Ethical Incoherence and Abortion III

July 7, 2004 | 18 comments
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Great posts (and thanks to Brayden for a genuine LOL comment). Some responses.

1. Danithew is right that 90 days/$5,000 does not begin to approximate the costs of adultery. . .

I think the adultery hypo is a good in the abortion context because one can plausibly argue that the costs of adultery, in terms of harm to others, may well be more than the costs of an abortion, (at least given my premise that an unborn child has a diminished, albeit still weighty, ontological status). The social cost of punishing adultery at a level that approximates the harm it causes would be very high–would it serve the children and the wronged spouse better to be hiring private investigators to collect photographs and videos that will be introduced into the public record to prove adulterous behavior? Should we reinstitute fault-divorce, complete with divorce court? If the better parent is the adulterous spouse, should we leave him or her financially destitute? Deny him or her custody of the children? No-fault divorce has had its own unintended consequences, but I’m not sure the old system was better. But whatever the outcome of that calculus, it seems extremely unlikely to me that church teachings and policies *require* a conscientious Mormon to support serious criminal punishment of adultery–hence the question about abortion.

2. I’m not an ethicist, but my limited knowledge of ethics suggests that if one starts from the premise that a fetus (incidentally I try to alternate between “fetus” and “unborn child,” because there’s really no good word that suggests neutrality/balance on this issue) has the same ontological status as an already born person, it is extremely difficult to defend the Church’s policy on utilitarian grounds, and impossible to defend it on Kantian grounds (violating the categorical imperative (life) to preserve a noncategorical imperative (health, however serious the threat) seems the ultimate in anti-Kantian ethics). I will look forward to reading Nate’s paper after I finish my deck.

3. Yes, killing is justified in some circumstances, but these are usually cases in which the victim bears some degree of culpability (self-defense, law enforcement), or the killing is excused because of background assumptions about the relationship between individuals and the state (war, cf. AF 11). Unborn children are quintessentially innocent, and the background assumption approach actually leads in a fairly direct line to the right to privacy the currently undergirds the pro-choice position. I agree with Pete that it’s a perilous enterprise to draw too strong a conclusion from silence in any context, and there remains the risk that at the judgment bar those who are liberal on access to abortion may find that they miscalculated the moral seriousness of their positions. Still, it is difficult for me to believe that, if unborn children have the same ontological status as already born persons, thus making abortion murder, God would have remained silent on so important a matter, while allowing the Church to maintain practices and policies in considerable tension with that view.

4. As to Matt Evans’s nonfeasance/malfeasance distinction, it seems unhelpful to me. The law generally holds that people have no duty to help a person in distress when they bear no responsibility for the distress. Thus, for Mormons who take the the Church’s teachings on sexuality seriously, the violin hypo fails on its premises (though it is persuasive to those who believe that sexual activity, marriage, and children are either unrelated or less closely related than Mormons believe them to be).

5. I find extraordinary the suggestion that the Church’s policy requires bishops to counsel members against abortion even when their situation falls within an exception. To me this is a misunderstanding of the role of the bishop, which is to be a judge in Israel, guided by the Spirit. There is no “common law of abortion counseling,” and, indeed, in this as in other areas the brethren affirmatively discourage the development of rules or guidelines beyond those set forth in the Church Handbook. The abortion policy requires that a person contemplating (assisting in) abortion counsel with (his) her bishop because this is a morally serious action, for all the reasons we have been discussing. The bishop’s role would seem to be (1) to make a judgment that the member’s situation does indeed fall within the situations in which the policy permits abortion to be considered (because if it isn’t, the member is subject to discipline), and (2) help the member make the “right” decision. As we all know, the “right” decision carries heavy doses of situational context; once (1) is established, (2) may vary considerably from member to member, depending on the circumstances. (And, if we’re going to be over-reading the policy, note that the bishop does not exercise veto power; the member is only required to counsel with the bishop, but the decision is ultimately (his) hers, so long as the bishop agrees that it falls within the exceptions.)

