The Law Always, Necessarily and Inescapably Legislates Morality

[Note: the date stamp on this post has been changed from the original, so as to keep it on the main page and further enable the argument that has been taking place in the comments.]

There’s one thing we separate in our public consciousness here in the U. S. (and industrialized West more generally): the law and morality. We bristle at the suggestion that someone or some group “legislate their morality” on us. The law is simply a conventional code, in many peoples minds, that is agreed upon through the terms of a representative democracy, containing many items we can change, omit, and revise at the demonstrated will of the people and/or their elected representatives. A legal code is merely a convention for getting along.

This understanding, however, is sheer fantasy.

The law is not mere convention–though clearly there are conventional aspects to the law. The law is much more powerful than that, as Plato, Aristotle and many important thinkers have recognized throughout history. No, in point of fact, the law is a paedegogus, a tutor, instructing us in morality, inculcating in us notions of right and wrong, virtue and vice.

So the current understanding in the U. S. of the separation of Church and State is both philosophically unsound, and, ultimately, unworkable. And as the culture wars continue to flame, this is becoming more and more obvious.

We’ll start first with Aristotle:

[T]he law also orders one to do the deeds of a courageous person, such as not to leave one’s assigned place or run away or throw down one’s arms, and the deeds of a temperate person, such as not to commit adultery or be wildly extravagant, and those of a gentle person, such as not to hit people or slander them, and similarly with the things that are in accord with the other virtues and vices, commanding the one sort and forbidding the other, rightly when the law is laid down rightly, but in a worse way when it is tossed off carelessly. (Nicomachean Ethics V.1/1129b20ff)

Aristotle’s assertions have direct application and implication to our own time and place. Not only does the law tell us that murder is illegal, it inscribes within us the notion that it is a moral wrong to do murder. The law conventionally distinguishes between different types of killing (exonerating, for example, those who kill in self-defense or in the rightful and lawful engagement in military battle; while condemning, often to death, those who willfully commit premeditated killing of the innocent). But even those conventions reinforce and provide important moral distinctions in terms of the virtue of not taking another life and the vice of killing with malice aforethought.

Similarly, many states have “Good Samaritan” laws, demarcating the moral (as well as legal) necessity to aid those in distress. One could make similar cases about laws dealing with fraud, slander and libel, and so on.

Now I readily admit that our notions of morality do not only, indeed not even primarily (for many), come from the laws enacted in our communities and our nation. In fact, that is, ultimately, my point. The laws we enact come from the moral presuppositions we already hold. We do not, for example, gather together and review the statistics on death and killing, hear congressional testimony, conduct polling surveys, and then decide: killing with malice aforethought should be made illegal so that our citizens will form the moral notion that it is wrong to kill with willful premeditation. Rather, we already come to the legislative process with the understanding that killing with willful premeditation is a grave moral wrong, it is, indeed, murder, and we make laws reflecting that moral understanding. In this way the law reinforces, and also educates, the conscience of a people.

The moral imagination always already shapes and delimits our legislative activities. In short, the law codifies and embodies a community’s morality. So it isn’t a question of legislating morality. Any time we engage in legislative activity we are doing that: legislating morality.

The question, then, is: whose morality are we legislating? And here is where the dilemma of Church and State enters in.

Let’s take the social hot button: abortion. Whenever those opposed to the practice of abortion attempt to legislate a moral understanding that gives social, political and legal recognition to the fetus (unborn child), abortion advocates raise the specter of Church and State–as did John Kerry in his recent comments about how, though he believes human life begins at conception, he would not legislate his Catholic beliefs on the rest of the nation. While this is a red herring–because the belief that the fetus is, indeed, an unborn human child, is not restricted to a specific religion or Christian denomination can easily be demonstrated, thus invalidating the claim that enacting legislation limiting abortion practices somehow establishes a religion or church–it is nonetheless true that such attempts do in fact legislate a particular morality. Namely, one that believes it is a moral wrong to abort (kill) a fetus (unborn child).

And what abortion advocates fail to admit–and many of us fail to realize–is that the laws that were passed granting the legal recognition of the practice of abortion themselves legislated a particular moral understanding. Namely, that the wishes, desires, and feelings of a mother were of more moral worth than the life of the unborn person in her womb. Indeed, the law also legislated an understanding that the life in her womb was subhuman, if human at all, and not worthy of the same legal rights she herself possessed. The law also enshrined the understanding that the father of the unborn baby held no moral status in terms of the decision to abort. The law shaped our conscience in such a way that we understand the father to be not, indeed, a father, but a sperm donor who has no legal or moral standing in relation to the product of his insemination, should the mother decide to “terminate her pregnancy.” Even if the father wants the unborn child to live, the law implies he has no standing; he’s just a sperm donor.

And we wonder that we hear stories of newborns abandoned to die in trash cans, or stabbed with scissors and thrown out a window to lie lifeless on a cement walkway. We wonder that we have “deadbeat dads” who refuse to provide financial support for the living products of their insemination.

As Aristotle noted: the laws legislate morality, sometimes well and rightly, and other times not. Laws can legislate vice instead of virtue. And those laws can and do shape or misform our moral understanding.

So now the question is not whether the laws legislate morality, but, whose morality will they legislate? There are two ways, in a representative democracy, to answer this question.

One can simply rely on the majority will of the people. And in America that will be a majority morally educated and informed by Christianity. So one can argue that the morality we should enshrine in law is that of Christian faith. Of course, because of the plurality of Christian groups in the U. S., we will be protected from establishing a single church as a state religion, because there will be differences in some particulars among Christians as to what is the proper moral belief to legislate. But this is the nature of political discourse in a representative democracy. And, in fact, in the U. S., this is has been the case for the first two centuries (or so). Minority religions have had their interests protected while at the same time the majority Christian faith shaped and formed our laws.

But the other argument can be made in a more general sense. What is the best source of moral understanding? Religion, broadly speaking. Therefore, religion ought to be the resource utilized for all legislation. Now, granted, this is only going to have a slightly different outcome than the above, because, once again, in religious terms, Christianity is clearly the most widely claimed religious faith. But Christians, Sikhs, Muslims, Hindus, Buddhists, Jews, and other faiths, share important broad principles and values. There are, for example, Hindus who oppose abortion on the terms of their faith. But once again, we are safeguarded against the establishment of a particular church or religion by the very plurality of religious belief.

But mostly what those who want a separation of religion from law want is a secular state. They want, however, a utopia, a no-place. Because secularism itself is a form of religion providing ultimate first principles and a life-guiding orientation–things that religions provide their adherents. And in any case, they would still be legislating morality, it would simply be a secular one.

84 thoughts on “The Law Always, Necessarily and Inescapably Legislates Morality

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  2. In the American system of government, the purpose of the law is not to “legislate morality” to but secure rights. It doesn’t matter if the conduct protected by the right is immoral. Law isn’t about morality, it’s about rights.

    And yes, we live in a representative democracy, but not a pure one. Our system of democracy was consciously designed to include certain anti-democratic components, most notably a constitution containing a Bill of Rights and an independent, unelected judiciary empowered to strike down laws that violate it.

  3. Jim:

    But the securing of rights is, itself, a moral principle. That’s what I mean by the law legislating morality being an inescapable fact.

    The checks and balances of our governmental system in no way invalidates my comments.

  4. The point is that the rights the government secures include rights to act in ways you may consider immoral. The fact that a type of behavior is held to be immoral does not in itself justify a law proscribing that behavior. The law is not intended to enforce a moral code.

  5. Jim:

    Granted. But the sanctioning of an act cannot but imply that a certain act is moral.

    It may be of little moral import that the speed limit posted in a particular locality is 45mph . . . per se. On the other hand, consider, if you will, the case of an indivdiual who habitually, willfully, and consistently drives 65mph (or what have you), through said zone. Most of the time, he will do so without consequence. Sometimes he will be caught and fined. He may even have his license suspended. Per se one may well argue that the speed limit is a mere convention, and the gentleman’s violation of that limit is immaterial to his moral status.

    But that is not our response to a person like that, is it? Most of us, confronted with such an individualm will judge him on moral terms. We may well be civil to him, invite him to parties, and what not. But we will have labelled his character in such a way as to have some sort of moral deficiency.

    And it is right and natural that we do so.

    Now, I should also admit with Aristotle that some laws are badly formed (say the legalization of abortion) and laws attempt to legislate immorality. But the point is that all laws have to do with morality if not per se as to the particular statute itself, the in se as law.

  6. But the sanctioning of an act cannot but imply that a certain act is moral.

    I didn’t say it did. There are many acts that I consider immoral but that I would strongly oppose criminalizing, in part because I agree with the founding fathers that the proper role of the law is to secure rights, not to impose a moral code of conduct. The law may, as you say, be related to morality, but it is an abuse of the law to use it to try to impose morality rather than to protect rights.

  7. But what, pray tell, is the securing of rights, but a moral principle? This is why law is, in its essence, a moral code. Not always a good one (vis a vis, abortion), but nonetheless a a moral one.

    And it is no abuse of law to impose morality, because that’s what law, by its nature does–even, and especially, in the securing of rights.

  8. But what, pray tell, is the securing of rights, but a moral principle?

    Justice. We do not secure rights to promote morality, but to establish justice. We do not use the law to impose morality because to do so would be unjust. Justice requires us to protect behavior that is immoral as well as behavior that is moral.

    And it is no abuse of law to impose morality,

    Yes, it is an abuse. The purpose of the law is to establish justice through the protection of rights, not to impose morality. That is why we have a Department of Justice, instead of a Department of Morality. It’s why our highest legal officers are called Justices and not Moralists. It’s why we have a branch of government called the Judiciary, not the Morality. The law is all about justice and rights. Read the Declaration of Independence and the Constitution.

  9. Indeed, the law also legislated an understanding that the life in her womb was subhuman, if human at all, and not worthy of the same legal rights she herself possessed.

    Do you believe that a woman who is raped, becomes pregnant as a result of that rape, and terminates that pregnancy, perhaps immediately by taking the “morning-after” pill or inserting an IUD, should be prosecuted for the crime of murder?

    If not, you agree with the court that “the life in her womb” is not worthy of the same legal rights that she herself possesses, since anyone who intentionally killed her would be prosecuted for murder, including her own mother, and even if she had been conceived through rape.

