Monday, March 2, 2009

Abortion, Morality, and the Freedom to Decide Moral Matters

Evan's post revolves around the idea that despite the retro, flash-back images the abortion debate conjures up in the 21st century, there are still important, black-and-white moral questions at the heart of the conflict. Indeed, I sense that a major concern of his is that this moral dimension will be lost as both sides of the question begin to understand that they actually do share common values - that pro-choicers aren't actually "baby killers" and pro-lifers aren't actually "misogynists", and that neither side has any great affinity for the practice of abortion. From what I understand from previous discussions I've had with him, Evan considers the moderation of ad hominem attacks to be fantastic progress in the abortion wars - but he worries that it may dilute the real question at hand. The moral imperative itself still needs to be front and center. In this respect, I agree with him. So long as this is a moral problem with opponents, proponents should stand ready to engage the moral issue, even if their response is quite simply "I don't consider it a moral problem".

I would take issue with Evan's conclusion that as long as this remains a dilemma, there should be a moratorium. He specifically mentioned a moratorium on funding, but presumably some kind of "time out" on abortions themselves would be consistent with this view as well. The logic is that as long as we all still disagree the state shouldn't take sides.

What I think that position ignores is that as long as you're telling a person what they can and can't do, the state is always taking sides. The question is - what side should the state take?

In the United States, we have traditionally taken very seriously the idea that free people should make moral decisions for themselves; that their own moral compasses are far better equipped for decision making than government fiat. This is not to say that the government never "legislates morality". As Evan suggests, the Civil Rights movement and emancipation, not to mention laws against homicide, rape, and embezzlement are nothing if not "legislating morality". The essential difference, I would argue, is that these laws weren't passed until a critical mass of citizens identified the issue at hand as a moral problem that was worth state involvement. In the case of emancipation, the critical mass was so great that stringent requirements for Constitutional amendment were even met. At the same time, many more "moral problems" - like lying, adultery, etc. - remain free of state legislation, not because there is a disagreement over their moral standing, but because we still place a premium on individual moral decision making - even when the vast majority agree on the immorality of a course of action. Only certain immoralities translate into illegalities.

We aren't even close to a resolution of the moral question of abortion in this country - and I don't think there is any clear momentum in either direction that might justify a heroic court decision on the matter. Roe v. Wade represented such a "heroic" (perhaps "quixotic" is a better word) decision on the question in anticipation of the momentum of public opinion - and many legal scholars agree that while the conclusion of the court may have satisfied the pro-choice movement, the legal justification they provided was flimsy at best. Roe v. Wade, in my mind, was a mistake - but we shouldn't match it with an equally mistaken and equally sweeping national moratorium on abortion.

I think the court should have simply said that there is no precedent or Constitutional justification for a national position on abortion. No national consensus exists to support such a decision, and no Constitutional provision suggests that the federal government has a right to dictate the practice to the people or the states. As such, if the Texas legislature finds abortion to be a criminal offense, it is a criminal offense in the state of Texas. If the state of Massachusetts provides unfettered access to abortion, then unfettered access is legal in Massachusetts. This is how we have always approached contentious moral questions in the United States, and I see no reason not to approach it this way now. I think Roe did more damage to the veracity of federalism in the United States than it did to alter the fundamental position that free individuals should make moral decisions for themselves. It erred insofar as it prevented the several states from exercising their right to curtail individual decision making - but it did not do violence to the underlying sanctity of individual decision making. In that sense, it was bad law but not ultimately unsalvageable.

In the future, there may be a national consensus that passes a Constitutional amendment banning abortion. If that happens, that's fine. In the meantime, the House of Representatives still controls the federal purse strings. If they want to fund abortions, that's something that can be determined by a simple majority. If they want to restrict funding, that too can be done with a simple majority. The President conducts our relations with foreign nations. If he wants to restrict abortion funding from going abroad, that's fine. If he wants to make those funds available that is fine as well - and the voters will hold him accountable for his decisions.

To me, the real audacity of the abortion debate is that both sides have made a habit of assuming that the moral conclusions that they draw are more valid than the moral conclusions of others. One side is more valid than another, obviously. But neither should presume the right to exercise the power of the state on their own behalf unless they can legitimately exercise that power (i.e. - gather the votes or get the amendment).

The default position of the state in the United States is to let the people make decisions freely. Government action - whether in the form of funding, a moratorium, or a ban - should only occur when it garners enough votes. There is no default moratorium on free agency in this system! The default should be to let individuals choose. As bad as Roe v. Wade was, at least it still allows that to happen.

As an olive branch, I would note that because of my position on this, I completely support Montana's right to legislate that life begins at conception. We need to get to the point in this country where that is something that a state is able to decide for itself.


  1. To clarify, I never advocated a moratorium on abortions, I only presented it as an option for those who were undecided about the personhood of the unborn child.

    I'm personally convinced of the personhood of the child, and so I can let my moral calculus play out from there. What concerns me is that those, like Obama, who say that such questions are "above their paygrade", think that saying as much allows them to move forward without considering the possibility of the rights of the unborn child when they legislate or rule from the bench.

    Paragraphs 7-8 lay out the considerations that someone like Obama, who is not prepared to take a stance on the moral personhood of all the parties to an act of abortion, should consider in making policy decisions. I lay out the weighing of 1) a possible, serious, and clear violation of rights with 2) an actual, less serious, and less clear violation of rights. Deciding that one or the other is the more weighty moral concern is what separates those voters and policymakers undecided over the matter of personhood into pro-choice and pro-life camps.

    My concern is that I don't see such considerations being made by many pro-choice policy makers. I hear a lot about the rights of the mother, and rightly so. But there is no context present for this, no recognition of a conflict of rights and a deliberation over them. There is no recognition of a conflict of fundamental and non-fundamental (and more recently or less clearly enumerated) rights. I would like to believe that the pro-choice stance has been reached by Obama and others after careful deliberation over these sorts of points, but I just don't see it.

  2. I think they let their moral calculus play out just like you do, and they decide based on that. What is undecided is the electorate as a whole - and perhaps a better term is "conflicted" than "undecided".

    Your question presupposes the validity of your views (just as the way a liberal would frame this presupposes the validity of their views). That's all legitimate as far as it goes.

    But I don't see why a moratorium is a default position that is fair to all sides. What is fair to all sides is for the federal government not to take any sides. Roe v. Wade took a side and refused to let any deliberative body consider the question. I think that's wrong. But a moratorium that does the opposite and tells everybody they can't do anything makes the exact same mistake that Roe v. Wade does, only in the other direction!!!!

    Which is fine to advocate if your position is that abortion is wrong. It's not fine to advocate on the basis of the indecisiveness of the electorate.


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