm not willing to grant that immortal souls are more controversial than views on animal rights, as Regan seems to think.

But there's a deeper reason why this argument can't easily succeed. If we do have immortal souls, then that might make a big difference in how we think about moral status. Suppose it does. Suppose also that there's no convincing argument either way. Does it follow that we shouldn't assume that we have immortal souls that animals lack? Suppose it does. I think it's only fair to say that we also shouldn't assume that we don't have such souls. Regan's claim that there's no good reason to think we have moral status that animals lack would then turn out to be true, but it would also be true that Regan has no good reason to think we don't have moral status that animals lack. We should hold no view either way, and he thinks he can just assume one stance on this issue that he thinks is more controversial than the question he's primarily writing about. He's done the same thing he's claiming the believer in immortal souls shouldn't do.

There is one reason you might favor one side, though. Regan could argue that he would assume one way rather than the other on this question because he's giving the benefit of the doubt to those who, if we ignore their possible rights, we do great wrong to. If we assume animal rights, we prevent what might be a serious wrong to animals. I should say that those who use this reason better not be pro-choice in the abortion issue on the ground that we don't know for sure if a fetus has moral status (and there are indeed people who take such a view, including the current President of the Unites States).

But there are at least two considerations that would at least moderate such a presumption. One is that the human benefit of various ways we treat animals, not least being the significant scientific advances from animal experimentation that produce benefits both for humans (and probably animals), means we would be doing a great wrong to humans (and possibly for animals) if it turned out that animals have no rights but we pretend they do.

But we also need to take into account the fact that a large number of people who believe in immortal souls do not do so because of philosophical arguments but because their religious beliefs include that view. To evaluate whether such people's beliefs are rational we'd have to evaluate the entire question of the rationality of religious belief, something I've certainly spent a lot of time on in other places but won't get into here. That's yet another controversial question, but if it turns out religious belief can be rational then there might well be a rational reason for thinking we do in fact have immortal souls that animals lack. Without knowing that, Regan's argument now has to rely on two unestablished conclusions and thus is doubly question-begging even if he's right that the other side's argument is question-begging.

I happen to think I've got good reasons for thinking my belief in immortal souls and in the non-existence of immortal souls in animals, even before I've considered the question of the moral status of animals. I don't think animals have no moral status, but I don't think Regan can dismiss a view held by the majority of the world's populace as easily as this, since he hasn't actually even given any arguments against the two views he'd need to resist for his argument to go through (although maybe he does do that elsewhere, but I doubt it since he does say that he hopes he does have an immortal soul, and he does speak once of God as if he believes in a divine being). I don't think the status of animals is anywhere near as simply as humans having full moral status because of immortal souls and animals have none because of no souls, but surely more needs to be said to refute that kind of consideration than simply noting that it's controversial.

I have to agree with Ilya Solin about this. I've yet to put together my thoughts on the Sotomayor nomination fully, but this is an important point that I wanted to say something about separately. Regardless of your view of the correctness of Sotomayor's statement that a Latina just should be a better judge than a while male judge, such a view is not racism.

I tire of making this point on the left-leaning race blogs that I sometimes check in on. Racism, in its primary sense, is a negative attitude toward people of another race. Other things that might be called racist are so in a derivative way because those things are connected with racist attitudes. Thus certain acts are racist because they typically stem from such attitudes, and certain institutions are racist because they have a lot of such atittudes and acts woven into their very fabric. Jorge Garcia has an excellent philosophical defense of this approach in "The Heart of Racism".

When you call someone a racist, it doesn't mean they have innocent motives but participate in social practices that inadvertently cause racial harm. It doesn't mean they merely have false views about race or about races other than their own. It doesn't mean you can get away with ignoring race the many white people can much of the time. It doesn't mean you avoid some of the difficulties some others face because of race. The most immediatel thing converyed when someone is accused of being a racist is that the person has a deep-seated racial animosity or opposition to those of another race or that the person has views that those of another race are inferior, and these views have a negative emotional or attitudinal component. There are certainly things that can be called racism that don't fall into that category, but they're derivative of this fundamental meaning, and when you call someone a racist it sends entirely the wrong message if what you mean is something other than the primary meaning, because that's what people hear in such an accusation.

So it irks me when I hear conservatives making exactly the same blunder. It's not reverse racism to have the view that a Latina judge is likely to have experiences that influence her judging in positive ways, experiences that a white male judge wouldn't have. Calling someone a racist for thinking experiences common to the women of one ethnic group might make someone a better judge than people not in that category is as bad as calling someone a racist for opposing affirmative action or for claiming that the Democratic Senators at Clarence Thomas' nomination hearing were racists because they were willing to do anything, even smear his name with accusations that they had plenty of evidence against, if that's what it would take to prevent his confirmation. Rush Limbaugh and Newt Gingrich have violated their own principles on this one. Limbaugh is a regular complainer about how the left issues racism charges in cases when such charges are not warranted. Yet that's exactly what he's doing here. I'm pretty sure Gingich shares that view, and yet he's also apparently called her a racist. Regardless of whether her view is true (and I encourage you to look at Tom Goldstein's analysis of her discrimination rulings, a post I'll try to comment on in more detail as soon as I can, before you come to a final judgment on her ability to be fair on such matters), it's certainly ridiculous to say that she's a racist for holding it.


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