  10. Re: justice and morality–

    Justice, as Aristotle so helpfully noted, is not merely a legal convention, though justice does contain conventions which help promote it. But, in point of fact, justice is a virtue, a moral principle. And though it is not the greatest of virtues (that role belongs to phronesis, or practical judgment (prudence), it is the greatest of the virtues of character.

    Your semantical dichotomy between morality and justice is a modern fiction.

  11. Clifton, maybe I misread the post you linked to, but I don’t see an answer to my question in it. I don’t see a discussion of the legal consequences of abortion at all. If you believe that a fetus is worthy of the same legal rights as a born person, then you believe that the intentional killing of an innocent fetus should be prosecuted as the crime of murder, because that is the crime for which a person is prosecuted when he intentionally kills an innocent born person. This is true even in cases in which the victim of the killing was conceived through rape and the killer is his mother. And in fact, since most abortions are planned ahead of time (premeditated), rather than being spur-of-the-moment decisions, intentional abortion would qualify as the most serious category of murder, murder in the first degree, which carries the severest penalties (typically, many years in prison, life imprisonment, or in some cases even execution).

    If you don’t believe that the intentional killing of an innocent fetus should be the same crime as the intentional killing of an innocent born person, then you obviously do not believe that a fetus is worthy of the same legal rights a born person possesses.

    So which is it?

  12. Your semantical dichotomy between morality and justice is a modern fiction.

    Then why did our country’s founders (200 years ago–hardly “modern”) carefully define the purpose of law as the establishment of justice through rights, rather than as the imposition of morality? Justice and morality are related, but they are not synonymous.

  13. re: justice/morality.

    Okay, we’re just reiterating our own points at the moment.

    First of all, do you or do you not accept that the securing of rights is a moral principle? If you do, then you must also accept that justice (which you assert is the securing of rights) is also about morality.

    But if you don’t, then the securing of rights is a mere legal convention, without any moral basis. But if the securing of rights is mere convention, then there is no immoral nature to the violation of those rights. It may not be just, but it carries no real sanction outside a legal structure. But then again if the legal structure is arranged in such a way so as to deny rights, who are we to criticize that? After all, isn’t the securing of rights a mere convention without any moral basis?

    Think of it this way: morality is the greater circle which encompasses justice. So every working of justice, even conventional ones, has some moral connection and foundations.

  14. re: abortion

    I doubt you misread my post, but you may well have failed to note that mine was an attack not on the legality of abortion per se, but was an elucidation of the proper understanding of personhood such that given that understanding abortion cannot be considered a just legal act.

    Now, let’s clear up some confusion. Rape/incest accounts for only 1% of all abortions. One percent. We are talking about the exception to the rule. In fully 96% of the cases, the mother knowingly and voluntarily engaged in activities which produced a child. (And this “terminating a pregnancy” is a euphemism. Let’s be clear: abortion kills a baby.) So in nearly every case, abortion is an act which could have been avoided–primarily by abstaining from sex. And yes, I do expect human beings to be fully human enough to restrain their desires, as well as fully human enough to suffer the consequences of their acts.

    Let me say it plainly, then: in these cases, abortion is the killing of an innocent human life, a life as human as yours or mine. As to whom to prosecute for the crime? Clearly the person performing the abortion. If anyone is acting with full knowledge, it is the doctor or nurse performing the abortion. Complicit in the act, would be the medical staff and clinic executive officers. The mother, too, would likely be complicit, though in the case of the mother, the law may rightly look more favorably on her since it is clear that abortion clinics do not provide mothers the full information necessary in making their choice. (On the other hand, since nearly half [48%] of women who abort have had a previous abortion, this may alter how the law looks at them.)

    So, let’s deal with the reality of what’s going on in the procuring of abortions.

    Now, there are 3% of abortions that involve the health of the mother. We should be clear on what we mean by “health,” but unfortunately the statistics given do not clarify this term (to my knowledge). In the abortion advocacy arguments, however, it is always presented in the scenario that that the woman is likely to suffer death or serious injury if the baby is not aborted.

    A lot of it depends on when the abortion is intended to take place; that is to say, viability is an issue. And given that viability is being pushed back further and further due to the increase in our medical capabilities, the “need” to abort to save the life of the mother is similarly decreasing.

    But there is an important moral distinction we can make between two acts which have the same external consequences. An abortion is the intent to kill the baby, and all the medical procedures done are oriented toward this outcome. On the other hand, a medical procedure done to secure the health and life of the mother, but which results in the death of the baby, is on completely different moral ground. It is known, in Catholic circles, as the doctrine of double effect. If the intent of the act is moral, and the means and structure of the act itself is moral, yet the outcome results in a catastrophic event, that event is an accident (not the substance) of the act, and the act remains moral.

    So the response to scenarios in which the baby endangers the health of the mother, is to secure the health of the mother, but not through intended immoral acts (such as abortion). If in attempting to secure the mother’s health the baby dies, this is deeply tragic, but is not of the same moral quality as an act which intends the death of the baby–where the baby’s death is also deeply tragic, but the act is deeply immoral.

    Finally, what about rape and incest? Here, I do not think abortion is the answer. The answer is counselling and a community which provides strong, constant care and support. My local parish would be a concrete instance. But it need not be a church or synagogue. It can be, should be, the professional community (therapists, counsellors, medical doctors) and the person’s immediate family and friends. The abortion will not in any way procure the sort of healing necessary for the trauma experienced by the young girl/woman. It will merely remove one of the physical consequences of the rape/incestuous act, but this will not bring peace of mind and healing of soul to the young woman. Further, she may well suffer guilt at the death of the baby, as many women who have had abortions attest, which will only add to the emotional, mental and spiritual anguish she is experiencing.

    In some cases such as these, there may be real and legitimate health issues involved, in which case, my comments above would also apply.

  15. Let me say it plainly, then: in these cases, abortion is the killing of an innocent human life, a life as human as yours or mine. As to whom to prosecute for the crime? Clearly the person performing the abortion.

    Then in cases in which the woman performs the abortion on herself, as by ingesting the “morning-after” pill, or RU486, that person would be the pregnant woman herself. So do you seek to prosecute such women for the crime of murder or don’t you? If you don’t, you clearly do not believe that a fetus is worthy of the same legal rights as a born person, because a mother who intentionally killed her born child would certainly be prosecuted for that crime.

    But even in abortions performed by a third party, the woman would be legally responsible. Any woman who took her born child to a doctor and said, “Here, doctor, kill my child for me” would be prosecuted for the crime of murder along with the doctor himself.

    So I ask again, do you believe that a fetus is worthy of the same legal rights as a born person or don’t you?

    The mother, too, would likely be complicit, though in the case of the mother, the law may rightly look more favorably on her since it is clear that abortion clinics do not provide mothers the full information necessary in making their choice.

    This is irrelevant. A person who intentionally kills an innocent person is presumptively guilty of the crime of murder. There is no requirement in our nation’s murder statutes that the perpetrator receive “the full information necessary in making the choice” before being charged with that crime. If he chooses to kill, then he is guilty. To establish that a murder suspect is not guilty because she did not understand the nature of her action, or because she was insane, or because of some other kind of mental impairment, her defense attorney would need to present extensive psychiactric evidence at her trial to relieve her of all criminal responsibility for her action. The woman in Texas who drowned her children in a bathtub last year, for example, was prosecuted for murder (despite substantial pre-trial evidence that she was mentally ill). Susan Smith, the woman who drowned her young children by strapping them into her pickup truck and driving it into a lake was prosecuted for murder. Debra Milke, the woman in Arizona who took her child into the desert and had her boyfriend shoot him was prosecuted for murder. So do you believe that a fetus is worthy of the same legal rights as a born child or don’t you? If you do, then you must support the prosecution of women who intentionally abort their fetus for the crime of murder. Do you or don’t you?

  16. An abortion is the intent to kill the baby,

    This claim isn’t true either. An abortion may involve an intent to kill the fetus, but in most cases I doubt there is any such intent. The intent is to end the pregnancy. Before viability, the death of the fetus is an inevitable consequence of terminating the pregnancy, but that doesn’t mean the death intended.

    The situation is analogous to a scenario in which terrorists have hijacked a plane and are trying to fly it into a nuclear power plant. The President may order the military to shoot down the plane. He knows that the deaths of the innocent passengers on the plane are an inevitable consequence of that act, but that doesn’t mean he intends their deaths. His intent is to prevent the plane from being flown into the power plant. The passengers’ deaths are just an unavoidable consequence of achieving that goal. And in pre-viability abortion, the death of the fetus is an unavoidable consequence of terminating the pregnancy. But that doesn’t mean the death is intended. If the pregnant woman had a way of terminating the pregnancy without causing the death of the fetus, such as by having the living fetus surgically removed from her uterus and transferred to an artificial womb or another woman’s uterus where it could complete its gestation, she might very well choose that option instead of abortion. But that option is not available. We don’t have the technology to do it yet. We may never have the technology to do it.

  17. Justice may be thought of as a particular kind of morality, but it is not synonymous with morality. That is the purpose of the distinction. The claim that the law may legitimately be used to impose morality, rather than to establish justice, implies that a law that criminalized lying, for example, would be proper, as long as lying is deemed to be immoral. But we don’t believe that. We believe that even immoral lying should be legal, at least sometimes. The concept of rights includes rights to behave in ways that are immoral. That is why your claim is false. That is why our system of government defines the purpose of law in terms of justice and rights instead of in terms of morality.

  18. Jim:

    Abortion and terminating the pregnancy.

    “Terminating the pregnancy.” This is so obvious a fiction that you and I will simply have no other recourse than to say to one another “Is so”–“Is not.” There is no other outcome to the termination of the pregnancy than to kill the fetus. In fact, there is only one method to terminate the pregnancy, which is to kill the fetus. Thus, terminating the pregnancy and killing the fetus are, in fact, the exact same act. Thus, the intent to terminate the pregnancy is the intent to kill the fetus. Therefore, your plane analogy is not even anywhere close to an equivalent.

    On this point, it is doubtful we have any more to say to one another, for you seem not to understand the simple fact of what abortion is, and want to dress it up in euphemism.

    Furthermore, apparently you do not understand my distinction between the person who actually commits the murder (the doctor) and those complicit with the agent. In the case of the morning-after pill, then, yes, that would be murder, and since the mother is the actual agent of the killing, she would be liable before the law, with those who provided her with the means for committing the act potentially liable.

