Missing the point of the analogy between abortion and slavery

Several months ago, I read about Atlantic writer Ta-Nehisi Coates getting in a huff over certain bloggers’ comparing abortion and slavery.  At the time, I was too tied up with work to find out what was going on (and I still am), but it appears Coates is still irritated that people continue to find the analogy between slavery and abortion compelling.  Quoting himself in an older post, Coates insists that slaves were not “denied the right to exist”:

Slaves married. Slaves were baptized. Slaves were converted to attend Christianity–and even attended white churches, at times. Slaves and masters exchanged gifts on Christmas. Slaves were allowed to hire themselves out and buy their own freedom. Slaves were manumitted by masters.

Other differences between slaves and fetuses:  Slaves were taller.  Slaves weren’t soaked in embryonic fluid.  Slaves worked outdoors.  Obviously, pointing out these sorts of distinctions is childish.  The argument is not that abortion is the same thing as slavery.  It’s that there are important parallels at a certain level of abstraction.  That parallel, obviously, is that in each case, the most fundamental of rights—life and liberty—are deprived based on a crafty legal determination of personhood.  Coates’s argument draws our attention to the very different meaning of personhood as it applied to slaves, and that most Americans during the slavery years didn’t really believe blacks weren’t “persons,” only that they were unequal to whites.

Well, of course this was the case.  It’s easy, particularly for those who believe in natural law, to see that all people are equally entitled to life, liberty, and the pursuit of happiness, and that attempts to violate this natural law employ pseudo-intellectual machinations.  That’s the point:  When it came to the legal basis for denying blacks equal rights, just as with fetuses today, the legal meaning of personhood takes center stage.

Yet, apparently without considering the import of the personhood argument when it came to the legal basis for denying blacks equal rights, Coates concludes the analogy of abortion to slavery is all flash and no fire.  For all the thoughtful historical points he raises, his unwillingness to cede this basic point does not serve him well.

Divorcing Morals from Religion

Though again mired in 14 hour days with little time for reading let alone writing blogs, I came across this post by D.A. Ridgley Ridgely on abortion.  The post seems interesting in that Ridgley Ridgely, a libertarian, takes on a defense of laws limiting abortion.  However, in the preamble to his argument, he includes this ghastly disclaimer:

My third point is that purely religious beliefs and arguments by themselves are insufficient to determine public policy. Which is to say that even if there were a majority or even a supermajority who were convinced on purely religious grounds that abortion was morally wrong (or, for that matter, morally right), imposing that position on those who do not share those underlying religious believes would be immoral. If by some bizarre quirk of fate Pastafarians should someday become the religious majority in American, their belief that the Flying Spaghetti Monster says that abortions are okey-dokey is no more a sufficient ground to make (or keep) abortions legal than a majority of Festivus celebrators’, um, beliefs would suffice to erect an aluminum pole on public property for the ritual airing of grievances.

This brand of profound nonsense is becoming more and more prevalent among contemporary hyper-secularists.  Ridgely assumes here that some morals may be used as a basis for legislation, just not religion-based morals.  What is the implication here?  That morals based on well-established, deeply ingrained belief systems are not permissible, while morals based on “moods” or shallow, fleeting, loose-knit, pseudo-intellectual models are?  Why should religion be disqualified as a source of “legitimate” morality?  Because its adherents take their belief systems seriously?  Because it is part of their culture?  Because they believe morals are tightly knit with their view of man’s relationship to the world and those who share it with him?  Can this possibly form the basis for barring their views from the political system?

Enough.  Here’s Richard Weaver on the matter:

That it does not matter what a man believes is a statement heard on every side today.  The statement carries a fearful implication.  If a man is a philosopher in the sense with which we started, what he believes tells him what the world is for.  How can men who disagree about what the world is for agree about any of the minutiae of daily conduct?  The statement really means that it does not matter what a man believes so long as he does not take his beliefs seriously.  Anyone can observe that this is the status to which religious belief has been reduced for many years.  But suppose he does take his beliefs seriously?  Then what he believes places a stamp upon his experience, and he belongs to a culture, which is a league founded on exclusive principles. To become eligible, one must be able to say the right words about the right things, which signifies in turn that one must be a man of correct sentiments.  This phrase, so dear to the eighteenth century, carries us back to the last age that saw sentiment and reason in a proper partnership.

Richard M. Weaver, Ideas Have Consequences 23 (Univ. Chicago Press 1948).

One has only so much vociferousness to go around

During this, a slow blogging week for me in the midst of finishing a 145-page brief (a misnomer if ever there was), I offer the following unlikely parallel.  First, take Jason Kuznicki’s piece blasting Obama’s targeted killings, in which he writes:

Even the Tea Party is silent. Where are you guys, seriously? Why aren’t you resisting this shameless power grab by faceless, unelected, smarter-than-thou bureaucrats? You were outraged by death panels, but death squads get a pass? Forgive me if your politics leaves me cold. You say you oppose Obama? Everywhere but here?

