Pro-Choice on Everything, Part I

When it comes to political argument, you can usually count on abortion to get a response, and it seems that Why We Marched (GT 2004/05/30) was no exception to the trend. Fortunately, unlike most of the responses that you usually expect to draw by writing on abortion, the responses to my article were thoughtful, carefully argued, and deserve consideration and reply. (I think this just goes to show that pessimism about conversation on abortion is understandable but overly hasty. The problem is not that rational argument on the topic is impossible—just that it is very hard; not that people can’t talk reasonably about it, but rather that they don’t. Here, even more than in other areas, it’s vitally important to elicit just what the structure of the arguments is, and I hope I’ve helped a bit in that direction.)

After reading over my post again, and seeing how the responses sorted themselves out, I do think that I didn’t do nearly as good a job as I should have in marking out the two different purposes that I had in the post—the fact that it had two different purposes, that is; if you got that, then I think what they were is pretty easy to discern. This is important, because I think some of the critical replies to my post seemed to muddle the two different issues together, and I think that muddling allowed people to endorse claims for abortion that they would be hesitant—or, at least ought to be hesitant—about endorsing in other areas.

Well, what were the two points being made? To wit:

  1. … that arguments against pro-choice political strategy as anti-democratic (by judicial tyranny in Roe v. Wade-style court decisions as a means to repeal abortion laws) are question-begging: if the basic pro-choice position is correct, then it would be judicial activism to uphold an abortion bill—because there could be no such thing as a (legimately enacted) law to ban abortion.

  2. … that the basic pro-choice position is in fact both reasonable and correct—and thus that courts do have an obligation to throw out abortion bills.

Both of these points are connected with the deductive argument that I gave in defense of Roe-style court decisions:

  1. No government body has the legitimate authority to legalize slavery. (premise)
  2. A legislature can only successfully make a law if they have the legitimate authority to enact that law. (premise)
  3. Courts can only enforce such laws as have successfully been made by the legislature. (premise)
  4. Forcing a woman to carry a pregnancy to term against her will is a form of slavery. (premise)
  5. Courts can only enforce bills that the legislature has the legitimate authority to enact (from 2, 3)
  6. Courts cannot enforce bills that purport to legalize slavery (from 1, 5)
  7. Courts cannot enforce bills that purport to legalize forcing a woman to carry a pregnancy to term against her will. (from 4, 6)

Therefore, no court can rightly uphold, or make a ruling based on, a law that purports to criminalize abortion. Q.E.D.

The first point that I was defending (which I had already argued at some length in my comments at Alas, A Blog) is that this argument is valid, and that all of the premises other than (4) are not only eminently reasonable, but also premises that you have to endorse in order to take judicial activism seriously as a term of critique. And what that means is that if (4) is true, you ought to endorse the conclusion; thus, whether premise (4) is true or not, it is the real issue in the debate. If (4) is accepted, then upholding state abortion bills, not overturning them, would be an act of judicial activism (since no such laws could legitimately have been made by the state legislature). Even if (4) is denied, a charge of judicial activism against pro-choice political methods without an independent argument against pro-choice political goals just begs the question against the pro-choice position—much like trying to give a Christian an argument that Christian doctrines stifle social reform, without first showing her that quietistic doctrines are false.

The second point that I was defending, enlarging on the first, is that the argument is not only valid but also sound: not only are premises (1)-(3) true, but so is premise (4) (because a woman has the right to control her own internal organs—yes, even the reproductive ones—and that right cannot be undermined by someone else’s need to use them). It’s important to see here that you can (indeed, should) accept the first point even if you don’t buy my defense of the second point. If you’re unconvinced by my argument in defense of (4), and remain unconvinced after my clarifications and emendations here, fine—but don’t keep basing your arguments on claims about judicial tyranny (or, mutatis mutandis, principles of democracy, federalism, etc.). The real action is in the debate over premise (4).

Well, just saying that you should accept the first point is not the same as demonstrating it, and apparently some of my interlocutors aren’t yet ready to buy in. Thus, for example, Otto Kerner wrote:

Charles, the flaw in your QED is in an implicit assumption that it is relevant to Roe. It is not. The US Supreme Court has no business enforcing or not enforcing state laws, except in a few specific cases. It was acting outside of its jurisdiction.