    I’m not sure how much more clear I can be on this. You seem to want me to repeat some predetermined verbal formula for some reason, when I have clearly indicated that the killing would be punishable by law, and who are the responsible agents.

    But perhaps you want to clarify this.

  19. There is no other outcome to the termination of the pregnancy than to kill the fetus. In fact, there is only one method to terminate the pregnancy, which is to kill the fetus. Thus, terminating the pregnancy and killing the fetus are, in fact, the exact same act. Thus, the intent to terminate the pregnancy is the intent to kill the fetus. Therefore, your plane analogy is not even anywhere close to an equivalent.

    No, you’re still confusing an effect with an intent. The fact that after viability it is possible to terminate the pregnancy without killing the fetus proves that they are not the same thing, and therefore that the intent to terminate a pregnancy is not the same thing as the intent to kill the fetus. Before viability, there is no way to terminate the pregnancy without also causing the death of the fetus. The death of the fetus is an unavoidable effect of terminating the pregnancy. But the fact that it is unavoidable does not mean that it is intended, any more than the fact that the deaths of the passengers on the hijacked plane are an unavoidable effect of stopping the plane from reaching the terrorists’ target means that the President intends those passengers to die.

    Furthermore, apparently you do not understand my distinction between the person who actually commits the murder (the doctor) and those complicit with the agent. In the case of the morning-after pill, then, yes, that would be murder, and since the mother is the actual agent of the killing, she would be liable before the law, with those who provided her with the means for committing the act potentially liable.

    Okay, so you think a rape victim who intentionally aborts her 2-day-old embryo by taking the morning-after pill should be prosecuted for the crime of MURDER. I’m glad we’ve got you on record with that. It shows just how extreme your position is.

    You are just factually wrong about the application of murder laws. You do not have to be the person who actually pulls the trigger in order to be convicted of murder. In every U.S. state, a woman who handed over her child to a third party for the purpose of killing that child would be prosecuted for murder. Not merely for conspiracy to murder, or as an accessory to murder, but for the murder itself. I already gave you a real-world example of this–Debra Milke.

    And in states with the felony-murder rule, a defendant would not even need to possess the intent to kill in order to be convicted of murder. As long the killing occurred during the commission of a felony, it would be prosecuted as murder. An example would be the unintended fatal shooting of a customer during a convenience-store robbery.

  20. If justice is a particular kind of morality, then you have conceded my point,

    No I haven’t. Your point is wrong because establishing justice by securing rights is not the same thing as imposing morality. A law may legitimately protect immorality (the First Amendment protects our right to immoral speech, for example), but it may never legitimately be unjust.

  21. Jim:

    I understand the bold print for emphasis, but all caps? There’s no need to shout. We’re having a gentleman’s discussion, and if necessary we can break out the 18-yr Macallan single malt to keep the tones pleasant and the mood mellow.

    First of all, you need to read my previous responses more carefully. Nowhere nor in any way did I assert that a rape victim could be prosecuted for murder if she had an abortion. I very clearly indicated my response to the rape victim. So there’s no need to resort to simplistic reductionism and straw man arguments.

    In 99% of the abortions performed, I believe that the doctor performing the abortion, or the otherwise active agent in the abortion, ought to be liable before the law for their actions. These pregnancies are a result of voluntary sexual acts, despite that one assumes nearly all of them were not intending to get pregnant, and therefore the pregnancies were the result of the woman’s complicit co-agency in the creation of the life in her womb. (And, as an aside, despite our best attempts, just about the only fail safe way to physiologically dissociate procreation from sex is surgical sterilization. Condoms, and other devices are not fail safe–despite the popular consciousness on the matter–and do not in any way separate the plain biological consequence of sexual activity.)

    When it comes to rape, let me go on record as saying I do not believe abortion to be the appropriate therapy for a rape victim. Abortion is a violent and gruesome act done upon the woman and the baby in her womb. Because of the traumatic psychological impact of abortion on women–which evidence is only slowly coming to light now–I believe that an abortion would only add to the trauma of the rape victim. She needs theraphy, counselling, health screening, etc., etc.

    Nor, let me be clear, I do not believe a rape victim should be doubly traumatized by the rape and by being prosecuted for murder should she have an abortion. But in any case, I believe the abortion to be wrong.

    But even so, my position is not inconsistent. The law can prosecute most abortions under the rubric of murder, while allowing exceptions to the application of the law in cases of rape and incest. This is one of the basic moral principles of law that it allows for the relaxation of its application in situations in which to apply the law would result in a graver injustice than to allow the law, in this particular instance, to be applied less strictly, or not at all.

  22. Jim:

    Unfortunately you seem unable to see that the moral principle of justice is pervasive throughout all law. Even the enshrining of immoral acts does not invalidate this assertion, for as Aristotle–and I–have noted in this discussion, laws may be badly formed (and thus legislate immoral acts), but it is still the case that laws legislate morality. In fact, your double concessions–that justice is a particular sort of morality, and laws can legislate immorality–simply reinforce and doubly concede my point, which has been all along that the law always already and inescapably has to do with morality.

    I do not understand why you cannot–or refuse–to both understand and accept this principle.

  23. A clarification, in a couple of my comments above, I have referred to 99% of abortion cases and the applicability of prosecuting the abortion agent for the killing/murder. It should, hopefully, be clear from the principles I’ve delineated in the other post (Law legislating morality) that in the 3% of cases where the mother’s health is endangered that abortion is not an answer, but that the doctrine of double effect is legitimate to apply in those instances, such that the killing of the baby is neither the intent of the act, nor the structure of it’s actualization, and that if the death of the baby also results, it is not, strictly speaking, an abortion.

  24. Whew! You guys work?

    So, here is my two cents…

    A question for Cliff: can you define freedom for me? I know you well enought to know that you rdefinition may be different than the standard popular definition.

    I think that the idea of “protecting freedom” is another angle to get at what you are arguing about. Freedom to do something. Freedom from the consequences of a thing. This is rights language.

    My right to do something, immoral or moral, is a freedom. Because I am free to act immorally by some standards (Christian, my southern dad’s idea of appropriateness etc), we do not legislate morality.

    Perhaps it is better to state it this way. We do not only legislate morality. We do not only legislate Christian morality. Our moral structues are not fully Christian, for example. So, you have the right to kill another human being under certain circumstances. I would say that this is immoral. But we do have that right. Morality speaks to a subjective system of thinking, I think. Jim’s “rights” language is decidedly objective…at least that is the attempt of the framers of the constitution.

    Now, what is correct to point out is that the framers had an underlying morality that suggests that rights are the highest form of moral thinking. This is why you are hiving a tough time getting at one another.

    The morality enshrined in the Constitution is inherently relativist. Ask a libertarian. Heh. Islam is no better than Christianity in the eyes of the Constitution. Being Baptist is no better than being Methodist under they eyes of the law, nor are their systems of morality. However, the state sets limits that, I would say, protect and limit our freedoms. Where Jim has a point is perhaps better found in trying to understand what motivates the formation of legislation.

    Initially, you pass a law that requires school busses to stop at railroad tracks (I’m just a Bill?) because you love your kids and do not want to see them hurt. Eventually, the morality of the bill becomes a moot point as it is argued in Congress and the Judiciary. The Bill must stand up to the Constitution. Does this Bill infringe on the rights of others? Objective question? Dunno. If not, then lets run with it. Pass the Bill. It becomes law.

    Rights in this country are, in one sense a structure of morality. But it allows for plural understandings of what is moral or immoral. I think it is always immoral to kill. Always. The Constitution does not, but it protects my ability to stand in a public square and say “Killing is immoral!” Different moal codes, living together. Real wrath of God stuff.

  25. Woo hoo! Tripp’s here. Let’s open it up, fellas!

    Tripp: even redescribing law as protecting freedom is simply another way to say that the law is about morality, because institutionalizing freedom is also a moral principle.

    In other ways, no matter how you slice it, law is about morality.

    Now, perhaps I’ve not been clear enough: yes, of course, in a pluralistic society there will be disagreement as to whether we’re talking about the positive side of morality (good morality) or the negative side (immorality), but it will still be morality that we’re talking about.

    I don’t see anyway we can discuss law without also including the morality of a said law in the discussion.

  26. Okay. Cool.

    But I do think thatthe attempt that Jim keeps making is the current intention of law-makers (vast generalization approaching) is to be as objective as possible…sans morality.

    This is modern humanism. It is unlike the humanism of the 18th century in that it strives to be non-moralist. Yes, Cliff, you are right in that it is a morality of its own, this type of relativism, but Jim is espousing what I think is the current American vision of rights and morality.

    You did the same in our conversation about church and state. You have the right to vote your agenda into being. Moral or immoral as you agenda may be, another morality plays into it…your right to be either immoral or moral by another’s standards. You surprised me by your “rights” language in those posts.

  27. Tripp:

    I mean this with no sarcasm: I’m shocked that you would find me against the advocacy of rights. On what basis would you even have this understanding of my views?

    I mean, while I’m certainly opposed to the use of rights as the moral paradigm in civic discussions, at least from a Chrsitian conception, because I do not think adversarial rights a proper basis for moral discernment, still, it is inescapable that rights are a moral principle.

  28. See, I would think that since “rights” do not reflect an ecclesial understanding of personhood, then you would want to push the definitions around.

    You belong to God. This does not grant you the right of free speech in the eyes of the state. By comparison, the rights that the state grants are an accident, oft a happy accident here in the US, but an accident none the less. So, as we endeavor to be church in the midst of the state, we must be cautious about adopting “rights language” in our articulation of that identity.

    Being a Christian in America is an accident. We can enjoy it, but it is not a defining characteristic of being Christian. It is merely a particularity of our context.

    If you were a Christian in Croatia, you would not have many of the rights you do here(I know, Captain Obious strikes again.). This is an important distinction to recall when we speak of being Christian in the U.S. So, if these rights are some kind of “happy accident” we have to be careful how we tinker with them. As you have mentioned, the morality of the state can seep into the morality of those in the church and shange it.

    In my mind, the right for same sex couples to marry is consistant with the rights afforded by the state within the state’s context. I think we will eventually arrive at that in this country. The church will not agree with this given right. It will hold itself apart.