. . . .

It baffles me that this isn’t the political story of our time. It further baffles me that a new, libertarian, anti-government movement rose up in our time — and was silent about this issue. Or that it was quietly on the other side.

Then there’s this article by Nancy Pearcey arguing it’s time for pro-lifers to push back on abortion as being “anti-science.”  Which I agree with, by the way.  The argument that “fetuses” can be deprived of “personhood” is because they’re just a “blob of cells” betrays a poverty of understanding of the seriousness of the question.  Of course a fetus is a “blob of cells.”  But so is a six-month-old, a six-year-old, and a sixty-year-old.  As the article points out:

James Watson of DNA fame recommended giving a newborn baby three days of genetic testing before deciding whether the child should be allowed to live. Singer considers personhood a “gray” area even at three years of age.

See?  Some really smart scientists argue the line could be drawn much, much further out.  So by drawing the line at the third trimester, abortionists are really quite humanitarian about the whole thing.*

Back to the parallel.  Both pieces represent a call-to-arms on issues the writer holds to be of utmost importance.  This advocacy for moral re-prioritization lies at the heart of most significant political agitation.  Kuznicki here excoriates Tea Partiers for not being as upset as he is over the president’s execution orders being made without a trial.  But one could argue that it is Kuznicki who fails to exhibit the appropriate level of moral disgust or issue any rallying cry over the approximately 3,700 abortions that occur each day.  Pearcey is concerned about all those aborted children, but then again, is she showing enough concern for all the poor, neglected, or abused children among us?  Or what about the environment we’re bequeathing to all the future children?

It should not be that difficult to understand what gets people riled up as they do.  There are enough people who hate the idea of tax-hikes, and hate it enough to let you know about it.  Same with the idea of more and more of our lives being subjected to the impenetrable and ever-expanding administrative state.  (The ~2,300 page PPACA, for example, will become literally tens of thousands of pages after Sebelius’s team of regulatory lawyers are finished with their initial set of regulations.)

But military operations?  They literally just don’t hit home.  That’s not to say they don’t draw opposition.  I have not researched the facts behind these strikes, but I’m sure I could drum up some criticisms.

Does this mean we should start fastening sticks to poster boards and haranguing traffic?  More to the point, does it mean if you don’t take to the streets on this issue you waive the right to voice dissent over any other political issue?  Of course not.  It takes all types to make political society work.  It is over-thinking things to suggest that, to vociferously protest an administration’s economic policies but to not-so-vociferously protest its military policies, betrays some deep moral failing.

_______________________________

*But what is actually more striking about this is the fact that a molecular biologist and zoologist is passing on any questions of “personhood” in the first place.  When scientists and their fans advance science-ish arguments in favor of things like abortion, there is an initial period where the arguments tend to have a lot of traction.  But after a time, the arguments start warranting a second look.  Why in the world does a molecular biologist have any special authority to opine on personhood?  The ploy starts to reveal itself:  All the aspersions scienceists cast upon philosophers and theologians are part of a smash-and-grab job to take over the moralizing function in the first world community.

Ginsburg, Abortion, and Minimizing Populations "We Don’t Want Too Many Of"

Justice Ruth Bader Ginsburg recently threw out a big, savory bone to pro-life advocates by revitalizing the “isn’t eugenics really behind the pro-choice agenda?” argument. Apparently, the answer is still “yes”:

Q: If you were a lawyer again, what would you want to accomplish as a future feminist legal agenda?

JUSTICE GINSBURG: Reproductive choice has to be straightened out. There will never be a woman of means without choice anymore. That just seems to me so obvious. The states that had changed their abortion laws before Roe [to make abortion legal] are not going to change back. So we have a policy that affects only poor women, and it can never be otherwise, and I don’t know why this hasn’t been said more often.

Q: Are you talking about the distances women have to travel because in parts of the country, abortion is essentially unavailable, because there are so few doctors and clinics that do the procedure? And also, the lack of Medicaid for abortions for poor women?

JUSTICE GINSBURG: Yes, the ruling about that surprised me. [Harris v. McRae — in 1980 the court upheld the Hyde Amendment, which forbids the use of Medicaid for abortions.] Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn’t really want them. But when the court decided McRae, the case came out the other way. And then I realized that my perception of it had been altogether wrong.

H/T Get Religion.

Will Those Judges Who Look to International Law Consider Mexican States Defining a Fetus as a Person?

