Subscribe via RSS Feed

Who Decides?

[ 53 ] January 24, 2011 |

There’s not a lot I can add to Pema Levy’s excellent response to William Saletan, but I did want to emphasize a couple points. First of all, Saletan does deserve credit for acknowledging pro-choice arguments about the effect of the arbitrary abortion regulations that states like Pennsylvania have implemented — it’s good that he’s not using the Gosnell case to argue for additional regulations that are irrelevant or counterproductive.

Having said that, there’s a very important policy difficulty that Saletan’s question sidesteps. Let’s assume, for the sake of argument, that laws that ban post-viability abortions that are not necessary for a woman’s life or health are legitimate as part of a legal regime that otherwise protects a woman’s reproductive freedom. The issue is who decides whether or not an abortion is medically necessary. It’s possible that the existing exception can be evaded by doctors not operating in good faith. But more stringent regulations (such as requirements for panels of doctors or permitting late-term abortions only to save a woman’s life) run the opposite risk: denying women who have a genuine medical need a safe abortion. Even if we can answer “yes” to Saletan’s question in principle, then, this doesn’t get us very far in terms of the underlying policy dispute. And like Pema, I strongly favor erring on the side of trusting women as opposed to giving further authority to doctors.

There’s another reason I agree with Pema: the Canadian case. In Canada, late-term abortions are not legally restricted, and Canada also doesn’t have the other kinds of restrictions found in many American states and doesn’t exclude abortion from guarantees of health care. As far as I can tell, there’s no evidence that Canadian women get late-term abortions at significantly higher rates (and historically overall abortion rates in Canada have actually been lower.) Essentially, absent evidence to the contrary I think the presumption in favor of a woman’s decision-making capacity is justified, and further restrictions are likely to do more harm than good.

[X-Posted to TAPPED.]

Comments (53)

Trackback URL | Comments RSS Feed

  1. MPAVictoria says:

    We all know that this whole thing is another red herring from the right. If they really cared about abortions they would support the creation of the kind of social safety net that encourages woman to choose to keep their pregnancies. As mentioned above Canada provides an excellent example here.

  2. [...] This post was mentioned on Twitter by LG&M, Scott Lemieux. Scott Lemieux said: Attempting to answer @saletan's question: http://bit.ly/gvijur [...]

  3. Joe says:

    So Saletan wants to know what to do with some subset of 1.5% of abortions (even there, some are at the borderline of viability, so that’s overly generous) where the dividing line is hazy (what does “healthy” mean? U.S. v. Vuitch avoided vagueness by using a definition broader than the doctor he cited probably used; I pretty sure of it actually).

    I would trust the women, but as Scott suggests, reality makes it a much easier question since the easy line drawing isn’t really present. And, the burden of proof should be on those who want to remove bodily integrity from teenage girls and women. So, the question is pretty artificial.

  4. Jim Harrison says:

    Since there is precious little evidence that outlawing abortions reduces the number of abortions, I continue to believe that Pro-life people are not so much interested in cutting the number of abortions as in making a moral point whatever it costs actual human beings. The logic is the same as the drug wars. Treating drug use as a health problem would probably result in a lower level of drug use, but it wouldn’t provide the desired theatrical spectacle of virtue and vice.

    • hv says:

      in making a moral point

      I have always thought it is an attempt to fight a social or cultural battle from the moral high ground.

    • DrDick says:

      Can we please not call them Pro-Life? They are objectively not so, except for unborn fetuses. After you are born they really do not care whether you live or die. What they are if the Forced Birth Movement who want to punish women for having sex.

  5. Ian says:

    In Canada we basically don’t have any abortion law at all. The old panel of doctors law was struck down by the Supreme Court, and no party wants to jump down into the snake pit to write a new one.

    Our wild west approach to abortion law has been working out pretty well. Unsurprisingly, medically unnecessary abortions at nine months minus a day are unheard of.

  6. McKingford says:

    Third trimester abortions in Canada are virtually unheard of – in fact, the only people I know of (or have heard about) getting them had to travel to Detroit and shell out of pocket for them.

  7. Bijan Parsia says:

    There’s the additional critical point that the likely implementations of such oversight is highly unlikely to be non-corrupt, i.e., focused on taking seriously the health of the mother. Instead, it will be a vector for abortion surpression and harassment of women and they won’t be subtle about it.

