Compelled Birth and the Liberal Polity

by Daniel A. Kaufman

____

Abortion is now illegal in the State of Missouri, where I live. If my twenty-year-old daughter was to become pregnant, she would be required to carry the baby to term and give birth to it, under threat of a felony conviction. In a number of the states in which the recent Supreme Court ruling triggered automatic anti-abortion laws, there are serious discussions going on about monitoring and prosecuting those who might cross state lines to seek an abortion in an abortion-permitting state. Indeed, several major companies with substantial investments in these states have stated publicly that they will pay for their employees to travel out of state, if they want an abortion. It’s all quite mad, and I’m still wrapping my mind around the fact that we’ve gotten to this point; that we’ve gone this far backward on women’s basic status in our society. But here we are.

Many commentators will be doing deep-dives into the details of the ruling and all of its potential implications. My interest, however, is in the general question of reproductive freedom, and why one cannot have a liberal society without it, and the short of it is that reproductive freedom is a form of bodily autonomy, and bodily autonomy is fundamental to the very idea of a liberal society, let alone any acceptable implementation of one. With regard to the question of abortion’s legality, then, the moral dimension is largely irrelevant.

For political-philosophical and prudential considerations to supersede moral ones is hardly unusual. Whatever one might think about the morality of imposing the death penalty on convicted murderers – I easily can see the case for saying the John Wayne Gacys and Jeffrey Dahmers of the world deserve [in the moral sense] to be killed – as a matter of prudence, the state cannot impose irreversible punishments, when the relevant systems are inherently and necessarily fallible. Executions, in short, are a form of reckless disregard. And while I’m sure there are few people who think it immoral to drive thirty-five miles-an-hour in a thirty mile-an-hour zone, municipalities legitimately enforce thirty mile-an-hour zones, nonetheless. The point is not that there is nothing ethical wrapped up with prudence [there are ethical considerations wrapped up with the prudential injunction not to impose irreversible punishments by way of imperfect systems], but rather that the morality of the thing itself – driving faster; killing murderers – is not the governing consideration. And as the question of the thing’s morality is a matter of irresolvable dispute, if it is taken as the governing consideration, we wind up with unsurpassable and toxic political divisions; a winner-takes-all universe, in which political victory means forcibly imposing one’s morality on others, and political defeat means having others’ morality forcibly imposed on you. And they will be imposed on you, because you will not always prevail in political contests.

____

So, the question of whether having an abortion is morally right or wrong is irrelevant to the question of its legality, insofar as there are overriding politico-prudential considerations to take into account. A liberal polity, at a bare minimum, depends upon sustaining a rigorous distinction between the public and the private and granting substantial prerogative to the private, with respect to incursions from the public. In liberal societies, like the US, this prerogative is often extended as far as a person’s place of residence or even his or her land. That there are things you can do to an intruder on your property – including killing him – that you could not do to him out on the street is one expression of this prerogative. That the police cannot enter your home without a properly served warrant is another. One would think that some similar prerogative must also operate at the bodily level or an even stronger one perhaps, insofar as one’s body represents a far more intimate portion of the private sphere than one’s house or land. It is why the state cannot compel you to donate an organ, even if considerations of Utility deem it obligatory, or prevent you from masturbating, even if there is a credible moral philosophy that prohibits it. It also is why the state cannot compel women to give birth, regardless of whether there are credible moral reasons suggesting they are obligated to do so. It beggars belief to suggest that one’s prerogative on one’s land is so great that you can shoot dead a person on your property, but that one’s prerogative over one’s body is so small that the state can force you to give birth. But once again, here we are.

At this point, a clever opponent of legal abortion will invoke the bodily autonomy of the fetus in an effort to make this a matter of competing private prerogatives, as John Finnis did in his critique of Judith Jarvis Thomson’s famous “A Defense of Abortion.” [1] And if the relevant, governing question was abortion’s morality, we’d have to get into the weeds of the conversation between Finnis and Thomson. Fortunately, it isn’t, and the prudential injunction already invoked remains operative. If fetuses gestated outside of the mother – perhaps down the street – we would not be having this conversation, as women’s bodily autonomy would not be at issue. As it happens, however, human fetuses gestate inside women’s bodies, so a mothers’ bodily privilege is in full effect. And remember, once again, it is not credible to suggest that one can kill a grown person on one’s property, on grounds of private prerogative, but that a woman has insufficient bodily autonomy to determine whether or not she is going to give birth.

____

Now all of this depends upon the value of living in a liberal society, but this is something I’ve already written about on a number of occasions, so I won’t say too much about it here. Still, I’ll offer two observations.

First, the United States is in fact and by design, a liberal polity, something – as already mentioned – that is reflected throughout its foundational documents and enumerated and unenumerated rights. [The ninth amendment to the US Constitution explicitly states that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”] If one political faction in this country wants to alter the country’s fundamental nature – wants America to cease being a liberal polity – it will require a constitutional convention or a raftload of major constitutional amendments. It cannot be effected by the judgments of a bunch of political appointees to a court [including the Supreme one] or a rabble of state legislators.

Second and as I’ve already maintained, the preferability of a liberal society over other types also has a purely prudential rationale. I’ll summarize it again here:

A liberal polity is preferable to any other, because you cannot win every election and you cannot kill all your opponents. [2]

____

I want to close with a brief remark on systems.

Because the landmark Supreme Court rulings of the mid-20th century had such a positive impact on American society – the ruling regarding desegregation being the most obvious example – we came to think of the court as the place where fundamental rights were protected in the face of hostile populations. More generally, many if not most Americans think this about the Constitution and the Bill of Rights themselves: that they provide systemic protection of fundamental rights and liberties from the vicissitudes of democracy. People, after all, can vote for anything, good or bad.

But this reliance on systems is a mistake, because there is no system that can be designed, whose proper functioning does not depend on the good will of those charged with implementing it. Bad actors will always prevail over systemic obstacles, and this latest Supreme Court decision is merely the latest and most egregious illustration of that fact. Liberties and prerogatives – and liberalism itself – need to be re-established and re-defended with every turn of the political cycle, in perpetuity.

Notes

[1] https://spot.colorado.edu/~heathwoo/Phil160,Fall02/thomson.htm

https://www.jstor.org/stable/2265137

[2] https://theelectricagora.com/2018/03/10/the-liberal-consensus-and-the-orthodox-mind/

https://theelectricagora.com/2019/12/06/the-good-old-liberal-consensus

Comments

209 responses to “Compelled Birth and the Liberal Polity”

  1. Andrew Davis

    Excellent. Thank you.

  2. We’ll said Dan.

  3. One of the unpleasantly ironic positions a pessimist always ends up in is the “I told you so” moment. I’ve been predicting the general political terrain in which we find ourselves since the election of a ham celebrity with known criminal contacts and far-right advisors, elected largely on the basis of his charm, his seeming harmlessness, his sense of almost messianistic mission in an increasingly pluralistic society – Ronald Reagan. Open the door to Ronald Reagan, and eventually a Donald Trump walks through it.

    When the draft of majority opinion was first leaked a few weeks ago, I was amused to find many political liberals sharing in the nonsense question concerning who might have leaked it (who cares?*) while trying to comfort themselves that “institutionalist” Roberts would insist on a moderation before allowing the draft to be released as the opinion. What a laugh! His concurrance was itself the only “moderation” he offered, and pretty much worthless. So for the past couple days I’ve been on the phone with liberal friends: “I told you so, I told you so.”

    There is more to say in this matter; we do need “deep dives” into the details, so we can at last confront the future on its own terms. But I did want to make the following remark to all those liberals and leftists who (beginning with Reagan) failed to vote for candidates offered by the Democratic Party,
    either because they failed to remember that the Democrats are the “Big Tent” party, including conservatives, moderates, progressives, run-of-the-mill liberals (whereas the Republican politicians now only include those who have bullied their way into leadership by placating an increasingly radical-right base);
    or because they thought that an abstract political principle, that there should be a proper third party in America, demanded they “vote their conscience” – i.e., throw their vote away to “protest the system;”
    or because they were so cynical about the system (“if your vote mattered, it wouldn’t be allowed”) that they refused to vote, in order to prove its corruption;
    or because they were comfortable in the belief that progress was inevitable, that every step forward would be followed by another step forward as America’s “consciousness” was raised through greater access to information, greater reasoning, increasing reliance on science, the improvement of the rationality of the “rational agents” humans were inherently, – etc.;
    or because they were so proud to be “independent,” that they only voted for the candidate, not the party, and when no candidate appealed to them, they stayed home;
    or because they were just too bored or too lazy or too disinterested to vote (“What, me worry?”);
    but mostly because they remained either utterly ignorant of the history of the United States and the implications embedded therein, including the (now seemingly perverse) federalism of its political strusture; or they adhered to sloppy, incomplete and agenda-filled historical narratives either from right-wingers or left-wingers that failed to articulate some fundamental facts of American politics (for instance, the fact that most Southern States were one-party states dedicated to white supremacy, or that the proper achievment of civil rights effectively required ethnic assimilation); and they failed to realize the importance of the Supreme Court in that federalism and in its history, and how and why justices are appointed thereto;

    I TOLD YOU SO.

    You who failed to voted for Democrats since Reagan, YOU overturned Roe v. Wade.

    And if we had a traditional politics still, it would take about 30 years to establish a Supreme Court capable of overturning this new decision – as long as the majority voted straight Democratic in virtually every election, local, state, and national. (You won’t be able to save Roe v. Wade, but you might, by 2027, establish pro-choice legislation in many states and possibly in national law and policy.)

    Alas, “traditional politics” is dead. Through gerrymandering, restrictive voting laws, election or appointment of MAGA Big Lie politicians to offices controlling voting or certification, it is likely the Republicans will establish one-party rule in Congree and then, in 2024, the White House. At which point, your vote will be allowed only because it doesn’t matter, but will provide good optics and buttress fascist claims to “the popular will.” When that comes about, I’ll be back to say “I told you so” again. Or some pessimistic critic will. That’s the only hope we pessimists enjoy.
    – – –
    * At some point we will need to confront the media’s participation in the cloud of irrelevance masquerading as information and important issues of the day, contributing to drift toward fascism we find ourselves in today. However, I will provide a hint as a word of caution: Whatever they say, remember that most journalists and their editors want Trump back in the White House. He generates “exciting” copy and that sells advertising. Until censors come to shut them down, fascism makes news media a lot of money. Whatever they say (and they are usually speaking truthfully, except at Fox), always ask, why are they saying it. The answer will usually have a dollar sign attached to it. This doesn’t make them evil, it only makes them humans in a capitalist system. There is no question of evil in any of this; just variants and degrees of human stupidity.

  4. Precisely. The fatal flow of all ‘political technologies’ — ie, principles, rights, laws, amendments, constitutions — is that they can’t account for bad actors, since a bad actor will use these very same technologies to his own nefarious ends. This is the same argument I have against those who, for example, believe that absolute free speech is some kind of guarantor of freedom. As they say about Islamists and elections, ‘one person, one vote, one time.’ Or as Karl Poppper pointed out in his paradox of tolerance, ‘if a society is tolerant without limit, its ability to be tolerant is eventually seized or destroyed by the intolerant.’ Eternal vigilance is the only guarantor of a decent society.

  5. ‘The Court Is Not Your Friend’ (published in the Winter of 2020)

    ‘Progressives have little to lose and much to gain by leaving juristocracy to the enemies of democracy.’

    https://www.dissentmagazine.org/article/the-court-is-not-your-friend.

  6. ej, there’s on thing I miss in your analysis: religion, the way it has the moral imagination of millions in a stranglehold, and the way it is used in the political debate.
    Let’s be honest: religion is the winner here.
    This is not going to end well. Politicians and political activists think they can use religion but at the same time contain and control it. They’re wrong, as was shown in Iran in 1979, in Afghanistan etc. The republicans in the US (starting with Reagan, I think) are unleashing a ferocious animal that will be very difficult to domesticate again.

  7. ira

    Contrary to what is conventionally believed, the 1979 Iranian revolution against the Shah was broad-based: conservative shopkeepers (bazaaris), liberals, academics, students, trade unionists (the oil workers were especially important), socialists, communists, and Islamists.

    The Islamists won out because they were the most disciplined, had no qualms about lying (they repeatedly promised they would not institute Islamic law), and, most crucially, were prepared to use violence, when necessary, to achieve their aims.

  8. 1. One does not need to think this is a step backward for women’s status. One can see it as a step forward for the status of the unborn. We are moving in the direction where all human beings, regardless of developmental status, have human rights (such as the right to life).

    2. Bodily autonomy has never been absolute. Men have been conscripted to fight wars. During the pandemic we have compelled people to act certain ways or to get vaccinations. I think the U.S. was a liberal polity before Roe v. Wade and it will be one after it.

    3. The appeal to bodily autonomy in the case of abortion is complicated by the fact that there is a body being killed. I don’t find your “prudential” approach convincing.

    4. On the subject of abortion there is no escaping the imposition of one’s morality on another. The abortionist has imposed his morality on the fetus. A pro-life government has imposed its morality on the pregnant woman. If abortion is murder then it is the kind of thing the state can’t take a hands-off approach to.

    5. If you can shoot a trespasser that would only be analogous to an abortion to save the mother’s life or maybe in the case of rape. Note: I don’t think one should be able to shoot just any trespasser.

    6. I don’t think artificial wombs would resolve the issue because the mother would presumably still be responsible for supporting the child or putting it up for adoption. She will note that it is her body that has to support the child. Raising the child will be an inconvenience in the same way pregnancy is viewed as an inconvenience.

    7. Your last paragraph made me think that virtuous citizens will make for a better government. A populace that seriously considers its actions and their consequences (none of us are unaware of how a pregnancy happens) and that makes sacrifices for others rather than killing them is a more virtuous society. Of course, merely repealing Roe v. Wade does not make us more virtuous.

  9. I think you are wrong on every count and will fight you in the political arena to my last breath.

  10. Animal Symbolicum

    This is an interesting argument, and a good one.

    I’m still thinking it through, but I have a question in the meantime.

    In arguing (in part) that the question of the permissibility of abortion is a legal/constitutional question, do you thereby think the question is not a political question? In other words, do you think the question is to be regarded as not being a candidate question for the polis to decide on — as being, rather, something for the highest court to decide on?

  11. jayman777
    ” there is a body being killed” – your Christian ontology is garbage, and you’ve no right to impose it on those who disagree with it. “The abortionist has imposed his morality on the fetus” – blah blah, nonsense. The fetus is not a person. Since abortion is not murder, this theocratic imposition necessarily endangers the liberal polity of the United States. But you don’t really care about that, because theocrats like you don’t like liberal states or representative democracies. “virtuous citizens will make for a better government” – the fascist utopia – a “representative” government where only christians get to “vote” – How to make us “more virtuous”? Outlaw abortion, outlaw same-sex marriage and homosexuality, outlaw premarital sex, outlaw contraception – then eventually you can outlaw Jews and Muslims and atheists. Indoctrinate children from an early age – mandatory prayers in school! only Christian literature to be read!- all of this is coming, the Texas Republican platform has made much of this manifest, and will be instituted in law after a couple elections there. And if others don’t like it, ‘let’s have a civil war!’

    Violence fascinates you, it burbles beneath your text like pus under an infected fingernail. What you really want is to cause women pain and suffering. Does that make you feel closer to god? or is it a sublimation of your grudge against a deity that hasn’t spoken to your kind for 2000 years?

    ‘ Every woman must be forced to produce children, that what their bodies are for!’ – isn’t really about power and control? Isn’t it all about commodification of the female body? – is there really any psychological difference between pro-lifers and pornographers? I suspect not. Churchgoers assume they can commit crimes to protect their faith and Mafiosi go to church (‘it’s only business’).

  12. Animal Symbolicum

    Here’s the context of my question:

    I’ve seen some members of the commentariat claim that the recent decision pushes the question back down to the people, where, it is claimed, the question belongs. I generally favor such “pushings back down” — the less the lives of the people are dictated by judicial fiat, the better — but your argument here might help someone like me become clearer about (what I think might be) the limits of such “pusings back down.”

  13. henryharlow

    I confess. I voted for Richard Nixon in 1968. It was my first time so give me a break on that Dan. He said he had a plan to get us out of Vietnam and I fell for it. I did not make the same mistake in 1972. How was I to know Nixon had, by back channels via Anna Chenault (see here: https://www.politico.com/magazine/story/2017/08/06/nixon-vietnam-candidate-conspired-with-foreign-power-win-election-215461/), told the Vietnamese government not to make a peace deal with Johnson because if they waited Nixon would give them a better deal when he won the election of 68? Nixon was afraid if Johnson got a peace deal before the election Humphrey would win. That did not come out in the open until decades later that Nixon had committed a treasonous act.. But I digress. I am not so sure you are correct that the media wants Trump to run and win for the money it brings them. Maybe the senior management or stockholders do but not the rank and file. Also what you say is probably more true for the cable news folks at Fox, CNN and MSNBC though. I also think that the conservatives on the Court have overreached on this one with Roe. It is now clear to the swing voters who are at all paying attention that the Supreme Court is a political animal and voting Republican for the Senate at least is serious business. Also Trump himself said, in private, that this decision will hurt the Republicans see here: https://www.rollingstone.com/politics/politics-news/trump-roe-dobbs-abortion-midterms-1374049/. Finally, I think the person to be more concerned about is DeSantis. I live in Florida and I have been on the front row of watching him for a few years now. He is much more effective Trump. He is smart, strategic, has a plan and works the plan, focused, workaholic, a combative communicator, uncompromising, divisive, and well, you get the idea. He is a MAGA dream really. He is spawn of the Trumpster without a lot of the baggage. Give this a look for example: https://www.orlandosentinel.com/opinion/scott-maxwell-commentary/os-op-florida-legal-bills-desantis-scott-maxwell-20220621-cy2n6jjiyjaazaglgpbzh2ohv4-story.html End rant.

  14. ejwinner:

    My ontology is not uniquely Christian, it is broadly Aristotelian. Nothing in my position relies on Christian Scripture. As noted in my (4), there is no avoiding the imposition of morality on another in this instance no matter your position. You might as well object that I am imposing my ontology on a Jeffrey Dahmer type (surely he should be able to decide whether his victims are persons or not?). Do you object when the abortionist imposes his ontology on the fetus?

    Whether the fetus is a person or not is actually irrelevant to whether you are imposing your morality on it. Killing for food is imposing your morality on an animal regardless of the fact it’s not a person. How can you apply your own standard of not imposing your ontology on others?

    Whether the fetus is a person is the key point of disagreement. I hold that all human organisms are persons while you apparently do not. Trying to define personhood in such a way that some human organisms are not persons comes across as arbitrary to me. Why attach personhood to some attribute that flows out of one’s human nature rather than to the foundational human nature itself?

    The rest of your spiel about “what I want” is baseless slander. But I love the irony that “violence fascinates me” when I am the one objecting to killing.

    Any adult woman capable of consenting to sex knows how to avoid pregnancy. It is not I who am making them pregnant. That it’s all about “control” is a pretty lame objection when murder is being discussed. I suppose I only want to “control” the mother who murdered her three children this past Mother’s Day in LA too.

  15. The fetus is not a person. The woman quite clearly is. You are interfering with her rights of self-determination for a fantasy that only makes sense from a fundamentalist Christian perspective, and is thus clearly theocratic in intent. You only object to any killing because. also clearly, doing so allows you to talk about it. You are vicariously fascinated with women’s lives and see their independence as a threat – perhaps that’s what generates your wish to hurt them. “Any adult woman capable of consenting to sex knows how to avoid pregnancy” – until your people outlaw contraception, right? Every sperm is a human being, every homo-nucleus – er, egg – must be fertilized. You won’t stop until you have cameras in every bedroom, ascertaining our “virtue.”

    Slander? I can’t do that here, out of respect for the editor; another time, another place, perhaps. Perhaps it’s better we cease “debate.” We’ll take our case to the real independents who hopefully won’t be persuade by creaky ancient “arguments” and slippery-slope rhetoric. After all, there is no reasoning with religious dogma; and as for me, as Huck Finn says, “All right, then I’ll go to Hell!”

  16. Oh, Aristotelian? Aquinas wrote that infants did not receive their souls – thus achieving personhood – until the fourth month after birth, when they at last manifested unique personalities. I assure you I would never be that extreme. But I don’t think a four-cell germ constitutes much of human being, either.

  17. Brian

    Good Lord the bile spewing from your keyboard! This is philosophers at their worst folks. Ad hominem attacks, assumption of intent, assuming you know what’s going on in other’s heads. Telling others what they’re about. You of course seem to reserve the right to impose your own ‘ontology’ upon others. It’s the half-assed, poor man’s psychoanalysis by way of comment thread that really tops it off, though. Seems neither the left nor the right have a corner on the violence market. What a disgraceful display.

  18. EJ is not a philosopher.

  19. Just a heads-up that I am going to moderate from now on rather than close comments before a flame war starts. No attacks on the person. I won’t publish them. Apologies to readers if I let through something I shouldn’t. In the past, people have said I was too quick to close comments on things, when it got hot, but maybe the good result of it was that the comment profile here was unusually and gratifyingly civil.

  20. venividigrizzly

    Ah “broadly” Aristotelian? The guy who believed in infanticide. Great. Wonderful.The notion that it’s not a step back for women’s status because it’s a step forward for fetuses is, well, what even is that supposed to mean? That some fetuses could have become women? Why did the number of abortions plummet after Roe? Why did the number of women dying by abortions plummet? Is “life” some abstract philosophical term for you?