The question, of course, is why the Supreme Court has no business upholding or nullifying state laws; and there are a few different reasons that you might hold that. You might, for example, base it on a view of the powers delegated by the United States Constitution; or maybe on a prior notion of state sovereignty (perhaps as recognized by the Constitution); or on a strategic concern for political decentralization. Far be it from me to impute an argument to Otto without his consent—but since I’ll discuss the decentralist concerns in greater detail below I’ll take a moment to deal with the Constitutional claim here whether that’s Otto’s claim or not.

Now, I don’t recognize the authority of the U.S. Constitution in the first place; but since most people seem to think it matters, we can set aside my views on the nature of legal authority for the moment for a bit of immanent critique. The first of the common-sense premises I introduced for my argument was (1) that no government body has the legitimate authority to legalize slavery. I think that (1) is always and everywhere true, under principles of natural law. But whether I’m right about that or not, it’s certainly true of governing bodies if they derive their authority from the United States Constitution—since that reads, in part:

Amendment XIII

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

Note that it says within the United States, or any place subject to their jurisdiction; if that doesn’t make state slavery bills the Feds’ concern, I don’t know what could. So if the Supreme Court were ever to hear a case concerning a state bill that purported to legalize slavery, what possible basis could it have for devolving the issue to state courts rather than applying the clear text of the federal Constitution? (Again, since under the Thirteenth Amendment no state legislature can have the authority to make a law that authorizes slavery, it follows that any bill that a state legislature passed to that effect would not be a law; it’s a dead letter just as surely as some “bill” that I wrote on a napkin and passed around to my friends. Thus, any Court which upheld the bill would, in fact, be engaging in an astonishing act of judicial activism, since it is purporting to effect a law where no law had been made by the legislature.)

Of course, this leaves open an additional question (which, I suppose, Otto is right to chide me on) of whether the Supreme Court should hear these cases in the first place. But I can hardly see any way that one could argue that (given the scope of the Thirteenth Amendment) a case over a state slavery bill would not be within the category of all cases, in law and equity, arising under this Constitution (Article III).

Of course, you might argue that forced childbearing is not slavery. You might even think it’s outrageous to even compare the two. But if so, your issue is with premise (4), not with the other premises. (Acid test: would you say the same thing if, say, South Carolina’s legislature were to pass a bill authorizing the enslavement of all Blacks, and the Supreme Court proceeded to strike it down? If you would, you’re nuts. If you wouldn’t, your problem is with (4) alone.)

You might also give me a thwack on the noggin and point out that the Court did not base its decision, in Roe, on the Thirteenth Amendment. True; and that’s too bad, because I think the reasoning would have been much stronger and the ruling much better if they had relied on the Thirteenth Amendment rather than on privacy rights that Griswold claimed to find hanging out in the penumbra of various parts of the Bill of Rights. But you can defend the outcome of a Court case (and the fact that it was decided by the Court) without defending the reasoning behind that outcome. And besides, aren’t the rights protected in the Bill of Rights also the U.S. Supreme Court’s concern (mutatis, mutandis), under the Fourteenth Amendment’s provision that No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States? (If not, then what in the world does that provision do?)

Moving away from Constitutional exegesis, Kevin Vallier objected to what he saw as my neglect of the libertarian arguments against Roe specifically: to wit, that

the decision allows the judiciary to literally create rights out of thin air — that in the end, creating a right to privacy and having an institution that is allowed to do this will be destructive of liberty. It isn’t that many libertarians think that abortion should be illegal. It’s that Roe should be repealed and the battle fought in a different way. That’s the reason I’m against Roe; it increases statism by centralizing power.

Now, I don’t doubt that this is an argument against Roe, but I have trouble understanding it as a libertarian argument. I take it to be absolutely vital to libertarianism (as a theory of justice, not as a region on the Nolan Chart) that rights can be recognized or ignored, respected or violated, but they cannot be created or destroyed by anyone—not by judges, not by legislatures, not by executives, and not by constitutions either. A corollary of this is that when a piece of jurisprudence claims to recognize a right, the important question to ask is not whether the judge has the authority to make or unmake the right (no-one does), but rather whether the judge’s claims are true or false. Do you think that a woman’s right to control her own body includes the right to seek an abortion? If so, then you think Roe was rightly decided (although perhaps for the wrong reasons). And if you think that Roe recognizes a legitimate right, then what’s the problem with enforcing it?