    I speak out not because I have the right to do so. Though, in America, I do. I speak out because God has asked me to. It is not my right but my identity in Christ that may or may not make me a prophet.

    Maybe you see the rights in the Constitution as derrived from Christianity. In some ways, they are. In some ways, they have always been articulated by people whose aim was not the Kingdom but the State. We need to sift through all that and see how it plays out. This is why I try to avoid rights language.

  29. It’s not that rights do not reflect an ecclesial understanding of personhood, but that, taken as the essence of human social relating, they fall far far short of the Christian/ecclesial understanding of personhood. Rights are only one aspect to personhood, but they are a part of personhood.

    This is why Christians can affirm the understanding of human rights as inalienable and derived from the Creator, rather than as merely conventional. But understanding rights in this way very much establishes rights on the basis of a moral understanding (justice/law = morality).

    I don’t doubt that, like Rawls et al, many secularists want to establish rights on some other basis than morality/religion (i. e., on some sort of “objective” grounds), but this is as subjective a bias as is the basing of rights on morality/religion (which Macintyre so ably shows).

  30. I would simply say that we in the church have to be wary of rights language…because we have been created equally by God, anything we are belongs to God and any human articulation will fall short.

    Just be careful.

  31. Clifton:

    First of all, you need to read my previous responses more carefully. Nowhere nor in any way did I assert that a rape victim could be prosecuted for murder if she had an abortion.

    You said: “In the case of the morning-after pill, then, yes, that would be murder, and since the mother is the actual agent of the killing, she would be liable before the law.”

    It is irrelevant to the crime of murder whether the victim of that murder was conceived through rape or through consensual sex, and whether the perpetrator is the mother of the victim or a complete stranger. If a woman is raped, gets pregnant as a result of that rape, completes the pregnancy and gives birth to a child, and then intentionally kills that child, she would be prosecuted for the crime of murder, just as she would if the child had been conceived voluntarily and just as she would if the child were not her own offspring.

    So if you believe that a fetus is worthy of the same rights as a born person, you must support the prosecution of abortion as the crime of murder even in cases of rape. To do otherwise would be to deprive fetuses conceived through rape of the equal protection of the state murder laws that protect born children conceived through rape from that crime.

  32. Clifton:

    But even so, my position is not inconsistent. The law can prosecute most abortions under the rubric of murder, while allowing exceptions to the application of the law in cases of rape and incest.

    But there is not, and never has been, any such exception for the murder of born persons. Murder is murder whether the victim of that murder was conceived through rape or not. Therefore, if fetuses are worthy of the same legal rights as born persons, the murder of a fetus must also be prosecuted as that crime regardless of whether the fetus was conceived through rape or not.

  33. Jim:

    You continue to press rhetorical extremes so as to cloud the issue.

    In point of fact, my statement with regard to the morning after pill had to do with the normal type of abortion not having to do with the health of the mother or of rape. That you seem unable to keep these important moral distinctions clear is a marvel to me.

    In point of fact, the law does distinguish between different types of killing which I have collectively been referring to as murder. It is an important legal convention that we distinguish between different types of killing, which range from “murder in the first degree” to involuntary manslaughter, and so forth. These conventional distinctions demarcate important moral distinctions related to intent, rationality, and so forth.

    Therefore, it is no denial of equal rights to prosecute differently a rape victim who aborts her baby from the other 96% of cases not involving rape or the health of the mother.

    But, for my purposes, this is beyond my point. My point is that abortion ought not to be legal, and the child conceived through rape ought not be executed for the sake of someone else’s crime. With the full love and support, with full psychological and medical care, the child ought to be brought to delivery, and, if the mother and her community is so willing, to be adopted into one of the millions of loving families that wait for years–some to no avail–to bring children into their homes.

    Whether or not, and how, a rape victim should be prosecuted for killing her unborn child is completely beside my point. I have made my views clear–though your extremism (that is to say, your inability to recognize physiological realities and real moral distinctions, your extreme focus on one exceptional aspect of abortion and your concomitant attempt to illegitimately apply that exception to the rest of the issue), seems to make you unable to recognize and deal with the consistency with which I have presented my argument.

    I do not mean this as an insult, nor do I mean it to inflame tangential passions.

    I have up to this point happily allowed you to continue wave after wave of challenge to my view. You, of course, do not accept my view, but I have–if I may risk a bit of an appearance of egotism–met those challenges without having in any way to alter the positions from which I have been arguing.

    What I have not done is challenged your view. And it is now time I do so, which I will begin in my next comment.

  34. Jim:

    Because you have been critiquing my view, you have only hinted at some propositions which you claim from your philosophical starting point. I want to look at two of them:

    1. You claim that pregnancy is nothing more than “life support” provided by the mother to the fetus. I have asserted that this view does not accurately represent the physiological fact of pregnancy. So, let me demand of you: on what basis do you assert this claim? Prove it. Give your description (citing whatever authorities you feel you need) of what pregnancy actually is, and give evidence for how you know this.

    2. You claim that a fetus is not a human being. Again, on what basis do you assert this claim? Prove it. What is a fetus? At some point we were all fetuses, but presumably you would argue that we are all now human persons? When did this change/transformation happen? How do you know?

    Until you can answer these questions, and place them within the framework of your overall philosophy on this matter, you really have only shown yourself able to ask difficult questions. Let’s see how well your view holds up to scrutiny.

  35. Clifton:

    I explain above why prosecuting abortion as the crime of murder in non-rape cases, but as some much lesser crime than murder in rape cases (or perhaps not prosecuting it at all) is inconsistent with the principle that fetuses are worthy of the same rights as born persons.

    But there’s another, more pragmatic, problem with your position, which is a problem of verification. If the law were to treat abortion as a much lesser crime (or, perhaps, as not a crime at all) if the pregnancy resulted from rape than if the pregnancy resulted from consensual sex, it would create a very strong incentive for any woman suspected of having an illegal abortion to claim that she was raped.

    If she’s facing a murder charge in the case of a non-rape pregnancy, but some much lesser charge (or no charge at all) in the case of a rape pregnancy, then obviously she is likely to claim that she was raped regardless. This makes it likely that thousands or tens of thousands of men a year would be falsely accused of rape by women trying to get out of a murder rap for an illegal abortion. How do you propose to verify these claims of rape? If you’re too trusting of the women, you would likely be condemning many men to prison for rapes they did not commit, and allowing women who, on your account, had committed murder to get away with it (or, at least, to be prosecuted only for some much lesser crime). But if you’re not sufficiently trusting of the women, you would be allowing rapists to go free and prosecuting women who were the victims of rape for a crime (murder) that you say they are innocent of. Don’t you think this problem would make your law effectively unenforceable in the vast majority of cases? Who are you going to believe?

  36. You would believe that person which the preponderence of the evidence showed to be telling the truth, just as we do today in all court cases. I don’t see a problem here (aside from the problem of a justice system that is inherently fallible, but that is another matter, since I have no better system to suggest in its place).

    Now, will you begin to answer my challenges to you?

  37. Clifton:

    1. You claim that pregnancy is nothing more than “life support” provided by the mother to the fetus. I have asserted that this view does not accurately represent the physiological fact of pregnancy. So, let me demand of you: on what basis do you assert this claim? Prove it.

    In what way do you claim it is inaccurate? The fetus is enclosed within and physically connected to the woman’s body, which provides the oxygen, nutrition and hydration that sustains the fetus’s life. The woman’s body is acting as a physical life-support system for the fetus. The fetus’s life is wholly dependent (before viability, at least) on that physical connection. If you think this description is inaccurate, please explain how.

    2. You claim that a fetus is not a human being. Again, on what basis do you assert this claim? Prove it.

    Well, it might be considered a “human being.” It’s human in the sense that it has a human genome and perhaps other human characteristics, and it’s a “being” in the sense that it’s an organism. I don’t consider it to be a person. I don’t consider it to have rights equal to, or even close to, those of a (born) person. I can’t “prove” this. One cannot prove the existence of rights or personhood. They are abstract concepts.

    What is a fetus? At some point we were all fetuses, but presumably you would argue that we are all now human persons? When did this change/transformation happen?

    Birth.

    How do you know?

    I don’t “know.” As I said, one cannot prove the existence of personhood. It’s not an observable characteristic, like weight or skin color. Personhood is a concept. I attribute personhood at birth because I think that is the most logical place. That doesn’t mean I think fetuses have no rights and no moral value. I think fetuses gradually acquire greater value and rights over the course of a pregnancy as they develop physically and mentally. But birth is the threshold that marks the transition to personhood as I understand that concept.

  38. You would believe that person which the preponderence of the evidence showed to be telling the truth, just as we do today in all court cases.

    But that is not the standard. For criminal prosecutions, such as murder and rape, the standard of evidence required for conviction is proof beyond a reasonable doubt. This standard was devised to favor the defendant, on the grounds that it’s better to let a guilty man go free than to convict an innocent one. But in this case, that principle doesn’t apply, since a grave crime has been committed either way (either rape, or false accusation of rape + murder).

    I don’t see a problem here (aside from the problem of a justice system that is inherently fallible, but that is another matter, since I have no better system to suggest in its place).

    But your proposed law will greatly increase the number of grave miscarriages of justice (either the guilty going free or the innocent being punished) by creating a huge incentive for thousands or tens of thousands of new false accusations. If abortion were rare, it would not be much of a problem. But there are over a million abortions a year. That’s potentially a million additional accusations of rape a year. Even if in practise it were significantly less than that, our legal system could not possibly cope. It’s orders of magnitude higher than current rates.

  39. In point of fact, my statement with regard to the morning after pill had to do with the normal type of abortion not having to do with the health of the mother or of rape.

    I don’t understand this statement. In cases of rape, in which the abortion is performed by the pregnant woman herself, do you seek prosecution of the woman for murder or don’t you? If you don’t, how can you claim to believe that fetuses are worthy of the same legal rights as born persons, given the fact that a woman who kills her born child will be prosecuted for murder regardless of whether the child was conceived through rape or not?

    In point of fact, the law does distinguish between different types of killing which I have collectively been referring to as murder. It is an important legal convention that we distinguish between different types of killing, which range from “murder in the first degree” to involuntary manslaughter, and so forth. These conventional distinctions demarcate important moral distinctions related to intent, rationality, and so forth.

