Bioethics: 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 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.


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