That’s not to say that there’s no legitimate issue worth raising here: aside from the question of whether defending Roe is just, there is also the question of whether defending Roe is prudent. As I’ve argued elsewhere (concerning the Violence Against Women Act), it’s perfectly reasonable to be concerned about the strategic value of vesting our hopes in the tender mercies of a highly centralized federal court. It’s something worth worrying about on libertarian grounds—and, for that matter, on radical feminist grounds too (anyone who thinks that a bunch of old white dudes with black robes and government pensions are the source of, or a reliable bulwark for, women’s liberation needs to get their head checked). But I think it’s no less foolish to put our hopes in highly centralized state courts, or state legislatures. When it comes to matters of strategy in playing the two off one another, we have to ask ourselves which of these pompous outlaw gangs is likely to commit or sanction fewer rights violations in the long run? I think any honest appraisal of the past couple centuries of American history has to show that the answer is Well, it depends. Reactionary states have been the primary agents of tyranny no less than the Feds (see: Crow, Jim; see also: race slavery), and choosing which to side with in a conflict is not something to which I think there is any good answer other than ad hockery based on historical precedent. And if we look at the history of cases decided under the Supreme Court’s doctrine of privacy rights, I have to say that the record looks pretty positive: Griswold (1965) abolished state laws banning married couples from obtaining contraceptives, Eisenstadt v. Baird (1972) struck down all state laws banning consenting adults from obtaining contraceptives from a doctor, Roe (1973) nullified most state abortion laws, and Lawrence (2003) did away with state sodomy laws. If you’re pro-choice (mildly or otherwise) and libertarian, that looks like a pretty solid record!

Broadly speaking, it’s very difficult for me to understand the charge that the Court’s privacy doctrine is a harbinger of statism. Whatever the hell the penumbral right of privacy is supposed to mean (and I’m not at all clear on this myself), it is certainly privacy from government interference. It’s no accident that every landmark ruling on the doctrine has curtailed the power of government over the individual rather than enlarged it. How, exactly, is a ruling based on such a principle, even such an admittedly vague one, supposed to give the State more power over people’s day to day lives?

Now, again, I suspect that a lot of the worry that seems to be directed against premises (1)-(3) actually has more to do with discomfort with (4)—and with my failure to adequately put asunder the two questions in my last post. If forced childbearing is slavery, then how could we possibly let the modest rhetorical gains that statism might make in delivering a Supreme Court decision outweigh the massive victory for women’s freedom from government control over their own bodies that the abolition of state abortion bills wins? If, on the other hand, you’re not willing to defend the rightness of the Roe decision, isn’t that just an indicator that you think forced childbearing is different from slavery in some salient respect?

What about the second point of my post—that premise (4) is true, and so that the argument for defending Roe (or similar court rulings) is sound? Well, there’s plenty to say about that, too—but not, alas, tonight. I hope, for now, that I’ve cleared the ground for approaching what I take to be the real issue in the debate.

For further reading

(Standard disclaimer: People other than myself may or may not agree with everything I have to say here; and while they certainly ought to, my act of linking shouldn’t be taken as a claim in either direction.)

9 replies to Pro-Choice on Everything, Part I Use a feed to Follow replies to this article

  1. Sam Haque

    If it is correct that a woman has the right to terminate her pregnancy at will, she will also have the right to choose what kind offspring she wants to have.

    She could use genetic testing, and then end the pregnancy if she didn’t want to have a child with that genetic profile.

    The kind of uberliberal abortion policies Charlie is arguing for would be the first step in legalizing eugenics.

    I am not saying that this is wrong or right. I am saying that it is true. And that if it is correct that women have the right to terminate their pregnancies, then it is correct that they have the right to select the traits of their children.

  2. Rad Geek

    Sam points out:

    If it is correct that a woman has the right to terminate her pregnancy at will, she will also have the right to choose what kind offspring she wants to have.

    The kind of uberliberal abortion policies Charlie is arguing for would be the first step in legalizing eugenics.