Apparently, there are ten Mexican states that define a “person” something like the way Guanajuato decided to do last week: as “all human beings from conception to natural death.” Left-leaning judges tend to be warm to the idea of looking to international precedent for human rights issues. It would be interesting to see if anything is made of the Mexican trend were the issue to come up.

H/T Religion Clause

Obama: On Roe Anniversary, I Remain Committed To Choice

CBS has this article, in which Obama reiterates his position that “I remain committed to protecting a woman’s right to choose.” To assuage those of us worried that Obama’s concern for unexpressed constitutional rights tramples the constitutional right to life and equal protection under the laws, he goes further:

“While this is a sensitive and often divisive issue, no matter what our views, we are united in our determination to prevent unintended pregnancies, reduce the need for abortion, and support women and families in the choices they make,” said Mr. Obama. “To accomplish these goals, we must work to find common ground to expand access to affordable contraception, accurate health information, and preventative services.”

In other words, better not stand in the way of his social programs, or more unborn are going to die. It’s clear he has no scruples about that.

Professor Balkin’s Abortion Compromise

Jack Balkin suggests that a “durable compromise over abortion” would look something like this:

if you wanted to imagine how the U.S. would come to a durable compromise over abortion, it would probably look something like this new approach: Pro-life advocates continue to believe that abortion is immoral but agree that the criminal law is not the best way to solve the problem of protecting unborn life. Pro-choice advocates in turn agree to new social services and support for poor women that make it easier for them to choose to have children. (This is something that many pro-choice advocates will agree to because many of them also support expanded social welfare programs.) The result is a coalition of social justice pro-life advocates with traditional pro-choice liberals.

The problem with such a view, however, is that it presupposes, wrongly, that pro-life advocates have adopted the muddle-headed definitions that the pro-choice advocates have put forth, such as “future potential person,” “point of viability,” etc. Instead, pro-life advocates see no non-arbitrary line other than the moment of conception at which to assign personhood, and thus abortion is, quite simply, the unjustified killing of a human person, i.e., murder. To merely suggest that pro-lifers may continue to believe that the act is immoral, while removing the possibility of criminal sanction for an act that they quite rightly believe to be murder, is merely to toss them an irreverent biscuit.

Rebuttal to "Abortion and Abolition"

Several weeks back, I posted a response to Diana Hsieh’s op-ed, “Abortion and Abolition” over at NoodleFood. I was struck by the title since I had also always thought of abortion and slavery as linked—albeit in the opposite way that Ms. Hsieh conceives. As the post and the responses that followed gave me an opportunity to flesh out some of the more amorphous points of the debate, I thought I would try to compile it for my own edification, and for that of whoever happens to stumble upon this post. [more…]

The primary similarity between the respective arguments for slavery and for “reproductive rights” is the focus on the “personhood” of the slave and embryo/fetus, respectively. Both arguments for slavery and abortion succeed or fail on this point. If slaves are something less than persons, we are morally permitted to enslave them. (It still may not be a good idea, or a wholesome idea, but at least Aristotle even defended the idea of grooming slaves to be good citizens who would eventually gain their freedom.) And if embryos or fetuses are less than persons, then whatever rights they may or may not have are eclipsed by the woman’s privacy rights. (Or “reproductive rights,” if we are given to such fashionable, albeit droll, terminology.)

Lincoln himself did not believe (as far as the historical record can support) that blacks were “equal” to whites in all respects. And in fact today we know that there are intrinsic inequalities between races. Some races are more predisposed to certain diseases. (My grasp of detailed examples is poor, but I believe the point is readily conceded.) In our personal lives, we need not pretend that we are each equal. We are not. We probably should have a good reason when doing so, but it is not legally required.

We do require our state to have a good reason, however. The state has to have a non-arbitrary basis for treating ANYONE differently. And the forcefulness of the reasoning required escalates depending on the importance of the right at stake. In the case of abortion, we are talking about the most important, most fundamental right that can possibly belong to anyone: the right to life.

But this is getting ahead of ourselves, of course, because we first must decide whether that issue is actually in play—that is, is the fetus a “person”? Can we draw a non-arbitrary line at which a fertilized egg becomes a “person”? No. It simply cannot be done. The best we can do is make approximations, or come up with other fictions that are not any better than the vague term “person” (e.g., “self-awareness” – good luck with that one; I know grown adults who fail this test). Specifically, the argument that personhood depends on self-containment and lack of dependence on the mother is rebutted by pointing to the “famous violinist” hypothetical: waking up and finding that a world-renowned violinist has been grafted to your organs in order to keep him alive brings up some problems of justice, privacy, and self-determination, but one is hard-pressed to argue that the violinist has lost his status as a “person.”

