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Writing and voting for abortion laws with exceptions

If and when, God willing, that blot on the moral and legal landscape Roe v. Wade is fully overturned and the states are free once more to protect unborn babies, what sort of legislation may pro-lifers write or vote for?

There has been an interesting discussion of this question on our own Zippy's blog through several threads, here, here, and here. I added a bit of my own here, besides many long bits in the comments threads at Zippy's place.

As a preview, I will just say that the main disagreements turned on whether a) it would be morally wrong or morally legitimate to write/propose abortion legislation including exceptions, where one does not actually think that those victims should be unprotected in law, but where the legislation would pass only with these exceptions and would protect more children in law than had been protected before, and b) whether there is a crucial difference in such a situation between the legislator who proposes the legislation and one who votes for it.

The one rather sad thing is that I'm just getting around to mentioning this to our W4 readers as Zippy, who has been central to the whole discussion, is by his own statement going "AWOL for a couple of weeks." We shall miss him, and meanwhile, I will be interested to see what W4 readers have to say. Feel free to refer to threads on varying sites in threads on other sites. (That isn't confusingly worded, is it?)

Comments (16)

I'd say "protect as much life as you can." What you can't protect now, you can continue to work at protecting, perhaps meeting even greater success later, tiny step by tiny step, if need be. But work to get what you can, not what you cannot. It's hard to know ahead of time what precisely that will be, so it requires a great deal of political prudence to discern what path one ought to follow. We conservatives, if I may say so, are not very good at that sort of prudence.

If the choice is between, say, an 80% protection proposal that will pass, and a 100% protection proposal that will not, (because it imprudently over-reaches), then it is immoral not to go for the 80%. If your sense of moral consistency necessitates leaving the unborn unprotected because you are unwilling to reach a compromise, then you are theorizing for another world, and not the one in which God has actually placed you. We are obligated to do what we can do, not what we cannot.

I think a lot turns on the question of whether one is "authorizing" the abortions in the exception cases or is "making" them legal/permitted by including an exception. The position I'm inclined towards is that, if all were unprotected before, then the inclusion of the exception does not authorize or make legal the abortions in those cases but rather leaves the unprotected legal status quo in place for that class of victims (which one can do with a clear indication that one is going to keep working to protect them as well) while prohibiting the murder of the others. If this is right, then you're right, Michael. I would also be inclined to say that if this is right, there is no crucial distinction that needs to be made between authoring/proposing such a law with exceptions and voting for it, and one may morally do either.

I can be in fact very much of a purist on many issues, and if in fact I were convinced that the exceptions are authorizing those abortions, then I could not in conscience either craft or vote for such a law.

To my mind, the biggest challenges to my own tentative position as just outlined come from exceptions that are so unusual as to be psychologically jolting. Would it be legitimate either to propose or to vote for a law that prohibited all abortions except those of black children, for example, or children of some other particular racial background? And what does this intuition pump example mean for an exception for, say, incest? It is not, in my opinion, any less arbitrary and wrong for children who, through no fault of their own, were conceived by incest to be unprotected from murder than for children to be unprotected from murder on the basis of their race. Yet the "protect as many as you can" position, which I am inclined to endorse, would seem to imply that one should be willing to vote for and even (in some bizarre cultural circumstances) to sponsor legislation that included such a racial exception because it would not pass otherwise. That seems to me to create a puzzle.

As usual, Lydia, I agree with you.

But I think your fears on the race issue are unnecessary. I stipulated above that we ought to theorize and legislate for the world that is, not for some other world. In America, there's not going to be any serious abortion legislation that specifically leaves African American offspring susceptible to abortion while protecting the offspring of other races.

It's one thing to say that the embryo or fetus is a person and worthy of protection. Not everyone's going to agree, but it's still a valid position to hold.

It's quite another to say that the woman isn't a person worthy of protection. It's immoral to ban abortion without making exceptions for women's lives and health.

DRF, I'd prefer not to debate that question here. Suffice it to say that I disagree and think that an unborn child should be treated like any other child.

Practically speaking, Michael, of course you're right. But you know what philosophers are like: A counterexample that isn't going to happen apply in the real world can be a counterexample nonetheless. That is to say, can I imagine even in other cultural circumstances proposing such a law? And does the example show that exceptions really do do something more than merely leaving in place the status quo, legally, that they really do amount to some sort of inescapable legal endorsement of the unprotected status of those children?