  21. venividigrizzly:

    I’m not sure what statistics say the number of abortions plummeted after Roe. I see numbers of 744K in 1973 that went up to 1.6M in 1990 and has since gone done to 930K in 2020.

    If we allow abortion in the case where the mother’s life is in danger then I think we can greatly reduce the sum of women dying during abortions plus fetuses dying by abortions. I’m not sure what’s “abstract” about noting we’ve killed millions since Roe. You’re free to explain how permitting abortion will result in fewer deaths when fetuses are included in the count.

    There is the sad fact that in some countries a female fetus is more likely to be aborted than a male fetus. Abortion on demand does allow this form of sexism to flourish.

    But ultimately I don’t see how a woman’s status is at all based on whether she can kill a fetus for any reason at all. Men frequently perform abortions. I don’t think male abortionists’ status is based on their right to kill a fetus either.

  22. I apologize.

    I confess to a temper; and I admit that when I read millions of American women and their health care providers targetted as unvirtuous murderers needing to be stopped and punished, their concerns trivialized and disregarded, their differing opinions ridiculed and demonized (and the assumption of this intent was clear in the language itself)…. Yeah, I get a little ‘triggered.’ Especially when presented disingenuously as a “reasonable argument” which is not intended to persuade but to batter with implicit accusation.

    Most liberals just want to get along – you practice your religion, just leave me to practice mine. That seems to be not good enough for some in the current Republican Party leadership. I’m not sure temper flares can be avoidable anymore. But I’ll make an effort.

  23. Paul D. Van Pelt

    Daniel:
    Have always enjoyed your posts, and try to behave respectfully. Will say nothing on this topic because it has all been said.
    Thanks.

  24. A few points to reiterate, as they seem to be getting lost.

    1. I argued that the moral issue does not get engaged, because there is an overriding political/prudential consideration. Bodily autonomy. To merely say “that’s always been limited” is not an argument.

    2. That compelling a woman to give birth under threat of felony conviction is demonstrably a violation of bodily autonomy at the most intimate level and in the most extreme way. [And re: [1] could not be sustained even under a “limited” autonomy.]

    3. There are competing views on metaphysics and morality here. Until someone explains why theirs should be privileged over mine or anyone else’s, procedural and prudential considerations remain overriding.

  25. If the women in these states have any sense, they will refuse to have sex with men.

    Even if one *wants* a child, you don’t know whether a pregnancy or childbirth will go seriously south. [We had a touch-and-go childbirth.] Given that these laws have *no* exceptions, it’s a crazy risk to take.

    We will be leaving Missouri soon, now that we’ve retired. And we will not reside in any state that has these laws. Our daughter has said the same.

    May the entire, wretched Red part of the country rot from the brain drain that occurs from the exodus from their states. They can become even more backwards and primitive and stupid than they already are.

  26. Is a cell, immediately after gamete nucleus fusion, a full human person, with all attendant rights?

    The answer cannot possibly be yes. Any model that could not distinguish a cell from a person would be so bluntly disengaged from fact as to be incapable of reasoned decisions.

    So, on this avenue, the only place to go is to retreat to some roughly half way position: before is permitted, and after is proscribed. But in that, since most elective abortions are in that allowed early half, one would have conceded the argument.

    This is a foregone conclusion once we assume the frame of competing parties. One party develops linearly from 0 to 1 status, and the other full status one wants a particular transaction. There will be some threshold at which the balance of justification crosses over. We could tweak the metrics, but we cannot escape the bounds.

    And this covers future-identity arguments too, because they are really just a disguised way of talking about current status. As before, it is untenable to regard a cell as equal to a person, so we will still have to distinguish different potentials for different stages/objects ‒ ie, attributing different status to them *now*. And so again, there inevitably will be a crossover point and a step-function result.

  27. ira

    > If the women in these states have any sense, they will refuse to have sex with men.

    This is the obvious response. #pussystrike

    > May the entire, wretched Red part of the country rot from the brain drain that occurs from the exodus from their states. They can become even more backwards and primitive and stupid than they already are.

    Amen v’amen

  28. Harrison Ainsworth:

    What is a person? In The Ethics of Abortion Christopher Kaczor addresses dozens of arguments that personhood starts some time after conception (and even after birth since there’s no reason personhood couldn’t begin after birth). There is no quick intellectual victory as your glib, “The answer cannot possibly be yes,” implies.

    So-called half way positions seem arbitrary to me. The saying “you can’t be half pregnant” comes to mind. You can’t be half a human or half a person. The “status” of being a human organism begins at conception and ends at death. There is no development from 10% human to 20% human to 100% human (and back down again to zero?). There is simply no need to attribute a different status (in this respect) to the embryo and woman.

  29. I think a “sex strike” proves the pro-life position was right all along. It is an admission that women can take actions to avoid pregnancy and do not need to rely on abortion as a form of birth control.

    And does not the Missouri bill have a medical emergency exception? “A condition which, based on reasonable medical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert the death of the pregnant woman or for which a delay will create a serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman.”

  30. As I said in the essay, I do not believe that the state can compel a person to give birth. And your first sentence is just a non sequitur.

    Look, we aren’t going to convince each other, so lets stop trying. I had my say. You had yours. We remain unmoved.

    See you at the ballot box.

  31. Brian

    How would the state compelling one to give birth be different, if at all, from compulsory vaccination (the so-called ‘left’ would be on much firmer footing if so many hadn’t been demanding that under pain of job loss, or forced isolation, for the last year and a half), or a host of other compelled events? Not that it lends weight to the argument, but I’m against both of those; I know people who are be against state ‘coercion’ in most affairs. Are these all individual cases or is it possible to establish some kind of general rule? I suppose I could be convinced in either case, just haven’t been.

  32. venividigrizzly

    Jayman:

    The number of “legal” abortions rose after Roe … because it was made legal. But even if we assumed (wrongly) that those represent total abortions at both times, (1) those aren’t very different rates per population and (2) the numbers have been going down since 1990.

    That said, I don’t see why we should argue over that, since it sounds like you’ll just roll back to the conviction that a person pops into being at the moment of conception with full moral import, a view I can’t take seriously. If I’m in a lab that catches fire and I have the choice to save an infant or a thousand frozen embryos destined for parents, not being a psychopath, I will always choose the infant. Sentient, uncontested little person always takes precedent over the potential for one.

  33. Public Health.

  34. ira

    Viruses are contagious. Pregnancy isn’t. The difference is pretty easy to understand.

  35. “Mika: Despite Their Flaws, Democrats Are The Last, Best Hope Against Fascism”: https://www.youtube.com/watch?v=szLe3m2eRww

  36. venividigrizzly, Christopher Kaczor explains what’s wrong with the embryo rescue case as a pro-choice argument (The Ethics of Abortion: Women’s Rights, Human Life, and the Question of Justice, pp. 146-147):

    Dean Stretton imagines a case in which an emergency arises and a person is faced with the choice of rescuing ten frozen human embryos or five adult patients. Since virtually everyone would choose to save the adult patients rather than the embryos, this indicates that the patients have a higher moral status than the frozen human embryos (Stretton 2008, p. 795).

    As noted earlier (section 5.4), we have moral justification for treating human beings enjoying basic equal human rights in different ways. If forced to choose between saving the President of the United States and four other national presidents and prime ministers, rather than ten unknown patients, most people would choose the presidents and the prime ministers. To choose to save presidents and prime ministers rather than plain persons is not a denial of the equal basic rights of those not saved, but rather a recognition that deaths of world leaders adversely affect many more people than the deaths of regular patients. Similarly, in virtue of the fact that the adult patients have received an “investment” from their parents and society in terms of education and upbringing, have future plans that would be thwarted, have responsibilities to discharge, and have strong relationships with others, it makes sense to choose to save five adult persons rather than ten frozen embryos. In choices about whom to save, various circumstances circumstances can determine who is chosen without a denial of the fundamental equality of the human beings involved. The embryo rescue case does not show that human embryos lack basic human rights (see also Liao 2006a).

  37. If one uses one’s brain, yes.

  38. Brian

    In addition to ‘EJ’, Both Daniel and Ira seem like very dismissive smart-asses – vituperative and truculent… curious that your comments allow no response. Thanks, I’ll pass. Enjoy your sanctimonious ‘agora’… kind of represents everything that was wrong with undergrad philosophy 35 years ago but in internet form.

  39. Nah, you’re just a precious tool.

  40. Brian

    and you’re a sanctimonious twat. bye.

  41. An honest question: do you seriously not understand the relevant difference betwen a virus and a pregnancy ? This is elementary school, or even kindergarten, level stuff. That’s not an insult: it’s a statlemntt of simple fact

  42. venividigrizzly

    Jayman:

    It gives the lie to his reasoning that all the countervailing reasons he has for choosing the adults over the embryos amount to saying that they’re fully functioning persons. Yes, I agree, and the embryos are clearly not that. We can talk problems of the heap ’til we’re blue in the face, but the majority of people agree with me that the embryo is clearly a grain. The baby, again, takes precedence over even thousands of embryos because it is a sentient, uncontroversial human, not mindless matter with only the potential to develop all the capacities and associations that make personhood of value in the first place.

  43. We are once again reminded that there is no point in arguing with theocrats, since the foundation of their morality is Divine Command Theory – God has willed this, so now it’s only a matter of either persuading others, through a semblance of reason, or enforcing it. This semblance of reason is used to draw us into views that are not at all reasonable, because faith requires no rationality, and rationality is itself often seen a danger to it.

    The present tragedy is that we now know we have theocrats on the Supreme Court and in the Republican Party. The threat to the United States polity can’t be more clear. Hopefully voters will wake to this and decide against it over the next few election cycles. But given America’s history we should never be lulled into thinking this threat will ever go away. The United States was founded, in part, to help put an end to the wars of the Reformation; unfortunately, several states were founded in order to continue those wars. We should remember, always, that the end goal of Christian fundamentalism is Armageddon – the final reckoning is always Judgment Day, hence the apocalyptic undertone of much right-wing moralizing.

  44. “The “status” of being a human organism begins at conception and ends at death.”

    As you mention yourself, there’s no exact philosophical definition of the beginning of personhood. How do you arrive at the conclusion that it begins at conception? Are you suggesting that it begins at conception because all the other definitions are “arbitrary”? Your point of view seems to be just as arbitrary.

    In general, I don’t like arguments like the one you give here.
    We don’t have an exact definition of fair competition in sports. Therefore, men who identify as women competing with women is perfectly OK.
    We don’t have an exact definition of functional literacy. Therefore, schools shouldn’t focus on reading & writing skills.
    Now that I think about it: some people claim that we don’t have an exact definition of the concept “woman”. Therefore, anyone who identifies as a woman, *is* a woman.

    I know this type of reasoning is popular with people who imbibed too much post-modern kool-aid. But it’s weird to see it coming from someone who clearly is against abortion, even with term limits (personhood begins at conception!). I thought you were against TWAW and Lia Thomas beating women in the swimming pool?

  45. Bye bye. You’re banned now.

  46. couvent2104, my position is that a human organism comes into existence at conception and that the right to life is derived from our humanity. I use the term “person” as a synonym for “human” or as a genus where all humans are a species of person (this allows for the possibility of non-human persons).

    In other words you have read me wrong. Reject the “personhood” (or “gender”) game completely. Don’t let the post-modern person define the rules of the game.

  47. venividigrizzly:

    I don’t see how his statement gives the lie to his reasoning. He is consistent. And his “investment” criterion does not depend on the person being invested in to be a “fully functioning person.” We may even imagine scenarios where even a pro-choice person thinks it is better to save the embryos than to save, say, an evil adult.

    I’m not playing the “heap game” at all, just pointing out how separating humanity and personhood leads to arbitrary decisions by the pro-choice side. To put it into Aristotelian terms, there is one substantial form throughout a human’s life. The fact that it informs different pieces of matter at different times is irrelevant. The fact that the human displays different characteristics and different times is irrelevant.

    Determining who is a “fully functioning person” (only healthy, relatively young adults?) becomes an exercise in determining who should live or die.

  48. terranbiped

    I for on am glad that jayman777 (is that some kind of Las Vegas 666?) crashed this mutual appreciation party. Seems little sense talking to the choir without the oppositional side chiming in with their perspective. I’m an atheist pro choicer who acknowledges that a human life at an incipient state of development is being terminated. I just don’t happen to care what biological process is going on in some strangers unseen womb. I see little distinction between terminating a one celled zygote or a nine month prenatal fetus. Dead is dead and the little fellow just didn’t make the cut; umbilical and all. Sounds harsh but other than the emotion and aesthetics what’s the difference? it isn’t joining the family of men by fiat of those that bestow person hood — the mother and family. I doubt Jayman has many sleepless nights agonizing over some still born, miscarriage or abortion taking place in some hut thousands of miles away. I’m sure, like most of his ilk, he feels vindicated and righteous that he has taken an intellectualized moral stand and will meet his just desserts at the Pearly Gates.

    Still, I find Jayman’s reasoning logical and consistent within his moral framework and after all when people go to the polls many millions will be thinking like him, many of them, guess what? …Women! And Dan, I think very few will be mulling over any of your esoteric and erudite reasoning about liberal democracies at same polls.They will only be subjectively assessing that a woman’s right to chose makes more sense on the scales of fairness than the having to have an unwanted child. And like me, could care less about some strangers spawn as long as it isn’t too far along and looking lovably adorable in one’s imagination. Morals and primal emotions vying against disinterest and privacy focused through a liberal lens of fairness and respect for individualism. I mean, let’s face it; the threading comments barely touched upon liberal democracy. Not even here is that the trigger.

    So hooray to the jayman for stating his case with equanimity and grace under blistering fire. How does one adjudicate that he is factually wrong? I disagree with him by weight of competing values but that doesn’t mean I am provably and cosmically right; assuming there is even a right. Which there isn’t ! Man is god in these matters, jay’s is just one step beyond ours.

  49. venividigrizzly

    Jayman:

    He clearly argues that the adults have more standing to be saved than the embryos because the former have parental and societal investments, relationships, hopes, etc. — in other words, the hallmarks of fully functioning persons. Like the mothers at issue, they are actual, not potential, people. People matter because we’re the seat of values, starting in our status as sentient beings and reaching fruition in our capacities as rational agents with projects, responsibilities, and social bonds. The value isn’t written into nature. Personhood is, above all else, a social category and a webwork of practices, not a magic status conferred on a being by virtue of its species membership. And yes, you’re still playing the heap; you’ve just decided to call the grain a heap. We all have to make more or less “arbitrary” decisions here, but you’ve chosen one of the most extreme, with “person” defined so loosely that it can essentially be applied to entities that lack all the values we place in personhood. The word ends up puppeteering value rather than establishing it.

  50. venividigrizzly

    Debate club fraternity vibes are fun and all that, but women will have to deal with the grave repercussions of their rights being stripped away by judicial fiat. This arguably has more weight than vibes. How are Dan’s arguments “esoteric”? His arguments for autonomy are in line with the majority of Americans while Jayman is over here trying to back up a minority position with Aristotle. Some women disagree? Good for them. I am not dazzled by disagreement.

  51. venividigrizzly,
    If the Supreme Court ever rules that a fetus is not simply “human” but an individuated person, it can reason a constructed “right to life” per the 14th Amendment, and outlaw abortion nationally by judicial decree with no recourse to either federal or state legislation. Thomas has indicated vaguely his thinking along these lines, and it is the real goal of the “right to life” movement, hence the label they’ve chosen for themselves. See, for instance “Once a human being is declared to be a legal person, there can be no exceptions to his or her inalienable right to life;” https://www.prolifewi.org/personhood. – jayman knows this, and probably Brian does too, which raises questions concerning their rhetorical quibbling over the matter. This is not about sending the matter “back to the states.” This about an America with laws of moral absolutes determined by a presumed will of God.

  52. venividigrizzly

    EJ:

    I expect a lot of Calvinball in the future, most of it conservative Catholic, but broadly reactionary.

  53. One way to oppose your argument on its own terms might be to find a more important countervailing good ‒ to find a solid societal benefit from stopping abortion. But this seems difficult …

    Let us generously assume there is zero cost to enforced birth. The best outcome seems simply that we have more people. On the broad historical economics, that is perhaps defensible. But how on earth anyone would think that is best achieved by draconian bodily imposition, rather than maybe positive encouragement, is a puzzle.

    We would have to be in the extremis of a ‘Children Of Men’ (movie) scenario, of imminent reproductive-failure extinction (we certainly cannot have a liberal polity if we let all the humans die). Abortions are a small proportion of pregnancies, so even substantial infertility would not be countered by preventing abortion. No ‒ humanity would have to be hanging from few threads for abortions to make a significant difference.

  54. What’s esoteric about my reasoning?

    1. You can’t win every election.
    2. You can’t kill all your opponents.
    3. Best to give everyone a wide berth.

    Strikes me as something an 8 year old ought to be able to understand.

  55. venividigrizzly:

    We need to be clear that just because you wouldn’t save someone in a given scenario that does not mean you have the right to intentionally kill them. If a lifeguard saves one person rather than another we don’t think it would have been permissible to shoot the drowning victim. These rescue scenarios do very little work for the pro-choice side other than cases where the mother’s life is in danger.

    You ignored my point that parents invest in embryos too. So we can imagine a scenario where there is an embryo that has been heavily invested in by his parents and there is a loner who no one has invested in, has no relationships, and is hopeless. Based on your apparent standards the loner is not a fully functioning person. We may very well save the embryo rather than the loner. Of course, this says nothing about intentionally killing the loner.

    Or imagine a space colony that needs to flee one planet for a new planet. They may decide to take a tank of 100 embryos and leave behind a dozen elderly or weak colonists to die on a doomed planet.

    Now we come the deeper disagreement. If value (or goodness) is not written into nature then it simply doesn’t exist. Nor is it clear how people are the seat of values if values don’t exist in nature (are people not natural?). You are creating morality rather than discovering it. I am trying to discover goodness. What is actually good may not be what I value and then I have to try to change my values.

    What separates your arbitrary decision from any else’s? How can you consistently condemn the same arbitrary decisions of slaveholders, eugenicists, Nazis, and, yes, pro-lifers? Because your arbitrary values were molded by a different culture?

    I’m not playing the heap game because my metaphysics makes a distinction between substances and aggregates. Human beings are substances, not aggregates. A set of multiple human beings is an aggregate.

    You accuse me of defining personhood loosely yet I have the easiest time defining my terms. At some point you have to ask yourself if separating humanness from personhood is not the cause of your confusion (I once held a more “moderate” view on abortion). The embryo is not just any entity. Is the exact same kind of entity as you or I, we just are further along in development. All of the things related to personhood you mention (e.g., sentience, rationality, social bonds) are accidental forms that depend on the substantial form to exist. Goodness is found in living things because they have a telos.

  56. klop

    Prison sentences are irreversible too.

  57. terranbiped

    You make and answer your own question.. You believe the root of values and morals are independent of time, place and the machinations of human thought and, handed down from on high with certain convenient allowances to contingent factors of circumstance. Fine, good, bully for you but, the others here do not subscribe to your literaist interpretation of your knowing the mind of god. Humans are born with certain “moral” proclivities, sometimes antagonistic to each other. There is not great moral truth out there in the empty void, only the consensus of humans dependent on time and place.

    So why argue the point once you have made your case. Clever word games and tortured syllogisms from both sides will change no one’s subjective mind.

  58. Nah, you can be released. You can’t be made not-dead.

  59. I still haven’t heard why his metaphysics/values should prevail over anyone else’s in the law.

  60. Jayman777, you’re mistaken.

    There’s no agreement about when an organism (a fetus) becomes a human. Therefore, you take the “logically consistent” position: a human organism comes into existence at conception(*).

    That’s exactly what happens in some leftwing, progressive, post-modern-style thought. There’s no agreement about what constitutes fair competition in sports. Therefore, the logically consistent position is that males who identify as women should be allowed to compete against women. Every other position runs into problems. What about intersex people? What is an unfair advantage, given that there are always physiological differences between athletes? Etc.

    You’re applying the same rhetorical trick. Bien étonné de se trouver ensemble! And, by the way, you’re also redefining what “human” means, just like some others are redefining what “fair competition” is.

    Some people may disagree with you. Dictatorial regimes know how to handle different opinions, but personally I prefer the way liberal democracies handle them, even if the process is messy and leaves nobody completely satisfied.

    Dan gives an argument; you reply with what’s essentially a rhetorical trick. I’m not impressed. What are you going to do with all those pregnant women who don’t want to lie in your Procrustes’ bed?

    (*) Aristoteles was good at logic, I’ll give you that. When it came to observing and explaining the world as it is, he was slightly more fallible, to put it mildly. Logic is a rather limited instrument.

  61. venividigrizzly

    Jayman:

    The point of the analogy isn’t to mirror the abortion decision. The point is to make salient just how vast the gap in moral standing that I and most everyone else in this country feels exists between an embryo and an infant. And the fact that, to you, it isn’t on the face of it an appalling admission on my part suggests that your full-stop personhood at conception still smuggles in a sliding scale of graduating moral weight wherein at different stages of development, and for various reasons, we deserve more or less moral standing. If a newborn baby is so much more significant to us than a thousand embryos, then how robust is this sliver of personhood you’re latching onto?