    It’s certainly true that choosing to have an abortion for reasons of so-called voluntary eugenics should be legal. Indeed, it already is under the provisions of Roe. If a woman has the right to control her own internal organs, then she has the right to do so out of the desire to see certain genotypes propagated and others suppressed.

    That doesn’t mean, however, that the sort of choices encouraged by neo-eugenics shouldn’t be considered creepy, selfish, foolish, manipulative, and many other things besides. It only means that no-one has the right to pick up a gun and make you avoid those sorts of follies. Having a right to do X for any reason is not the same thing as having a guarantee that all your reasons are good ones.

    Indeed, most of the people that the eugenicists have tried to exhort throughout history have seen quite well what perfect asses the eugenicists are. This is why “voluntary eugenics” has so often taken a back seat to anti-choice atrocities such as forced sterilization or involuntary euthenasia on the eugenicists’ cultural and political programme. Which should not, in the end, be too surprising; not because voluntary eugenics (foolish though it may be) necessarily entails coercive eugenics (it doesn’t), but rather because the sort of reasoning that supports voluntary eugenics is usually a bunch of mystical, scientistic, pseudo-biological, racist, collectivist humbug, and people who are prone to reasoning in that way are also prone to throwing such minor concerns as freedom from slavery to the wind.

  3. Martin Striz

    The reverse of that argument is that it would seem creepy, disgusting, malevolent and patently immoral to allow a child to be born that you know will have a debilitating mental or physical handicap (god forbid something like Tay Sachs). People play psuedo-eugenics games all the time when they selectively choose the kinds of partners that they want to propagate their genes with. They also work hard to raise children into their idealized view of what a person should be. Everybody wants happy and healthy children — children with an advantage in life — and if the fibroblast isn’t a person, or hasn’t yet been ensouled, then emergent technologies coupled with reproductive freedom will only increase our ability to raise the kinds of children that we would like (something that everybody who has a family is already trying to do).

    The salient question, and the concern of many well-meanig detractors of these technologies, is whether children will be treated more as a commodity and less as people. Look at how anybody reacts to a baby. Once it is born, even if it has terrible mental/physical defects, the psychological architecture of H. sapiens kicks in and makes parents love their children unconditionally. I submit that they could only be more proud of children that come closer to their hopes and desires in having kids.

  4. Sam Haque

    Well the problems with eugenics I don’t think will be in the clear cut individual cases such as inherited physical traits that we like to think as of diseases, but more along the lines of overall sensitivities to images of what is ideal.

    If parents get the freedom to select for traits in their offspring, how exactly are parents going to be made responsible choices they make?

    The power to determine the genes of a human being is an immense one, and there should be some kind social regulation.

    This is already happening. In China and India, female fetuses are aborted at a much higher ratio, and this is changing the natural gender balance.

  5. Martin Striz

    “If parents get the freedom to select for traits in their offspring, how exactly are parents going to be made responsible [for the?] choices they make?”

    The idea that it is better to allow the make-up of a child to be determined by genetic lottery rather than rational choice is simply indefensible (when germline gene technology is safe and effective). Although the bearer of a fetus should have sovereign authority over what happens to it, the providers of enhancement technology can and should be regulated. You can get an abortion, but that doesn’t mean the doctor can use a piece of barb wire: she must conform to thorough medical practices and legal regulations. Same goes for germline enhancement technology.

    “The power to determine the genes of a human being is an immense one, and there should be some kind social regulation.”

    I concur. And when the technology is available, to deny someone the means to eliminate disease or to increase health from the current socially-accepted baseline would be immoral.

  6. Sam Haque

    �The idea that it is better to allow the make-up of a child to be determined by genetic lottery rather than rational choice is simply indefensible (when germline gene technology is safe and effective). �

    The genetic lottery you are refer to has a few billion years of natural selection behind it and it has protected the species from countless diseases and natural disasters. Even though most instances of extreme variation and mutation do not end up being very important, they do wind up being very important in the overall dynamic of the species.