6. I heartily agree with Ethesis that a middle ground is badly needed in abortion discussions. I confess that my working assumption is that prolifers do not link their position with social legislation that ameliorates the disproportionate burdens on women that such a position entails (can anyone think of a national politician–governor, senator, member of Congress–who takes this position?), and was glad to hear of him and others like Russell who do make that link.

Fred

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18 Responses to Ethical Incoherence and Abortion III

  1. Kaimi on July 7, 2004 at 7:45 pm

    Fred,

    I had a long, drawn-out argument on the LDS-law listserv a few years back about abortion as self-defense. (Many of the major participants are now blogging here — Adam, Matt, Nate).

    I think a strong self-defense case can be made, despite innocence.

    Pregnancy involves a very high level of physical contact. To the extent that that contact is not desired, it can be viewed as battery. To the extent that that contact is a serious physical invasion, it may justify self defense.

    Would I be justified in self-defense if a third party threatened to inject body-altering horomones into my blood for nine months, displace my internal organs, and then seriously batter my lower abdomen? Quite possibly.

    There is still the question of innocence. However, innocence doesn’t vitiate self-defense. Think of the example of a brain-damaged or insane person, who is incapable of comprehending the consequences of his actions, who is about to inadvertently cause a harm (pull the trigger of a gun about to kill someone, for example). If the only way to stop that harm is by using force in self-defense, then self-defense is justified, despite the lack of malicious intent on the part of the insane or brain-damaged person.

    What this gets us is a model where abortion may be viewed as reasonable self-defense.

    The two major responses that various parties gave on the LDS-law conversation were:

    1. Consent – the woman has consented to the touching, so it’s not battery and/or she can’t use self-defense. I don’t think that this works, because it takes a lot of consent to acquiesce to a 9-month-long serious battery. Can we infer that intent out of the act of sex? (And what if she was drunk, underage, or otherwise incapable of consenting to that battery?).

    2. Various arguments that the characterization of pregnancy as battery is not tenable.

  2. Fred on July 7, 2004 at 8:13 pm

    Kaimi, two hypos:

    1. I walk through the worst crime district of any urban city at 1:00 am. Knowing that the risk of being mugged is significant and cannot be reduced to zero, I take all the precautions I can–concealed carry permit, blend in clothing, walking confidently and purposefully, walking in step with othersetc.–but I get mugged anyway, and in the process kill the mugger with my trust .38.

    2. I go sky diving. Knowing that this is an inherently dangerous activity whose risks cannot be reduced to zero, I take all the precautions I can–lots of instruction, carefully folding my chute, all the right equipment–but my chute fails to open anyway. To save my life, I shoot a fellow skydiver–concealed carry is awesome!–and use her chute to save my life.

    Doesn’t your position entail a defense of hypo 2?

    Fred

  3. Kingsley on July 7, 2004 at 8:21 pm

    Fred: It’d be cooler (for us on the ground) if you killed your fellow skydiver with a huge sword. Especially if he had one, too.

  4. Kaimi on July 7, 2004 at 8:36 pm

    Fred,

    My position is not a “necessity” position (as your hypo 2 is) but a battery/self-defense position.

    I recognize that there is a limit in the use of deadly force in self-defense. On the other hand, at least some types of serious battery can justify deadly force used in self-defense.

    If an assailant threatens to kill me, and the only way that I can defend myself is to kill the assailant, I may do so.

    If an assailant threatens to rape me, or to aputate a limb, or to put out an eye, and the only way to defend myself is through deadly force, I may do so.

    And yes, it’s getting more into the gray area, but I think that if an assailant threatens to inject body-altering horomones into my blood for nine months, displace my internal organs, and then seriously batter my lower abdomen, I may use deadly force in self-defense.

    Interestingly, the self-defense analysis breaks down after a fetus reaches viability. At that stage, a non-deadly option is available to end the battery, and the use of deadly force in self-defense is almost certainly no longer justified.