    Personhood isn’t some metaphysical substance. It’s a set of capacities and relationships that concern us as social beings trying to figure ourselves out and our obligations to each other. Some of these capacities, again, spring from our natures, but as rational, social beings, we’ve come to find that final outputs of our natures are hugely underdetermined, and as much as we’d like the universe to make all our choices for us with some fancy metaphysics, we keep finding out that we have to make our choices ourselves within the horizons we’re given. You speak of fears of foundations moving, but again, you’re invoking Aristotelean metaphysics when Aristotle believe in infanticide. When did we properly work out his metaphysics? When did the conversation come to an end? Instead of waving at metaphysics we’ll never agree on, I’m more concerned to highlight the actual things we value in persons.

    You say you’d take the expensive embryo over the “loner”. Are we, uh, talking about an orphan infant? Maybe that’s the brave new world you’re hoping for, but no, I would not make that decision and nothing I’ve said implies that. The colonists in your sci-fi scenario aren’t leaving the old and weak behind because they consider them less deserving persons than embryos. They’re just making a cold calculation in a survivalist scenario. The embryos are valued instrumentally, not because they have all the capacities and relationships that make being a person of value, but because the colonists have decided that they want humanity to continue. If they decided it because they’ve think that the metaphysical notion of telos holds and has such and such obvious implications, then I consider that a pretty dumb story.

  62. terranbiped

    I don’t know, should you be dragged from the sandbox to the penalty box for a time out? Apparently your stated policy strictures against ad hominems and uncivil discourse doesn’t extend to passive aggressive swipes. Often finding myself above my pay grade with you and the other erudite participants, I expect to have occasional derision brought down on me if I misspeak or inaccurately convey an idea. I only chastise you with tongue in cheek. I would say the average voter would not find your stated premise too difficult if explained in a more layman friendly way, however I found I was initially overwhelmed by the heft; references and argumentation of your writing.

    “The point is not that there is nothing ethical wrapped up with prudence [there are ethical considerations wrapped up with the prudential injunction not to impose irreversible punishments by way of imperfect systems], but rather that the morality of the thing itself – driving faster; killing murderers – is not the governing consideration. And as the question of the thing’s morality is a matter of irresolvable dispute, if it is taken as the governing consideration, we wind up with unsurpassable and toxic political divisions; a winner-takes-all universe, in which political victory means forcibly imposing one’s morality on others, and political defeat means having others’ morality forcibly imposed on you. And they will be imposed on you, because you will not always prevail in political contests.”

    You must know some pretty precocious 8 year olds who can make sense of the above excerpt of your text, as just one example. After several more careful reads I found what I initially thought of as impenetrable semantics more digestible. I’m usually awed by the erudition and raw IQ expressed by others here but never really surprised that, like with the average person, wrong conclusions are often drawn from supposedly unassailable facts and reasoning; thus, the all common contretemps among commenters.

    1. You can’t win every election.
    2. You can’t kill all your opponents.
    3. Best to give everyone a wide berth.

    Thanks for dumbing it down to my developmental level. LOL!

    Great democratic tautologies:

    You can’t win every election – Duh

    You can’t kill all your opponents — Double duh

    Best to give everyone a large berth — This has some salvageable salience to running a liberal democracy.
    The idea that you can divorce, decouple, disengage, divest or ignore morality from most if not all areas of law making strikes me as rather dubious and totally impossible in the abortion debate. People carry their morality with them wherever they go; into the voting booth or into the halls of Congress. Without a sense of right and wrong how can you navigate the world of men and society? We can call this inner feeling of right and wrong by another name than morality and then think we are living your ideal of a pristine liberal democracy but everyone is weighing pros and cons of any pedestrian decision or vote they make under the penumbra of morals.

    Women should have total autonomy of their bodies. Why? Because it’s the just and fair thing, because I wouldn’t want anyone telling me what I must do with mine. Why? Because, besides the practical considerations, that’s how I feel. Who the hell is the government to tell me otherwise? Dan, I believe you would say, and made the case, that feelings or morality need not be considered, it’s a cold calculated equation on a political black board that to form and maintain a liberal democracy, it is just a given that for the state by way of fellow citizens voting on bills and laws that to allow for a violation of a person’s bodily integrity for any concrete reason other than the safety of society itself, would otherwise be antithetical to such an endeavor. So, what does this mean to the likes of Jayman and about 40% of Americans that feel otherwise on the abortion issue. They think the liberal democracy is finally working pretty fine after almost 50 years of lefties running the courts on social programs based on — their perceived morality. The fault lies with our political system and human nature and not the inclusion of inescapable morals of most voters. Your argument may be intellectually sound but, beyond the thoughts and lived experiences of the masses. In that sense maybe esoteric.

    es·o·ter·ic
    /ˌesəˈterik/
    Learn to pronounce
    adjective
    adjective: esoteric

    intended for or likely to be understood by only a small number of people with a specialized knowledge or interest.
    “esoteri

  63. It was not my aim to insult you. Apologies.

  64. couvent2104, if someone wants to say the fetus is not a human they’re free to tell me what kind of organism it is. Otherwise I’ll continue to think it’s a human organism.

  65. terranbiped:

    I don’t think morality is handed down from on high, or at least not solely handed down from on high. It is discernible in the teleology we see all around us.

    I’ve personally changed my mind on moral questions so I don’t accept that reason cannot change one’s mind. If you start with the presupposition that morality is not out there to be discovered then you will not be able to reason about morality. Once that obstacle is cleared away, reason can take over.

  66. Because it’s true. Yes, you’ll disagree. But there will always be some other metaphysics or value system written into law. And you can ask your question of that metaphysics or value system.

  67. No, it’s false.

    My argument does not depend on a particular moral or metaphysical position. That was the entire point of the essay.

  68. venividigrizzly:

    The problem is that a “gap” in a rescue situation says nothing about intentional killing. You ask, if a newborn baby is so much more significant to us than a thousand embryos, then how robust is this sliver of personhood you’re latching onto? Robust enough so that intentionally killing an embryo is still murder.

    Consider, if the life of, say, the president is more significant than the life of X citizens, then how robust is the sliver of personhood your latching onto? Robust enough so that intentionally killing citizens is still murder.

    I agree that personhood is not a metaphysical substance because I’m saying a person/human is a substance. I would modify your “some of our capacities spring from our nature” to “all of our capacities spring from our nature”. The fact that we make choices does not contradict my position in any way. Of course I think we make choices. But how do we make good choices if goodness doesn’t exist?

    Aristotle’s metaphysics can be separated from his ethics or science (natural philosophy). Aquinas did important work in ethics too. The “conversation” about the embryo/fetus has more or less come to an end in the past century or so. There clearly is no major intermediate step from the egg and sperm to the human organism. Clearly the embryo is alive.

    You say, “I’m more concerned to highlight the actual things we value in persons.” I would respond by asking how you know what you should value? That’s a metaphysical/meta-ethical question that can’t be avoided. Maybe my present values are wrong (“yes!,” shouts some pro-choice reader).

    What makes someone a “fully functioning” person on your view is rather vague. You stress sociality so it’s not clear why loners matter much. Or how can the disabled (at least some of them) be considered “fully functioning”? You say the loner should still be saved over the highly valued embryo but there’s no clear reason why that should be the case because the loner is not exhibiting the characteristics you think are important for persons. The embryo, on the other hand, is highly value by his parents who dream of deep social ties and so on in the future. He will be exhibiting personhood characteristics in no time. We might even consider the scenario where the parents are the rescuers. Do they have an obligation to their child (embryo) that they don’t have to a stranger?

    If the embryos are valued instrumentally, as you say, then is it wrong to save them rather than the old and weak adults? From your perspective, are not mere things (embryos) being valued more than persons (the old and weak)? Is this not as heinous as a lifeguard saving a trunk of gold and leaving a person to drown because he values the gold instrumentally?

  69. Dan, I am in basic agreement with terranbiped’s comment elsewhere where he says, “The idea that you can divorce, decouple, disengage, divest or ignore morality from most if not all areas of law making strikes me as rather dubious and totally impossible in the abortion debate.” I would also add metaphysics to the list.

    Even your simplified third point (Best to give everyone a wide berth) can’t do it. “Best” does not sound morally neutral. “Everyone” leads to the metaphysical question of who is a someone. But I could still endorse your third point if you changed one letter 🙂

  70. Afraid I can’t agree. Lets just drop it. This will be fought in the political arena.

  71. Terranbiped

    I wasn’t insulted at all. In retrospect I’m actually kind of sympathetic to your frustration when something is as clear as day to you and others miss the point. But, thanks for your consideration.

  72. The three main concepts at issue here are “human”, “person” and “rights”. Little or nothing has been said about the latter. Generally, in the abortion debate “rights” have the appearance of being plucked out of thin air, by both sides. They are used as ways of trying to end the argument but without any clear rationale why they should be so treated by those who hold the opposing view.

    My opinion is that “rights” go with personhood and not merely with being human. But that is too simple. “Rights” belong with “duties”. A person acquires rights to the degree that he or she also recognises duties. The possession of rights-and-duties is what makes us persons-in-communities. This shows how rights can be grounded.

    It doesn’t follow that there are no duty-free rights. Rights can be ascribed to things other that persons-in-communities. But they are ascribed by persons-in-communities. We can ascribe rights to babies and fetuses and animals and other such things. But the exercises of those rights will be by persons and they can be contested by other persons. Here consensual processes matter.

    The last move takes us directly the Dan’s argument, I think.

    Alan

  73. Terranbiped

    Well, there you are. I only accept that we live in a materialistic Darwinian world. The only purpose is that which we make and all “morality” is enlightened self serving, contingent, transitory and enshrined by consensus.

    I don’t discount the contribution that other philosophies have contributed to bending the moral arc to justice but it’s all quarks, atoms, molecules and neurons all the way down.

  74. venividigrizzly

    Jayman:

    Your robust standard just amounts to claiming that killing the embryo is murder, which, ok, sounds much of a piece with your defense of your metaphysics by claiming “but it’s true.” But ruling by fiat is weak reason. I could do much the same with basically any life form. They all have a telos in Aristotle’s metaphysics. I agree that the embryo is alive, but I agree that a lot of of other things are alive, and I think they don’t have the characteristics that make persons valuable. I think we can be wrong, as slave-owners were wrong, but more reason needs to be brought to bear than you’ve brought.

    Perhaps I accidentally set the fire and so the decision weights differently in my judgment. Whose death weighs more on my conscience? The baby that will be burned alive in brutal agony, or the mindless cryoplasm? Again, my answer is the same, and the notion that I’ve committed manslaughter in the latter case, as DA’s already have tried (and more will try) to prosecute mother’s suffering miscarriages deemed suspect, is absurd on its face. You’ve tried to ignore the issue of sentience this whole time, for whatever reason, up to arguing that I think it’s fine to kill an infant if they don’t have relationships or whatever, which I’ve never argued or implied. Infants are not “fully functioning” persons either, but their sentience and their indepence is important. Becoming a person is a process, and a newborn baby is not entitled to decide on their resuscitation, for instance, because they haven’t developed the capacity to decide it. They can, however, feel, and that’s significant to us because sentiments are a source of our values. On the off-hand, I gesture towards William Gass’ “Obliging Stranger” as illustrating the difficulty of elevating abstract principles over concrete sentiments.

    “All of our capacities spring from our nature” is a fun pronouncement, but I suspect the only way you can unspool this leads to a redundant explanation. Much of our capacities stem from a social conditioning, which can’t be usefully reduced to our natures. I believe in natural explanations much more than you, though, to the extent that I’m not explaining our values by metaphysics, but but by the actual practices of valuation we make in day to day life. I’m not an off-brand Aristotelian. I’m an off-brand Wittgensteinian. Our values come out of our forms of life, which have some basis in our natures, but that doesn’t settle value judgments on the vast diversity of our forms of life. We still have to have the same arguments we have otherwise that the metaphysical and metaethical arguments fail to resolve. But any regular person reading this should come to Daniel’s conclusion that, uhhhh, we should probably make prudential judgments and accept that these aren’t issues that will be definitively resolved. You think the issue is done and dusted and that we should accept a maximalist account of personhood. Sorry, but most people do not agree with you, and this court has contributed to an increasingly extremist climate climate.

  75. Rob

    Dan, you really haven’t circumvented the metaphysical question here. Why shouldn’t a fetus also have bodily autonomy recognized by the state? You haven’t said anything at all about how a liberal polity decides who gets legal status. It turns out that this is critically important for your argument. And in the absence of an argument respecting who counts and why, it looks like a “liberal polity” is just a social contract with a certain moral flavor—the flavor that happens to be Dan Kaufman’s favorite. You’ve given your opponent zero reason to exclude fetuses from the ambit of legal protection: your opponents can repeat your argument to you and draw the conclusion that abortion is politically (rather than morally) problematic in a liberal polity since it violates the bodily autonomy of the fetus. If your reply is that the bodily autonomy of the woman is infringed to a greater degree than that of an aborted fetus, you are making a different argument.

  76. Apologies. That should be “things other than” and “directly to Dan’s argument.

  77. Rob,
    from another – equally “metaphysical” point of view consistent with biology – the fetus is a moment in a biological process. A caterpiller is not a butterfly, but a process develops the fertilized egg toward the butterfly which doesn’t exist prior to exit from the coccoon – the coccoon itself also part of the process, shall we assign “butterflyness” to the coccoon?
    These questions cannot be decided to everyone’s satisfaction biologically or philosophically, and resolutions usually take religious positioning. And in a liberal polity, your religion and its metaphysics should not be imposed on me and mine. Thus a wide berth should be allowed for differences in moral choice. The alternative is oppression and enforcement of one religion and its dictated behaviors over others – certainly a kind of fascism.
    In the American context the assertion that abortionists impose their religious beliefs on the fetus is thus nonsense from any point of view but fundamentalist Christian. Imposition of that view on others would be thus itself a kind of fascism.
    But you may not be interested in such reasoning – certainly Jayman isn’t Perhaps you just want to repeat your own point over and over again, as if the repitition justifies the imposition of your religious beliefs on others. I hope not. In any event I will argue the case to those unimpressed with Divine Commands and ununterested in impositions leading us toward religiously supported authoritarianism.

  78. I addressed this in the essay, specifically in the discussion of Finnis.

  79. Rob,
    following what I’ve already said – a fetus does not have “bodily autonomy” – it hasn’t any autonomy at all, unless one accepts the religious premise that it recieves a soul through divine agency at conception. I reject that notion. By all means worship your god as you choose, and may your fellow believers never have any abortions. Now leave those of us with other beliefs to practice these. That is what religious freedom means in a democratic republic.

  80. Rob

    Dan, I don’t see how you’ve addressed it. You think that the question of the fetus’s bodily autonomy rights is moot because that would devolve the discussion into a moral one. But you think that the bodily autonomy of the woman is a purely liberal political issue. What am I missing here? I’ll say again that I don’t see how you’ve made it impossible for your opponent to turn the argument back on you: “Sure, a woman can have whatever medical procedure she wants, as long as it doesn’t infringe on the bodily autonomy of the fetus.”

    I don’t think you can say that we cannot even bring up the question of the fetus’s bodily autonomy on the grounds that it’s in some sort of conflict with the woman’s. It’s usually admitted that rights can conflict to some degree. Maybe you disagree, or maybe you think that here, the woman’s bodily autonomy trumps that of the fetus. But if you take that route, you’ve departed from the more purely formal liberal-political argument you are interested in making, since then we’re talking about the relative weights of the rights holders in the situation. I think most would think of that as a moral or ethical discussion. Maybe this was your point, in saying that this would make the question into a moral one. Regardless, surely a liberal polity needs some system for either adjudicating the conflicts of rights that arise, or else it needs some kind of well-ordering of rights, so that we always know which rights get taken seriously. I don’t see how your argument here has spelled that out, nor do I see how you’ve gotten yourself off the hook for doing so.

    Alternatively, you might think that the fetus just doesn’t have bodily autonomy at all. But if you think that, and you also think that human adults do have such rights, then it seems you at least ought to be able to sketch an explanation for why there are certain things with these rights and certain ones without. You haven’t furnished us with that. And it looks to me like it’s pretty difficult to do so in keeping with the spirit of your argument here. One way to go is just to say “Our liberal polity says in its club rules that we think you get rights once you’re born.” Sure. But then you haven’t told us why there can’t be other clubs that say “You get rights if you’re white”, “You get rights if you’re male”. The latter would be morally abhorrent, of course, and I’m sure you would say you don’t want to belong to that sort of political polity, just as you’ve told us here that you don’t want to belong to a political polity that compels birth. So what? Your political opponents don’t want to belong to a political polity that terminates the lives of fetuses. You have said literally nothing against their position.

  81. Rob

    In a liberal polity, as you understand it, what sorts of things get rights and why?

  82. Sorry you don’t think so, but I think I more than adequately addressed the point. There is one person/citizen with bodily autonomy and prerogative in this scenario, not two.

  83. I’ll just weigh in once more, and then I’m out, as this seems to just be going in circles.

    –The metaphysical and moral dimensions of the abortion question are *all* heavily disputed and irresolvably so. [Neither metaphysics nor morals is demonstrable.]
    –No one’s metaphysics/morals has priority over anyone elses.
    –In a liberal society, a person’s metaphysics/morality cannot be imposed on those who disagree and are unwilling.
    –There is furthermore an overriding political/prudential consideration: criminalizing abortion categorically denies women bodily autonomy at its most fundamental level, and this is incompatible with a liberal society.
    –We should protect and preserve liberal society, as we will not win every election and we cannot kill all our opponents.

    To reply to this by continuing to bang the metaphysics/morality drum demonstrates either obstinacy or a failure to understand the point. Nothing wrong with the latter, but just say-so, rather than jump up and down.

  84. Rob

    I engaged your argument and asked you to substantiate something it was obviously missing. Your response has been to be terse and to say that I am either obstinate or stupid. I’ll second Brian above by saying that you’re a sanctimonious twat. I won’t bother coming back to see whether you’ve banned me, but please do.

  85. And no, you didn’t engage with the argument, so don’t lie. Everyone can read the essay, as well as the exchange.

  86. Marc Levesque

    jayman777,

    > if someone wants to say the fetus is not a human they’re free to tell me what kind of organism it is. Otherwise I’ll continue to think it’s a human organism.

    A fetus, like an embryo, refers to a broad stage of development of a biological organism (and what the concept of human can refer to, or what it means, depends on the definition one is using).

    > The “status” of being a human organism begins at conception and ends at death.

    That depends first on what one means by status, then on human, and then on why one would agree with your definitions.

    > There is no development from 10% human to 20% human to 100% human (and back down again to zero?). There is simply no need to attribute a different status (in this respect) to the embryo and woman.

    In what respect ? I’m really not following you, it seems terribly reductionist to me. I see an embryo as extremely different from an infant, child or adult.

  87. […] Compelled Birth and the Liberal Polity — The Electric Agora […]

  88. venividigrizzly:

    The key difference between human life and animal life, in my view, is that humans have a rational nature. By this I mean human nature gives one the potential to be rational, not that a human is rational at every moment of his life (not even a healthy adult is being rational at all times). If we were to find other rational animals (e.g., extraterrestrials) then I think they would have a right to life too.

    I have avoided sentience so far because (1) animals are sentient but can’t be murdered and (2) even adult humans are not always experiencing sensations. By appealing to human nature I get around both difficulties.

    If becoming a person is a process can one lose his personhood gradually? This is what I’ve been poking at with the loner example. If you value X, Y, and Z and the loner no longer possesses X, Y, and Z then has he lost the right to life? We can kill him painlessly if we’re concerned about his suffering.

    We are often called social creatures because sociality springs from our nature. It is possible I am using the term “nature” in a broader way than you are.

    The regular reader should come to a certain conclusion? Let me know how we can make prudential judgments without smuggling in values and worldviews of one kind or another.

  89. Marc:

    It’s funny that you can identify the embryo/fetus as a biological organism but won’t say what kind of organism it is. What are the realistic alternatives to it being a human organism? Is it a cat? A dog? Why is it apparently easy for you to identity the embryo/fetus as an organism but not as a human? Is a speciesless organism a possibility?

    Let’s return to your statement, “A fetus, like an embryo, refers to a broad stage of development of a biological organism,” in order to answer your final paragraph. “Development” implies both (1) an underlying entity that maintains its identity through the development and (2) changes to that underlying entity. In order to explain (1) you need a principle/source of identity and in order to explain (2) you need a principle/source of difference. One might say the substantial form (humanity) is the principle of identity and the accidental form (the changing of various characteristics) is the principle of difference. In this way one is equally human from conception to death. One and the same substantial form exists throughout the developmental process.

    We can also consider another puzzle. How can it be that both you and I are human but not identical to each other? There must be a principle of similarity and a principle of differentiation. Our old friend substantial form (humanity) gives us the principle of similarity. The matter we are made out of gives us the principle of differentiation (you are made out of that matter and I am made out of this matter).

    I apologize if that is too brief but that is a two paragraph introduction to metaphysics (W. Norris Clarke’s The One and the Many is a much better introduction). A key point is that this metaphysics is not just trotted out in the abortion debate. It explains all kinds of changes and how there can be multiple objects of the same kind.

    You may “see” an embryo as extremely different from yourself but how could the embryo “develop” into you? There needs to be a principle of identity that binds you to your past self. Otherwise you did not “develop” at all. You popped into existence.