    It’ll be “abortion panels” in the model of Palin’s death panels except even in her hallucinations (AFAIK) she doesn’t think the aim of the feared panels is to increase the mortality rate. Here, the goal will be to decrease the abortion rate (or at least cause a class of abortion seeking women to suffer).

  8. j.e.b. says:

    Scott: Not on topic, but here‘s another one for the “Scalia’s originalism is a joke” file. Check out the last paragraph.

  9. MKS says:

    These arguments were invalid in 1860, and still are in 2011:

    If you think slavery is wrong, then don’t own one.
    If you think abortion is wrong, then don’t have one.

    It’s my property and my choice what I do with it.
    It’s my body and my choice what I do with it.

    The government shouldn’t interfere with a state’s rights.
    The government shouldn’t interfere with a woman’s rights.

    If the slaves were free, they couldn’t take care of themselves.
    If abortion were stopped, there would be unwanted children.

    It’s all right to sleep with them, but they are not equal.
    It’s all right to use their organs and tissue, but they are not people.

    People will own slaves anyway, so we should just regulate the trade.
    People will have abortions anyway, so we should just make them hygienic.

    They sing, they weep, they pray, but do they have souls?
    They have heartbeats, brainwaves, distinct genetic codes, but are they human?

    • DocAmazing says:

      Please tell your African-American neighbors that they are indistinguishable from fetuses. Let us know how that worked.

      • Fritz says:

        Jesse Jackson beat y’all to it.

        Another area that concerns me greatly, namely because I know how it has been used with regard to race, is the psycholinguistics involved in this whole issue of abortion. If something can be dehumanized through the rhetoric used to describe it, then the major battle has been won. So when American soldiers can drop bombs on Vietnam and melt the faces and hands of children into a hunk of rolling protoplasm and in their minds say they have not maimed or killed a fellow human being something terribly wrong and sick has gone on in that mind. That is why the Constitution called us three-fifths human and then whites further dehumanized us by calling us “niggers.” It was part of the dehumanizing process. The first step was to distort the image of us as human beings in. order to justify that which they wanted to do and not even feel like they had done anything wrong. Those advocates of taking. life prior to birth do not call it killing or murder; they call it abortion. They further never talk about aborting a baby because that would imply something human. Rather they talk about aborting the fetus. Fetus sounds less than human and therefore can be justified.

    • Scott Lemieux says:

      It’s my property and my choice what I do with it.
      It’s my body and my choice what I do with it.

      So you think that some human beings being property is as inevitable as women having bodies? And each should be equally subject to regulation? Fascinating.

      The government shouldn’t interfere with a state’s rights.
      The government shouldn’t interfere with a woman’s rights.

      You think “woman’s rights” are as fictitious as “states’ rights”? Good luck with that.

  10. Fritz says:

    …further restrictions are likely to do more harm than good.

    Unless, of course, you take seriously Marquis’s argument that the fetus is a thing that can be harmed like the mother.

    Since abortion is a conflict of right, or an amalgamation of harms, it seems that the intervention of some neutral judge to mediate between the parties might be necessary.

    Honestly, I’m way out of my depth here, not having studied medical ethics in any deep or systematic way, but what about a comparison to the process of organ donation? As far as I know, people die waiting for organs; choices regarding who receives what are made whereby one person lives and another dies. Isn’t there a metric or rubric for determining who qualifies and who does not? I don’t imagine it’s a perfect process, but might it be helpful in thinking about this issue?

    Another comparative field is that of family law (another field I have not studied in any deep of systematic way). Decisions are made based on a determination regarding the best interest of the child. Couldn’t an abortion panel work on the same principle, a desire to preserve the life of the child where possible, while keeping in mind that the mother may have a greater claim.

    • jackd says:

      As far as I’m concerned the thing to understand about organ donation is that you can’t legally be forced into it. Doesn’t matter how deserving the recipient may be or how little risk and pain might be involved for you, nobody can make you give up a kidney, a chunk of liver, bone marrow, or even a pint of blood.

      But some people think that if the organ is a uterus and the recipient is a fetus, this rule does not apply.

      • Fritz says:

        My point is that we have a system that determines who receives which organ. The transfer of an organ requires the judgement of a body outside of the giver and the receiver. The transfer is done in a time-sensitive environement where the stakes are high. The choice to save one may entail allowing another to die.