I _think_ that the answer is that the extra effect that exceptions may have is an effect of rhetoric rather than of law. That is, such exceptions, even though legally in the situation envisaged (where therere were no restrictions on abortion before) they don't change the status of legal protection for the victims for whom exceptions are made, do have the extra-legal potential rhetorically to _teach_ that such victims are less worthy of protection or that some people are less valuable than others. This effect has to be weighed as one of the factors in proposing or otherwise endorsing or voting for laws, but it need not be an overriding consideration.

Unfortunately, what that means is that there really could in theory (though probably it would never actually arise) be some exceedingly strange circumstances in which it might be legitimate to support the race-exclusion abortion law, which is an uncomfortable conclusion. I prefer to be able to say "always" or "never."

You talk glibly about Roe v Wade being overturned and states being
able to "protect" unborn children.
But the problem is, how are those states going to stop women from
seeking and obtaining abortions? Will you kindly explain to me how
we are going to prevent this? How will we stop women from going to back-
alley abortionists who wil probbably be both incompetent and unsanitary?
How will we stop women who can afford it from going abroad for safe,
legal abortions? Will we put up blockades at every border and airport and examine every woman of childbearing age for pregnancy?
And how will we stop poor women from trying to abort themselves with the inevitable disastrous results? Will we put up surveillance cameras in every home and arrest women who attempt this?
Come on. Conservatives are always calling for the government to get off our backs. But this sounds more like George Orwell's 1984 to me
than America.
No government has ever been able to stop abortion by making it illegal;
what makes you think that ours will? Abortions might very well INCREASE
in America by being made illegal.

Robert Berger, you're a broken record. Bag it. You already got answered on this in the last thread where you dragged it in. Yeah, and it's so "glib" to talk about laws against rape as "protecting" women and girls, because rapes still go on. Laws against the murder of born people aren't "protecting" people, because those murders still go on. Uh-huh. The truth is, you don't believe abortion is murder. Fine. You can believe a rank and obvious falsehood if you want. But stop pretending that this childish non-argument is something pro-lifers need to answer.

Mr. Berger, that's just silly. No government has ever been able to stop murder before, either--so we should just give it up? Did murder INCREASE because it was outlawed? How dubious is that?

We have not been able to rid the world of chattel slavery beyond our borders--so should we reject the laws against chattel slavery, too?

We can't control child molestation outside our borders, either--should we give up on that?

Do you really expect this approach of yours to give any strength to your position at all?

There are also many horrible events occurring in so-called "safe" abortion clinics all over the country. By making abortion illegal, it might well decrease the tragic loss of mothers' lives in spite of the awful "back alley" conditions. It will **without question** curtail the amount of tragedy being done on human babies.

"Because evil will find a way" and "because evil will make it more tragic if you outlaw it" are ridiculous reasons to paralyze us from stopping evil.

Mr. Berger, I suggest abandoning this approach if you want to be taken seriously by anyone. Seriously. For your own good.

Second Lydia's motion.

I mean, come on -- just what is this?

"No government has ever been able to stop abortion by making it illegal;"

No government has ever been able to stop quite a number of injustices by making it illegal; does this mean those injustices should simply be allowed and made legal?

"But the problem is, how are those states going to stop women from
seeking and obtaining abortions? "

As abortionists rejoin child molesters in the hierarchy of prison life, you will find a massive reassessment of both the nature and need for their grisly services. In this case, Robert, statecraft will function as soulcraft. Kind of like the profound change in cultural attitudes that accompanied the legalization of abortion.

Will the sexual revolution have to be repealed? Yes. Overturning Roe is just another baby step (pardon the pun) in a long battle, but provided pro-lifers don't retire from the culture, it's a very good, long overdue one.

Okay, chaps, now that Mr. Berger's silliness has gotten your attention, we can turn that to good effect by getting your interesting opinions on the more knotty questions in the main post and related threads. It's okay; you don't have to read all the threads to have an opinion.

The whole incremental vs. purist approach came to a head in the early '80's over the Human Life Amendment and ever since it has lost it's steam. However, the pose struck at Vox Nova is simply the cry of those who have tired of the struggle.