  90. Why don’t you just say “god” and get it over with? Theologian Father Clarke (SJ) probably would. You keep insisting on Roman Catholic Apologetics as though it is something we all need to account for. We don’t. I reject the premises of your religion, therefore you have no consistent arguments to account for.

    I’m not speaking for Marc; I don’t know his religious views. But yours will never find a politically dominant position in a nation founded by Protestants and secular philosophers. (And yes I know the Dobbs fascists on the current Supreme Court are all extremely conservative Catholics, perhaps even to the point of heresy; but that says nothing to the credit of your Church.)

    I don’t know how many I speak for here. But I don’t believe in your god, I do not accept your religion, and all I see you doing is repeating your Credo endlessly. Our Constitution assures freedom of speech and of religion. So chant the Credo as much as you will, and perhaps that alone will persuade others to effect an authoritarian Christian regime here. I hope you don’t mind if occasionally someone interrupts to suggest to others that a liberal secular society allowing difference and thinking for one’s self offers a better opportunity for choice and for tolerance for those unlike ourselves.

  91. Terranbiped

    Consensual process derived by what means? Democratic voting? But, Dan says, I believe, that bodily autonomy must be sacrosanct and indispensable if one wants to have and maintain a liberal democracy. Individual bodily autonomy is an inalienable right integral to the working definition of what a liberal democracy is and immune to moral or any other considerations.

    I think Dan is making a case for the ideal, wanting to make an is, into an ought, or is it an ought into an is?

  92. Terranbiped

    This is going from the sublime to the ridiculous. If you won’t spell it out, I will: Assuming we even give a shit about a human fetus, or unborn child, we care more about the free will and bodily autonomy of the mother.

    I would add, that I don’t know if bodily autonomy vis a vis free will is critically essential to an ideological conception of a liberal democracy. Obviously, whether it is or isn’t, the moral consideration is not ruling the day of most Americans. They simply don’t effectively care if some woman goes into a same day clinic and comes out and goes about her business without an 18 year ball and chain shackled around her ankle.

    If you care you care, if you don’t, you don’t. What is so hard to accept.

  93. I don’t know how many times I can say this: I am not interested in the moral arguments, because I don’t think they are relevant for the reasons I gave in the essay. I am concerned entirely with whether in a liberal society, you can compel a woman to give birth under threat of force, which is what criminalization entails.

  94. venividigrizzly

    Jayman:

    Repeating Aristotelian metaphysics to me about man’s rational nature doesn’t really answer my hypothetical alternative. Because there isn’t a way to definitively resolve the conflict between your metaphysics and the metaphysics that obliges us to respect the telos of any number of other beings. Because teleology in human nature suffered a huge blow in the wake of Darwin and is well out of fashion. In all, because it’s a metaphysical position that can’t claim to resolve the political conflict before us.

    Of course someone can lose one’s personhood. Someone succumbing to dementia can lose various privileges of personhood because they’ve lost the ability to manage these privileges themselves. Someone can fall into a permanent vegetative state, arguably a full loss of personhood.

    Your “loner” example grows creepier with each successive comment. No, we cannot kill the orphan baby, not even painlessly. The cat’s already out of the bag. They’ve been born and are living as a conscious thriving creature. We don’t have the right to turn that consciousness off because philosophical games.

    Prudential judgments are obviously a kind of value judgment. They’re just not based in moral values. There isn’t just one kind of value.

  95. The consensual process should be one that is regarded as fair and acceptable by all or if not by all then by as large a majority of adult citizens as possible. This can take many possible forms. Even non-liberal societies can devise and stand by such processes.

    My point doesn’t rest on the specifics of the abortion debate. But I take that debate to have exhausted itself at the first-order level and that the only solution to it (short of actual violence or at least violent speech) is to move to a second order decision procedure.

    I take that to be Dan’s main point.

  96. venividigrizzly:

    From within my moral framework I think it does answer your alternatives. Also within my moral framework there are some things that are inherently wrong and so never permitted. There are at least some definitive answers. In cases where we must weigh different factors there is no definitive way to resolve the conflict if what is meant is a guaranteed way to garner agreement from everyone. We can do our best to think rationally, not emotionally and not by assuming what we presently value ought to be valued.

    Teleology, properly understood, suffered no blow at all from the theory of evolution. Every biological function in any living creature, human or otherwise, is an example of teleology. Teleology predicts the regularity of nature which science confirms with every discovery it makes. If teleology didn’t exist, regularity wouldn’t exist and science would be pointless.

    The loner example is to tease out your position. Remember, I’m the one who won’t kill an embryo, the newborn, the disabled, the elderly, etc. The scenario has done its work to some extent. You have now admitted that someone can lose his personhood and that infants are not fully functioning persons.

    Infanticide is not a philosophical game. By some estimates, between 10 to 15 percent of newborns throughout history have been killed. Before modern medicine this was safer for the mother than abortion. Many of the reasons given for infanticide are given for abortion by today’s pro-choice advocates. It is telling that you describe the orphan baby as “a conscious thriving creature” because even today someone like Peter Singer thinks it is ethical to give parents the option of euthanizing an infant with disabilities. The beliefs that provide support for abortion seep out into other areas. My position doesn’t allow for this seepage so you shouldn’t be worried by me.

    Moral value/goodness and non-moral value/goodness can bleed into each other. And you ignored my comment about worldviews being smuggled in. How do you propose the issue being resolved through prudential judgment? Do we just take a vote from every voter in America and whatever the majority/plurality votes for that’s what we do?

  97. ejwinner, nothing in my argument relies directly on God’s existence or my religion. You seem unable to comprehend that someone could be pro-life for secular reasons. There are even atheists who are virtue ethicists and natural law adherents.

    I’m not Roman Catholic. That’s just another baseless assumption on your part. I’m a Protestant who was “converted” to this position by the arguments of certain Roman Catholics, at least one of which used to be an atheist who converted because of the philosophical arguments of Thomas Aquinas and the like. I used to take a more liberal view on when abortion should be permissible but found those arguments could not hold up to the onslaught of natural law arguments.

    Life is a prerequisite for all other goods, including thinking for yourself. Let the embryo/fetus live so it can think for itself. Show it tolerance even though it is unlike yourself.

  98. This is going nowhere. Your “arguments” are really simply assertions, no matter how you rephrase them. Their foundation is clearly Christian – no matter what church you go to, they depend on Catholic dogma and doctrine, which again, I reject. Without your first premises (which must include a divine agency for ensoulment of the fetus) it is your assertions that are baseless.

    And the burden of proof is on you: prove the fetus has a soul. Prove your god exists. Where is the evidence? Why should your religion be considered the One True Religion? Why not Judaism, or Hinduism? My religion holds it dogmatically that there is no individuated soul. It has no gods. it allows abortion as an individual choice.

    My religion is the One True Religion. But I don’t wish to impose it on you. I simply ask that you don’t impose yours on women in this republic. And when we change the court and the law through democratic processes, as we will eventually, accept that you may well convert individuals, but never the people as a whole. The majority in this country do not want a ban on abortion.

    The fetus cannot think for itself so your plea is nonsense. Women do exist and they ought to be allowed the right to think for themselves, whatever their difference from you or your religion.

    But we’ve done this dance before. It was a mistake to make further reply to you. Talking with stone walls is a waste of breath – so please, look on me as just such a pile of stone, and save your breath.

    May Buddha bless you.

  99. venividigrizzly

    Aquinas said incredibly little about abortion (you gesture at him) and you are cool with putting huge burdens on women to the point of death. This is the worst of philosophy.

  100. venividigrizzly

    Jayman:

    OK, what is your standard to resolve a dispute where we can’t get agreement, and rational debate can’t resolve the debate?

    Far as teleology goes, sorry, dude, it is very much in doubt for human biology, and you don’t know how to argue for it outside of just affirming it.

    I don’t know what you want to prove by saying I believe infants are not fully functioning persons. No, they are not. So what? You are very wedded to having a word attached to you conferring deep moral value on you (person, human), and then do a lot of work to say the word applies to you, and have done very little to why that moral value actually applies to you by virtue of that and why why it matters.

    I do not care about Peter Singer’s arguments here. I do not subscribe to them.

    I’m taking my own moral judgment on this issue, not asking the majority, and I’ve told it to you again and again. It’s not because the majority believe what they believe that I do. I think they have rationally fell into the same vein. Anyone can obviously go into philosophy brain and contest our judgment, but give me something better than what you have.

  101. Rob asked me, what “things” ought have rights in a liberal polity? I would have answered, but he exited.
    Who should have rights? Citizens. Per the US Constitution. Even allowing the fetus as “human” – which I do not – it cannot in anyway be considered citizens, since they cannot take responsibility to the extent that they can enjoy the rights of citizens.

    Without the assumption of divine agency, insisting that a fetus has the intellective soul necessary for a human being makes no sense. Thus any metaphysical claim to fetal humanity, let alone personhood, is necessarily religious.

    Denying this, clearly women have prior claim to any right.

    But if Christians can impose their religion on women, surely others can impose theirs. After all, mine is the True Religion, should I not have supplicants worship me on assigned days? Or perhaps we should allow existent citizens the right to practice their beliefs however different they are from one’s own. Dan has made that argument, the religionists here have not, and on the basis of their beliefs, they cannot. With them, for them, it is simply a matter of assertions battering against each other. If that;s all we have, the danger of real conflict involved could tear this polity apart. Perhaps it already has.
    (Besides which, I find denial of the religious content of anti-abortion arguments disingenuous to the point of dishonesty; and I hate intellectual dishonesty, such as we find with the Dobbs fascists on SCOTUS. Like William Lane Craig, they reason with you to your face, while preparing a hidden agenda behind their backs.

  102. Whether or not a polity is a liberal one is a question of degree, not of kind. A ban on abortion is no more disqualifying than a ban on suicide (and make no mistake, a ban on assisted suicide is as much a ban as a ban on assisted abortion), and impinges on bodily autonomy to an even greater extent. If we can live in a society where suicide isn’t a right and call it liberal, we can do so with abortion as well. If neither abortion restrictions nor suicide restrictions are compatible with a liberal society, all talk about liberalism’s virtues are purely speculative and not pragmatically justified, as there are no plausibly liberal countries with neither. If they are compatible, then the argument falls apart because you can have your liberalism and abortion restrictions alike.

    Second, you misunderstand the laws about intruders on private property. There is no “Private prerogative” that lets you per se shoot trespassers. The legal standard for self-defense is identical on the street or in the home, castle doctrine just creates a presumption that goes toward one or more of the self-defense factors in those states. IE in TN, if the shooting victim was an intruder in the home it’s presumed the shooter had a reasonable fear of imminent death or bodily injury. The presumption is rebuttable, so there doesn’t exist anywhere in the US a private prerogative to shoot trespassers.

    Finally, that the prudential question favors the bodily autonomy of the pregnant female begs the question of fetal personhood. Surely being outright killed is a great infringement on bodily autonomy than carrying a fetus for 9 months? If the woman’s bodily autonomy is a prudential matter and not one of morality, so is the fetus’s. If the irresolvable nature of the fetal personhood question makes the ethical dispute irrelevant, it makes the prudential question irrelevant as well insofar as it hinges on this unresolveable question.

  103. >You may “see” an embryo as extremely different from yourself but how could the embryo “develop” into you? There needs to be a principle of identity that binds you to your past self. Otherwise you did not “develop” at all. You popped into existence.

    You might see a man’s sperm and woman’s unfertilized egg as different than an embryo, but how could the sperm and egg “develop” into the embryo? There has to be a principle of identity that binds embryos to their past selfs. Otherwise the embryo just popped into existence.

    Were the sperm and egg, pre-fertilization, you? If not, what’s the difference?

  104. Terranbiped

    Reference your last paragraph question – you can’t – without being a philosophical zombie.

    I would suggest that the abnegation of moral considerations is in fact a de facto moral decision.

  105. Terranbiped

    You can argue with an ethical atheist but not with the “word” of God.

  106. The question of fetal personhood is irrelevant, as I explained in the essay. [And I’m hardly the only person to make this move: JJT does it in “A Defense of Abortion.”] And the presumption is the expression of the prerogative.

  107. KuremaSan, I think the sperm and egg went out of existence and the embryo came into existence. The sperm and egg are two things whereas I am one thing.

  108. venividigrizzly:

    As a practical matter we may have to follow the majority/plurality or allow everyone to choose for himself. I’m not claiming this approach avoids morality or metaphysics.

    One can simply observe teleology so no argument is needed. For example, I can observe that the eye is for seeing. A blind eye is unhealthy because it is not properly functioning.

    My point is how pro-choice views on the permissibility of killing seep into other areas and open up new avenues for killing.

    I was asking how we resolve the abortion issue as a nation without making moral and metaphysical claims of any kind.

  109. ejwinner:

    How could Aristotle depend on Catholic dogma when he lived before the time of Christ?

    By “soul” I mean the principle of life so I merely need to show the embryo/fetus is alive. One of my opponents has already granted the claim that the embryo is alive. Merriam Webster defines abortion as, “the termination of a pregnancy after, accompanied by, resulting in, or closely followed by the death of the embryo or fetus.” Now the embryo/fetus couldn’t die if it wasn’t alive.

    Prohibiting murder in all its forms is not imposing religion on others (unless the prohibition of murder is religious). You presumably have no problem with my “imposing my religion” on others when it comes to the murder of the born.

  110. Marc Levesque

    Jayman777

    > It’s funny that you can identify the embryo/fetus as a biological organism but won’t say what kind of organism it is. What are the realistic alternatives to it being a human organism? Is it a cat? A dog? Why is it apparently easy for you to identity the embryo/fetus as an organism but not as a human? Is a speciesless organism a possibility?

    I was looking for common terminologically. At the level of biological systems (organisms, embryos etc.) it seems you’re not using the term human as a synonym for homo sapiens, as I do.

    > Let’s return to your statement, “A fetus, like an embryo, refers to a broad stage of development of a biological organism,” in order to answer your final paragraph. “Development” implies both (1) an underlying entity that maintains its identity through the development …

    I don’t see “development” that way. And usually find concepts like entity, underlying, or identity argumentatively unreliable. Same for what you write after that and in the following paragraphs.

    > You may “see” an embryo as extremely different from yourself but how could the embryo “develop” into you?

    I feel they are extremely different emotionally. And I see them, ‘see’ as in the study of biology, see them as extremely different, so the how isn’t an issue for me here. Not sure why it is for you ?

    > There needs to be a principle of identity that binds you to your past self. Otherwise you did not “develop” at all. You popped into existence.

    There doesn’t need to be because of what I wrote above and because the idea that some concepts can form gradually or ‘pop’ into ‘existence’ is something I find acceptable, rational and often common place.

  111. venividigrizzly:

    I think abortion is permissible if the mother’s life is in danger. If the sex was consensual then the woman has chosen the burden of pregnancy for herself. If there are exceptions for the mother’s life, rape, and incest that appears to cover around 5% of abortions.

    In the other 95% of cases are we not to believe that women are capable of taking personal responsibility for their actions? What kind of view of women is that?

  112. venividigrizzly

    Jayman:

    “As a practical matter we may have to follow the majority/plurality or allow everyone to choose for himself. I’m not claiming this approach avoids morality or metaphysics.”

    So are you disagreeing with the court’s decision?

    As for your second point, that’s a pretty weak defense of teleology, especially when we have to “see” and assume so much more to accept your conclusion that an embryo is entitled legal protections. That said, what you describe has been better described as “teleonomy”:

    https://www.philosophersmag.com/index.php/component/content/article?id=99:biology-vs-physics-two-ways-of-doing-science

    Some pro-choice views might have further implications for things like end of life care, but all the scenarios you’re throwing out at me are completely divorced from what I’ve argued.

    I certainly believe in continuing the moral dialogue, which is why I’m making moral arguments. Dan just recognizes that the moral divide is too deep among opponents here, and doesn’t think the legal issue should be resolved on those grounds, so he focuses on the legal, prudential grounds for abortion. As he says, he believes that a serial killer morally deserves to die, but doesn’t think it’s prudent for the state to impose those punishment. And he clarifies:

    “The point is not that there is nothing ethical wrapped up with prudence [there are ethical considerations wrapped up with the prudential injunction not to impose irreversible punishments by way of imperfect systems], but rather that the morality of the thing itself – driving faster; killing murderers – is not the governing consideration. And as the question of the thing’s morality is a matter of irresolvable dispute, if it is taken as the governing consideration, we wind up with unsurpassable and toxic political divisions; a winner-takes-all universe, in which political victory means forcibly imposing one’s morality on others, and political defeat means having others’ morality forcibly imposed on you. And they will be imposed on you, because you will not always prevail in political contests.”

  113. Sorry if this is a double post, please delete the duplicate.

    “My interest, however, is in the general question of reproductive freedom, and why one cannot have a liberal society without it, and the short of it is that reproductive freedom is a form of bodily autonomy, and bodily autonomy is fundamental to the very idea of a liberal society, let alone any acceptable implementation of one. With regard to the question of abortion’s legality, then, the moral dimension is largely irrelevant.”

    Even bodily autonomy can have limits. If a father is stranded with his baby child on an island and that father does nothing to care for that child causing the child to die, I think a liberal society could punish the adult for neglect. Now you can say well that is not how you define a liberal society. And that is ok. But if you define a liberal society such that I think it promotes evil then I will simply say ok I am no longer interested in a liberal society according to your definition.

    You are just making assertions that your notion of a liberal society is something you think I should value but without a real morality that is just you trying to impose your own make believe on me.

    “And while I’m sure there are few people who think it immoral to drive thirty-five miles-an-hour in a thirty mile-an-hour zone, municipalities legitimately enforce thirty mile-an-hour zones, nonetheless. The point is not that there is nothing ethical wrapped up with prudence [there are ethical considerations wrapped up with the prudential injunction not to impose irreversible punishments by way of imperfect systems], but rather that the morality of the thing itself – driving faster; killing murderers – is not the governing consideration.”

    All criminal laws are based on morality. Just because reasonable people can disagree about what a speed limit should be that doesn’t mean it is not morality that is governing the issue. It would be immoral to drive 130 mph through a school zone. And it is that same sense of moral obligations to each other that lead us to pick numbers that we think are reasonably safe.

    “Whatever one might think about the morality of imposing the death penalty on convicted murderers ….as a matter of prudence, the state cannot impose irreversible punishments, when the relevant systems are inherently and necessarily fallible. Executions, in short, are a form of reckless disregard.”

    If someone spends 10 years in prison can you reverse that and give them those years of freedom back? I’m not sure this reversibility criteria works unless you really want to radically change out criminal justice system.

    “And as the question of the thing’s morality is a matter of irresolvable dispute, if it is taken as the governing consideration, we wind up with unsurpassable and toxic political divisions; a winner-takes-all universe, in which political victory means forcibly imposing one’s morality on others, and political defeat means having others’ morality forcibly imposed on you. And they will be imposed on you, because you will not always prevail in political contests.”

    That is what criminal laws do. They imposes morality on people. Whether that is laws against murder or battery or fraud. Saying these are all just “prudential concerns” is just playing a shell game. You might say you are imposing your “prudential concerns” I think that is inaccurate but as a practical consequential matter it doesn’t matter. Our constitution protects certain freedoms such as religious freedom from being at the whim of the majority/democracy. But otherwise the country is a democracy where the majority of voters get to choose the people making the laws. They do that based on what they think is right and wrong. You may think nothing is moral or immoral and therefore think armed robbery is outlawed , not because it is immoral, but merely imprudent, but I don’t think that is how this in fact is working. In fact people think armed robbery is morally wrong and that is why it is illegal.

    “That there are things you can do to an intruder on your property – including killing him – that you could not do to him out on the street is one expression of this prerogative. ”

    Generally you can only kill someone in self defense. You can’t kill your dinner guests simply because they are in your dining room or even if they go into you bedroom or bathroom. Now it may be that the law recognizes presumptions that if someone is breaking into your home you would feel at risk of serious harm. If you ever had someone break into your families home in the middle of the night I think you understand that reasoning.

    “The ninth amendment to the US Constitution explicitly states that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”] If one political faction in this country wants to alter the country’s fundamental nature – wants America to cease being a liberal polity – it will require a constitutional convention or a raftload of major constitutional amendments. It cannot be effected by the judgments of a bunch of political appointees to a court [including the Supreme one] or a rabble of state legislators.”

    The ninth amendment was making it clear that the rights in the bill or rights are words of illustration not words of limitation. That means they were making it clear that legislatures should not think they could *only* give people the rights they have listed in the bill of rights. But even if you think some of the framers were thinking certain unmentioned rights would be protected by the ninth, no credible person would think the intent of the 9th amendment would be to make sure people throughout America would always have a right to kill the unborn. If you want to bend the ninth amendment to mean whatever rights you personally think are important should be immune from democratic process ok. But then we basically have a Supreme court dictatorship not a democracy.

    “A liberal polity is preferable to any other, because you cannot win every election and you cannot kill all your opponents.”

    I think this is why we should prefer smaller government. But here is the problem. History shows us sometimes people can win every election and kill all of their opponents. That is why we should make sure we maintain the checks and balances of our constitution and not try to stack the court full of people that will “interpret” the constitution to mean whatever we want it to say.

  114. Marc Levesque:

    How can I develop, say, brittle bones if I don’t have bones throughout the developmental process? At the start of the process I have strong bones and at the end of the process I have brittle bones. How can we make sense of this process without believing the bones are an underlying entity?

    Identity is equally important. If you were studying this process as a biologist would you not need to identify my bones and distinguish them from all other bones?