        • DocAmazing says:

          But no one is forced to accept an organ, nor to give one. The element of compulsion is pretty inescapable here.

          • Fritz says:

            Can we prevent someone from selling an organ? Can we prevent someone from receiving a sold organ?

            Not everyone who wants an organ gets one.

            In any case, is there a netural body, outside of the patients in question, that makes determinations on behalf of those patients (determinations that may result in life or death)?

          • Kate says:

            But no one is forced to accept an organ, nor to give one.

            No, but if you do give an organ, you don’t get to ask for it back by claiming your organ donation was unplanned, unintentional, an accident, you didn’t really mean to…

            Either women are responsible moral agents or they’re not. This notion that women weren’t entirely responsible moral agents before they got pregnant (they were poor, uneducated, didn’t have access to birth control, etc.), but they are such absolutely trustworthy moral agents after pregnancy that the decision to kill their fetuses, at whatever stage of pregnancy, should be left entirely to them, doesn’t make sense to me.

            • Malaclypse says:

              No, but if you do give an organ, you don’t get to ask for it back by claiming your organ donation was unplanned, unintentional, an accident, you didn’t really mean to…

              Of course, given the typical dead state of most donors, these claims would be difficult to make, much less sustain.

            • Kate says:

              Thanks, Malaclypse.

              • Malaclypse says:

                No problem.

                Still unaddressed is the fact that in kidney donations, it is clear that one party, before the fact, wishes to give a kidney, which the other party wishes to receive. The organ donation is the key part of the voluntary act.

                With abortion, before the fact, we can probably presume that at least one of the parties wishes to have sex (for this purpose, let’s imagine two consenting adults, just like we would have in the case of organ donation). And while pregnancy may be a knowable risk of sex, the key part of the voluntary act is the sex, rather than the pregnancy. So your analogy still fails.

              • Kate says:

                As one may say that when I cross the street, even if I look both ways, I accept the fact that crossing may result in being hit by a car. In which case I have waived my right to collect any damages from a reckless driver to pay for my medical bills; the cost must be borne entirely by me. Right?

                No, not necessarily, or only if my act of crossing the street can be shown to have been the cause of the accident. Crossing the street is not an act whose purpose is to cause accidents. Sexual intercourse is an act whose biological purpose is to cause pregnancy.

            • DocAmazing says:

              Kinda irrelelvant. Giving a kidney is a volitional act. You did it because you wanted to do it. Becoming pregnant is, as often as not, accidental and not volitional. It’s not a question of being a moral agent; it’s a question of accidents happening.

              By the way, withdrawal of an organ is one thing–it involves two already-born people. Pregancy involves one person and a fetus. Not the same thing at all.

              • Kate says:

                But part of being a moral agent is accepting responsibility. Before I have sex, even if I am using reliable birth control, I accept the fact that sex may result in pregnancy. I am therefore accepting the risk that I may become pregnant — that a fetus, through no coercive act of its own, may have to rely on my organs for its survival. I further accept the fact that that fetus is not an invader or a parasite, but a living being, and that I am its parent, not its host. When I made the decision to have sex, I accepted the risk of pregnancy.

                Our society expects responsible adults to accept legal responsibility for the consequences of accidents that they may have reasonably foreseen and helped to cause. When the “accident” that one has helped to cause is a fetus, and especially when that fetus is viable, I see no problem with “forcing” a woman to accept responsibility for it.

              • hv says:

                It’s funny how every anti-abortionist has a different topology for what little sliver of abortions that they would still graciously allow. (It’s also funny that they are so un-self-aware about the likely explanation.)

                It seems that Kate is “yes” for rape/incest (no consensual risk) but remarkably “no” if the woman’s life is threatened. That woman still needs to accept responsibility for that risk she took. Everyone knows pregnancy is dangerous, honey, that’s why nice girls don’t have sex.

              • DocAmazing says:

                So we can start suing motorists for hurricane damage, since they are obviously contributing to global warming, whether they care to admit it or not. Heck, they’re demonstrably driving up asthma rates–let’s hit ‘em with that, too.

                While we’re at it, let’s sue McDonald’s for promoting obesity–they need to take responsibility for the predictable effects of their actions.

