Ethics: September 2005 Archives

NPR had a story this morning on Attorney General Alberto Gonzales' efforts to fight pornography (which you can listen to here). They mentioned one case earlier this year that got thrown out. It portrayed violence and rape. They lined up some sound bites from lawyers and judges who stated that there's no way to block adult porn even if it's really graphic, as long as it's between, and viewed by, consenting adults. 3rd Circuit Judge Gary Lancaster ruled in January that sodomy case Lawrence v. Texas has prevented any law making such porn illegal. "The government can no longer justify legislation with enforcement of a moral code."

Well, there go the laws against murder, theft, rape, and almost anything else that we legislate. They keep distinguishing between laws based on a moral code and laws against child porn. Why do we make child porn illegal? Because it's wrong! Why is rape illegal? Because it's wrong! Why is theft illegal? Why is murder illegal? Our laws are thoroughly based on a moral code. That's the primary justification for them. We might distinguish between different sorts of things that are wrong, enforcing some and not enforcing others, but that's not what these people are doing. They're trying to distinguish between the things we should have laws about and the the things that are moral matters. If there's no moral justification for preventing something, why bother having a law? It's just completely ridiculous to frame the debate this way.

I'm convinced that even soft porn, including what passes for advertizing on your average television show, is destructive to those who are its victims consumers and even if you think it's immorally objectifying women and setting up unhealthy and immoral narratives about how we view women. I understand fully the arguments for allowing porn even if it is immoral in exactly the ways its critics say. What seems really stupid to me is pretending that these are moral arguments (as if that's bad), while the arguments for laws against abusing children are not based in morality. Of course they are. It's not that laws not based on morality are ok, while laws based on morality are bad. It's that certain laws based on morality are good laws to have, and others are not. The trick is figuring out which kinds of laws based on morality are good ones and which not. Dismissing something because it comes from a moral perspective is simply not the way to do that.

Laurence Thomas has posted his comments on Judith Jarvis Thomson's famous paper "A Defense of Abortion". His thoughts on this paper have strongly influenced how I think about the issue. The first of the two main arguments of her paper is often taken to show far more than it does indeed show, and he makes this clear. He also raises questions about the second argument, the one that tries to move her conclusion into something closer to the standard pro-choice view, though still falling a good deal short of it, even if the argument is successful, which his criticism raises doubts about. His post is a good summary of her paper in addition to raising some questions about her arguments. This paper is anthologized more than any other on the issue of abortion, to the point where I think it's morally unconscionable to have an abortion section in an applied ethics anthology while excluding her paper. No other paper has that status on this issue.

In the process of interacting in the comments on the post he links to at the end of that one, I came across a brilliant essay by Frederica Mathewes-Green called Seeking Abortion's Middle Ground. It's not about finding a middle position between pro-life and pro-choice. Mathewes-Green is firmly pro-life, though she was pro-choice in her younger days and understands both sides very well. The way it's middle ground is that it insists on understanding the pro-choice position and what pro-choice people really believe, something pro-life people often won't bother to do and thus misrepresent the opposition. I've been spending enough time pointing out how pro-choice people do that to pro-life people that it's fitting that I'm now pointing out someone who is doing the other. What's most fascinating about this is essay is that Mathewes-Green spends so much time acknowledging things that the pro-choice side would insist on that her pro-life stance comes out seeming much more understandable even on pro-choice terms. She presents a number of considerations in favor of her pro-life position, most of them completely independent of standard ones, all of them from an awareness of what pro-choice people consider to be the primary motivation for wanting abortion to be legal. I think I'm going to have to add this to my required reading list for abortion for my ethics classes. I'm intrigued about what her books on abortion and gender and feminism are like. I'm seriously considering getting them to see if they would be a good part of a course on outside-the-box approaches to race, gender, and sexuality that I hope to be teaching in the spring if the powers that be are willing to assign me the courses I'd like to teach next semester.

Do you think you know about how Roe v. Wade came to be? Think again. David Savage presents the inner workings of the Supreme Court and Blackmun's opinion. A number of justices in the majority thought this would be a minor revision of the laws. Justice Blackmun himself, who wrote the opinion, didn't think it would have sweeping consequences. Chief Justice Burger concurred with the majority, indicating that he didn't think this could possibly lead to abortion on demand. It makes me wonder what would have happened if these justices could have envisioned what this decision would lead to. They certainly would have been horrified by the current state of affairs. [Hat tip: Eugene Volokh]

Meanwhile, Wendy Mcelroy wonders if scientific developments will help limit the number of abortions while satisfying the primary motivation for abortion -- for the pregnant woman not to be pregnant anymore and not to have parental responsibilities. This is something I've been sying for a few years now, something Laurence Thomas first made clear to me. Scientific developments will in the near future make the primary arguments for the pro-choice position obsolete. They will no longer be arguments that we should allow abortion. They will be arguments that we should allow someone to remove a fetus. As Laurence would put it, a legal right to be rid of a fetus does not provide a legal right to the death of that fetus. Technology does not allow us to make such a distinction in the first trimester (though the movement of viability to about 20-22 weeks does allow us to do so in the second). It will almost assuredly at some point allow us to make the distinction at a very early stage of development. What then for the pro-choice view? [Hat tip: Volokh conspirator Todd Zywicki]

Finally, Eugene Volokh finds what could inspire a Dr. Seuss rhyme if I had the time to compose one (I'm not above that sort of thing). Justice Black and Justice White, an FDR appointee and a JFK appointee, had a little disagreement in 1965 over whether the Griswold v. Connecticut case would justify outlawing laws against abortion. Hugo Black thought it would, and he voted against it. He didn't think it was their job to specify unenumerated rights. Byron White didn't think that decision really did justify doing the same with abortion, because contraception takes place in the home (usually), while abortion doesn't, and contraception involves stopping the creation of a life, while abortion involves ending a life. White apparently understimated his colleagues, while Black seems prescient. White took the same position regarding Roe v. Wade, by the way. He was just in the minority. I think Volokh is a little overstating things when he says White dismissed the possibility of this happening. All he did was get the lawyer to admit that these are very different situations, which we know he believed because of his vote against Roe. He didn't say that he didn't think his colleagues on the Supreme Court wouldn't try to use this sort of reasoning. All he did was give a reason why they shouldn't.

Update: I didn't write a Dr. Seuss poem about Justices Black and White and abortion, but apparently Dr. Seuss wrote his own statement about abortion.

In the last day of their questioning of Judge John Roberts in the Senate Judiciary hearings for his confirmation as Chief Justice of the United States, Senators Kennedy, Biden, Schumer, and to some extent Feinstein spent a good deal of time talking about why they thought they were rolling the dice with him. Schumer in particular expressed something clearly that all four of them were getting at in their final speeches. Schumer started by saying that he didn't expect Roberts to go against his stated intentions not to comment on cases that might come before the Court. He said he had hoped for a little bit more on Roberts the man, how Roberts as a person feels about certain sorts of things. Kennedy had accused Roberts of being mean-spirited due to certain of the views that he argued for as a lawyer representing the government position. Biden, Schumer, and Feinstein had insisted that they didn't have enough information to judge his character. Yet, on every issue their evidence that they didn't have a grasp of his character, it was because they didn't know what his view was on issues that concerned them. After hearing this all morning, Lindsay Graham stepped in to challenge the assumption behind all this talk about where Judge Roberts' heart lies.

What follows is Graham's speech, taken from the WAPO transcript:

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