    If we ran back the tape to your embryonic state we never see you pop into existence some time after conception. On the other hand, we can observe the sperm and egg going out of existence and the embryo coming into existence. In your opinion, how could we observe when you popped into existence?

  115. If by that you mean you will try to use reason to dispute his views then I applaud you and look forward to your response. If you mean something else by “fight you in the political arena to my last breath.” then (depending on what you mean) I think we may have different views of what it means to live in a “liberal society.”

  116. Terranbiped

    I think abortions are permissible if the woman didn’t willfully conceive. I know that sounds ridiculous. As ridiculous as your arguments have progressively become. I’m patiently waiting for you to suggest sex for procreation only.

    Next we can discuss capital punishment, warfare, violent films and video games bleeding into the polity or how many angels can dance on the head of a needle.

    Your opening statements were fair and sufficient unto themselves but are becoming ever more diluted the deeper into the subjective weeds you go. I say this with due respect.

  117. “He clearly argues that the adults have more standing to be saved than the embryos because the former have parental and societal investments, relationships, hopes, etc. — in other words, the hallmarks of fully functioning persons.”

    So what does the birth canal have to do with any of this? Is it fine for parents to kill their newborns as well? Is a born human’s right to life dependent on their societal investments relationships and hopes? Humans without enough societal investments, relationships and hopes can be killed?

  118. venividigrizzly:

    I think SCOTUS should call balls and strikes. I’m not a lawyer but from my layman perspective I don’t think the Constitution guarantees a right to abortion. The issue is now in the hands of legislatures so we the people have at least some influence over the matter now.

    I, and several (most?) other commenters here, simply don’t find Dan’s argument convincing. Even the quote you provide admits that ethical considerations are wrapped up in prudential considerations.

    No one here is arguing for the repeal of murder laws. We all think murder of the born should be illegal. Speaking for myself, I support laws against murder for moral reasons. I don’t even know how ethical considerations could be separated from prudential concerns in this case. Then to ask, “what is murder?,” brings up many philosophical questions that cannot be avoided. Who counts as a human or person? How you answer that question directly impacts how you think about abortion.

    If someone joined this conversation and said anyone under 18 is fair game to kill I would love to see how he would be argued with prudently rather than morally and how no appeals to humanity or personhood would be made.

  119. “Who should have rights? Citizens. Per the US Constitution. Even allowing the fetus as “human” – which I do not – it cannot in anyway be considered citizens, since they cannot take responsibility to the extent that they can enjoy the rights of citizens.”

    Can a newborn take responsibility to the extend that they can enjoy the rights of citizens?

    Here is a tip from an oldish guy that is used to debating all sorts of issues including abortion. In most of these debates pro-life will do well to talk about abortion right before birth and pro choice will want to talk about abortion right after conception. On the pro-choice side you should always be ready to be asked whether what you are saying justifies a human as having a right to life, applies to newborns.

    And there is nothing wrong with outlawing the killing of non-citizen human beings. In fact I think we should definitely criminalize the intentional killing of innocent tourists that are not citizens. 🙂

    “Without the assumption of divine agency, insisting that a fetus has the intellective soul necessary for a human being makes no sense. Thus any metaphysical claim to fetal humanity, let alone personhood, is necessarily religious.”

    Most scientists agree human life begins at conception. I don’t think this is just a religious view.
    https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3211703
    Whether all humans should be accorded the rights of personhood might be a different matter.

    In any case morality is often tied to religion so there is nothing wrong with religion playing a role in someone’s view on what should be illegal.

  120. “Besides which, I find denial of the religious content of anti-abortion arguments disingenuous to the point of dishonesty; and I hate intellectual dishonesty, such as we find with the Dobbs fascists on SCOTUS.”

    Just because they do not think our constitution gives people a right to kill the unborn they are dishonest and fascists? I can tell you that many non-fascists do honestly think the constitution does not give people a right to kill the unborn. They honestly think that it is *so obvious* that the constitution does not give this right that it was an abuse of power for the supreme court to say it did. I am one of those people. People that disagree with you are not evil or the enemy.

    I know many on the left never wanted to have this political debate, but it is here. And name calling is not going to make matters any better.

  121. Can vaccines ever be required by the government in a liberal society?

  122. For things that are a demonstrable threat to public health like polio and smallpox? Yes.

  123. Is the health of all humans considered in “public health”?

  124. This is the beauty of federalism. You hate red states and red states hate blue so lets give people options.

  125. “I still haven’t heard why his metaphysics/values should prevail over anyone else’s in the law”

    Democracy.
    In our constitutional democracy we have particular checks on democracy to protect certain minorities such as the freedom of religion and equal protection for different races.

  126. venividigrizzly

    Joe:

    “So what does the birth canal have to do with any of this? Is it fine for parents to kill their newborns as well? Is a born human’s right to life dependent on their societal investments relationships and hopes? Humans without enough societal investments, relationships and hopes can be killed?”

    Already answered. No. Thanks.

    Jayman:

    “Balls and strikes” is cheap talk from a justice who’s taken part in some monumentally activist decisions with huge consequences and is now presiding over, helplessly, what’s looking to be one of the most activist courts in the history of the institution. You’re talking the myth of the court, which is rapidly eroding in the public confidence. It can go to the legislature now? Oh boy. Like conceal carry laws? Afraid not. The court has created an expansive individual right to bear arms (a figment of the NRA) over a decade ago and now they’re wielding it against legislatures. Expect the same if Democrats stop basking in their uselessness and actually codify abortion legislation. Expect reactionary Calvinball for a many, many more years in the future. Thomas has already hinted that he’s eager to go after prohibitions on gay marriage, anti-sodomy and anti-contraception laws. Mr. “Balls and strikes” has already gutted the government’s ability to protect people’s right to vote, and you know what, you don’t have an enumerated right to vote either. It just can’t be incredibly obviously restricted from you based off of race, or gender, or age (if you’re over 18). Also expect legal balkanization and further fracturing of the country’s social fabric. Your hypotheticals are weak, your metaphysics are fragile, and our future is perilous. Enjoy your Aristotle as women are prosecuted for miscarriages of births they very much wanted. You’re worried about morality getting lost in the law? You’ve got it.

  127. Being released does not reverse the damage of the time already lost in prison.

  128. “Is the health of all humans considered in “public health”?” You know the answer to that question, we all do (or at least we did before Trump). Anyway it is embodied in statutory and regulative law. You’re just ‘playing semantics’ as we used to say.
    The dissimulation disguised as ‘argument’ that has been laced into this thread is staggering.

  129. I appreciate you keeping the comments open on this topic. Your article rests on many claims/maneuvers that I disagree with and would take volumes to fully hash out but they are important issues worth discussing. I am grateful to anyone willing to throw their own views out there to be critically analyzed.

    I’m also glad many people can discuss this topic without completely losing their cool. Abortion was traditionally a debate I completely stayed away from because emotions would quickly overwhelm any sense of reason. Now that the issue has been put back into the hands of our democratic process I hope American’s will treat those with different positions charitably so our freedom of expression can inform our democratic process.

    I double majored in philosophy and political science as an undergrad, went to law school and have been practicing law for about 25 years so I know quite a bit about the legal issues of this line of cases as well as the political legal system and how the law is interpreted in practice in our court system. I would be happy to discuss this with anyone that wishes.

  130. “Your robust standard just amounts to claiming that killing the embryo is murder, which, ok, sounds much of a piece with your defense of your metaphysics by claiming “but it’s true.” But ruling by fiat is weak reason.”

    Murder is traditionally defined as essenitally: “intentional and unjustified killing of an innocent human being.” There are different degrees of murder or homicide.

    You will see many states have laws treating the killing of the unborn as murder/homicide unless the mother consents to the killing.
    https://www.ncsl.org/research/health/fetal-homicide-state-laws.aspx

    In the past I think pro-choice used to argue a fetus is not a human being. But that has fallen out of favor. As it is pretty obviously a human life.
    https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3211703

    I haven’t heard arguments that the fetus would not be innocent.

    Dan and many pro choice advocates seem to focus on whether the killing is justified. I’m not saying they concede a fetus is a human but they don’t address it suggesting it is irrelevant. Dan uses the argument of having dominion over certain space from land and at the highest level over the space our body covers. Suggesting that the a liberal society must respect that regardless of the stakes if we are to have a liberal society/polity. I think he contradicts that when it comes to vaccines but ok. That is his argument.

    As for me I do not say all abortions are murder because “intentional” killing implies the person knows that it is a human they are killing. And I think the issues have been so muddled that many women do not believe a fetus is a human. If they do not believe they are killing a human then it is not murder. If however a woman does believe it is an innocent human that they are intentionally killing then I think it is murder unless it is justified. I do not think many reasons offered by the pro choice side justify killing an innocent human being including Dan’s reasons.

    When is it justified to intentionally kill innocent human beings? That is one question.

    The other question related to this one is whether simply being a human should automatically entitle you to the same rights to live even if you lack certain traits? If we say a human’s traits will mean they have or don’t have the same right to life then we might lessen the justification needed to kill that human. This is where the whole personhood debate goes. Are all humans “persons” that are entitled to the same right to life.

  131. Let’s say a disease was spreading wildly that killed or badly effected fetuses but not people already born or the pregnant women. Don’t ask me how. Would you say the government had a right to invade your bodily space to inject you with something you do not want to save those fetuses?

    I think both of these examples shows your hard line of spatial autonomy over your body is not consistently maintained.

  132. venividigrizzly

    I dunno, Joe. You seem to think it’s fine to kill fetuses when you are really confused about them (unlike born people), and you seem really confused about them. Not building a lot of confidence in the anti-woman faction.

  133. Ok then we agree public health includes all humans including the unborn? Again here are statutes that shows the unborn are considered human according to many states when they are killed without the consent of the mother.

    https://www.ncsl.org/research/health/fetal-homicide-state-laws.aspx

    And regulatory agencies like the FDA and CDC would include concern for fetuses as part of their concern for public health. For example the FDA warns that smoking or drinking could cause birth defects in fetuses. That is why I am asking Dan or other pro choice people if they agree with that.

    It is not “playing semantics” to ask a pro-choice person whether they include considerations of the unborn when they refer to “public health.” If Dan’s view accords with the law and regulatory agencies then his argument drawing a hard line about autonomy over your body, always overriding other concerns seems inconsistent with his stance on vaccines.

  134. Terranbiped

    Amen. And far from Dan’s stated premise of values versus moral considerations.

  135. Sure people can make that move but Thomson’s arguments fall flat for many people for a variety of reasons. Here are a few:

    https://quillette.com/2021/09/19/rethinking-abortion/

  136. Roe was effectively gutted by Casey which employed a “undue burden” test. Of course, it is obvious the judges are just making stuff up when they try to draw lines about what burdens on a woman’s ability to get an abortion are “due” and “undue” as the constitution has nothing at all to do with abortion. So yes the lie and abuse of power of Roe is finally officially called out for what it always was.

    Now the issue goes back to the states where it belongs. So now the voters in a democracy will decide what burdens are due or undue instead of having judges just make stuff up as they go. Democracies are not so bad. And federalism is a check on national power that we should all value. Because you are unlikely to win every election. Federalism allows people can live in states that share their values. This is preferable to having 9 unelected judges forcing their views on everyone is it not?

  137. At least you are upfront about your strong animosity toward religion.

  138. I have been teaching philosophy for thirty years. I doubt there is any critique of Thomson I am not aware of.

    Obviously, we’re not going to convince one another. We’ll just have to see each other at the ballot box.

  139. I share that animosity. Living in the Bible Belt for 23 years did it to me.

  140. venividigrizzly

    Joe:

    Roe and Casey were the compromise, in both cases judged on a bipartisan basis with Republican judges signing on. (Of course there wasn’t the same partisan split on the subjecct back in Roe’s day.) It allowed for a great deal of discretion for the states when it comes to restrictions, which they’ve been availing themselves of for decades. That’s why half of the country already lacked easy access to abortion well before this decision.

  141. I think we’re about at the end of anything that would count as useful disagreement. I thank everyone for remaining largely civil and temperate.

    However, I must say that I don’t think the core point of my essay was engaged with. Instead people fixated on one detail or another, missing the forest for the trees. Everyone wants to discuss the moral dimension, even though one of the core ideas of the essay is that the moral question doesn’t arise, because there are other overwhelming and overriding considerations that take priority.

    Certainly the police — and state — can breach your privacy/personal sphere for all sorts of reasons. But as I indicated, the fact that our system makes this so difficult — raises such a high bar for the state to meet — demonstrates that the country was *designed* to be liberal at its core. We even prefer that MURDERERS GO FREE than violate core liberal prerogatives. Indeed, as little as a screwed up warrant can put the kibosh on a conviction for murdering dozens of people

    I don’t see how such a state can compel women to give birth. If there was a way to prevent abortions without doing this, I’d have a different position. But the idea that a person can be *forced* to give birth by the government just seems so obviously, clearly, demonstrably ten bridges too far for any liberal society REGARDLESS OF HOW STRONGLY MORALITY OBLIGATES IT that I remain astonished at even having to have this conversation with ostensibly intelligent and aware people.

    Put another way, part of living in a liberal society — and being an adult — involves accepting that others are going to be permitted to do things in their own homes that you may think are utterly morally indefensible. [I’ve had to accept this every day I’ve lived in this hell of a Bible Belt.] As far as I’m concerned, fundamentalist Christians are systematically abusing and torturing their own kids in their homes. But I don’t think the police should be able to go to their houses and take their children away.

    Also ignored was my very clear statement of the cost of all of this opportunistic moral arrogance and imposition. I’ll quote it here:

    “The point is not that there is nothing ethical wrapped up with prudence [there are ethical considerations wrapped up with the prudential injunction not to impose irreversible punishments by way of imperfect systems], but rather that the morality of the thing itself – driving faster; killing murderers – is not the governing consideration. And as the question of the thing’s morality is a matter of irresolvable dispute, if it is taken as the governing consideration, we wind up with unsurpassable and toxic political divisions; a winner-takes-all universe, in which political victory means forcibly imposing one’s morality on others, and political defeat means having others’ morality forcibly imposed on you. And they will be imposed on you, because you will not always prevail in political contests.”

    So understand very clearly that when you do this, you tell your opponents that you will *not* live and let live with them. And understand that the next time we demolish *you* in the political arena, we will return the favor. Perhaps we will criminalize raising children in a Fundamentalist Christian fashion. And stuff the court with a bunch of judges who will enable it. Maybe, the banks and financial houses in our states — which are where *all* the real banking and finance are — will refuse to lend money or provide venture capital to you, so your states can slowly disintegrate into a third world condition.

    As I said at the end:

    “there is no system that can be designed, whose proper functioning does not depend on the good will of those charged with implementing it. Bad actors will always prevail over systemic obstacles, and this latest Supreme Court decision is merely the latest and most egregious illustration of that fact. Liberties and prerogatives – and liberalism itself – need to be re-established and re-defended with every turn of the political cycle, in perpetuity.”

  142. I’m not expecting people to switch positions on the abortion debate. But it would be nice if people could at least try to understand why the other side is not convinced by their arguments.

    The critiques in that article are nothing surprising or new. Thomson herself anticipates some of them.

    There really is nothing complicated about the pro-life position generally. It’s sort of reminds me of the Chicago Bears of the late 70s and early 80s. Everyone knows what is coming. They will give the ball to Walter Payton and see if they other team can stop him. The pro-choice side tends to give a wider variety of arguments.

  143. My lengthy last comment is sufficient to serve as my reply to this. It was a pleasure talking with you. Take care.

  144. “Everyone wants to discuss the moral dimension, even though one of the core ideas of the essay is that the moral question doesn’t arise, because there are other overwhelming and overriding considerations that take priority.”

    I don’t think you argued for that core idea very well and addressed it in my response.

    “I don’t see how such a state can compel women to give birth. If there was a way to prevent abortions without doing this, I’d have a different position. But the idea that a person can be *forced* to give birth by the government just seems so obviously, clearly, demonstrably ten bridges too far for any liberal society REGARDLESS OF HOW STRONGLY MORALITY OBLIGATES IT that I remain astonished at even having to have this conversation with ostensibly intelligent and aware people.”

    The only way someone would be forced to give birth is if they were raped and the law did not allow for exceptions in that case. Yes parents are “forced by the government” to care for and make sacrifices for their children all the time. It is nothing odd or new.

    Yes we live in a society that requires us to take care of our children. That does not seem like a horribly unreasonable society to live in.

    “…Perhaps we will criminalize raising children in a Fundamentalist Christian fashion. And stuff the court with a bunch of judges who will enable it. …”

    Ok if you want to discard our American constitutional democracy and replace it with totalitarian dictatorship “I think you are wrong on every count and will fight you in the political arena to my last breath.”

  145. Sauce for the goose and all that. See you at the ballot box.

  146. Thanks Dan. It took a lot of pounding but I think I finally understand and agree with your thoughts on this matter. I found it very useful to go back to basics and look up the assorted definitions between morals and values = (principles). At least in my case, the not always clear distinction between the two, hindered my ability to interpret your nuanced stance. Once that distinction is appreciated the rest of your exposition on what constitutes a viable liberal democracy, fell right into place. I get the feeling others here were diverted onto a spur line and rolling down the wrong track.
    (Hope I will get an A:)

  147. Marc Levesque

    Jayman

    > How can we make sense of this process without believing the bones are an underlying entity? … Identity is equally important. If you were studying this process as a biologist would you not need to identify my bones and distinguish them from all other bones?

    A bone is a thing too, more precisely for example a femur, and a femur is a label we use to refer to that thing. We don’t need to refer to them with concepts like entities or identities. I tend to avoid them, or rephrase, or inspect them when others use them because I find it’s very easy for terms like those to hold or take on extra meaning, extra meaning that can make the tenor of our argument appear to lead to a conclusion it doesn’t in fact lead to once the extra assumptions have been removed, or dissolved, when we look at them critically.

    > If we ran back the tape to your embryonic state we never see you pop into existence some time after conception. On the other hand, we can observe the sperm and egg going out of existence and the embryo coming into existence. In your opinion, how could we observe when you popped into existence?

    That might be a good example to explain what I mean. I don’t see a need to talk about concepts popping, or not, into existence. The me I am today isn’t the same me I was when I was 35, which wasn’t the same me I was when I was 16, and so on. When the sperm DNA and egg DNA first combine, that bundle of DNA in one cell, is so far removed from my idea of what ‘me’ means that I find it at best unhelpful and misleading to refer to that one cell that way.

  148. We think you’re pushing totalitarianism. You say the same about us. Sounds like a good reason to give each other a wide berth, rather than criminalize one another.

  149. aaall

    Dan, do you still think the electoral college is a good idea? Do you still believe rule by urban and coastal actual majorities is a bad thing?

  150. I am getting close. I never thought Republicans would become such bad actors, but Trump really changed everything.

  151. Marc Levesque:

    An entity is defined as “a thing with distinct and independent existence.” If you don’t have a problem with the term “thing” then I don’t see why you’d have a problem with the term “entity.” Even if we stick with the term “thing” it is still indispensable in describing reality. If there are no things is there any reality at all?

    Your ability to identify a femur and distinguish it from other types of bones also betrays that the concept of identity is indispensable. Your claim that the the you of today is not the 35 year old you is also an example of using the concept. In this case you are saying the two yous should not be identified with each other.

    I’m not sure I understand your final paragraph. You are not a concept so we’re not discussing a concept popping into existence. You are a flesh and blood human being. If human beings pop into existence we should be able to observe it. The changes that occur in humans from conception to death are, by all appearances, changes to one human.

  152. Ballot boxes won’t matter if one side packs the court with people that will say the constitution says whatever they want it to say. That is why neither side should be talking about packing the court. That is an obviously totalitarian move.

    Let’s debate our differences, vote our consciences, and peacefully live (and hopefully prosper) with the results of our elections in our constitutional democracy. I think it was a blessing to be born in this country. Let’s not screw it up for future generations. There are plenty of threats in the world that we should focus on, before we should be declaring fellow Americans the enemy.

  153. Marc Levesque

    Jayman

    > An entity is defined as “a thing with distinct and independent existence.” If you don’t have a problem with the term “thing” then I don’t see why you’d have a problem with the term “entity.” Even if we stick with the term “thing” it is still indispensable in describing reality. If there are no things is there any reality at all? Your ability to identify a femur and distinguish it from other types of bones also betrays that the concept of identity is indispensable.

    Sure, if by entity you only mean like a thing or an object. And the same for identify, if you mean it only as ‘to apply a consistent labelling’. The concept of identity can have so many meanings, like entity too as your definition shows, so like I wrote in my last comment I think it’s best to keep things as simple and clear as possible.

    > Your claim that the the you of today is not the 35 year old you is also an example of using the concept. In this case you are saying the two yous should not be identified with each other.

    No I’m not saying that. I mean that over time there are simply substantial differences.

    > I’m not sure I understand your final paragraph. You are not a concept so we’re not discussing a concept popping into existence. You are a flesh and blood human being. If human beings pop into existence we should be able to observe it. The changes that occur in humans from conception to death are, by all appearances, changes to one human.

    Rewording, I don’t see that a human person popped into existence when sperm DNA and egg DNA first combine inside a cell. That cell is quantitatively and qualitatively so far removed from my idea of what a human person is that I can’t see why one would want to name that cell that way, like I also don’t see a reason to speak of humans popping into existence.