                I can come up with many, many more examples.

              • Malaclypse says:

                When I made the decision to have sex, I accepted the risk of pregnancy.

                And good for you!

                Now please don’t assume you can accept that risk for all women everywhere. Thanks.

              • Kate says:

                I can come up with many, many more examples.

                Yes, Doc, and reasonable people can discuss and debate the merits of each case. In fact, don’t we already discuss the apportionment of responsibility in such cases and don’t some people propose fast food taxes and restrictions, for example?

                In the case of pregnancy, though, it’s clear that the entire cause of the pregnancy was sexual intercourse, though the pregnancy wasn’t necessarily intended — in the same way that drunk driving may be the entire cause of an accident, though the accident wasn’t intended.

              • Malaclypse says:

                Our society expects responsible adults to accept legal responsibility for the consequences of accidents that they may have reasonably foreseen and helped to cause.

                Which is why BP was shut down last summer. Oh, wait, to clarify, our society expects the relatively powerless to accept responsibility, and (some) females fit that category.

                In the case of pregnancy, though, it’s clear that the entire cause of the pregnancy was sexual intercourse, though the pregnancy wasn’t necessarily intended — in the same way that drunk driving may be the entire cause of an accident, though the accident wasn’t intended.

                So sex, like drunk driving, deserves punishment. Got it.

              • Kate says:

                Malaclypse,

                I’m not sure what to do with the BP example. By all means, BP should be held responsible for the oil spill, right? But are you saying the (relatively) powerless shouldn’t be held responsible for their mistakes? Or should be held responsible only when the powerful are held to account?

                So sex, like drunk driving, deserves punishment. Got it.

                No, that’s a non sequitur. The analogy was between the causal relationship between the action and the consequences.

              • Hogan says:

                Before I have sex, even if I am using reliable birth control, I accept the fact that sex may result in pregnancy. I am therefore accepting the risk that I may become pregnant — that a fetus, through no coercive act of its own, may have to rely on my organs for its survival.

                As one may say that when I cross the street, even if I look both ways, I accept the fact that crossing may result in being hit by a car. In which case I have waived my right to collect any damages from a reckless driver to pay for my medical bills; the cost must be borne entirely by me. Right?

              • Malaclypse says:

                I’m not sure what to do with the BP example.

                Well, you said that we as a society expect people to be responsible for their actions and the consequences thereof. Now, that is a statement that can be compared to reality. And in reality, we do not hold the powerful accountable. We, and in this specific instance you, only hold the powerless responsible.


                No, that’s a non sequitur.

                Look, it was you that compared sex to drunk driving, not me. Don’t blame me that it is a silly analogy.

              • Kate says:

                [Sorry -- I added this in the wrong place upthread.]

                As one may say that when I cross the street, even if I look both ways, I accept the fact that crossing may result in being hit by a car. In which case I have waived my right to collect any damages from a reckless driver to pay for my medical bills; the cost must be borne entirely by me. Right?

                No, not necessarily, or only if my act of crossing the street can be shown to have been the cause of the accident. Crossing the street is not an act whose purpose is to cause accidents. Sexual intercourse is an act whose biological purpose is to cause pregnancy.

              • Malaclypse says:

                Sexual intercourse is an act whose biological purpose is to cause pregnancy.

                And this is the point where the thread calls for a musical interlude.

              • Malaclypse says:

                And now, to try and address what I think your point is, which I’m guessing is that abortion somehow interferes with biology: yes. Yes it does.

                Other interferences with biology:
                Vaccines
                Cancer treatment
                All forms of birth control
                The complete eradication from the earth of the Guinea Worm

              • Hogan says:

                Sexual intercourse is an act whose biological purpose is to cause pregnancy.

                Category error: acts don’t have purposes; people have purposes, and they perform acts in order to carry out those purposes. Sex is an act one of whose purposes may be reproduction, but isn’t always; reproduction is a purpose that may be pursued through sex, but isn’t always.

                (If you’re actually using neo-Scholastic natural law theory to convince people that they should have sex only for making babies, you should get lots of rest, because you’re swimming against a very heavy historical current. Maybe you’ll have more success than the many people who’ve tried it before.)