    Yes, but those legal distinctions have nothing to do with whether the victim of the crime was conceived through rape. They have to do mainly with the state of mind of the perpetrator. Statutes vary somewhat between states, but in general, manslaughter is the unintended killing of an innocent person through the commission of another crime (e.g., unintentionally killing an innocent pedestrian while driving drunk). Second-degree murder is the intentional killing of an innocent person without premeditation (e.g., shooting your neighbor in the heat of passion during an argument). And first degree murder is the intentional, premeditated killing of an innocent person (e.g., planning and carrying out the murder of your spouse for her life insurance). Again, these categories have nothing to do with whether the victim was conceived through rape. Victims who were conceived through rape are equally protected by these laws as victims who were conceived through consensual sex. So if your principle is that fetuses are worthy of the same legal rights as born persons, it necessarily follows that rape would be irrelevant to the category of crime in abortion cases also.

    And, in fact, as I said before, since what we are taking about here is abortions that are both intended (rather than accidental or forced) and premeditated (the woman makes a conscious decision ahead of time to abort, rather than doing it on the spur of the moment), abortion would in the vast majority of cases qualify as the most serious category of murder–first-degree murder–which carries the harshest penalties. And, just to drive the point home yet again, it is irrelevant whether the victim was conceived through rape. If the victim was innocent and the killing intentional, it’s murder. If the victim was innocent and the killing was both intentional and premeditated, it’s first-degree murder. That is how the murder statutes are written. Whether the victim was conceived through rape is irrelevant.

  40. Jim-

    I’ll take the bait; abortion should be prosecuted as murder even in the case of rape or incest, although, as Cliff, I don’t think it should always receive the same penalty, at the discretion of the judge.

    I don’t hold these views because I believe a fetus is a person. I hold them because the fetus has the potential to be a person. We think it’s merciful to end the life of a “born” person if there is a very low probability that he/she will ever exhibit the sentient characteristics of personhood. Why don’t we apply the same standard of protection and/or mercy in the case of the unborn?

    Perhaps we should substitute “ethics” for “morality” in the above discussions, if it would ease the tension. Ethics has a more corporate and impersonal connotation, and while it has its roots in morals, it’s not so associated with religion; therefore, ethics is a little less scary. In a way, you’re both right: while laws are necessarily moral in nature, we can’t legislate that the individual citizen adopts a personal moral code. Even Jesus makes discipleship optional, a decision made without coercion.

    I don’t believe that we are created “equal” except in the sense that we are all created in God’s image. Also, while kindhearted, the concept of inalienable rights is a dubious rationalization that doesn’t bear up to reality. (All due respect to the founding fathers and their intent.) Rights can be given, taken away, or even abdicated by an individual. They are based, in the end, not on respect for the individual, but on respect for the Creator in whose image that individual was created. There is no other objective basis for us to treat each other with dignity.

    Jim, I respect your tenacity in fighting for the rights of due process, privacy, and equal protection, but in the last forty years, these rights have been extended to the point that they no longer promote the general welfare of our nation. The failure to legislate and establish case law in accord with good ethics has led to a “moral” decay that we are all paying the price for.

    There is only one right that Jesus asks us to give up to Him, and that is our right to self-determination. Jim, have you considered giving up that right to Jesus, making Him the Lord of your life, and receiving the free gift of salvation as his personal, eternal gift to you? If you do this—or even if you only consider it—you’ll begin to understand us Christians. And–you’ll have to trust me on this, it’s a paradox—you’ll also begin to understand what True Freedom really is.

  41. Jim:

    Apparently you consider pregnancy life support merely because it looks a lot like what a person on life support looks like. But in point of fact, that is not the case. As you well know, women’s bodies are designed for childbearing. When the embryo is implanted in the womb, rather than the body rejecting what is to it a “foreign body”, in the sense that the baby’s DNA is completely distinct and different from that of the mother, the mother’s body produces hormones that allow the embryo to both implant in the lining of the uterus and goes on to provide sustenance through the umbilical cord. The mother’s body prepares for breastfeeding (itself a natural process which has been shown, when done, to significantly reduce the risk of breast cancer in women). One could go on and list the physical and psychological processes (and how women benefit from pregnancy). But the point is that “life support” is clearly a non-natural human intervention designed to save the life of another human being, but which, other than it’s intended purpose, does not provide such benefits. What person on life support could rightly expect that as a result of all the processes involved in life support they would have a reduction in the risk for certain forms of cancer, and other psycho-physical benefits that come from pregnancy?

    This is why I continue to insist that your analogy of life support is a fiction: it does not adequately describe the realities of pregnancy. Nor have you yet provided any sort of argument to support that it does.

  42. Jim:

    At least you have the honesty to admit that when it comes to the personhood of the fetus, you have no rational basis for asserting when or how it is that a human being becomes a human being.

    You attempt something like a dichotomy between the scientific understanding and the philosophical understanding. And here I assert that in a sense you are on the right track. Science can tell us nothing of personhood. In fact, science cannot tell us much of anything other than to describe the natural processes of our universe.

    What we do with science, unfortunately and irrationally, is inveigh it with meaning and authority to answer questions which it is not designed answer; in our case here, when and how a person becomes a human being. But we could also ask things like: what can science tell us of ethical norms? what’s the “red shift” of evil? what is the atomic weight of “virtue”? what does the law of gravitational attraction have to say about injustice? Yet few of us, and certainly not you, based on your argument thus far, would claim that evil, virtue, and injustice have no reality, but that they are indeed, realities to which science can provide no meaningful comment.

    This is why my post on personhood, which I referred you to over the weekend, is so central to my argument. The understanding of personhood must come from outside of science. In my case, I base it on a religious worldview, but one which I am confident commends itself to all persons, regardless of religion, since, though the specific doctrines on which I found it are unique to my own faith and the faith of my Church, the implications of those doctrines have touchstones with the tenets of other faiths.

    Now you have again and again criticized me for what you take to be the large amount of uncertainty you see in how the prosecution of abortion in rape cases would be handled under my rubric of legally prohibited abortion; resulting, so you claim, in a he-said/she-said irresoluble dilemma.

    Yet you seem quite content with all the uncertainty surrounding the personhood of the fetus. Yes, we can kill it because its personhood is not something we can prove (this is a fallacious claim, by the way), that it only seems to become a person at birth, because we think that might be the best place to demarcate personhood (which then brings up the question of your view on “partial birth abortions”). You seem to suffer no qualms of conscience that in all this uncertainty surrounding personhood–and surely you don’t mean to emphatically declare it’s not a person, do you? on what basis could you assert that claim?–we could potentially (I would say actually) be killing ten to sixteen thousand persons each year (in the cases of rape alone), or a total of one to one and a half million persons.

    If there were a cause of death–one which could be prevented–that was consistently causing a million or more people to die each year, would you not think it incumbent upon us as a society to do everything in our power to ensure that more than a million preventable deaths did not occur? (An obligation, I don’t hesitate to point out, that science could tell us nothing about.)

    Yet, you’re willing to let that happen in the case of unborn babies, whose personhood you’re just not sure about.

    This, to me, is a monstrous extremism.

  43. Cliff, Jim-

    It’s interesting to note that in some cultures, the age of personhood is judged to be two years after birth (China). India doesn’t seem to have much problem with “post-birth” abortion of life, either. Assigning human rights based on the achievement of personhood is arbitrary.

  44. Ted is on to something here. We do need to ask if our assigning of personhood is arbitrary. And is personhood something that can be removed/reassigned?

    Meaning, if rights are a sign of personhood, as I think Cliff would claim, does the nature of a person change if their rights change? Is a prison inmate more or less a person? If they are, as I think Cliff would suggest, always fully a person, then should the state suspend rights as a response to a criminal act?

    This can be argued hither and yon. This is why I think that eventually rights language fails for the Chirtstian. We are either created by God or we are not. If we are, then, in my estimtion, personhood begins at conception. The dependance of the fetus upon the mother reflects the nature of community (the Church?) and our shared dependence etc. This is why I am also anti-death penalty…as is the Roman church. I do not know how the EOC is on this.

    Now, outside of religious/Christian conceptions of identity and personhood, Jim has some good points. The argument of rape and the ensuing murder of a fetus if so chosen by the mother and assisted by a medical professional changes the burdon of our justice system quite a bit. If that is the fall-out we are willing to engage, then run with Cliff’s line. It seems to me that Jim is not willing to go there.

    All of it becomes arbitrary as it relates to the burden of the state, what it is willing to accept and what it is not. Ted shared burdens that other states are willing to bear. What is the US willing to bear. What is it not?

    When we remove specifically Christian claims, which will be a point of argument for some, from the conversation, then we have only the Constitutions understanding pf personhood to fall back on. This understanding is not well articulated. And it has not been consistant. Jim Crow, 40 acres and a mule, women’s sufferage etc.

  45. Ted:

    I’m not sure I understand your assertion, although, I suppose if one considers personhood a simple human construct, a construct which any society is free to define and revise as they see fit, then, yes, I could perhaps understand what you’re saying.

    But it is my contention that personhood is not a simple human construct, that it is, indeed, an essential reality to what it means to be human, and is not conferred by any society, but rather from the simple necessity of being human. Indeed, a societal conferral of personhood may be in complete denial of this basic and pervasive reality–as is Jim’s uncertain construal of how and when humans become persons.

    It’s my contention that humanity presupposes personhood, and vice versa. One cannot have one without the other. And therefore being human is to be a person, being a person is being a human.

    But personhood/humanity is also prior to the construal of rights, a moral principle, which are not conferred, but are inalienable on the basis of being human persons (which, in my view is a redundant phrase).

  46. I should clarify that there are certain rights that are inalienable: life, liberty, etc. Not all rights are inalienable (vis a vis Tripp’s alluding to criminals, from whom we take away the right to vote).

  47. Ted:

    I’ll take the bait; abortion should be prosecuted as murder even in the case of rape or incest,

    Okay, there it is. I think this statement illustrates why the pro-life movement has been such a failure, and will likely continue to fail in the future.

    We think it’s merciful to end the life of a “born” person if there is a very low probability that he/she will ever exhibit the sentient characteristics of personhood. Why don’t we apply the same standard of protection and/or mercy in the case of the unborn?

    I think we do.