  154. The Republicans have already done that by criminalizing abortion. A bit late for reconciliation now.

  155. Marc, it would be nice if things could be kept simple but making distinctions of a complex world introduces complexity. For instance, your comments may be simple but they don’t make a distinction between substantial change and accidental change. Are the differences between you and 35 year old Marc differences in substantial form or accidental form?

    The principle of non-contradictions tells us that an individual human can’t both exist and not exist (in the same sense and at the same time). The idea of coming into existence gradually (in the sense that you, say, 5% exist) seems incoherent.

    You may have the last word if you desire.

  156. For those interested in seeing just what bad actors the Republicans on this court are, this thread by an appellate lawyer is quite good.

    https://twitter.com/5thCircAppeals/status/1542522257511026689

  157. I am more concerned about our constitutional process than any immediate power grab over a particular issue.

    Using the democratic process to make certain abortions illegal or even all abortions illegal in some states is not the same thing as “packing the court.” We have had 9 justices on the court for quite a while. “Packing the court” would mean appointing additional justices that will say the constitution means whatever you want. That is the surest road to tyranny we could ask for. You can see other countries that have done that and how it has worked out.

    Now not only should we not pack the court, we shouldn’t have justices saying the constitution says whatever they want it to say. Amy Coney Barrett likely would like the constitution to say no abortions are allowed at all in the second or third trimester and only some abortions would be allowed in the first. But, of course, the constitution does not say that and the framers did not intend it to say that, so she is not going to make that up and say it does. But that is what the Roe court did! They just pulled this trimester legistlative scheme out of thin air. Can we recognize that everyone has an interest in the court actually interpreting the laws/constitution as intended and not just claim it says whatever they want it to say?

    Keep in mind democrats are looking to lose power in a few months. You might think abortion will be a big win for dems at the polls but realistically most Americans are not in favor of the positions democrats are taking on abortion and polling still looks like in a few months republicans will be winning congress. If I were just concerned about getting my way and not the process I would say fine lets expand federal government power! But I don’t like republicans much more than democrats so I am firmly against expanding centralized federal power.

    Perhaps we can agree on some things.

    You say you want to move to a different state that does not share the bible belt values of Missouri. I also want you to be able to do that! I really do. I want Americans to be able to live in state and local communities that suit their values. We are a huge diverse nation. We are not like Sweden or Norway. The notion that we are going to all share the same values and want the same laws is absurd. That is what our federalist system is all about. This means we should be voting for federal politicians that want to reduce the reach of Centralized Federal power not expand it to force the same laws on everyone. You would not like it if all the states outlawed abortion just like I don’t like that Biden wants to do away with the Hyde amendment and force me to pay for the killing of the unborn. I want Trump Biden Hillary and all of these presidential nominees to have as little impact on my life as possible.

    A related issue to federalism is executive power over-reach. Perhaps a topic for another time.

    I am not a fan of government power generally. And so even at the state level I prefer the government to have less power not more. I do think certain things like police powers to enforce criminal laws are important. (and I realize we disagree on abortion but ok) But I just want to live my life as well. Maybe we can all learn that these political buffoons are not going to create a government that will solve all our problems.

  158. Ok I will just say that this is exactly what I have come to expect from the left when it comes to Judges. Do they agree with me on the conclusions I want? If yes then they are great! If not then they are terrible! This guy just lists a bunch of rulings that the court reached and complains without even looking at the reasoning. This proves he wants “yes men” judges not honest judges.

    Judges should not be blamed for faithfully interpreting the law just because the law says things you do not like. If you interpret someone speaking a foreign language your role is to use words to communicate what *they* intended to say. You are not there to change what they intended to say to mean whatever you want them to say.

  159. venividigrizzly

    Joe:

    “Ok I will just say that this is exactly what I have come to expect from the left when it comes to Judges. Do they agree with me on the conclusions I want? If yes then they are great! If not then they are terrible! This guy just lists a bunch of rulings that the court reached and complains without even looking at the reasoning. This proves he wants “yes men” judges not honest judges.”

    This take is, to say the least, ungenerous. By and large, cases reach the Supreme Court precisely because there aren’t obvious answers to the case at hand that can be easily resolved by uncontentious readings of the Constitution and precedent. Not that the present court cares about precedent (Thomas has long stated that he doesn’t believe in stare decisis). The “balls and strikes” myth you’re endorsing right now is what you (not all that fairly) accuse Dan of doing, claiming neutral ground on decisions that necessarily involve deep value judgments. Whether you agree with the critiques or not, there are genuine qualms people have voiced for the Roberts court that don’t amount to knee-jerk reaction. I’d point to Joshua Zeitz and Kate Shaw for recent examples:

    https://www.politico.com/news/magazine/2022/06/26/conservative-supreme-court-gun-control-00042417

    https://www.nytimes.com/2022/07/01/opinion/ezra-klein-podcast-kate-shaw.html

  160. venividigrizzly

    I know vegans don’t eat eggs, but that’s not due to the life of the embryo having inherent value. It’s because they feel the egg was produced by exploiting and hurting the chicken that birthed it. They wouldn’t accuse you of killing a chicken if you dropped an egg. Maybe you can shake one nutbar out of the trees, but even with the weirdo vegan stereotype as it is, they don’t go that far. It goes against common sense and common usage.

  161. “Each evil liver 
    A running river 
    Of harmless merriment”
    – Satire as Comedy in Gilbert and Sullivan
    by E. John Winner

    Joe,
    you, like Jayman, are simply dishonest. Because your belief assures you their is no transgression lying to unbelievers to gain what you want or as god directs, you do it freely. That is the very definition of hypocrisy.

    If, unfortunately, you happen to have children that you raise committed to your beliefs, teach them also to prepare for the eventual defeat of those beliefs, in a republic with a majority opposed to them and the developing will to do what your people did over the past 5 decades, pack the court with those who know how to interpret the Constitution properly and humanely, rather than with the cruelty you and your believers believe.

    The time will come. Enjoy your time in the sun. We are bringing night to you and yours. But that will be our sunlight, and the day when our liberty is realized, and the Constitution at last rightfully interepreted for all living conscious citizens, even women (and not just droplets of chemicals that some phony god of yours is supposed to have ensouled so you could enjoy its suffering).

    But it is your dishonesty, and Jayman’s, that really sets me off. I hate disingenuous dissimulation – it demonstrates that you really don’t believe in what you say, but merely nobody catches you at it, so you can enjoy their suffering.while believing you are somehow clever.

    Ethnologists have trained chimpanzees to use sign-language. That’s pretty clever, too.

    Your previous remark about public health laws indicates that you know nothing about public health laws, and chose to redirect to an obscure and only distantly related issue. But you didn’t care – the distraction was the goal. Perhaps it worked for some; but it indicated that you think your readers are pretty stupid and can’t think for themselves.

    I’m no chimp, and I’m no chump, and I am not even very clever. But I recognize biased rhetoric pretended to be logic. Your people have divided this nation – you have sewn the wind; now, though it take another 50 years, reap the whirlwind. This is not the end of anti-Christian sentiment in America, but only the beginning. Your people should have left well enough alone. Within about 50-70 years, Christian fundamentalism and Christian nationalism will be outlawed, or under severe restrictions, especially in education. Because it is corrupt, evil, oppressive, economically depraved. The ideology is held by liars and hypocrits, as you and Jayman have demonstrated. And eventually the people of the United States will decide they’ve had enough of it.

    Your people are depending on American materialism and the manipulation of legitimate bureaucratic processes and celebrity-centered media reportage to gloss over the damage done to the democratic aspirations most American share; but that will only carry you so far; and while the economy isn’t looking too good raight now, that is only in the past year – when the hammer drops and the economy goes bad under your authoritarian dictatorate, and stays bad year after year, what can you promise people then?

    And what can you promise women who now must suffer due to olack of access to abortion. You people treat them like sheep – they happen to be voters.

    You have excersized your muscle; unfortunately, in the short run or the long run, you will have punched yourself in the face. The majority of American people, certainly the majority of American women, do not want a ban of abortions.

    Your people have made a gross misjudgment on the basis of religious beliefs most of them do not share or fully understand. But that’s in the nature of fascism. And then you and Jayman come here and curl slippery-slope rhetoric around it so you can look clever. Enjoy it; but don’t think you’ve got anybody fooled.

    What goes around comes around. That’s what we call karma.

  162. venividigrizzly

    Joe:

    I doubt that you care about constitutional process at least to the extent that two of the seats on this court (decisive seats) were taken on totally contradictory, baseless grounds. Other reasons could be dug up. It was a pure power grab by my senator, and has contributed to the plummeting of confidence of the court, a court that has no authority beyond confidence. Lincoln and FDR, two of our most consequential presidents, understood this. The new court (not even a Roberts court since he has been sidelined), has clearly signaled it does not care for precedent, has no deference to the other branches, and is eager to track a purely partisan line. The court’s actions have heightened a conflict between the branches, will heighten conflicts between the states, and sow dysfunction throughout the republic. And they don’t care. You like this judgment because you agree with it morally and feel that politics is primarily a battle of morals. It accords with your priors. I think you are exactly what you decry and do not understand the dangerousness of their decisions. You are getting what you want, like it, do not care for compromise, and do not care about the consequences.

  163. Ira

    > This is not the end of anti-Christian sentiment in America, but only the beginning. Your people should have left well enough alone. Within about 50-70 years, Christian fundamentalism and Christian nationalism will be outlawed, or under severe restrictions

    From your mouth to God’s ears. It can’t happen quick enough.

  164. He and his ilk fail to understand that the liberal consensus is more important to then than to us. Eventually, demographics will render them a permanent political minority. And we will remember how they behaved.

    I actually wrote about this here.

    https://theelectricagora.com/2018/03/10/the-liberal-consensus-and-the-orthodox-mind/

  165. Joe

    Dan just to be clear I am not the one suggesting the state take kids from their parents. You are the one suggesting that should be your parties next move. I find what you describe in your linked article absolutely appalling.

    Say what you want about the mass murdering dictators of the last century whether Hitler Stalin Pol Pot Mao etc none of them had as their guiding principle a deep conviction in the Judeo Christian view that all humans are made in the image of God and therefore all human life should be treated as sacred. But many have believed we should set the morality of killing humans to one side and consider prudential reasons that might justify it. I am not saying you are therefore in league with these horrible people of the past. But I am not sure everyone on the left that engages in this sort of new world politics and is out to trash traditional institutions like family and religion that compete with the state has pure motives.

    Again we both want the same thing! Take a look at the rhetoric of your own side and see if it is truly liberal. Having the state Take kids from religious households. Packing the Supreme Court with yes men. Using banks and large businesses to shut down any dissenting voices, expanding the influenced of centralized state power, finding ways to devalue human life, I could go on.

    If I thought you were dishonest and didn’t really want a liberal society where we pretty much leave each other alone I wouldn’t be here. I’m willing to listen to your side and understand why you find conservatives scary. At least listen to the concerns others might have about the left’s rhetoric.

  166. You have described things I’ve mentioned as hypotheticals as being “totalitarian.”

    In our view, what has just happened *is in fact* totalitarian. Not a hypothetical. Not a possibility. What just happened. In real life. You and your party have imposed your religious and metaphysical views on a majority of the nation, under *criminal sanction*.

    My daughter can now no longer live in our state, as she is not willing to eschew sex forever and is unwilling to take the risk of getting pregnant in a state that does not allow legal abortions, if birth control fails or a desired pregnancy goes south. And she may need to leave her University, if Indiana goes the way my state has gone, as it looks like they might.

    Your party has criminalized half the population for wanting the right to exercise bodily autonomy and reproductive freedom. It is an open declaration of war on me, my family, and all the women in our lives who are of childbearing years. It involves the kind of invasion of privacy and of the personal sphere that would legitimate a violent response if performed in any other context. And you have the *gall* to complain about some fantastical scenario I described, in which I imagined us responding to you in kind.

    Your party will reap what it sows from this deeply uncivil, vile political act. There are raped, pregnant children now who are being forced to give birth. You cannot distance yourself from the party that did this. And you all will pay for it, eventually, as the country continues to evolve and to become more and more pluralistic rather than less.

    In short, you are our political enemies now. Real enemies. And we won’t forget or relent. I have nothing more to say on this topic and will not reply further.

  167. Watch the documentary “Jesus Camp” and tell me that the lot of them shouldn’t be arrested for the psychological torture and abuse of children.

    I see the wreckage of this “movement” among my students who have fled these toxic, sick “communities.”

  168. I haven’t read the articles as my complaint is not with genuine qualms about reasoning in cases. I agree with many liberal judges on many issues. I probably agreed with Justice Brennan than any other judge overall. I was specifically addressing the approach were we look at the most basic conclusions and then decide the judges are terrible without even reading the opinion explaining how it was reached.

    *But I will also add that republicans do this too.* I do get the sense that there are more republican judges that are less inclined to judicial activism for their side but it is not accross the board. I find this whole approach of getting judges for our side repugnant on both sides. I think we can look at the general philosophy of judges and approach etc. But just saying he is the guy because he will give me a thumbs up on every issue is not good for our constitutional system.

    The court appointments became highly politicized after Roe. I hope that now that Roe is overruled things will eventually return to normal.

  169. I’m not fundamentalist and have no idea what you mean by “Christian nationalist.” (sounds like another label to make those who disagree with you seem scary so religious views can be oppressed) I’m a Catholic. in fact I disagree strongly with much of what Fundamentalist’s believe. I also disagree with you and Uyghur Muslims, orthodox Jews and protestants. But I have studied enough history to know it is better to let private people have their views than to try to use the power of the government to shut down any dissenting views. you claim I am the one trying to force my views on others. Sorry, I will give my opinion but I have no desire to force everyone to accept what my views. You can think what you want and teach your kids what you want. I have no desire to force my views into your house.

    But yes my children will be made aware that some very few people really hate Catholicism and would like to place it under severe restrictions. I certainly do not think Catholics are persecuted to any extent meaningful extent in the US now – I disagree with those Christians playing the victim card. I find that preposterous in fact. But I will at least let them know people like you are out there teaching in colleges and think Christians deserve some sort of punishment or whatever you are trying to communicate. You are not clear what restrictions you are in favor of but your overall tone is certainly not a live and let live liberal approach. Why don’t you articulate what you think should happen to Catholics, that believe all humans are made in the image of God and therefore all human life is sacred, so I can tell my kids what to expect from some college professors?

  170. I haven’t seen it but just to be clear if they are doing anything illegal then they should be prosecuted. But we should require a very strong burden before we think the state should be taking children from their parents. There are bad people in Christianity but there are also bad people in governments.

  171. Dan
    People have always imposed their morality on others for ages that is what criminal law does. I agree with the general view that people should be left alone as much as possible but criminal laws do have an interest in protecting people.

    It is interesting you keep saying “my party” and I can’t stand most republicans. It just seems democrats have fallen off a cliff.

    No one “criminalized half the population for wanting the right to exercise bodily autonomy and reproductive freedom…” Seriously you know that is not true. Roe returned the issue to the states where it was in 1973 and where it belonged. If you want to move to a state that allows women to kill their baby right up to birth you can do that.

    GTG sorry I didn’t read everything I will check back later. But no I am not the enemy.

  172. I have nothing more to say on this topic and will not reply further.

  173. venividigrizzly

    Joe:

    “I haven’t read the articles as my complaint is not with genuine qualms about reasoning in cases. I agree with many liberal judges on many issues. I probably agreed with Justice Brennan than any other judge overall. I was specifically addressing the approach were we look at the most basic conclusions and then decide the judges are terrible without even reading the opinion explaining how it was reached.”

    You accused liberals tout court of only judging the rulings off of the conclusions and stated the present conservative justices were just interpreting the law. Both are huge misrepresentations. And you completely avoided my counterpoint. When you say you’re a lawyer, I believe it.

    “I do get the sense that there are more republican judges that are less inclined to judicial activism for their side but it is not accross the board.”

    Jesus Christ.

    “The court appointments became highly politicized after Roe. I hope that now that Roe is overruled things will eventually return to normal.”

    It’s nuts how you concern troll us to be more honest while you say stuff like this. You’re deluding yourself.

  174. > But I have studied enough history to know it is better to let private people have their views than to try to use the power of the government to shut down any dissenting views.

    This is rich coming from a Catholic. For how many centuries did your diabolical cult (xtianity in all its forms) persecute, torture, and massacre people who didn’t believe in your god on a popsicle stick ? I use the word torture advisedly: my grandfather, may he rest in peace, was stripped naked, and whipped with nails imbedded in the whips,all because he refused to kiss the cross. And like him, there were tens, if not hundreds, of thousands more Jews who underwent the same. Throughout history there were *millions* of Jews who were killed in the name of your god. And the greatest extermination in history — that of the indigenous peoples of the Americas — was carried out under the auspices and with the blessings of your cult: archaeologists tell us the death toll was at least 40 million, and maybe even as high as 100 million.

    And of course, I didn’t even mention pedophilia, which is bascially the raison d’etre for much of the Catholic church’s continuing existence. And now, you want us to forget and make nice ? Sorry, bubbele, that’s not how life works. If you had the most minimal amount of self-awareness and knowledge of history, given that your religion has been responsable for more death, torture, suffering, and misery than any other institution in human history — BY FAR, nothing else is even close — you would do some serious soul-searching.

    p.s. Stop using the term judeo-xtian There is no such thing. It’s completely inaccurate and deeply offensive.

  175. “I have no desire to force my views into your house” – except our bedrooms – and women’s bodies. Thanks for the “honesty,” Joe.

  176. Dear Prof. Daniel Kaufman and Dr E John Winner,

    Hello! I have enjoyed perusing this well-reasoned post entitled “Compelled Birth and the Liberal Polity”. Thank you very much, Daniel, for this timely post, which has been well-presented here, and which Dr E John Winner has reblogged. There is also a diversity of opinions expressed via the numerous comments, some of which seem to be quite heated, if not verging on incivility.

    I concur with you about the many sobering implications of the current state of affairs whose chaos and disruptions are very topical areas to explore the many outstanding tensions between (the sociopsychological states of) sanity/stability and insanity/instability, affecting not just reproductive freedoms but also the very existence and survival of humanity. There is plenty to explore regarding the many outstanding tensions between the two major parties. Any reasonable and discerning person can conclude that the USA has been plagued by ignorance, dogma, falsity, blind faith, spiritual stagnation and epistemological impasse . . . . .

    We have been witnessing so clearly the insidious nature of Trumpism, Machiavellian conservatism and inimical illiberalism perverting democracy for nefarious purposes and for justifying, obfuscating or muddying the waters of systemic racism, historical negationism, discrimination, marginalization and curtailment of civil rights. In a similar vein, one of my latest posts highlights not just the various traps awaiting us from the fallouts of the main event regarding the SCOTUS’ decisions on abortion and its striking down Roe v. Wade, but also how the capacity of laws and legislation to be legally valid, binding and enforceable in different contexts is both contingent (acceptable only if certain circumstances are the case) and circumscribed (restricted to certain roles or situations), given that the content, relevance and quality of laws and legislation are fundamentally filtered and moulded by class structures, social stratifications, cultural reproductions and communication frameworks as well as by the interaction between legal cultures, and the social construction of legal issues. Given your position and concerns, you are hereby invited to peruse my latest post entitled “🏛️⚖️ The Facile and Labile Nature of Law: Beyond the Supreme Court and Its Ruling on Controversial Matters 🗽🗳️🔫🤰🧑‍🤝‍🧑💉“, as I am certainly very keen and curious about what you will make of my said post published at

    https://soundeagle.wordpress.com/2022/06/26/the-facile-and-labile-nature-of-law-beyond-the-supreme-court-and-its-ruling-on-controversial-matters/

    Daniel, given the quality and relevance of your post here, I am pleased to inform you that I have hyperlinked your post to my aforementioned post so that my readers can access your post from the “Related Articles” section of my post.

    Happy Independence Day to you and your respective families soon!

    Yours sincerely,
    SoundEagle

  177. Marc Levesque

    Jayman

    > it would be nice if things could be kept simple but making distinctions of a complex world introduces complexity.

    I agree there is a need to avoid oversimplification. What I meant by my comment was that I think it’s best to avoid as much complexity as possible in how we express ourselves. Especially in argument.

    > don’t make a distinction between substantial change and accidental change. Are the differences between you and 35 year old Marc differences in substantial form or accidental form?

    I meant substantial in more of a common sense way, as in a large or very large differences.

    > The principle of non-contradictions tells us that an individual human can’t both exist and not exist (in the same sense and at the same time).

    Sorry, don’t know what you’re relating that to.

    > The idea of coming into existence gradually (in the sense that you, say, 5% exist) seems incoherent.

    I wouldn’t say that myself, particularly in that way (as I understand you’re using those terms). I don’t think the idea of substantial and accidental change is a fundamental aspect of the way things are, and I think that’s demonstrably so. From my perspective it’s parts of the assumptions and of the framing you’re using that are leading to the incoherence.

  178. Dear Prof. Daniel Kaufman and Dr E John Winner,

    Hi! I have since added a long and detailed “Conclusions” section to my aforementioned post entitled “🏛️⚖️ The Facile and Labile Nature of Law: Beyond the Supreme Court and Its Ruling on Controversial Matters 🗽🗳️🔫🤰🧑‍🤝‍🧑💉“. The Conclusions also contain an in-depth discussion on conflict resolution as well as other pertinent matters.