    • hv says:

      Since abortion is a conflict of right, or an amalgamation of harms, it seems that the intervention of some neutral judge…

      We had this! Solomon decided to cut the baby in half. Ended the dispute. Developed a reputation for wisdom. Etc.

      PS: “amalgamation of harms” is gibberish.

      • Fritz says:

        What I meant was that there is a possible harm to the fetus and a possible harm to the mother, both of which, under Marquis’s argument, should be taken into consideration. Not all possible harms are equal. Some weighing of harm must be taken into account.

        Of course, in family court, when dealing with these kinds of sticky situations, they don’t split the baby. One parent often receives less then they would have been owed had the object of complaint been a house or car.

        • hv says:

          Not all possible harms are equal. Some weighing of harm must be taken into account.

          Presumably, you meant ‘weighTing’ of harms.

          If you did, we’re not so different. We just have a slight disagreement about the weighting values. But it is a simple matter of social policy to demonstrate that legalized, cheap abortion is a minimum of ANY weighted harms, since it a) reduces net abortions and b) reduces late abortions and c) maximizes women’s health. And d) avoids a criminal economy of unsafe abortions, something you aren’t even considering on the scale.

          For a moment, I thought you were trying to get all deontological and claiming that a moral chasm separated us. Whew!

    • Kate says:

      Thanks for the link to the Marquis argument. It’s a good one.

      • hv says:

        Heh. My read on the Marquis argument was more along the lines of the Emperor’s New Clothes.

        When we are tossing around deontological principles here on a blog, no one expects much rigor or groundwork. A modicum of hand-waving is expected, on both sides of the debate.

        But when Marquis sits down to prove from philosophical first principles that abortion is wrong, one does have a reasonable expectation of rigor and precision.

        Have you read any attempts by real philosophers to prove moral claims from first principles? Kant? Espinoza? Heidegger? Heck, you can even throw in Augustine or St. Thomas Aquianas. The pace is universally glacial. Great care is given to definitions, and precision in language. Great effort is expended to avoid false equivalences. When the author needs to examine a list of possible explanations, the list is imaginative and exhaustive.

        Marquis’s attempt provides a sharp contrast. It is not favorable.

        • Kate says:

          I’m sure your critique of Marquis’s (and other serious philosophical arguments) against abortion is devastating, hv. I only hope that you don’t think you’ve already provided one.

          • hv says:

            Hah, hah, no. I only desired for my contribution to offer substantially more critical analysis than your remark which I was using as my benchmark:

            It’s a good one.

            It was not a high bar to surpass.

            If my remarks seemed partial or unsatisfying, please reflect on your role in the discourse – this type of reply seems to be the risk you take with your remark — and I know you are big on assuming responsibility for the risks you take.

  11. Kate says:

    You’re right, hv. Henceforth I won’t thank other commenters for providing links that I find valuable without offering a thorough critical analysis of their content.

    • hv says:

      Snark because no one should expect critical analysis in your thanks? Ah, you’ve suddenly developed an ear for context and nuance! Hmmm, I wonder if there was any tiny bit of context in my post that might provide a tiny indication that I wasn’t intending to offer a full critique you then slammed me for…

      … let me look this over for a second…

      … just looking for the tiniest clue…

      … maybe just a hint, a whisper…

      … oh, I dunno, how about:

      When we are tossing around deontological principles here on a blog, no one expects much rigor or groundwork. A modicum of hand-waving is expected, on both sides of the debate.

      =======

      Yet again I find myself asking merely to be held to the same indulgent and lenient standard you use for yourself. Be as generous with context on my behalf as you assume all reasonable people should do for you.

  12. Azalea says:

    Interesting link to organ donation.

    I am pro-choice and anti-organ donation. I wouldn’t give a kidney to save anyone even if I were dying and when I’m dead nobody else can have it either. Thats my choice. I respect the right of pregnant persons to have that same mentality when it comes to feuses; its their body and the fetus can not use their bodies to develop and thrive even post viability because thats their choice.

    You can give an organ to someone and then demand it back because at that point the organ is in THEIR bod and removal of it would mean imposing a surgery on someone else. Changing your mind about going through with a pregnancy still only forces a surgical procedure on one person’s body that of the pregnant patient since a fetus ,not even a viable one, is not considered a person.

Leave a Reply

You must be logged in to post a comment.

  • Switch to our mobile site