  5. john fowles on July 7, 2004 at 8:52 pm

    Kaimi,

    It seems to me that your model works on the narrow point of permitting abortions in cases where there is a serious risk of death to the mother absent the abortion. Otherwise, even if you can characterize the pregnancy as battery (which is as repugnant as characterizing the family as genocide, see UN) then self-defense can’t possibly work because deadly force cannot be used to defend against a non-deadly battery–even one that lasts nine months.

    I don’t see how characterizing abortion as self-defense could be helpful in any other way or context to a Latter-day Saint (although I see definite appeal to it for the pro-choice community as it completely justifies abortion even while also admitting that abortion kills a human being).

  6. Kingsley on July 7, 2004 at 8:54 pm

    Kaimi, my greenhorn reactions obviously don’t constitute any sort of logical response, devastating or otherwise, to your argument, but for what it’s worth my gut feeling on reading it was how monstrous. How absolutely vile—I mean your description of pregnancy, of childbirth. Not, of course, that you are monstrous or vile for exploring possible legal ways of defending abortion, but still—if we got accustomed to viewing “the miracle of life” that way, it seems like it’d be just about the most savage blow one could possibly deal to that miracle.

  7. Kaimi on July 7, 2004 at 9:07 pm

    John,

    You’re closer to law school than I am, and my crim law experience was a bit, err, interesting. That said, I’m relatively sure that deadly force may be used to defend against serious types of battery.

    Try a hypothetical or two:

    Achilles is about to chop off your foot. It is certain that he will not kill you, however. This act will cripple you and cause a lot of pain. Your only defense is a bow, with which you can shoot him in the heel and instantly kill him. Are you justified in killing Achilles to save yourself from having your foot chopped off? Or are you obliged to allow your foot to be chopped off, since it’s not deadly.

    You are attacked by a 300-pound bodybuilder, who is violently allergic to peanuts. He is going to break both of your arms and both of your legs (but not to kill you). Your limbs will heal eventually, of course; in the mean time you will suffer a lot of pain, etc. Your only possible defense is a tube of peanut butter, which you can squeeze into his mouth. This will kill him. Are you justified in defending yourself with the peanut butter? Or are you obliged to let him break your limbs, since his attack is not deadly?

  8. Kaimi on July 7, 2004 at 9:14 pm

    Kingsley,

    I’ll lump that in with “2. Various arguments that the characterization of pregnancy as battery is not tenable.” :)

    And I should point out that battery is only battery if it’s unconsented. Many pregnancies are celebrated and looked on with joy, and certainly with consent.

    But for those which aren’t, I think self-defense provides a very interesting analysis.

  9. Fred on July 7, 2004 at 9:17 pm

    Kaimi, I’m baffled by your argument, and don’t think it works, as John does, even in case of threat of death. All your hypos involve victims with large degrees of culpability, whereas the fetus is innocent. Moreover, none of your hypos involve persons engaging in conduct that they know involves the very risk that threatens them and justifies the killing. Things are not improved by ratcheting the stakes down to serious bodily harm rather than death.

    I’ll ask again, how is the parachutist hypo wrong? If it is right, then I’m with Kingsley (on both monstrosity and swords).

  10. Kaimi on July 7, 2004 at 9:29 pm

    Fred,

    “All your hypos involve victims with large degrees of culpability, whereas the fetus is innocent.”

    Easily enough solved; I’ll set that out below.

    “None of your hypos involve persons engaging in conduct that they know involves the very risk that threatens them and justifies the killing.”

    Ahh! Consent! Again, I’ll address below. But first:

    “I’ll ask again, how is the parachutist hypo wrong?”

    Umm, because there’s no battery. My entire argument is based on battery, which is an unconsented touching. Your fellow skydiver is not touching you at all (least of all in a harmful way.) Now, if she were touching you in a way that would cause harm, such as bear-hugging you in a way that your chute would not open, then you might be able to use self-defense. If she were touching in a sufficiently serious way (such as bear-hugging to prevent your chute from opening, or perhaps threatening to chop off a leg), and the only way to prevent that battery was to kill her, then you would be justified in doing so. But your original example has no battery at all, so it doesn’t fit my argument.