    To give you a general overview or purview of the post, it is now published under the following Categories:
    Critical Thinking, Cultural Studies, Epistemology, Ethics, Facing the Noise & Music, History, Logic, Metaphysics, Ontology, Philosophy, Political Science, Psychology, Religion, Social Science, and SoundEagle.

    In addition, the Tags are as follows: Abortion, Autonomy, Billings Learned Hand, Conflict Resolution, Constitution, Corruption, Daniel A Kaufman, Democracy, Education, Good Moral Character, John Dewey, Justice, Law of Excluded Middle, Law of Noncontradiction, Laws, Legal Culture, Legislation, Liberty, Manuel Garcia junior, Morality, Plato, Political Polarization, Prerogative, Reproductive Rights, Rule of Law, Social Constructionism, Social Polarization, Socrates, Stephen Richards Covey, Supreme Court, and The Spirit of Liberty.

    One could indeed say that we live in interesting times, but often for the wrong reasons.

    Wishing you and your respective families a wonderfully productive week doing or enjoying whatever that satisfies you the most!

    Yours sincerely,
    SoundEagle

  179. Hello I hope everyone had a happy 4th.

    Let me just say that I don’t take offense from anyone’s comments. One thing about being a lawyer is I have learned to argue passionately about what I believe with other professionals and not hold grudges just because we disagree.

    It was indeed from my study of the inquisition that made me a firm believer that people should always be allowed to express their views. I think that is the core take away from that historic event. I believe free expression is the strongest force against ignorance. And I teach my children that. For example, I am Catholic and raised my children Catholic but sent my kids to a Lutheran school where every Halloween/reformation day they would build shields to protect themselves from Catholics etc. When they told me about it I said it is good that they are being honest about their beliefs and of course they and everyone should be able to express their beliefs. They would not be doing you any favors if they hid what they think is the truth from you. And we would talk about what anti-Catholic objections are more reasonable than others. The same goes for anti-Catholic atheists they will meet in high school and college. I want professors and everyone else to be frank about their views. Although I do admit I prefer professors that focus on helping students think for themselves rather than just trying to cram conclusions down their throat. I think a professor can be honest about their own views without straw manning opposing views.

    So I do not mind that certain people hate my religion. It’s fine I would still like to talk about it.

    There are many issues raised in Dan’s article and the comments here that I would love to go into more depth on but machine gun responses are not always the best way to approach discussions with people I would like to consider intellectual friends. And I hope to be considered an intellectual friend to this community despite our disagreements on issues of great importance to both of us. I realize that is a big ask for someone that disagrees with me on such an important and inflammatory issue.

    Of course, anytime I am perceived as calling someone a “murderer” I should expect this sort of response! I also understand this ruling was a blow to pro-choice and although I am happy for the ruling and agree with it I understand, some of my comments appear to rub salt in a wound – which is not my intent so if my rhetoric was inconsiderate I apologize.

    I suspect some may think my views on abortion may not be appropriate for an agora such as this because they are so different/contrary to what many of the writers here believe. They may be viewed as beyond what anyone in educated civil society should believe. So I would just make a few points to suggest that even if people strongly disagree with my views they should still be considered honestly held and not so beyond the pale that they should rejected out of hand.

    First many of my disagreements with Dan Kaufman are at the meta-ethical, and philosophical level. Dan’s article invokes deeper questions such as whether criminal laws can or should involve morality as opposed to prudential concerns. Comments here also raise issues about whether it is appropriate for someone’s religious views to influence what laws they think should or shouldn’t be enacted. These are questions that have been around for a very long time and are not prone to simple or obvious answers – at least they are not obvious to everyone – and in my opinion are appropriate topics for debate and discussion in a liberal society.

    But what about my specific views on abortion should they cause me to be put beyond the bounds of any possible civil discussion? The title is “Compelled Birth and the Liberal Polity.” And at least some of the arguments (based on view that we have the right to kill someone if they are within a certain territory) suggest that it would be impossible to have a liberal polity if a woman were ever compelled to give birth. Now Dan does not explicitly say that and certainly one could agree with his overall points and not take that view.

    But you either think it is possible to have a liberal polity where the government can compel a woman to give birth in some circumstances, or it is not possible. If it is possible to have a liberal polity where a government compels women to give birth in some circumstances at certain times then we are talking about differences of degree rather than differences of form.

    And I would just point out a few facts about how people in the world we live in actually think about this issue:

    Although most Americans think abortion should be legal only 19% think there should never be restrictions on the right to abortions. So unless you want to exclude 81% of Americans as having views that are too unreasonable because they do think the government can compel women to give birth in some circumstances then I think you will have a very small circle in this electric agora.

    https://www.pewresearch.org/religion/2022/05/06/americas-abortion-quandary/

    Very few states *never* compel women to give birth.

    https://en.wikipedia.org/wiki/Abortion_law_in_the_United_States_by_state

    Are we to say only people that agree with those regulations are capable of speaking reasonably?

    Dobbs was dealing with a Mississippi law that banned abortion after 15 weeks. As you can see that Europe tends to limit the right to abortion at about 12 weeks:

    https://www.statista.com/statistics/1268439/legal-abortion-time-frames-in-europe/

    This site includes the European countries that currently ban abortion such as Poland and Malta.

    https://righttolife.org.uk/what-are-the-abortion-time-limits-in-eu-countries

    So are we to say all of Europe is also incapable of liberal polity and the majority of their voters are simply beyond reason because at some point they also have their government compel women to give birth?

    I suggest that in the liberal western world people are very much looking at this on a spectrum. I do not know anyone that believes birth control should be illegal, even if they personally think it is immoral. (Saying all criminal law is based on morality does not mean all morality should be enforced by law. I believe this has been part of the western tradition since Aquinas.) I suppose such people exist but I would agree that could be a view that seems too extreme. And just to be clear EJ I am not interested in what happens in your bedroom. In fact I wish many people on the left would stop going out of their way to tell me or show me what they do in their bedroom – I thought I made that clear in my comment to Dan’s article entitled “We Don’t Want to Know.”

    As a factual matter the actual existing debate in the US and most liberal countries on abortion is more of a spectrum. A minority say women should give be compelled to give birth after conception, a larger group of people think they should be compelled to give birth at 12 weeks (or so) and then a minority thinks women should never be compelled to give birth even at the very end of their pregnancy.

  180. Again sorry if this is a double post please delete it, if it is a duplicate.

    Hello I hope everyone had a happy 4th.

    Let me just say that I don’t take offense from anyone’s comments. One thing about being a lawyer is I have learned to argue passionately about what I believe with other professionals and not hold grudges just because we disagree.

    It was indeed from my study of the inquisition that made me a firm believer that people should always be allowed to express their views. I think that is the core take away from that historic event. I believe free expression is the strongest force against ignorance. And I teach my children that. For example, I am Catholic and raised my children Catholic but sent my kids to a Lutheran school where every Halloween/reformation day they would build shields to protect themselves from Catholics etc. When they told me about it I said it is good that they are being honest about their beliefs and of course they and everyone should be able to express their beliefs. They would not be doing you any favors if they hid what they think is the truth from you. And we would talk about what anti-Catholic objections are more reasonable than others. The same goes for anti-Catholic atheists they will meet in high school and college. I want professors and everyone else to be frank about their views. Although I do admit I prefer professors that focus on helping students think for themselves rather than just trying to cram conclusions down their throat. I think a professor can be honest about their own views without straw manning opposing views.

    So I do not mind that certain people hate my religion. It’s fine I would still like to talk about it.

    There are many issues raised in Dan’s article and the comments here that I would love to go into more depth on but machine gun responses are not always the best way to approach discussions with people I would like to consider intellectual friends. And I hope to be considered an intellectual friend to this community despite our disagreements on issues of great importance to both of us. I realize that is a big ask for someone that disagrees with me on such an important and inflammatory issue.

    Of course, anytime I am perceived as calling someone a “murderer” I should expect this sort of response! I also understand this ruling was a blow to pro-choice and although I am happy for the ruling and agree with it I understand, some of my comments appear to rub salt in a wound – which is not my intent so if my rhetoric was inconsiderate I apologize.

    I suspect some may think my views on abortion may not be appropriate for an agora such as this because they are so different/contrary to what many of the writers here believe. They may be viewed as beyond what anyone in educated civil society should believe. So I would just make a few points to suggest that even if people strongly disagree with my views they should still be considered honestly held and not so beyond the pale that they should rejected out of hand.

    First many of my disagreements with Dan Kaufman are at the meta-ethical, and philosophical level. Dan’s article invokes deeper questions such as whether criminal laws can or should involve morality as opposed to prudential concerns. Comments here also raise issues about whether it is appropriate for someone’s religious views to influence what laws they think should or shouldn’t be enacted. These are questions that have been around for a very long time and are not prone to simple or obvious answers – at least they are not obvious to everyone – and in my opinion are appropriate topics for debate and discussion in a liberal society.

    But what about my specific views on abortion should they cause me to be put beyond the bounds of any possible civil discussion? The title is “Compelled Birth and the Liberal Polity.” And at least some of the arguments (based on view that we have the right to kill someone if they are within a certain territory) suggest that it would be impossible to have a liberal polity if a woman were ever compelled to give birth. Now Dan does not explicitly say that and certainly one could agree with his overall points and not take that view.

    But you either think it is possible to have a liberal polity where the government can compel a woman to give birth in some circumstances, or it is not possible. If it is possible to have a liberal polity where a government compels women to give birth in some circumstances at certain times then we are talking about differences of degree rather than differences of form.

    And I would just point out a few facts about how people in the world we live in actually think about this issue:

    Although most Americans think abortion should be legal only 19% think there should never be restrictions on the right to abortions. So unless you want to exclude 81% of Americans as having views that are too unreasonable because they do think the government can compel women to give birth in some circumstances then I think you will have a very small circle in this electric agora.

    https://www.pewresearch.org/religion/2022/05/06/americas-abortion-quandary/

    Very few states *never* compel women to give birth.

    https://en.wikipedia.org/wiki/Abortion_law_in_the_United_States_by_state

    Are we to say only people that agree with those regulations are capable of speaking reasonably?

    Dobbs was dealing with a Mississippi law that banned abortion after 15 weeks. As you can see that Europe tends to limit the right to abortion at about 12 weeks:

    https://www.statista.com/statistics/1268439/legal-abortion-time-frames-in-europe/

    This site includes the European countries that currently ban abortion such as Poland and Malta.

    https://righttolife.org.uk/what-are-the-abortion-time-limits-in-eu-countries

    So are we to say all of Europe is also incapable of liberal polity and the majority of their voters are simply beyond reason because at some point they also have their government compel women to give birth?

    I suggest that in the liberal western world people are very much looking at this on a spectrum. I do not know anyone that believes birth control should be illegal, even if they personally think it is immoral. (Saying all criminal law is based on morality does not mean all morality should be enforced by law. I believe this has been part of the western tradition since Aquinas.) I suppose such people exist but I would agree that could be a view that seems too extreme. And just to be clear EJ I am not interested in what happens in your bedroom. In fact I wish many people on the left would stop going out of their way to tell me or show me what they do in their bedroom – I thought I made that clear in my comment to Dan’s article entitled “We Don’t Want to Know.”

    As a factual matter the actual existing debate in the US and most liberal countries on abortion is more of a spectrum. A minority say women should give be compelled to give birth after conception, a larger group of people think they should be compelled to give birth at 12 weeks (or so) and then a minority thinks women should never be compelled to give birth even at the very end of their pregnancy.

  181. venividigrizzly

    I am more than content if we can at least agree that the Supreme Court should interpret the law as as intended by the legislature, (originalism) as opposed to shoehorning their own substantive beliefs into the constitution when they know the legislature that passed the law did not intend it to be read that way.

    Even once we accept that common ground reasonable people can disagree about interpretations. I also think republican Judges can be guilty of legislating from the bench and sometimes democrat appointed judges do a better job of sticking to original intent.

    It is my opinion that liberal politicians have made more statements trying to defend a jurisprudence that is more in line with legislation, but if your experience is different that is ok. I admit you offered some articles to support your view and I have not. But I am happy we at least seem to agree that courts should look at the history and intent of the law. Again the process is of more importance to me than the outcomes.

    But in any event here are a few articles that suggest conservative justices are less inclined to believe in a “living constitution” which changes over time to suit the justices own political views.
    https://www.npr.org/2009/06/23/105439966/conservatives-have-originalism-liberals-have

    https://time.com/6192277/supreme-court-originalism/

    I don’t agree with everything in those articles. I do however think that if a senator or a president says they do not support originalism they are much more likely to be a democrat than a republican.

  182. Terranbiped

    I think there is a distinct difference between people expressing their thoughts on abortion restrictions and n surveys, perhaps for their own piece of mind, and actually professing a true desire for the state to actively do all in its power to prevent, surveil, pursue and prosecute. In that sense they would be effectively living by Dan’s prescription of stating one’s moral preference while simultaneously giving their fellow citizens a “wide berth” thus, maintaining the spirit and application of a liberal polity.

  183. Bingo. And easy enough for a child to understand.

  184. Marc Levesque

    Dan

    Thanks for your essay.

    I wish now I’d been more on topic in the comments, instead I got caught up somewhere between trying to understand Jayman’s reasoning and in disbelief at what I was finding.

  185. Ok but you are talking about two different possible distinctions:

    1) Just because something is immoral or someone is against something that does not mean it should be illegal. Here the surveys and the link to European and US laws are clearly talking about making it illegal. So that distinction doesn’t apply.

    2) There is a good question as to how aggressively certain laws should be enforced even if something is illegal. That I agree is a valid distinction but not one I thought was raised by Dan’s article.

    The pew survey specifically asks when abortion should be “illegal.” It is not just a matter of whether you personally approve of abortion after a certain amount of time.

    In his article Dan referenced the law being triggered and that was the big problem, not that prosecutors were doing all in their power to enforce the law. But I may have missed that and I think we could agree on that. It is possible and likely some/many people may want abortion to be illegal but not prosecuted or at least not aggressively prosecuted. There is no question that it is possible that some prosecutors will not do “all in their power” to prosecute the laws. It appears some Missouri prosecutors have already indicated they are not inclined to enforce the law. If Dan is making the case that perhaps prosecutors should use significant restraint in enforcing this law then I absolutely agree! It appears the governor of one of the Dakotas already said she will not prosecute women for having abortions.

    I think the first distinction is one a child would understand the second distinction about the value of making something illegal yet not prosecuting the law is a bit more nuanced but still a worthwhile point.

  186. Joe

    Just to be clear the second issue concerns “prosecutorial discretion” and I do think prosecutors should make judicious use of that discretion. However there will undoubtedly be some prosecutors that go overboard.

  187. ‘Christian Nationalists Are Excited About What Comes Next’

    ‘The shape of the Christian nationalist movement in the post-Roe future is coming into view, and it should terrify anyone concerned for the future of constitutional democracy.

    ‘The Supreme Court’s decision to rescind the reproductive rights that American women have enjoyed over the past half-century will not lead America’s homegrown religious authoritarians to retire from the culture wars and enjoy a sweet moment of triumph. On the contrary, movement leaders are already preparing for a new and more brutal phase of their assault on individual rights and democratic self-governance. Breaking American democracy isn’t an unintended side effect of Christian nationalism. It is the point of the project.’

    https://www.nytimes.com/2022/07/05/opinion/dobbs-christian-nationalism.html

  188. I imagine if polls were conducted that asked members of an ostensibly liberal democracy whether in principle, the state should ever have the right to violate the bodily autonomy of its citizens; I mean the physiological integrity of the self, they would answer resoundingly no. But some see pregnancy as two selves with competing rights. These problems are not unusual and often compromises can or will be worked out. But with the inclusion of religious dogma, there is no possibility of compromise, only temporary restraint until the power dynamic changes. The six judges didn’t rule against Roe because they thought it was decided on poorly articulated legal grounds but because of the impetus of their religious beliefs. The newly appointed 3 even obfuscated and surreptitiously lied during their hearings about stare decisis knowing they were poised to do what they were selected and groomed for. I’ve heard theists proudly proclaim the nobility of lying to further the mandate of the Trinity. Obviously lying for god isn’t immoral or a sin. By their fruits you shall know them.

    So, I’m curious as to what your stance is on abortion other than you are against it and applaud the demise of Roe. Are you willing to compromise or are all stages of fetal development inviolable from zygote to newborn? If not, why should the other side care a jot or tittle for your concerns when the tide turns? Do you so believe that a blastocyst is in all regards as sacrosanct as a 5 year old, that you will pick up a gun or bomb a clinic like your more honest brethren who put their money where their mouths are?

    Do you accept the principle of viability outside of the womb like so many say they do? What then of the already born in vegetative states that are no longer viable without artificial and heroic support? Any qualms about also terminating them? What do we do with a human embryo that is virtually indistinguishable from our vertebrae cousins, the fish, amphibians reptiles and birds; with flippers, tail and gill arches that has stopped developing and remains in stasis? Does the cessation of development invalidate its human status?

    And the greatest crime of all:, a pregnant women who continues to take drugs, alcohol and smoke. There is little doubt the child will develop with a wide range of physical and mental disabilities of varying degrees. I can’t think of a greater unconscionable sin than for society than to let this happen. I’d be all in favor of physically restraining her and forcing proper prenatal care on her till delivery. You might agree with me on this but would Dan? I think this might throw a monkey wrench into his thesis or maybe just and exception to the rule.

    I’ve asked a lot of questions, none of them meaning to put you on the spot. Only to get a better feel and understanding of your stance. I think the best we as a nation can do is compromise. As long as there are many options for pregnant woman to terminate their pregnancies and not be subject to the time immemorial breeding cycle of animals, I think these so called anti abortion laws are paper tigers. In this case at least, the liberal democratic polity will sustain through technology and the other liberal freedoms bestowed upon us by our compromises of yore and the common sense decency of the average citizen. At its bottom, most people know deep down inside that a ball of cells is not comparable to a born adult and will not drag a pregnant, raped, incest victim or child before a Gilead style star chamber. If it’s murder than the woman should be tried as a such or, our legal system is a semantic sham. So, the right makes its statement for religious and political gain and the left goes about its business with Greyhound buses and plan B.. Will some suffer in the wake, unfortunately so but, that has always been the case.

  189. Joe,
    you’re dishonest. That sinking in, your logic can no longer convince, your rhetoric can no longer persuade, since they are driven by a hidden agenda.

    You want to impose your religion on the people of this country and the fascists on the current illegitimately packed SCOTUS may get close to that goal – for the time being. But not forever.

    Since you are dishonest, your interpretation of statistics is suspect. The majority of Americans do not want a ban on abortions. Statistics had nothing to do with your original “argument,” the assertion that “abortion is murder” which grounded suggestions concerning how to effect criminalization of the absolutely immoral. Now you back-track and try to sound “reasonable” and “moderate.” What a laugh.

    I admit that I only scanned your latest smoke-screen. But I noticed you said you don’t know anybody wanting to criminalize contraception. That’s a lie of course. But by the time your friends get us to that point, the public outrage will begin to cascade and ultimately overwhelm them.

    BTW, I don’t believe you’re a lawyer – exactly because you said you are, and you’re dishonest. But then, the Federalist Society baboons also have JDs, I guess intelligence and integrity are no longer necessary to the legal profession (look at Guiliani and Powell and other Trump crazies!).

    (“The formal position of the Catholic Church is that “artificial” contraception is “intrinsically evil.” That designation was made by Pius XI in Casti Connubii (1930) and supported by Paul VI in Humanae Vitae (1968). The 1997 Vatican instruction to confessors stated, “This teaching is to be held as definitive and irreformable.”” – Vincent Ryan Ruggiero “The Catholic Church and Contraception, Part I,” Catholic Journal, July 3, 2022.)

  190. venividigrizzly

    Joe:

    I sent you two links, one of which contained criticism of originalism and another which was entirely a criticism of originalism and the present originalists’ failure to follow it even on their own terms, and you respond back, “Well, hopefully we can agree that originalism is the best course and I think the present conservative justices are following it great!” No engagement with the arguments whatsoever. What can I say? You seem to think that the only way to disinterestedly resolve disputes at the Supreme Court is to consult the historical record of the periods in which the Constitution and the amendments were passed. (Alito goes back to the Middle Ages very, very weirdly.) Which, uhhh, anyone who’s lived through the past 6 years who think that history is an easy place to resolve interpretive disputes divorced from value judgments, you haven’t been paying attention. The ability to cherry pick the variegated historical record to fit your predetermined ends is well-noted. Our judges, none of them, are even qualified to determine that sort of thing. Most of their training, and their 20 year old staffers, is reading Supreme Court decisions. What was the consensus of the people behind the Constitution and its amendments? A lot of dispute there. Have you read the Federalist papers? Do you think 1868, the time of the 14th amendment, had a clear consensus among its legislators? And how much does it matter to you that women were not allowed representation then, being considered second-class citizens? Are we bound to thinking that women and black people shouldn’t be included in provisions for liberty and equality because people dismissed them as a matter of course in that time? Are you OK with the state rejecting contraception, same-sex sex, same-sex marriage, and interracial marriage, decisions directly wrapped up with Roe? Alito claims these aren’t on the docket, arbitrarily, but Thomas is very much on board with axing most of them (one notwithstanding considering his wife), and it’s entirely credible that this court will challenge them. We can’t trust anything because they’ve proven that they don’t care about any of the standards of stare decisis. The court relies much more on faith than the other branches, and in its present state has shown a distinct disregard for maintaining that faith. When was the last time an acknowledged right was stripped away? I’ve asked a lot of questions, I know, but one of the fucked up parts of this decision is how many questions it provokes, how much confusion and disorder it creates. It doesn’t resolve the issue so much as exacerbate it, and I don’t think the Supreme Court is done having to deal with the consequences.