Lest anyone else feel tempted to join them;

"In the midst of the encroaching darkness of the culture of death, we have heard the voice of him who said, “In the world you will have trouble. But fear not, I have overcome the world.” Because he has overcome, we shall overcome. We do not know when; we do not know how. God knows, and that is enough. We know the justice of our cause, we trust in the faithfulness of his promise, and therefore we shall not weary, we shall not rest."


You have still failed to answer my question. How are we going to prevent abortions from taking place? This is absolutely not going to
happen by making them illegal. And please stop the silly equivalence
of abortion to murder. Abortion is NOT murder. It is terminating a pregnancy. Let's put it this way. Before Roe v Wade, there were a lot of murders. Many were prosecuted successfully, and the murderers either
jailed for life or executed. But how many abortions were prosecuted ?
Hardly any. There just wasn't a way to do that. Nor will there in the future. You can speak out against abortion until you are blue in the face. But doing this will never stop it.
Pro-choice people don't "want" abortions to happen; they just realize that there is absolutely no way to stop them other than preventing unwanted pregnancies. Government fiats never work. I guarantee you. If
abortion becomes illegal in America again, the result will be disastrous.

Mr. Berger, stop trying to thread-jack, or I'll start deleting your comments. If you read the main post you'll find out what the thread is about. "Silly equivalence." Tearing babies' arms and legs off and crushing their skulls counts as murder enough for me. Easily. If you don't like it, too bad. It isn't your blog, and I'm not here to debate someone who refuses to face the fact of what abortion truly is. That wasn't the purpose.

I _think_ that the answer is that the extra effect that exceptions may have is an effect of rhetoric rather than of law. That is, such exceptions, even though legally in the situation envisaged (where there were no restrictions on abortion before) they don't change the status of legal protection for the victims for whom exceptions are made, do have the extra-legal potential rhetorically to _teach_ that such victims are less worthy of protection or that some people are less valuable than others. This effect has to be weighed as one of the factors in proposing or otherwise endorsing or voting for laws, but it need not be an overriding consideration.

Lydia, you're thinking more like a political scientist than a philosopher by examining the educative effects of law. :o)

I would add that the type of regime is relevant as well. Modern democratic regimes, by virtue of their devotion to universal human equality, are inherently biased against exceptions that treat persons differently, and as a result exhibit a general--though by no means certain--tendency (in fits and starts) to extend equality/eliminate exceptions. So, a law that treated most of the unborn as persons would lay the groundwork for its further extension to be more "inclusive" (i.e., This group is protected, but why not that group? Is that other group really so different as to warrant being denied equal protection?)

I think you have a good point, Perseus. I think what you're getting at is that right now, with unborn children unprotected altogether, if there is any educative message at all it is that abortion has no relation to murder whatsoever and that the unborn are a class entirely outside the protection of the law. A law that protected even most of them would convey the notion that they ought to be protected, which would, if anything, tend to encourage the later protection of those left out of the initial law by exceptions.

Certainly the Roe v. Wade regime has left the moral sensibilities of Americans devastated, as an educative matter. You tell people that it is a "constitutional right" to kill an entire class of people, and that has consequences for the way they think about those people.

In terms of prediction, my own prediction is that a life of the mother exception would always prove intractable--that is, that no matter what else happened in the United States, the states and other levels of government would always retain that exception. The rape and incest exceptions appear rhetorically far more arbitrary by contrast. I am not saying this because I approve of a life of the mother exception. In point of fact, I am a hard-liner on that matter. But I am making a plea to the purists to face what they are saying. If it is immoral to write a law with even just _that_ exception, then--even if Roe is someday overturned, even if we get exceedingly pro-life legislatures, etc.--unless someone does something immoral, no unborn children will ever be protected in law in the United States. Something seems awry with that conclusion, so I think the premises should be rethought!

And that is where we return from political science to philosophy. If, as an analytic matter, a law with a life of the mother (or any other) exception really amounted to saying in law, "We hereby authorize the killing of children whose mothers' lives are at risk because of their existence," then I'd have to go with the purists. It's never right to do something intrinsically wrong to bring about a good consequence. But I do not grant that point.

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