    Now, back to your other concerns:

    1. Innocence. Okay, we’ll make it an insane bodybuilder who is incapable of understanding that what he’s doing is wrong. Or a body builder who has wrongly been told that you’re a Russian spy about to assassinate his family.

    Or we can go even further and craft a hypo where the innocent part is a child. How’s this: There is a switch which will electrocute you. (I know, kind of wacky, play along). A child is about to hit that switch. You are too far away to interfere except to shoot him with your gun, which will almost certainly kill him. May you shoot the innocent child in self-defense? Or are you obliged to just let yourself be killed?

  11. Fred on July 7, 2004 at 9:31 pm

    Kaimik, perhaps I should add that mine is not a necessity position, either. Necessity is a tort defense that justifies taking possession/damaging another’s *property* to preserve one’s own property or (the easy case) one’s life. There is no necessity defense that excuses killing another (who is not threatening you with bodily harm) in order to save one’s own life. (And we may all be grateful that there isn’t.)

    You may recall the famous three men in a rowboat case from crim law–even there, when the weakest of the three was close to dying, and the other two killed him for food rather than starve (to you nonlawyers out there, I’m not making this up), they were convicted of manslaughter and sentenced to six or twelve months of prison. So “necessity” goes only to mitigation of sentence and, perhaps, state of mind, but it does not excuse like self-defense.

    The fact that yours is a self-defense position posed in a circumstance in which the tortfeasor/criminal bears no responsiblity or culpability for the threat suggests that yours is not really a necessity or a self-defense position

    Perhaps I should read the whole paper. Can you link it?

  12. Kaimi on July 7, 2004 at 9:37 pm

    Now, consent. Consent is tricky, because one _can_ consent to battery. Even to serious battery. Professional boxers do it all the time.

    Can we say that a woman consents to a nine-month serious battery because she has sex? I see several problems here.

    First, what if she _didn’t_ consent? What if she is incapable of consent? This may be the case if she is underage. It may also be the case if she is developmentally disabled. It may be the case if she was impaired (such as drunk or on drugs) when she had sex. In addition, birth control may be seen as an affirmative statement of non-consent. If a woman becomes pregnant despite birth control measures, it is hard to say that she consented.

    Second, consent is usually required to be spelled out in pretty certain terms. Just “engaging in conduct that they know involves the very risk that threatens them” as you state, or putting oneself in a position where a battery may occur, does not seem to be effective consent.

    If I walk through the South Bronx, is my very act of walking through that neighborhood a consent to whatever battery that may follow? If I drive a fancy car, am I consenting to carjacking? That logic just doesn’t work. Principles of freedom, autonomy and self-determination suggest that people must be allowed to engage in behavior, even behavor that carries some risk, without having imputed to them some type of consent to the harms potentially arising from the risks.

  13. Kingsley on July 7, 2004 at 9:48 pm

    “If she were touching [you] in a sufficiently serious way … , and the only way to prevent that … was to kill her, then you would be justified in doing so.”

    My mom used to tell me the same thing right before a date.

  14. Matt Evans on July 7, 2004 at 10:12 pm

    Fred,

    There are actually several instances where the law imposes affirmative duties. Besides a person who creates the distress which you mention, the law imposes affirmative duties on those who are contractually bound (e.g., lifeguards) and on people with a relationship to the distressed person (e.g., parents).

    For example, if SurferBob bumps my 2-year-old daughter Ellie into the swimming pool, the people who will be held criminally liable for failure to rescue are: SurferBob, the lifeguards, me and and any other people with a special relationship to Ellie. If she drowns and I do nothing, I’ll go to jail for: doing absolutely nothing!

    In the same way, if I decide to spend the next five days in bed, leaving Ellie in her crib, I’ll go to jail for: doing absolutely nothing! The law literally forces me to care for my child. I can be relieved of this duty only by finding a surrogate.

