Christianity Todaydefends incrementalism on abortion by reference to today's decision and the recent episode in South Dakota, where after the proposed abortion ban with only a "life of the mother" exception failed by referendum,
pro-life leaders reintroduced the ban, this time [adding rape and incest] exceptions. Though the state House approved it 45-25, the measure died in a Senate committee. Even the head of South Dakota Right to Life, a state senator, declined to support the new ban with the three exceptions.
. . . The public, apparently spooked by the more comprehensive measure, turned decidedly chilly toward bans of any kind. Ed Olson, a state senator who said last year he would vote for a less restrictive ban, eventually declined to support even the ban with exceptions.
Conclusion: "[A]n incremental strategy gives us the best way to get there [to overturning Roe] while discouraging abortions right now. Wednesday's Supreme Court ruling confirms the prudence and promise of this tactic."
Notre Dame philosophy prof John O'Callaghan responds to my post on today's partial-birth abortion ruling by the Supreme Court. It is long, but well worth reading in its entirety:
It is at least a bit of good news against a background of tragic events this Easter season. I haven’t read the decision, but I am intrigued by the language of “human life” in the passage that you cite. It would suggest that the court recognizes that the unborn child is, as a matter of fact, human, perhaps even a human life, and even perhaps a human being (gasp). (Those who believe in what I like to call a “This Magic Moment” Metaphysics of Personalization might, no doubt, still argue that it ain’t a person, but we’ll leave that aside.)
But then it would seem that in the language of “values,” “value,” and “interests,” that the Supreme Court chooses to express its opinions in, your perhaps rhetorical question at the end of your entry has a trivial answer, but a trivial answer that goes well beyond the rhetorical question. If it is a question of weighing values depending upon the varying interests of the parties involved, then any decision to kill a human life that is not rash or on the spot, but a result of reasoned deliberation and choice about those interests and values, would seem to be ipso facto a “devaluing” of the human life that is killed at any stage. Socially we are just asking, “what price are we willing to pay for that particular devaluation.” The question of the particular procedure employed to kill the human life at some stage would seem to be immaterial to the case. In the language of “values” and “interests” doesn’t exercise of the death penalty by lethal injection ipso facto devalue the life of the executed, regardless of the sanitized procedure that makes it look like the executed is simply going to sleep, precisely because we are weighing “values” against one another, affirming some and “devaluing” others? And might that move towards the sanitary be itself a social anesthetic we apply to ourselves to deaden the moral pain of killing that human life? It seems to me that a social move toward more “humane” procedures may have very little to do with lessening the suffering of the one to whom they are applied, and much more to do with anesthetizing our moral and social feelings of pain in carrying out our decisions.
No doubt we can all cheer the result today; but the reasoning of many against PBA, focusing upon the gruesome nature of the procedure, might be part of the broad social problem we face. Any invasive medical procedure will typically appear gruesome to most people. Think of open heart surgery, or colectomy. But we don’t, and we shouldn’t take our sense of disgust at the gruesomeness of the procedures to be constitutive of their moral or legal status. If we did, our moral and legal reasoning would express the kind of emotivism that Alasdair MacIntryre diagnosed in After Virtue as the dominant paradigm of moral and social reasoning characteristic of advanced capitalist society, where values and interests replace goods. The great medieval historian of philosophy Etienne Gilson, echoing Nietzsche, wrote somewhere that “values are what goods become in a world in which God is dead.” And insofar as we adopt the language of “values” and emotivist type reasoning, even if only provisionally, in order to win a tactical victory, we run the risk of contributing to the larger loss.
We need to keep our eyes on the prize. The gruesomeness of the particular procedure, insofar as it bears the moral characteristics of being bad or evil, does so because it participates in the evil of deliberately destroying the good and innocent human life involved. If the medical procedure were carried out on an already deceased unborn child, as no doubt it may be if the child has tragically but naturally died in utero at that stage of development, presumably we would all recognize the appropriateness of the procedure. We think the procedure is morally abhorrent because it destroys a good, a human life. Does the Court’s decision today allow the doctor to “humanely” give the unborn child a lethal injection of some pain killer, and then, upon the judgment that it is now deceased, allow for the very same procedure to be performed upon the now dead child? Sadly, if it does, we have not advanced very far today. Presumably a less invasive and medically gruesome procedure shares just as much in the evil of killing an innocent human life as PBA does, if our moral reasoning is more than emotivist. And the reason we haven’t advanced very far today is that we haven’t moved our society toward recognizing in its moral and legal reasoning, not the devaluing of some human life, but the destruction of the inestimable good of the human life that is the child in the womb, regardless of the twitterings of the Magic Moment Metaphysicians. It is one thing to devalue an object, and quite another to destroy a good. The danger we face is that, in focusing upon the gruesomeness of the procedure, those we hope to convince that human life in the womb ought to be protected will think that we should be satisfied with this decision, and resent any efforts to push ahead.