  48. Jim:

    “Okay, there it is. I think this statement illustrates why the pro-life movement has been such a failure, and will likely continue to fail in the future.”

    This from the man who has no clue as to when or how a human becomes a person, and is therefore fine on taking the chance that killing them at some point with which he is comfortable in calling them “unperson” won’t result in any actual injustice?

    Whose view is the failed one? Double plus ungood.

  49. Clifton:

    At least you have the honesty to admit that when it comes to the personhood of the fetus, you have no rational basis for asserting when or how it is that a human being becomes a human being.

    Well, that’s not really what I said. I said that you can’t demonstrate the presence of personhood. You can’t observe it. You can’t measure it. You can’t show that it exists. It’s just an abstract concept. But that doesn’t mean that rational thought plays no role in choices about the attribution of personhood. I consider my choice to be highly rational.

    Yet few of us, and certainly not you, based on your argument thus far, would claim that evil, virtue, and injustice have no reality, but that they are indeed, realities to which science can provide no meaningful comment.

    I don’t know if evil, virtue, injustice, and so on have any kind of objective reality or not. But I suspect that they do not. There is no evidence that they are anything other than subjective preferences.

    This, to me, is a monstrous extremism.

    I’m pro-choice. America is basically pro-choice. Virtually every industrialized democracy in the world is basically pro-choice. Almost every country provides for a significant legal right to terminate a pregnancy. So how you think my position can reasonably be characterized as “monstrous extremism” is beyond me. It’s your position that’s extreme. It’s extreme not only by modern standards, but by historical ones as well. Even when abortion was a criminal offense, it was never treated as even remotely as heinous a crime as murder. Women who had an illegal abortion typically faced no legal penalties whatsoever. And abortion providers, if they were punished at all, faced penalties much less severe than those for murder or other forms of criminal homicide. Your position on abortion is not merely extreme, it is unprecedented in western law and culture, and as far as I know unprecedented in any human society.

    I suspect that, in the final analysis, you wouldn’t really seek to prosecute women who had an abortion for the crime of murder. I think your conscience would probably step in and tell you that it would be terribly wrong to do so. But your premises do support your abortion=murder position, and the legal consequences that implies. When your premises lead to a conclusion that is morally repugnant, it’s usually a sign that there is something seriously wrong with the premises.

  50. By the way, speaking of failed movements, if you take a look at the raw data–as opposed to the commentary–from this poll from Pew Research with regard to opinions on abortion, in general more youth are more conservative on the issue of abortion (leaning in the direction of prolife positions) than are their elders.

    This has been commented on in other places (here and here), but there seems to be a growing body of data that the youth are coming to views of abortion that are shifting to the right as compared to their elder civic peers.

  51. Jim:

    “I don’t know if evil, virtue, injustice, and so on have any kind of objective reality or not. But I suspect that they do not. There is no evidence that they are anything other than subjective preferences.”

    Which is itself a subjective preference.

    “I’m pro-choice. America is basically pro-choice. Virtually every industrialized democracy in the world is basically pro-choice. Almost every country provides for a significant legal right to terminate a pregnancy.”

    But on your premise, if a majority votes to make abortion illegal, then it wouldn’t be a monstrous extremism. Besides, how do we draw the lines of inclusion: only industrialized democracies? How racist and exclusive! That’s pretty morally repugnant that you would think non-industrialized non-democratic societies have no standing in this moral argument.

    “But your premises do support your abortion=murder position, and the legal consequences that implies. When your premises lead to a conclusion that is morally repugnant, it’s usually a sign that there is something seriously wrong with the premises.”

    Hmmm. Let’s see. I advocate prohibitng abortion. As the law currently does in cases involving killing, I make important distinctions with regard to who are the active agents in the killing (why you willfully ignore that I have consistently pointed out that the doctor is most often the agent only serves to show you can’t handle the consistency of the position) and how they may be prosecuted. In the case of rape victims, I hardly think the law would execute them, but would, as the law should, take consideration of the circumstances.

    Yet, in your view, the fetus can always be killed, a life that will never be retrieved.

    Your Orwellian attempt to revise reality cannot pass muster, nor is it convincing the youth. It is failing, just as it should.

  52. Jim-

    I’d like to hear more about you’re concept of abortion as being as protective or merciful as current end-of-life decision making is. I’m referring to our tendency to end life support on someone who has less than a five percent chance of personal interaction in the future. I could also see the mercy in terminating a pregnancy under the same circumstances. However, basing the decision to abort on the probability of the child’s quality of life, the readiness of the mother to care for it, or whether we think it will be loved and wanted is very different from basing the decision on the probability of its achieving personhood after birth. (I’m not asking you to convert to my reasoning here, just trying to confirm your understanding of it.)

    By this standard, aborting a child conceived by rape or incest would be just as wrong as the act that created it. You seem to be saying that allowing abortion in these cases negates our claim on the value of human fetal life, and that prosecuting it is so generally unreasonable as to condemn our cause to failure.

    Earlier, I invited you to accept Christ. Have you ever thought about it, and do you see how this relationship with God affects our views on this matter? If you feel comfortable sharing, I’d like to know about your past and present religious views, your career, and what you do for fun. You seem to know a great deal about the law, so much so that I feel incompetent to argue with you on it (and on many other things).

  53. Jim:

    After safely arriving at my office prior to my class, I realized that I’ve allowed myself to have a bit too much fun in commenting on aspects of your position (I mean, come on, whenever one can use Orwellian lingo in an argument, it’s gotta be a good day), and have failed to press you on your beliefs.

    To return to those topics:

    1. You still have failed to illustrate how pregnancy is analogous to life support. Pregnancy, far from merely providing life support, actually prepares the unborn baby to transition to its life outside the womb. Babies, for example, yawn in the womb, which prepares them for breating. They react to light and dark phenomena, to their parents’ voices, etc. A person on life support cannot be said to be in the same state. Life support is a human intervention so as to stabilize the physiological processes of the body so that the body can heal and return to its former state of life.

    So, again, please be concrete in how you prove your assertion here.

    2. You have indicated that it seems logical to you to demarcate personhood by birth. What do you mean by “birth”? What event, or amalgamation of events, constitutes “birth” such that prior to this (amalgamation of) event(s) a fetus is an “unperson” with no conferral of rights, but that (during? and) after this (amalgamation of) event(s) a fetus is a person with conferral of rights? Let me give you two concrete realities in which to delineate your answer. The procedure I refer to as “partial birth abortion” (feel free to use whatever other euphemism/term you wish. Does this count as “birth”? If not, why not? If it does constitute birth, what does this do to your demarcation of birth being the event which bestows personhood and rights? If a baby is cut on the cheek during a caesarian “extraction”, does this baby (and her parents) have a right for redress? If so, why? Does a baby not yet extracted from the womb constitute a person? If so, how does this differ from a partial birth abortion? If the baby does not have a right of redress in this caesarian scenario, why not?

    3. You claimed that since a majority of European and Northern nation-states think abortion is legal and moral, that it should be considered an extreme position to believe otherwise. But then does majority opinion constitute the boundaries of extremism? If so, then does the discrimination and persecution of the Jews in most European nations throughout much of European history constitute injustice? Yet a majority of those societies committed these injustices. Wouldn’t it be extreme, given your parameters, to advocate for just treatement of the Jews? If not, why not?

    I await your responses.

  54. Clifton:

    On the legal issue, what I’m saying is that it’s one thing to say “abortion is murder, a fetus is a baby, a fetus is worthy of the same rights as a born person, blah, blah, blah,” in an abstract debate like this, but quite another thing to apply those claims to real women in real life as if you really mean them. It just seems rather unlikely to me that when confronted with real, living, breathing women who had had an abortion you would really be prepared to lock them for many years, or for life, or to send them to the gas chamber. But that is what would happen if they were to be prosecuted for murder. I just don’t think you’d want it. I think you’re probably a better person than that. Your obvious discomfort at confronting the real-world implications of your abortion-is-murder argument suggests rather strongly that you’re rather more ambivalent and conflicted about abortion than your boilerplate pro-life rhetoric here might indicate.

  55. On the matter of public opinion, to repeat, your stated position is not just extreme, it’s unprecedented. Abortion has never been treated as even remotely as serious a crime or moral wrongdoing as murder. Even when abortion was a crime, women who aborted their fetus were never prosecuted for murder. In most cases, they weren’t prosecuted at all. Abortion has been broadly legalized throughout what we generally consider to be the civilized world. The countries that still impose strict restrictions on abortion tend to be the countries we view as the most oppressive and least respectful of human rights on other issues too. That’s not a coincidence. Yes, there are a few exceptions. Ireland, for example, goes so far as to ban abortion in its Constitution, but it is the only democracy left that still does (and it is doubtful that such a restrictive law would survive even in Ireland were it not for the fact that Irish women can and do easily obtain abortions in Britain). Your position runs completely counter to the broad, global history of change on abortion. That’s another reason why it seems enormously unlikely that it will ever become reality.

  56. Ted:

    I’d like to hear more about you’re concept of abortion as being as protective or merciful as current end-of-life decision making is.

    I didn’t say that I think abortion is as protective or merciful as current end-of-life decision making is. I said that I think we apply the same standard of protection and/or mercy in the case of the unborn as we do for born persons with a very low probability of ever exhibiting the sentient characteristics of personhood.

    I’m referring to our tendency to end life support on someone who has less than a five percent chance of personal interaction in the future. I could also see the mercy in terminating a pregnancy under the same circumstances. However, basing the decision to abort on the probability of the child’s quality of life, the readiness of the mother to care for it, or whether we think it will be loved and wanted is very different from basing the decision on the probability of its achieving personhood after birth.

    I agree that it’s different. But I don’t think that a low probability of the fetus achieving personhood is the only circumstance that justifies abortion.

    By this standard, aborting a child conceived by rape or incest would be just as wrong as the act that created it.

    You haven’t articulated a standard. You just said that abortion for reasons of low-probability-of-personhood is “very different” from abortion for reasons of quality of life, or whether the child will be loved, etc. The fact that they are different doesn’t mean that one is right and the other wrong.

    You seem to be saying that allowing abortion in these cases [rape or incest] negates our claim on the value of human fetal life, and that prosecuting it is so generally unreasonable as to condemn our cause to failure.