    The reason some pro-lifers want a rape exception is because they don’t believe the affirmative duties of parenthood should be imposed on someone who didn’t consent to parenthood. The law imposes affirmative parental duties on men — usually in the form of child support — even when the man deliberately used birth control specifically to avoid parenthood. No matter how hard he tried to avoid pregnancy and parenthood, if he consented to the sex he assumes the risk that he’ll become a father. However, in cases where the man didn’t consent (his sperm was stolen from a lab, for instance), the law will not impose parental duties on him.

    In the same way, people who want an exception for rape do not want to impose the affirmative duty to care for the child, even though they believe the child is a full human being.

  15. john fowles on July 7, 2004 at 10:31 pm

    “If I walk through the South Bronx, is my very act of walking through that neighborhood a consent to whatever battery that may follow? If I drive a fancy car, am I consenting to carjacking? That logic just doesn’t work. Principles of freedom, autonomy and self-determination suggest that people must be allowed to engage in behavior, even behavor that carries some risk, without having imputed to them some type of consent to the harms potentially arising from the risks.”

    If I’m not mistaken, that is one of the reasons most states have abolished assumption of the risk as an affirmative defense, together with traditional contributory negligence.

    As to your point about deadly force in self-defense of battery, your point is well taken about the propriety of deadly force in defense against serious bodily injury and not just the threat of death. I can see that I made my point incomprehensibly truncated as usual. I was focusing more on the victim, and Fred has aptly voiced my thoughts on that point. I would just add that the innocent fetus in the womb still isn’t comparable to the innocent child about to electrocute you. In the latter case, the child will still be the perpetrator of the battery, but I don’t think that you could characterize a fetus as a perpetrator of anything.

    A battery requires an intent to act, in the minimum, and the fetus is devoid of that. The fetus itself is also a victim in this whole scenario. In other words, I only saw your example as fitting in the case where the mother’s life is threatened by the pregnancy as a valid application of self-defense because in that case the fetus itself is threatening to kill the mother through the pregnancy. So the mother is not defending agaisnt a battery of deadly force but rather against a more general threat of death that, although void of the intent prong of a battery still could justify deadly force in defense, even against an innocent third party victim (transferred intent works for self-defense as it does for intentional torts).

  16. danithew on July 8, 2004 at 12:05 pm

    Fred,
    I was impressed with the questions you brought up about punishing adultery and the effects that could have on the specific family and children involved that might be involved. That is a serious and weighty issue that needs to be considered thoroughly.

    It occurred to me that there is one other facet to this issue though. In addition to the concerns related to a specific family, one has to consider the value of an enforced social/legal stigma on adultery. If the law treats adultery as a serious crime and punishes the guilty party accordingly, I imagine that it would help deter the playas among us from acting out on their evil inclination.

    I think too, that the law could distinguish between the truly remorseful person who somehow slips and has a one-time dalliance and the unrepentant serial philanderer. Perhaps there could be a three-strikes law for adulterers, if bringing that kind of lingo into the equation is helpful at all.

  17. Fred on July 8, 2004 at 5:49 pm

    I apologize in advance for the length of this comment. I probably should have stuck to my original practice of responding en mass rather than seriatim to comments.

    But anyway, I think I get it, finally. I agree that if I were a pedestrian walking along the sidewalk minding my own business and, out of nowhere, a car jumped the curb and was about to hit me, I could pull out my trusty RPG (sorry Kingsley, but I lack imagination) and blow up the car and its driver up without fear of criminal or tort liability. And I agree that this would probably be true even if the driver of the car who jumped the curb was innocent–that is, if she were forced off the street by another driver, and was about to hit and kill me through no fault of her own, in which case I suppose that driver would be culpable. This assumes that the negligent driver who created the risk of harm to me is, in fact, not me–that is, I am in no way responsible for putting the innocent driver in the position of threatening my life.