    That is why I am concerned about your statement to �eliminate disease or to increase health from the current socially-accepted baseline.� People are prone to start calling the below average height, IQ, and musculature �diseases� and traits of �substandard health� and then proceeding to self-select. Well so what? What is wrong with is idea is that it will remove the natural diversity and replace it with a human construction of which we will have little understanding of the long term impact without carrying out experiments on small samples of the human population as the Nazi’s did.

  7. Martin Striz

    Nature has billions of years of natural selection behind it, and yet cancer and other diseases abound. These are natural phenomena. There’s no reason to presume that what’s natural is right, or good. Leaving genomes up to blind selection forces instead of rational choice is indefensible. We will have the ability within 100 years, through nanotechnology and supercomputing and plenty of genetic engineering of non-human species, to model protein structures and predict phenotypes without repeating the atrocities of the past. Nobody (except the uninformed who haven’t thought through these issues for more than 5 mins) is suggesting that we go forth with experimentation on humans when we don’t absolutely know the outcome beforehand. The argument is moot.

  8. Otto Kerner


    The reasons I say that Roe is out of the Supreme Court’s jurisdiction are:

    1) The Court is a tax-sponsored body, appointed by the president,i.e., it is part of the state structure, and therefore doesn’t have legitimate power over anything.

    2) Even if we set that aside for the moment and assume that it is a legitimate body, it is governed by the U.S. Constitution, which, read narrowly, gives it no jurisdiction over the state governments in the vast majority of cases. According to normal readings, abortion would not appear to be an exception.

    3) It is, as you say, strategically very dangerous to vest the Supreme Court with the authority necessary for them to make this kind of decision.

    I hadn’t realized that your argument was based specifically around the 13th amendment. Most people, as far as I can tell, assume that where it says “slavery nor involuntary servitude”, that it is talking about a fairly specific sort of human interaction, i.e. chattel slavery. I can see where it could be construed to apply to abortion, but, then, it could also be construed to apply to just about any rights violation. This would (in addition to federalizing all criminal law) enact more or less the entire libertarian program in one fell swoop. This would not be a bad thing, but it would make it impossible for the Supreme Court to continue to function. This is a valid way of understanding the texts, but it means that, insofar as the ruling in Roe is good, SC rulings are irrelevant.

    As for the 14th amendment, frankly, I have no idea what it is supposed to mean, so I generally try to ignore it.

    With regard to the strategic issue, let me pose this hypothetical question. Suppose that, tomorrow, Kofi Annan declares medical marijuana to be legal in the United States, and the decree is enforced. Would you consider this to be a good thing or a bad thing?

  9. Kevin Vallier


    As to your first point, I should have been clearer. When I said that the courts can “create rights out of thin air” I should have said “positive rights.” Having clarified that, I think, takes care of the first paragraph.

    As to the second point, centralizing power - and the right to privacy - are both things that I think can be argued on prudential grounds increase statism.

    For one, I don’t think it will do it all to merely say of the difference between state and federal tyranny that “It depends.” This appears to imply that the burden is equal. However, I think it clearly is not. Even the same policies that have been enacted on the federal level were enacted on the state level, the federal level’s actions would be, ceteris paribus, more tyrannical if they are tyrannical. However, if they are liberating, it does not immediately follow that they are ceteris paribus more liberating - as the general effects of centralizing power are dangerous - whereas the general effects - the ceteris paribus effects - of devolving powers - is liberating. I can’t imagine you’d disagree - but perhaps you will.

    To make your case you’d have to show that historically larger levels of government have not only been as libertarian as more provincial ones, but that they have been more so - and I hardly think that stands to reason.

    As far as privacy law goes, it is a bit of a harder case - but I suppose it is my view that the creation of privacy law gives governments license to do a variety of further things that violate rights - not to mention violating the rights of individuals to collect information on their own. Not having privacy law is not inherently rights violating at least not in most of the cases of law on the books. To be fair though, some privacy law is justified - so long as it is coextensive with private property rights.

    My impression from my libertarian lawyer roommate is that the large majority of it is not - and instead extends government’s grasp over private interactions. That’s my concern about the “right to privacy” as such.

    But there is a further concern: the precedence set by allowing the Supreme Court to make up positive rights - the danger I originally cited. I can’t imagine that Roe hasn’t made it easier for a potential future court to find a “right to healthcare” in the constitution.

    But thanks for your thoughtful response.

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