Still there is hope today. God has given all of us the gift of reason. Justice Kennedy’s decision at least recognizes that the being killed is a human life. And with such a recognition in hand, perhaps we can begin to move our fellow citizens to reasonably consider what it is about this kind of procedure that rightly moves them to judge it to be morally abhorrent, rather than find it simply a matter of their own distaste for blood and gore.
Note the picture that accompanies the CNN website's story about the PBA decision. When I copied it to paste here, I noticed the gif title was "Story-SCOTUS-stormy."
Subtle, no?
UPDATE: MOJ reader Emily Friedman noted the sharply contrasting picture of the Supreme Court accompanying CCN's recent story about the decision in Massachusetts v. EPA:
Perhaps the sunny blue sky is intended to illustrate the effects of global warming?
Based on a quick read of the majority opinion: The Supreme Court's decision upholding the federal ban on partial-birth abortion seems a narrow, but important one. Justice Kennedy's opinion for the majority does not change the Court's basic position with respect to abortion, but it does make clear that the Court's precedents permit reasonable, careful regulations of abortion in order to promote the state's valid interest in protecting what Justice Kennedy called the government's '"interest in respect for life." The Justices distinguished, but did not overrule, their 2000 decision, Stenberg v. Carhart, which struck down Nebraska's differently worded partial-birth-abortion ban.
My take: Unlike the earlier decision, today's ruling respects the views of the overwhelming number of Americans -- pro-life and pro-choice alike -- who believe that partial-birth-abortion is a procedure that a decent and humane society need not permit. In this sense, the decision is consistent with the view that federal judges should not take it on themselves to remove controversial debates from the arena of democracy.
As Justice Ginsburg observed, it is not clear that the PBA ban actually saves the lives of any unborn children. And, as she wrote, it should not be imagined that other abortion procedures are not also gruesome. Is it troubling, then, that such a narrow decision will be hailed (or lamented) as a "huge win" for the pro-life side of the debate? Yes. Still, it is a step in the right direction.
The Court, in a 5-4 ruling, has upheld the partial-birth abortion ban. Justice Kennedy wrote the majority opinion. The Court did not overrule Stenberg, but found that the federal statute at issue here is narrower than the Nebraska statute. The Court also ruled that these facial challenges to the statute (as opposed to as-applied challenges) should never have been heard. An excerpt:
[The State, from the] inception of the pregnancy, maintains its own regulatory interest in protecting the life of the fetus that may become a child, [and this] cannot be set at naught by interpreting Casey's requirement of a health exception so it becomes tantamount to allowing a doctor to choose the abortion method he or she might prefer. Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.
A welcome ruling from Justice Kennedy, to be sure. Not to say that there isn't still a whiff of his "sweet mystery of life" reluctance to state obvious truths as truths. Consider this:"No one would dispute that, for many, D&E [dilation and evacuation] is a procedure itself laden with the power to devalue human life." Now I know that many people disagree over whether the mother's interests should outweigh the state's concerns with the D&E procedure's "devaluing" of human life, but is it really beyond the pale to recognize, as a matter of fact, that the procedure is "laden with the power to devalue human life?"
Here's my review, in Commonweal, of Charles Fried's recent book, "Modern Liberty and the Limits of Government." A bit:
“Liberty,” Fried argues, “is individuality made normative.” It is the triumph of individuality “as much over authority that would govern by despotism, as over the masses that would subordinate the minority to the majority.” He concedes that there are social realities-cultures, religions, languages-in which persons are situated and by which they are shaped. “But all these things,” Fried contends, “are the products of individual persons.” Individuals, he insists, “come first. Whoever says otherwise is trading in metaphors.” . . .
It is often, and rightly, observed that the libertarian moral anthropology, for all its Promethean trappings, is pretty thin, assigning greater moral import to our “separateness from each other” than to our dependence on one another. As Pope John Paul II wrote, the ability of individuals “to decide their own destiny and future in complete autonomy, trusting only in themselves and their own powers” does not exhaust or capture “the grandeur of the human being.” And while there is surely something to Fried’s claim that “a life without choice, a life consisting of unchosen goods, is an inhuman existence,” it is also inescapably true that many human goods are given, not claimed, and that to be independent and alone is more “inhuman” than to depend on others.