    No, I’m saying that allowing abortion in rape cases but not in non-rape cases negates your claim that you believe a fetus is worthy of the same rights as a born person, unless you also seek to allow women to kill their born children if those children were conceived through rape. I assume that you do not. Either a fetus has the same rights as a child or it doesn’t. If it does, then a fetus conceived through rape has the same right not to be killed as a child conceived through rape, and anyone who violates that right in either case should be prosecuted for the same crime.

  57. Clifton:

    2. You have indicated that it seems logical to you to demarcate personhood by birth. What do you mean by “birth”?

    Live delivery of a fetus.

    What event, or amalgamation of events, constitutes “birth” such that prior to this (amalgamation of) event(s) a fetus is an “unperson” with no conferral of rights, but that (during? and) after this (amalgamation of) event(s) a fetus is a person with conferral of rights?

    The event is live delivery of a fetus. And I already said that I do attribute some rights to fetuses, but not the rights of a person.

    Let me give you two concrete realities in which to delineate your answer. The procedure I refer to as “partial birth abortion” (feel free to use whatever other euphemism/term you wish. Does this count as “birth”?

    No.

    If not, why not?

    Because it isn’t the live delivery of a fetus. It’s a method of abortion.

    If a baby is cut on the cheek during a caesarian “extraction”, does this baby (and her parents) have a right for redress?

    Possibly, yes.

    If so, why?

    Because the cut may be the result of medical malpractice or some other kind of culpable act by whoever is performing the c-section.

    Does a baby not yet extracted from the womb constitute a person?

    No.

  58. Clifton:

    3. You claimed that since a majority of European and Northern nation-states think abortion is legal and moral, that it should be considered an extreme position to believe otherwise.

    I didn’t say that. I said that your position is extreme (unprecedented, actually). But your position goes way beyond the claim that abortion is merely not moral and should not be legal.

    But then does majority opinion constitute the boundaries of extremism?

    No. A minority opinion isn’t necessarily an extreme opinion. By “extreme” I mean something like “far outside the mainstream of opinion.”

    Wouldn’t it be extreme, given your parameters, to advocate for just treatement of the Jews?

    No.

    If not, why not?

    Because advocating for the just treatment of Jews is not far outside the mainstream.

  59. Jim:

    2. You characterize birth as a live delivery of a fetus. How is a partial birth abortion not the live delivery of a fetus, at least up until the doctor pierces the skull with scissors, sucks out the brain to collapse the skull, then finishes delivering the now dead fetus? The fetus is extracted from the womb almost completely. Why is this not a live birth? Must it be 100% out of the womb, and alive? But if so, isn’t the only difference between a live birth and a partial birth abortion not birth as such, but the brutal killing of a baby? A baby, by the way, that feels pain, smiles in the womb, grasps it’s own extremities, sucks its fingers and toes–in all respects there is no essential difference between this not-yet born baby and a newborn baby. And indeed, the only difference between a born baby and a partial-birth-aborted baby is that one was brought out of the womb intact, and the other was killed as it was being brought out of the womb.

    Are you saying, then, the difference between a baby whom you consider a person and a baby you don’t is the mere fact of whether a woman and her doctor chose to kill the baby or not?

    If this is what you are saying, then on what grounds is it legitimate to deny a baby the status of personhood? What if a mother gets pregnant and, nearing the end of her pregnancy, say in the last trimester, decides that she would rather not be pregnant during the summer months (it’s too hot and humid, she wouldn’t look good in a bikini any more, etc.–I do not think this is JJT’s example, but the name of the author who posited this example escapes me)? Does this mother have the right to deny personhood from her baby–which otherwise would have personhood conferred on it because, the natural processes being what they are, so long as the mother did not take active measures to “terminate her pregnancy” the baby would be born and thus would be a person in your view? If she has this right, why? If not, why not? Is personhood determined by something other than the choice to bring a baby alive out of the womb?

  60. Jim:

    But, if a majority of citizens in a particular nation-state, and, further, a majority of nation-states, determine that it is not unjust to persecute Jews (or any specific people group), then on what basis can you condemn it?

    Or, is the principle of extremism not the mere fact of precedent or majority opinion, but how well it conforms to reality and to reason?

    If it is the latter, then, it would seem to me that yours is the extremist view. But I could be wrong. Maybe you will suddenly appear more moderate to me, based on your answers to my other questions.

  61. Clifton:

    An abortion is the intent to kill the baby, …

    This isn’t true, either. In abortion, the fetus is removed from the woman’s uterus. That act has two major effects. One major effect is the termination of the pregnancy. The other major effect is the death of the fetus. You cannot infer from the fact that a woman chooses to have an abortion that she intends both effects. Even the Catholic Church recognizes this principle. One may choose to perform an act that has both a known good effect and a known bad effect without intending the bad effect. With respect to abortion, you simply don’t know whether the woman intends to cause the death of the fetus unless she provides some evidence of that intent. You cannot infer it from the choice to abort itself, because her only intent in making that choice may be to terminate her pregnancy. Any woman who today who chooses to have an abortion might choose instead to terminate her pregnancy in a way that preserved the life of the fetus, if that option were available to her. But the option isn’t available. The only option for a woman whose intent is to terminate her pregnancy, before viability at least, is to have an abortion.

    I might add that attributing malign intent to someone without evidence of that intent is surely not something your church approves of.

  62. Jim:

    Your reasoning on abortion and intent just doesn’t hold water. The Catholic doctrine of double effect (which I mentioned either earlier in this set of comments or on the one on the inconsistency of abortion as safe, legal and rare) clearly cannot be utilized to justify abortion. Just ask the Roman Catholic Church.

    Furthermore, your designation of an abortion as “terminating a pregnancy” and removing from it the act of killing the fetus, is, quite frankly, specious. You can’t have an abortion without killing the fetus. The two are inseperable. A woman does not go into an abortion clinic hoping to both terminate her pregnancy and leave with a live fetus. The fetus doesn’t leave the clinic alive.

    In fact, if one really does want only to terminate a pregnancy and keep the baby alive, it is simple knowledge that one does not go to an abortion clinic to do so. In fact, under your scenario, the women you describe are so ignorant of the processes of biology and so unaware of the changes going on in their own body that they can go through the abortion and never once have any knowledge that the death of their baby will result.

    In fact, you misuse double effect, because one of the tenets of double effect is that both the intent and the means must be morally legitimate. That is to say, if there are two ways to, as you put it, terminate a pregnancy, but only one of which is ordered to moral ends, then the other is, by its nature, immoral. In other words, since there are, as it were, two ways to terminate a pregnancy, one way whose end is the delivery of a live fetus the other way whose end is the killing of the fetus, then only the way that intends a live delivery is a morally acceptable method–even if, in the act of delivery, it is known that the baby may not survive. This of course, would be an extraordinary set of circumstances, one which presumably involves the health of the mother. Because in the normal setting in which one delivers a live fetus, one intends the fetus to remain alive.

    Abortion never intends the delivery of a live fetus.

    This is why your euphemistic “terminating the pregnancy” argument doesn’t work. The way the abortion opponents such as myself terminate pregnancies is by live births of babies. Abortion terminates a pregnancy by killing the fetus.

    If it were merely about terminating a pregnancy, then once the baby has been brought out of the womb, the act is done. Why go on to kill the baby? But in point of fact, in most abortions, the baby isn’t brought live out of the womb. It is killed in the womb. That is to say, the one act, killing the fetus, precipitates the other, terminating the pregnancy. So, in other words, the effect is terminating the pregnancy, but the cause is the killing of the fetus. Thus, per double effect, abortion cannot be a moral act and the Roman Catholic Church is just in condemning abortion.

    As to judging intent: you also misuse the Lord’s words. Our Lord taught us to judge a person’s works. I cannot see into the heart of each woman who enters an abortion clinic. I have to assume that there is a great amount of conflict. But given 30 years of legalized abortion, and the fact the no fetus leaves an abortion clinic alive, I believe I am justified in thinking that the intent for most women is the killing of their fetus. And since nearly half (48%) of all women who enter an abortion clinic have had at least one previous abortion, I think I am also justified in assuming that the intent is to kill the fetus. Because the only way you terminate the pregnancy at an abortion clinic is to kill the fetus.

  63. Clifton:

    The Catholic doctrine of double effect (which I mentioned either earlier in this set of comments or on the one on the inconsistency of abortion as safe, legal and rare) clearly cannot be utilized to justify abortion.

    I didn’t say that abortion is justified under the Catholic principle of double effect. I said that that principle recognizes that one can choose to act without intending every known effect of that act. Thus, a woman can choose to have an abortion, knowing that the abortion will cause the death of the fetus, but without intending that death.

    You can’t have an abortion without killing the fetus. The two are inseperable.

    That is irrelevant to the issue of intent. The fact that the act inevitably causes the effect does not mean that the effect is intended by those who choose to perform the act.

    In fact, if one really does want only to terminate a pregnancy and keep the baby alive, it is simple knowledge that one does not go to an abortion clinic to do so.

    Before viability, there is no way to terminate a pregnancy and keep the fetus alive. Abortion is the only option. But the fact that abortion causes both termination of the pregnancy and the death of the fetus, and is known to cause both of those effects, does not mean that both effects are intended. If the woman had the option of terminating the pregnancy without also causing the death of the fetus, she might choose that option instead. You simply don’t know.

    In fact, under your scenario, the women you describe are so ignorant of the processes of biology and so unaware of the changes going on in their own body that they can go through the abortion and never once have any knowledge that the death of their baby will result.

    No, I’m not saying that. Obviously, in virtually all cases, the woman is fully aware that the abortion will cause the death of the fetus. The issue is not whether she has knowledge of that effect, but whether she intends that effect. You have no basis for asserting that she intends the effect simply because she knows that it will occur.

    Perhaps this analogy will make the point easier for you to understand: Suppose terrorists hijack an airliner in order to crash it into a nuclear power plant. The president orders the military to shoot down the plane. That act has the following two effects: (1) Preventing the terrorists from crashing the plane into the nuclear power plant, (2) killing the innocent passengers on board the plane. The president is fully aware that both effects will result from the act of shooting down the plane. But that does not mean that he intends both effects. He most likely intends only the first effect. He does not intend the effect of killing the passengers, even though he knows that that effect will result from his act. In precisely the same way, a woman who chooses to have an abortion may not intend to cause the death of the fetus, even though she knows that that effect will result from her act.

