Law: February 2008 Archives

Obama and Infanticide

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Barack Obama's opposition as an Illinois State Senator to the Born Alive Infant Protection Act has been making the rounds, with a lot of people overstating their case on both sides. Some conservatives are taking this as a sign that Obama thinks infanticide is morally ok, and some liberals are acting as if his approach is what any supporter of keeping abortion legal before viability should say. I'm not sure either is true, but I'm also not sure this reflects well on Obama.

Here is the law. It says that if a baby is born alive, whether by intended delivery or by failed abortion, it is legally a person, a human being, a child, and an individual. It counts as born alive only if it is completely removed from the mother (ignoring an umbilical cord connection, which does not count as a sufficient connection according to this law). Partial-birth abortion is thus not ruled out, because a partial birth is not a complete removal of the fetus. As long as the birth has not fully taken place, this law threatens no actual abortion rights.

Obama's reason for not supporting this ban is not because he thinks it's ok to kill a born fetus. As far as he's said, he does not actually support infanticide (and he didn't vote against the law; he just voted present, although that in itself was part of a strategy devised by Planned Parenthood of Illinois to protect pro-choice politicians from voters seeing how pro-choice they are). For his actual words, see comment 9 here. What he says is that he worries about the logic. Here is what seems to me to be his argument:

1. The Supreme Court has declared laws banning abortion before viability to be unconstitutional.
2. There is no difference between the moral status of a fetus inside its mother before viability and the moral status of a born baby at the same developmental stage.
3. Therefore, banning the killing of a born baby at this stage is morally tantamount to banning abortion at a pre-viability stage. (from 2)
4. Therefore, the law is unconstitutional. (from 1 and 3)

This argument does not amount to supporting infanticide morally. It is merely an argument based on the constitutional issue. According to Supreme Court precedent, this law is unconstitutional, and thus it's pointless to pass it. He gives no moral argument against the ban, just a pragmatic one. So from this speech alone it's impossible to get any clear support for infanticide.

Nevertheless, I think this is a terrible argument. The first premise is clearly true. I would argue that the second is also true. I see no difference in the intrinsic moral status of the fetus merely because it is contained within someone or is separate. However, I don't think 1 and 3 guarantee 4. There's no legal reason why morally inconsistent laws can't occur. You can ban something that's morally equivalent to something else that's unconstitutional to ban, as long as the first thing isn't unconstitutional to ban. But the real problem I have with the argument is his inference from 2 to 3.

The standard pro-choice argument is not that a mother has a right to kill a fetus growing within her. Only the most extreme abortion-choice proponents hold such a view. The standard view is that a woman's right to control her body is morally more important than whatever rights a fetus might have. That argument allows for a fetus to have some sort of moral status such that killing it would be prima facie wrong, even if the bodily rights of the mother outweigh that. What this means is that the standard pro-choice argument does not accord a mother the right to the death of the fetus. If it survives removal, her rights have been satisfied. That means the moral status of the fetus is what kicks in to determine what you should do in such a case, and this law settles that question. It does not threaten the woman's bodily rights, at least not according to the standard justification of abortion rights.

Death Penalty and Deterrence

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I've been teaching capital punishment for the last week in my ethics class. There are two main arguments for the death penalty, and I see them as relatively independent of each other. Retributivism is the view that the death penalty is the only just punishment for premeditated murder because it is the only punishment that's proportional to the crime. A life was taken, and that is so serious that no other punishment matches up with what the murderer deserves. This sort of argument rarely occurs in public policy arguments, in my experience, even though it's the argument with much stronger philosophical support historically. I think that's probably because our culture has moved away from liking the idea that we deserve anything bad when we do wrong. Most people do accept a kind of retributivist justice when they get robbed of something they think they've earned. They just don't want to extend retributivist arguments against wrongdoing.

So death penalty advocates have often relied on deterrence claims in recent decades. The only problem is that studies aiming to establish whether capital punishment deters any potential murderers from killing have been fully inconclusive. The ones with the strongest conclusions have tended to be the ones with the least credibility. The weaker the conclusion, the fewer problems critics have been able to find. This is so in both directions, and many people familiar with the literature have concluded that we can't know whether capital punishment deters, and that has left philosophers defending the death penalty trying to establish why we should retain capital punishment even if we can't show that it deters. A couple of those arguments are, I think, quite brilliant. One takes a form of Pascalian-style wagering based on the potential rewards if you bet on deterrence and win vs. if you bet on it and lost, compared with what happens if you bet on non-deterrence and ban capital punishment. There are difficulties with these arguments, but I find it fascinating that people would go to such lengths to defend the deterrence value of capital punishment because studies on deterrence are inconclusive, when the historic justification for the death penalty doesn't assume any deterrence at all.

That was the state of play a few years ago. It's pretty much how all the ethics books dealing with the question leave things. It amazed me, therefore, to see that The New York Times highlighted a dozen studies in the last few years that conclude that the death penalty does deter murders, from as many as 3 to 18 murders per execution. This article was published in November. I only heard about it because Joe Carter linked to it. I didn't save a link to it at the time and had to do some careful Google searching just to located it again. I didn't see other reports of it in that searching.

That surprises me, because this is huge if these studies turn out to be well-founded. It changes the whole debate about the second justification for the death penalty, and apparently it's changed the minds of a number of important figures, including Cass Sunstein, a well-left-of-center law professor who had been completely opposed to the death penalty. I haven't seen these studies, and I'm not sure I'm qualified to evaluate them fully even if I did see them, but I do know some people have criticized them, although that tells us very little. Some people will criticize anything that gives a conclusion they don't like. I'm going to be looking out for further developments on this. I don't think those who support the death penalty should abandon retributivism, but if the death penalty does deter that's worth knowing about, because those who aren't retributivists might be basing their whole evaluation of the death penalty on this one question.



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