    This works with some of the church’s policy exceptions. Rape and incest are easy cases, irrespective of the marital status of the mother, because there is no consent to the pregnancy, as Kaimi emphasizes. Moreover, if a married couple were to conceive a child, and bringing the pregnancy to term would threaten the mother’s life or seriously threaten her health. LDS teachings do not require that every act of married intercourse retain the potentiality of conception, and emphasize that married sex is not just for conception, but also serves the purpose of binding a couple more closely together as husband and wife. I suppose we could argue about this, but I think that even if the couple knew in advance that pregnancy would threaten the wife’s life, they would not be restricted to either refraining from intercourse altogether, or accepting the wife’s death or serious physical disability as the price of such intercourse. Rather, they could take all precautions possible, and if pregnancy still resulted, could still avail themselves of an abortion.

    Kaimi’s argument does not justify the case in which an unmarried couple conceives, and the pregnancy threatens the mother’s life or seriously threatens her health. This is like a pedestrian who regularly crosses the street against a red light. She realizes the dangers, and takes precautions, carefully judging whether she can make it across, walking (so as not to trip and fall), running only when necessary to avoid being hit, etc. But, inevitably, there comes the time when she finds herself about to be hit and killed by an innocent driver entering the intersection on the green. If she pulls out her RPG and blows up the car and driver, she is (and should be) criminally liable, having compounded her initial negligence by taking an innocent human life.

    If Kaimi follows the logic of his argument to the end, an unwed mother who faces a life- or health-threatening pregnancy cannot be permitted to abort the pregnancy. This seems contrary to the church’s abortion policy, which does not require that unwed mothers (but not unwed fathers) risk death or permanent disability as the price of sexual transgression.

    All of the foregoing assumes the primacy of a consent-based system of ethics, which is highly contestable; as I mentioned earlier, all of the foregoing can be attacked on both utilitarian and Kantian grounds (unless consent is assumed to maximize utility or is defined as the categorical imperative–also highly contestable). Even on the assumption of the ethical primacy of consent, the church’s policy implies (with all of the limitations that “implies” implies) that unborn children have a different ontological status than already born humans, since it permits unwed couples to consider abortion as an option when the mother’s life or health is threatened, even though, on LDS premises, the unborn child has been brought into being by morally culpable behavior.

    As I think Kaimi implicitly concedes, one can justify an abortion by an unwed mother facing a life-threatening pregnancy, even on the premise that the fetus is fully human, if one wholly divorces sexual activity from child-bearing and -rearing–that is, on the assumption that it is reasonable for unwed people to engage in sexual activity without bearing any responsibility for the resulting possibility of conception. This, in fact, is the basis of the gender equity (or, actually, sex equity) argument for abortion Justice Ginsburg and others made twenty years ago: Women (like men) should be able to have sex, as often as and with whomever they please, without risking death or disability (or any more burdens than men endure as the result of sexual activity). But this would be a curious position for a Mormon to take, given the LDS belief that extra-marital sex is a serious moral wrong, and in a sense brings things back to my original post on this topic. As a matter of policy, not morality, one way to approach gender equity with respect to child-bearing and child-rearing is to abandon mitigating social legislation, and grant to women largely unrestricted access to abortion (the status quo). Another way to achieve gender equity is to provide abortion only on highly restricted conditions, but invest considerable social resources in equalizing the burdens between men and women re child-bearing and -rearing. Very few people take this position, though I’m glad to know that there are at least some.

    What remains difficult to justify, in my view, is a combination of commitment to gender equity, restrictive access to abortion, and no ameliorative legislation. This I believe to be the dominant position of most of those in the pro-life movement. The logic of this position, I submit, places in question the depth of the commitment to gender equity.

  18. Kaimi on July 11, 2004 at 1:50 pm

    Very thoughtful comment, Fred.

    The red-light walking is interesting, though it leaves out the gender problems. I’m not sure now it changes the analysis if men have bridge which they can walk over the street without any danger of battery, but women are forced to run against the red light. (And men routinely encourage women to run against the red light, and pressure them to do so, while the men continue to cross on their own little bridge).

    In general, I’m not sure that I’m completely willing to put sex into the category of red-light walking, though I find that to be a better analogy than many others.

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