That said, Fried provides an important warning about the temptations to confuse the preferences of the majority with the common good and to slight, as merely selfish, the objections of those who resent the majority’s imposition. Certainly, it is possible to overstate or misuse the claim that “individuals come first.” And yet, as C. S. Lewis once wrote, in a little essay called “The Weight of Glory,” we “have never talked to a mere mortal. Nations, cultures, arts, civilization-these are mortal, and their life is to ours as the life of a gnat. But it is immortals whom we joke with, work with, marry, snub, and exploit-immortal horrors or everlasting splendors.”
Today a diverse, if loose, coalition of politically strange bedfellows—disability-rights activists, civil-rights organizers, advocates for the poor, medical-professional organizations, the Catholic Church, and the pro-life movement—stands as an effective bulwark against the spread of assisted-suicide legalization. Illustrating how successful this coalition has been, it defeated voter referenda to legalize assisted suicide in Michigan in 1998 and Maine in 2000. Last year, in a high-profile victory, assisted-suicide legislation in California died unexpectedly in a State Senate subcommittee. Serious efforts to legalize assisted suicide have also been turned back repeatedly in Vermont and (barely) in Hawaii.
But the euthanasia movement is strong, too. Its organizations are well financed, and its leaders and grassroots proponents are determined. Thus the only sure thing about the future of assisted suicide is that there will be political trench warfare over the issue for years to come. A thorough analysis of the “future” of assisted suicide in America will bring the same depth of research and analysis to the political dimension of the issue that Gorsuch so capably brought to his description of the trends in law and philosophy.
Happily, we don’t (yet) live in a country where our most contentious social issues are decided in the ivory tower by courts or regulators imposing the views of academic “experts” on the rest of society. In the end, for better or for worse, the future of assisted suicide and euthanasia will likely be decided via democratic debate in the public square. Indeed, this ongoing political struggle may be the most interesting part of the subject, and the book suffers by omitting it.
Here's a (relatively) recent Stanley Fish "Think Again" column, called "Religion Without Truth." He has some provocative -- in the good way -- things to say, about liberal education and religion, that will be of interest to those who like to think (or, who cannot help thinking) about the whole "Catholic university" thing.
For those following the controversy over Muslim taxi drivers who refuse to transport passengers carrying alcohol, the airport commission here in the Twin Cities has voted to crack down on any driver who refuses to carry a passenger for reasons other than safety. The first offense will result in a 30-day suspension, the second offense will result in a two-year revocation of the driver's license.
Ashley K. Fernandes, an assistant professor of pediatrics and community health, has an opinion piece in the May issue of First Things commenting on India's recently-announced plans to open orphanages to take in and raise unwanted baby girls. He explains: "While both India and the world acknowledge that sex selection is a crisis of epic proportions, one that has already seriously tipped the gender balance to favor boys, the laws to ban the practice in India have so far been ineffective."
What I found almost breathtakingly refreshing about the article was the fearlessness with which the Indian government deals with those who would question the cost-effectiveness, the economic efficiency of this plan:
India’s orphanage plan is called the cradle scheme. According to Renuka Chowdhury, the minister of state for women and child development, it has already been funded in the coming national budget. Precise figures on cost and a time frame for set-up are lacking; nevertheless, it is a beautiful example of how—in a world that prizes stark efficiency, the supremacy of personal autonomy, and the purported “rationality of utilitarianism”—a country of a billion people can take a collective stand to protect the most vulnerable in its midst. India is by no means perfect; Chowdhury herself, obsessed with population control, once sought to ban women and men with more than two children from contesting Parliamentary and state elections. There are many more in India who see abortion as a solution to the country’s stifling population problem. But it nonetheless seems a significant step in the right direction.
The article quoted Chowdhury: “What we are saying to the people is have your children, don’t kill them. And if you don’t want a girl child, leave her to us.” When asked if setting up such a system of orphanages might encourage even more abandonment of baby girls, the minister replied: “It doesn’t matter. It is better than killing them.”
Although even pro-abortion academics and politicians in the United States would likely condemn sex-selective abortion as morally impermissible (although it is hard to see on what grounds, if abortion is a fundamental right), skeptics and cynics will still say that the cradle scheme is too ambitious, too optimistic, and too inefficient. Who will pay for all these children? Should a developing country waste its resources on babies who are unwanted anyway? What will be the social impact of hundreds of thousands of girls brought up by the state?
India has its simple answer: We don’t know. We don’t know for how long and how much we will be able to pay for this program (but we are committed to trying); we don’t know the impact of spending resources on unwanted babies (but we know it is not a waste); we don’t know the social implications of girls growing up under the care of Mother India (but it is better than killing them). India’s plan is a model of inefficiency—and simultaneously a valiant stand for the value of human life. . . . But the cradle scheme is an inefficiency in which we—and all humanity—can rejoice. It is an inefficiency for justice, an inefficiency for the sake of another.