  64. Clifton:

    But given 30 years of legalized abortion, and the fact the no fetus leaves an abortion clinic alive, I believe I am justified in thinking that the intent for most women is the killing of their fetus.

    What does the fact that abortion has been legal for 30 years have to do with it? How does that imply that the woman intends the death of the fetus, rather than just the termination of her pregnancy?

    And again, the fact that she knows that the effect will occur does not mean that she intends it. Knowledge of an effect does not imply intent to cause that effect.

    And since nearly half (48%) of all women who enter an abortion clinic have had at least one previous abortion, I think I am also justified in assuming that the intent is to kill the fetus.

    Again, what does the fact that multiple abortions are common have to do with it? So what if she’s had an abortion before? How does that imply that she intends to cause the death of the fetus, rather than just to terminate her pregnancy?

  65. Jim:

    Your caricature of women as unable or unwilling to understand that abortion results in the killing of a fetus as necessarily conjoined with their abortin/”terminating their pregnancy” is breath-taking. You assume through your argument that women are so ignorant or so willfully malicious that they can either not know what biology and 30 years of abortion practice has taught us–you can’t abort without killing a fetus, and you can’t terminate a pregnancy without aborting or giving live birth–or so willfully vicious that they ignore that singularly relevant moral fact and proceed with an abortion without any intent whatsoever of killing the fetus.

    Your casuistry is not a display of rhetorical skill but the ultimate denigration of women.

    This is why abortion advocates can legitimately claim the most robust and freeing understanding of women. We know that women are free moral agents, intelligent, able to distinguish between right and wrong, and, most importantly, are well-able to withstand the trauma that unjust acts bring upon them. In your view, women are too stupid to understand that abortion kills a baby–or, if knowing, are so morally deformed that they can ignore the knowledge and intend something else. And, more to the point, women are too weak and fragile to handle the trauma of unjust acts or life and death scenarios.

    To have knowledge is to have intent, your airliner example notwithstanding. (By the way, when will you finally provide an example that matches the facts?)

  66. Jim:

    Surely you don’t suppose women to be such moral simpletons to not know–especially after both three decades of national experience and their own personal experience–that abortion kills their fetus, and the the effect is inseparable from the cause. And knowing, then, they certainly have an intention–no matter how conflicted they certainly may be.

    We are right to suppose this, based merely on the facts of behavior alone, apart from any omniscient knowledge reserved to God alone.

    I’m struck by the disparaging caricature of women that aspects of your argument assume.

  67. Clifton:

    I don’t know why you continue to respond to me as if I had suggested that women who have abortions do not know that the abortion will cause the death of the fetus. I have stated, clearly and repeatedly, that women do know this. There is no dispute on this point. In almost all cases, a woman who has an abortion knows that it will cause the death of the fetus. I don’t know how to say this any more clearly than I already have. The claim of yours I am contesting is that women necessarily intend the death, not the claim that they know the death will occur.

    You now say:

    To have knowledge is to have intent, your airliner example notwithstanding.

    So in the hijacked airliner scenario, you claim that if the president orders the military to shoot down the plane, he necessarily intends the deaths of the innocent people on board the plane, do you?

    Your claim that “to have knowledge is to have intent” is also a rejection of the Catholic Principle of Double Effect. If one can never choose to act in the knowledge that the act causes an evil effect without also intending that evil effect, then the second condition of the Principle can never be satisfied, and the Principle is meaningless.

  68. Jim:

    Then your argument is even less coherent. If there is one and only one effect from a particular cause (killing a fetus through abortion), and if of only two ways to “terminate a pregnancy” a woman chooses that which kills the fetus, and furthermore, if a woman knows that this will be the effect, then it is just simply irrational to insist that she does not intend the death of the fetus. If she wanted to terminate the pregnancy but did not intend the death of the fetus, then the only option for her is a live delivery.

    I mean, surely you don’t presume to suggest that abortion results in the live delivery of a fetus? Becuase, if so, under your terms, this would be a great evil: the premeditated killing of a person.

    So if, presented with those two choices, a woman knowingly chooses the option which kills the fetus, then clearly the intent of the act is to kill the fetus.

    As I’ve shown the double effect doctrine cannot apply to abortion because part of the dogma involves not merely the knowledge and intent, but also the means. Since the means of terminating the pregnancy involved in abortion involves an immoral act (abortion cannot be but the intent to kill the fetus), it is not a legitimate and moral norm for terminating a pregnancy.

    You continue to fail to establish the legitimacy of abortion. You cannot rationally divorce knowledge, intent and means. You continue to fail to provide any sort of viable example which meets all the conditions of the reality you attempt to describe.

    You even admit that on your own terms, you cannot in good conscience support every instance of abortion up to the moment of live delivery.

    Why do you not abandon such a failed legal/moral paradigm and embrace one that is more consistent, coherent, respectful of women as whole persons, and affirms all of the lives involved in pregnancy?

  69. Clifton:

    Then your argument is even less coherent. If there is one and only one effect from a particular cause (killing a fetus through abortion), and if of only two ways to “terminate a pregnancy” a woman chooses that which kills the fetus, and furthermore, if a woman knows that this will be the effect, then it is just simply irrational to insist that she does not intend the death of the fetus.

    But your premise above is false. There is not only one effect caused by abortion. There are (at least) two effects: (1) termination of the pregnancy, and (2) death of the fetus. A woman who chooses an abortion may intend the first effect but not the second effect.

    If she wanted to terminate the pregnancy but did not intend the death of the fetus, then the only option for her is a live delivery.

    But live delivery is not an option for terminating a pregnancy before viability. Abortion is the only option. If a method existed of terminating a pregnancy before viability without also killing the fetus, then any woman who today chooses pre-viability abortion might choose that other method instead. You simply don’t know whether she would or not. That’s why you have no basis for attributing to such women the intent to kill.

    You claimed that “to have knowledge is to have intent.” So in the hijacked airliner scenario, you claim that if the president orders the military to shoot down the plane, he necessarily intends the deaths of the innocent people on board the plane, right?

  70. Clifton:

    You cannot rationally divorce knowledge, intent and means.

    The Catholic Principle of Double Effect relies on the separation of knowledge, intent and means. If choosing to act in the knowledge that the act causes an evil effect necessarily means intending that evil effect, how can the second condition of the Principle ever be satisfied?

  71. Jim:

    You are forcing an illegitimate dichotomy on to the act of aborting a fetus.

    I can willfully jump out of my third story apartment window head first with the full knowledge that the means of my choosing to terminate my presence in my apartment will certainly result in either death or serious and incapacitating injury. To claim that I have no intent to kill myself or otherwise seriously injure myself, the only plausible counterexplanation is that I am in a state of irrational psychosis, such that I cannot adequately distinguish reality from fantasy.

    For you to so strongly, yet so futilely, continue to assert that women who know abortion causes the death of their fetus, that the only way to terminate their pregnancy is either by having a live delivery or to kill the fetus, and yet not have any intent to kill the fetus is tantamount to saying that each (or most?) instance(s) of women seeking abortion are cases in which women are psychotically irrational.

    Now I can guess that you will torture my example into an illegitimate structure. You will say something like: Ah, but if there were a fire in your apartment such that all other viable exits were cut off, then your jumping headfirst out the apartment would not necessarily involve the intent to kill yourself.

    This is illegitimate in that pregnant women do not face these life and death alternatives. What do they face? Pregnancy or a) interference with work, b) unable to afford a baby, and c) avoiding single parenthood/trouble with father. In none of these situations does abortion provide a rational alternative. There is no rational necessity such that terminating the pregnancy must involve the killing of the fetus.

    Jim, your reluctance to face the facts of: a) what abortion really is and does, b) the reasons for why women have abortions, and c) the number of women who have multiple abortion just shows again and again the weakness of your argument.

    You have to result in concocted analogies, which, in fact, are not analogous. You are forced to invent distinctions that cannot bear up under the scrutiny of real-world facts and actions. You have to invent euphemisms to describe realities that ought truly and justly horrify and shock; though admittedly in the case of abortion “terminating the pregnancy” does ring somewhat true to the act: someone is, indeed, being terminated.

    You even admit that your own demarcation of when personhood begins is not sufficient to cover all the instances of abortion from which you rightly and honestly recoil. Even you, abortion advocate that you are, must put boundaries on the outer limits of abortion, and cannot maintain your own radical stance.

    Even the social research on abortion and its aftereffects is piling up against you. That PPA must resort to such name calling can rightly be suspected to come from the growing sense of desperation that they are losing ground in the moral argument. Which means they will one day, Lord willing, lose ground in the legal argument.

    I’m not so sanguine to hope realistically that all abortion will be delegitimized, but even limiting it to before viability, to less than the first twelve weeks, will be an important step in the right direction.

  72. Jim:

    Let me see if I can be more clear about the nature of intention.

    You claim that the intent to abort is not necessarily the intent to kill the fetus, but may only be the intent to terminate the pregnancy. But what you attempt to do is to describe a single cause with two separate but related effects, with terminating the pregnancy being the willed effect, killing the fetus merely being an attendent, but unintended effect. The schema (as best I can do it in this comment) would be something like this:

    Abortionterminating the pregnancy
    —Killing the fetus

    But this is impossible. One cannot, in abortion, both will to terminate the pregnancy and NOT intend the killing of the fetus. In reality, if we posit the intended end (terminating the pregnancy) from the act (abortion) we can only schematize the killing of the fetus as the means through which the end (terminating the pregnancy) is realized. The schema would then be thus:

    Abortion—-killing the fetus—-terminating the pregnancy

    In other words, the killing of the fetus is not merely an attendent effect, but is the mediate cause which brings about the end. (I call killing the fetus a mediate cause, but in reality abortion and killing the fetus are the same essential act. This does not effect my argument, however.) And insofar as the women intends the ultimate end, she also intends the means through which she accomplishes the end. In fact, in the case of abortion, she must necessarily will/intend the means (killing the fetus), otherwise, if she did not intend the killing of the fetus, she would terminate her pregnancy by carrying the baby to term. Abortion removes that possibility.

    In short, it is impossible, in the case of abortion, to not both intend to terminate the pregnancy AND to kill the fetus.

    Abortion is the intentional killing of the fetus.

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