    I know it’s a pain in the ass to read, but here are the judgments:

    https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf

    You probably only need to read Alito and the dissent. Roberts, Kavanaugh, and Thomas are after-thoughts, even if Thomas is a harbinger.

  191. Curiously, the Stanford Encyclopedia of Philosophy does not have an entry dedicated to the ethics of abortion.

    However, PhilPapers has a section devoted to the topic, with over 1000 articles.

    https://philpapers.org/browse/abortion

  192. ‘If masturbation was illegal, I’d be on death row,’ — Gilbert Gottfried R.I.P. Z”L

  193. Terranbiped

    Thank you for the questions. I really do appreciate them and I don’t feel like you are putting me on the spot but rather asking good genuine questions. I will start out by saying I don’t have the all the answers and being “the answer man” is not the goal in my philosophical writing.

    You ask quite a few questions and I will try to be concise even though I often fail at that.

    Blastocysts: I don’t know what to think. But there are certain facts that I don’t deny. A substantial portion of blastocysts fail to implant in the uterus. This means a huge number of zygotes die every day. Do all of these Zygotes have a soul? What possible purpose could God have in Creating these humans in his image? We will spend hundreds of thousands of dollars to save the life of a five year old but as a matter of fact we are not up in arms about all these zygotes that are lost.

    I am not saying that I have researched this issue in depth and that perhaps other Catholics have points I haven’t considered about these facts. But I have thought about this myself and have to say it seems like evidence against God or evidence against the idea that God wants us to treat a zygote the same as a human. So yes there is factual evidence against my positions of being a Catholic and Pro-Life. I have no strong compulsion to deny that as so many Christian apologists or pro lifer republicans do. My honest answer is when you look at the facts of what happens in the early stages of human life you will find evidence against both God and prolife.

    But here is the thing. I majored in philosophy, fell in love with it early on, and continue to enjoy it. And philosophy teaches us that even our most fundamental beliefs are not as certain as we might hope. Some people can’t handle that. I often see both Christians and Atheists try to brush aside very substantial philosophical problems as if they are nothing more than a parlor trick. “Oh here is the solution/answer to this objection…..” I know philosophy teachers that bemoan philosophy saying we never get anywhere and they wish they would have studied science or something else. And even though I have always loved philosophy and have read it ever since my first philosophy class in college, I have to admit there is a certain wisdom that leads to lowered expectations. They have studied philosophy more than me and have been somewhat disappointed. I often feel the same about my life as a lawyer and dealing with our government/legal system. Wise people should definitely lower their expectations when it comes to what Government can do for them. But as a practical matter no politician will ever win if they speak the truth. They win by claiming they will crush covid! Or “they created a million jobs.” Saying the truth – that looking to government to solve you problems just isn’t such a winning strategy.

    So sure there are problems with my stances as a Catholic and pro-lifer. On the whole I still do believe human life is sacred and it is so sacred it stretches to the zygote and even to sexual relations. But does this mean I think it should all be illegal? No. I recognize that my views are not shared by everyone and in many ways contradict facts about how we live our lives. My goal is to share my views about life and Christianity so that others might accept it. But it is absolutely absurd for me to think I will convince everyone or very many people at all. On the flip side I would say that when people demand “give me your proof the Christian God exists!” As if they expect me to do some trick with my hands a say certain words that will make them believe. It would be absurd for me to think all reasonable people will find my own views convincing. I enjoy philosophy and will share my thoughts and reasons for why I believe what I do but I do not feel any “burden” to prove my views to others. That said I do think reasonable people can be religious and believe in God. But again lower your expectations. It is more of a matter of theism being the least bad alternative rather than something based on axiomatic premises every reasonable person must accept.

    As far as the justices, the quotes I have seen so far claiming they lied about Roe were not something I would have interpreted as evidence they would not overrule Roe. I always knew Amy Coney Barrett would do the right thing and overrule Roe. I wasn’t sure of Kavanaugh but nothing he said made me think he definitely wouldn’t. There is the Ginsburg rule and all and I can go into that more in depth another time. But to be sure there are pro choice legal scholars that admit Roe has no basis in the constitution.

    https://suindependent.com/pro-choice-legal-scholars-roe-v-wade-isnt-constitutional/

    Read the Dobbs opinion. It gives good arguments that are far from dishonest.

  194. “I admit that I only scanned your latest smoke-screen. But I noticed you said you don’t know anybody wanting to criminalize contraception. That’s a lie of course.”

    Who do I know that wants to criminalize contraception?

    I am aware of various Catholic teachings about artificial contraception being a sin and intrinsically evil as is masturbation and adultery.

    That does not mean every Catholic thinks these should all be illegal. In my state of Illinois, I believe only adultery is still a crime punishable by up to one year of prison. Even though I think adultery is a sin that does not mean I think it should be prosecuted or even illegal. In fact I don’t think adultery should be illegal. Do you think adultery is immoral? Or if you do not believe in morality are you “against adultery”? Does that necessarily mean you think it should be illegal?

    As Dan said even a child can understand that not everything we consider immoral should be a legal crime. A child understands they shouldn’t cheat in a game of monopoly but they can still often understand that cheating at monopoly should be a crime that the government should prosecute.

    “BTW, I don’t believe you’re a lawyer – exactly because you said you are, and you’re dishonest.”

    Your false beliefs and bad reasoning are not my problem.

  195. Venividigrizzly

    I appreciate your comments and think you make good points and ask good questions. I would actually like to say more. The issue of incorporating the 14th amendment is a thorny one I agree. I also hope things can return to normal soon.

    I will just give some short answers to your questions:

    “Most of their training, and their 20 year old staffers, is reading Supreme Court decisions. What was the consensus of the people behind the Constitution and its amendments? A lot of dispute there.”

    Yes there is a lot of dispute but some things we know fairly well. And one of the things we know is that they were not trying to prevent laws against abortion.

    “Have you read the Federalist papers?”

    Yes

    “Do you think 1868, the time of the 14th amendment, had a clear consensus among its legislators?”

    Not exactly. But generally the intent was to make sure states would not evade one of the purposes of the civil war by not allowing black people to have rights.

    “And how much does it matter to you that women were not allowed representation then, being considered second-class citizens?”

    I think that was a horrible part of our history.

    “Are we bound to thinking that women and black people shouldn’t be included in provisions for liberty and equality because people dismissed them as a matter of course in that time?”

    No I think the 14th amendment should be read to prevent racist discrimination. I also think we can pass laws or amend our constitution if we believe women are not given the same rights as others. See the 19th amendment. I don’t think we should lie and say the constitution provides rights that it clearly does not.

    “Are you OK with the state rejecting contraception, same-sex sex, same-sex marriage, and interracial marriage, decisions directly wrapped up with Roe? ”

    I don’t think they are all directly wrapped up with Roe. Again just because some policy is not addressed by the constitution that does not mean I think the state should go one way or another.

    I think the state should get out of the marriage and divorce business as much as possible. Let people call whatever they want marriage and let them get divorced according to their own private arbitration clauses. I don’t think our justice system is well suited for that.

  196. Terranbiped

    If god was human, he’d be dragged off to The Hague.

  197. Joe, thank you in return for being civil and generous with your time. Obviously you made the right choice by pursuing philosophy and not science. However, when one thinks of evidentiary based disciplines, law also readily comes to mind. Even not knowing what branch of law you practice, I can’t help but wonder how you would prosecute or defend your clients interest against an opposing council that admits to be being not sure of the definitive facts, admits to a world view of lowered expectations on matters in dispute and their proponents and, generally put forth arguments as — I can’t prove what I say, yet I know it’s true. In other words a rather liberal inchoate and nebulous stance on possible matters of great import to others. I’m not trying to conflate the rhetoric of law with any type of philosophy but I think the analogy has some bearing. I’m also not implying that the subjective mind needs any proof to substantiate its feelings.

    Still, issues of this world need to be resolved and we have to agree on some kind of foundation to move forward. Obviously as a lawyer you believe in weighing the facts, as they are, and considering what amounts to finding a settlement with the least harm incurred, whether by the merits of legality, values or morals. We want what, within the confines of the law, approaches justice and fairness.

    In you previous reply, you more or less elude, or so it seems to me, that abortion is more or less a jump ball that can be tipped in either direction since according to you there are only your contingent beliefs on the subject that rides atop your religious intuition. You more or less say that morality in the real world is based on the collective consensus of a society of men and women. (I’m probably overstating this but, that was the best I could make of your open attitude on the subject.

    So how do we adjudicate abortion; weigh the competing interests? What can we acknowledge as ascertainable and provable facts? The potential harm to the mother is obvious to all and I need not enumerate them. So what of the unborn organism? There are religious beliefs and so called holy proscriptions about killing and its numerous interpretation of god. You admit to not knowing the definitive answer to this question depending on stage of development, god’s whimsies, and all the other various factors of assessing time of development, viability and other health concerns of a full delivery. What this amounts to is that you haven’t the slightest idea of the ways of god, nor whether the fetus has a soul or not or if terminated will it go to Limbo or Heaven where it will develop into full person hood under the auspices of divine power. So, If the fetus is resurrected into a better existence and bypasses the travails of life on this planet who is to argue that a harm was done? And if not, who is to blame but the Creator? The only factual harm that I can see are your “feelings” and the denial of your intellectualized thoughts on the matter and that hardly amounts to the hardship experienced by the mother. I see very little reason to side with your desires over that of the real and demonstrable harm to the pregnant woman. So, I ask you which is the more prudent, your juggling rhetoric, trying to make sense of it all beliefs , or not doing proven harm to an actual breathing independent individual who doesn’t subscribe to your morals, philosophy or religiosity.

    Ironically and perhaps not apparent to you, your last reply offered the most compelling support for Dan’s contention that the liberal democratic polity is best served by giving a wide berth to diverse beliefs and it should take more than poorly rationalized and wishy-washy religious intuition as yours (this is a compliment, not an attack. You are so open and liberal minded and considerate of other perspectives that you neuter your opposition. A bible thumping literatlist or a secular anti choicer would be much better advocates, all things considered.) for the state to lay hands on and control the body of its citizens. Council, you make a great case for the defense of abortion. We just don’t know and do no harm to she that is clearly the one who suffers.

  198. Howard Berman

    We might regard America, not unlike life, even in the best of times, as a minimum security prison- God, otherwise known as the six Catholic justices, (they know who they are) think otherwise. I’m not sure they realize life, not unlike freedom, is a gift, that can’t be taken back

  199. Jay Jeffers

    Pulling up the rear here, I read this essay when it was published and have been mulling it on and off since.

    First, in regard to the “on the ground” politics, there is very little, if any, daylight between Dan’s view and mine on the right to choose.

    And I agree with the essay in broad strokes.

    What I’m curious about, given the pristine reasoning articulated, is if this would mean even Roe was too stingy wrt the bodily autonomy of women. In other words, does the essay allow for any limiting principle in the other direction, with say, 3rd trimester limits on the abortion procedure or what have you? If John Roberts would have successfully convinced a conservative colleague to uphold the Mississippi law but without overruling Roe entirely, would that have crossed a similar line of infringing on bodily autonomy? I’m curious about that kind of thing.

    I may be getting in too late though.

  200. I don’t see how in a liberal society, the state can force a woman to give birth. So yes, I am for a maximally liberal abortion regime.

  201. “Even not knowing what branch of law you practice, I can’t help but wonder how you would prosecute or defend your clients interest against an opposing council that admits to be being not sure of the definitive facts, admits to a world view of lowered expectations on matters in dispute and their proponents and, generally put forth arguments as — I can’t prove what I say, yet I know it’s true.”

    All jury trials involve an issue of fact. That is there is a dispute about what in fact happened. Did the defendant (in fact) shoot the victim? Did the defendant (in fact) have the red light? etc. When we prove the case we are proving the case *to the jury.* It doesn’t matter what you or I think about the various OJ Simpson verdicts. It also doesn’t matter what in fact happened. The question is was the case proven to the jury.

    In the criminal case the Jury said the prosecutor did not prove beyond reasonable doubt that OJ in fact killed Ron Goldman. In the civil case the jury said the plaintiff proved by a preponderance of evidence that OJ did kill Ron Goldman.

    There are plenty of things I may know are true but may not be able to prove to certain other people. I may be able to convince people of things that are not true. Sometimes I find idealism persuasive but by and large I think there is a reality out there that is independent of what I am convinced of or other people are convinced of.

    I am very partial to some of the points in Kevin’s article
    https://theelectricagora.com/2022/07/10/what-the-bleep-can-we-know-montaigne-and-the-apology-for-raymond-sebond/

    “The universe is not obligated to give us answers just because we have burning questions.”

    This notion that since something is not proven it can’t be a fact seems to think the universe is obligated to give us answers. The universe does not have an obligation to meet a “burden of proof.” There may be evidence that is enough to convince someone that the earth is X years old or their may not be enough such evidence. But none of that is going to change the fact that the earth is X years old.

    “You more or less say that morality in the real world is based on the collective consensus of a society of men and women. (I’m probably overstating this but, that was the best I could make of your open attitude on the subject.”

    I understand why you would think that based on what I said earlier. I really do. But I don’t actually think morality is based on the consensus of society. I think morality is based on reality that is independent of our consensus about it. I think it is a fact. That said as a person that thinks God (and good God at that) had some hand in creating us I think our intuitions can be evidence of what morality requires. That is I don’t think God created us with drastically wrong views about what morality requires. So our intuitions can supply some evidence of what moral reality requires of us.

    “Still, issues of this world need to be resolved and we have to agree on some kind of foundation to move forward…..
    So how do we adjudicate abortion; weigh the competing interests? What can we acknowledge as ascertainable and provable facts?”

    Provable to whom? People have different values and different foundations. The notion that we will be able to “resolve” these sorts of issues is questionable. And I think there are many other problems not just with abortion but other moral/legal questions. When it comes to moral questions I do not think facts – what is – can tell us what ought to be. Consider animal rights. Two people might agree to all the facts about a type of mouse trap. They may agree on its efficacy of avoiding destruction and the amount of pain a mouse suffers etc etc etc. But they still may differ on whether the use of the mouse trap is ethical.

    The same is true in abortion. We can agree on all sorts of provable facts, that a zygote has this type of dna, that a heartbeat starts at this time and brain waves start at this time. That this or that physiological change happens after birth, that pregnant women have this or that health risk etc. But just agreeing on these facts does not mean we will agree on the morality of abortion.

    I do agree that if we want to move forward we need some sort of foundation. That is why I have such an interest in meta-ethics. That involves looking at the foundation of moral beliefs and moral beliefs form the foundation of law. I know many people think we can skate past meta-ethics but without that foundation the agreements on moral issues are a façade that inevitably break down. Disputes in politics about abortion, animal rights, environment, what is taught with tax payer dollars etc etc are just symptoms of a deeper divide about the foundational questions of morality.

    You claim my moral views based on Christianity are wishy washy. I admit I am not the answer man on all moral questions and admit the issue of zygotes is a difficult one for my world view. But no just because the victim may end up in heaven does not justify killing humans according to my beliefs.

    I support laws against murdering people already born because I think all human life is a sacred gift from God. So I will vote for candidates that are in favor of keeping the murder laws on the books due to my religious beliefs. You can tell me oh well I should think murder is wrong for some other reason. For example people might say well we should all think murder is wrong because otherwise someone may murder us! It’s true that I don’t want to be murdered and I think the laws deter that conduct and perhaps protect me. But that is not why I think it is wrong. Even if I thought the law gave me no extra protection from being murdered I would still think murder is immoral and want it outlawed. Religious people are free to vote based on their views of morality even when their views of morality derive from their religious beliefs. We are not all required to come up with some secular explanation for why think something is wrong or should be illegal.

    And you have not offered any explanation as to why I should accept your moral position that a human can be killed right before birth but not right after. You may think you have some non wishy washy reasons based on “objective facts” or something why we should have a drastic change of view. But I have not heard them. Do you disagree with double homicide laws that treat a someone that murders a pregnant woman as though they killed more than one person?

  202. I find it amusing that you would cite, of all things, the OJ case as an illustrative example of the facts not proving the case and convincing the jury. No objective observer doesn’t recognize it as blatant jury nullification. But, in a sense, isn’t that what different views of morality are? Each side of an issue nullifies the others “facts” of what does and should qualify as moral.

    I think you eloquently make your case that morality is in the mind of the beholder and can and should be adjudicated with contingent facts and circumstances. The scenarios are endless in small details but universal in broader generalities. All cultures have basic proscriptions about murder, theft, lying etc. dependent on cultural peculiarities and definitions. Fortunately, secular society has dragged bronze age morals and practices of religion, sometimes dragging and kicking, into more enlightened and humane sensibilities. 2,000 years of Christ has not changed human behavior one iota. Only with more progressive and liberal attitudes were the scriptures revisited and reinterpreted to the point that it was no longer deemed acceptable to open a living victims bowels so he could watch his intestines be rolled up onto a rolling pin on the public square to the delight of the faithful.

    But, one doesn’t have to be religious in any sense of the word to be opposed to murder or abortion. In fact, though I’m pro choice, I find it somewhat cringe worthy the idea of “breeding” embryos for the sole purpose of harvesting their stem cells. I feel it makes being human no more special than raising pigs for heart valve transplants in its intentionalty. It’s a feeling I’m willing to put aside for the greater good of curing and preventing and curing disease and abnormality of those born. You ask what is the different moral dynamics between aborting a fetus or killing a just born. Probably few will fess up as me, or even think along my lines, but I see it as strictly an arbitrary judgement. Obviously the line has to be drawn somewhere and there are a whole lot of reasons that birth is it. As, I’ve been honest enough to say, life begins at conception. It’s a human life at a particular stage of development. How one wants to adjudge its person hood or worth, in my opinion, is up to the mother, father and family. In line with that reasoning, the intentional killing of a wanted embryo or fetus by a third party should be considered murder, for the emotional pain experienced by the parents will be no less than if their baby was thrown out of a window. Or as you suggest, if the pregnant mother is murdered, I would have no problem with considering it a double homicide.

    Who could disagree that the world owes us no answers to our questions? But, alas, is that not the raison d’etre of all religions? To answer or attempt to answer many questions otherwise ostensibly beyond the ability of humans to answer on their own. The smarter and more inquisitive we got after leaving the cave and could not answer the whys of all around us, the shaman came forth and said because of – this or that,- it has been ordained. The universe owes us nothing, we are alone in the void to make our own rules based on our own constructed morality. If some need a father superior in the sky to stamp his patriarchal imprimatur on our actions, so be it, but it doesn’t change the fact, that he who puts quill to parchment with imagination, wishful thinking or delusion, was descended from an ape. Joe, in the final analysis your stance is as valid as mine. You can’t prove your god and I can’t prove I’m ultimately right. Thank “god” we can thrash it out at the ballot box and not through a Papa Bull.

  203. Thank you I really appreciate your rational response it is missing the fact that the primary aspect of “trespassing” is INTERNET and KNOWLEDGE. If a post fetus or baby trespasses no matter how dangerous they are it is always illegal to shoot them it is especially illegal for the property owner to call a doctor or the police and have them come over to “safely” abort the post fetus into a biohazard disposable system for you, because you are incompetent with weapons and will likely kill both of you, ending with 2 possible dead post fetuses instead of intentional dead post fetuses and few accidental post fetuses. It is very legal for you to call a doctor and ask them or the police to safely remove the living post fetus from your let’s say roof. You are not allowed to kill the post fetus just because it is stuck up there and unable to leave safely. The government is obligated to help to the best of their ability but killing the post fetus for your convenience and to avoid people judging you for “Letting this happen” and you can use you second floor for a while does not change this issue in a legal issue. A physical body is different and women should get free pregnancy tests and constriction, along with free access to medical assistance but we do NOT have the right to ask the government for help with killing a trespasser if we are simply bad at doing so ‘safely’. If you sign up for donating your organs then you should not be surprised if they are donated and it is not legal for you to demand your kidney back because you didn’t realized you could not do as many physical activity as you thought in the post operation stages. You would at least have to wait for it to be safe for both parités before you could reclaim you kidney back. You most certainly would be liable for murder if the doctor said you have to wait 9 months then we can return it and instead you say well I don’t want to and they intentionally cause the person’s death then remove the kidney from their dead corps so you don’t have to wait. It really sucks and you deserve all the support from the government you can get but your ignorance or lack of concern does not make all your actions legal even though your quality of life suffers. Trespassing is only trespassing if the trespasser KNOWS they trespassed and we all know that a fetus is ignorant of what you call trespassing. This then leads into the the question of your knowledge of whether there is a human in you or just an invasive organism. That is a very different issue because that is entirely opinion not determined by science. What is human and if maybe it is a human the should we act as though it is or is not human when ignorant? Should we treat the unknown as inhuman until proven otherwise or human until proven other wise? Should we assume that there is a sole or that there is no sole should we use ignorance to possible murder or to possible life? Should parents kill a fetus or should adults accept sacrifice for the unconfirmed humanity of a living organism? When a line cannot be agreed upon should we move it to sacrifice for life or life sacrificed?

  204. Terranbiped

    As someone who has had considerable experience as a post fetus, I can assure you that ignorance is no excuse for breaking the law.