Another less imaginary example is Siamese twins. That these folks are most definitely persons I will take to be uncontroversial. (One reader pointed out that this point was indeed controversial because the twins do not possess “individual” rights. Even assuming, arguendo, that that were true, our Constitution guarantees rights of “persons,” not “individuals.” Thus, such a semantic shift is unwarranted in this context.) What might be controversial is the question of rights as asserted by one twin against the other. For example, if the twins could be separated, but one would certainly die where the other would not, does the latter have a “right” to separate, and thus kill, the other? What about if one had more control over the motor functions? Does the one with less control have any less right to life than the one with more?

These questions lend to solutions that are more pragmatic than rational. That is, they force us to define the meaning and purpose of the lives at stake, and thus make a determination that will best effectuate that purpose. This, of course, irreparably short changes the lives at stake, as their telos (purpose) is defined by the preliminary rule that guarantees their existence. Thus, in an abortion culture, all persons who are born have a right to their lives, but only to the extent of the telos that effectuated their being carried to term, i.e., being wanted by the mother. When it is no longer the case that the new person is wanted by any other living person, their rights terminate. This is the inevitable conclusion of defining the right to life teleologically (i.e., by whether or not the mother “wants” the child) rather than deontologically (i.e., by a society that defines the child’s life as unequivocal, inviolable, and inalienable—the same way it defines the life of any other person).

One of the differences between Siamese twins and a pregnant woman is the issue of timing: one Siamese twin generally cannot claim a superior right to life based on time, although the pregnant woman can. But can this have any bearing? Does a young man have less of a right to life than an old man? We sometimes talk about potential, etc., which might even suggest that the young man has more of a right than the old. But again, this would be a way of defining the right to life teleologically. At any rate, this is too sloppy a way of determining something so important.

Now that we have spent some time talking about the fetus’s right to life, we must discuss the countervailing right that is indisputably at issue, the mother’s right to her body. Abortion rights advocates suggest that requiring a woman to assume the risk of pregnancy and childbearing in order to be sexually active deprives her of liberty in sexual matters. (Although it always seems highly implausible that someone would make this gigglesome argument, I come across it again and again.) There are few areas in which we have perfect, unrestrained liberty. Any number of our actions mete out externalities, and we glean a better and better understanding of the nature and extent of these externalities as time and technology progress. To say that prohibiting one form of “birth control” (a horrifyingly benign expression for abortion, in my opinion) is a “deprivation of liberty” is pointless rationalism. “Pointless” because, yes, it admittedly is a deprivation of liberty; but because nearly all of our liberties are limited in certain ways in order to make political life possible, a mere “deprivation” is not the standard for determining whether it is appropriate or not. There are myriad ways to prevent getting pregnant. Abortion hardly seems a necessary precondition for a woman to enjoy her “sexual liberty” (whatever that means).

It has also been suggested that, even if we assume both the woman and unborn have rights, we don’t require one to sacrifice its rights for the life of another. This is not always the case. Although common law doesn’t impose a “Good Samaritan” duty to affirmatively provide help, the law provides the doctrine of private necessity as a defense to trespassing, for example. In other words, there is no affirmative duty, but there is a negative duty (you cannot recover against one who uses your property, without consent, for his health or safety). One will certainly point out that with pregnancy we are talking about one’s body, not merely property. And I will concede that the doctrine of private necessity certainly has not been construed to this extent. On the other hand, there is the issue of consent that is also different — private necessity applies even where there is no consent on the part of the landowner, but with pregnancy, the woman has tacitly consented through the volitional act of intercourse. (Again, instances of rape notwithstanding.)

As far as the state is concerned, there are two beings with rights. Given that there is no non-arbitrary way that the state can take the position that the fetus is not a “person,” and given that the right to life is necessarily of greater weight than a right to “sexual liberty,” or to “reproductive liberty” (especially given that in the vast majority of cases, the mother had some say in the conception process), the balancing is a no-brainer—abortion is indefensible in a government that purports to defend life and forbid arbitrary enforcement of rights.

In the end, I believe the only reason people can stomach abortion is the simple pragmatic reason that, hey, I don’t care if the baby is born, and if the mother doesn’t even want it, then who gives a rip?? Abortion can only be “lawful” in the sense that it simply has not yet aroused enough passion in enough people do undo that unrigorous and approximated judicial fiat that now governs the matter.

But that is a debate for the touchy-feelies, not those of us who want a rational explanation. And if we’re being rational, we have to recognize there is no non-arbitrary line. Conception creates a “person.” We can strip away its rights because of the number of cells it has, or because it is located inside its mother’s womb, but we only get away with such justifications if we squint our eyes real hard and pretend they’re good answers. And this is the same way our nation stomached slavery for so long. We might always wonder whether, without Lincoln, we might still have slavery; but we now know that, with or without our current emotional disposition towards that vile institution, it is and always was intrinsically evil. It is my humble and hopeful prognostication that it will be just so with this issue.