John Davenport has a nice piece in Ms. magazine, “Fight Abortion Bans by Boycotting Anti-Choice States” (July 21). I couldn’t agree more. It’s so good–for a change–to encounter an advocate of boycotts who isn’t me.
Nothing talks louder than money in the U.S. With over half of states on their way to banning abortion, the only choice is to fight with a boycott movement bigger than this nation has ever seen.
I’ve run John’s proposal by some pro-choice people on Facebook, many of whom seem to regard it as quixotic and pointless. I don’t agree. I’ll paste some of my responses to them in the comments here, just to give a flavor of the potential disagreements with John’s argument from people otherwise on his (our) side of the issue.
Though John doesn’t put things this way, I would say that John’s proposal is yet another benign, justice-seeking instance of so-called “cancel culture,” or, since I don’t accept the legitimacy of that concept, of cancellation. If boycotts are an instance of cancellation, and bans on abortions are an egregious violation of rights, then if boycotts are a plausible way of resisting abortion bans, at least one instance of cancellation is thereby vindicated. But if, as John (correctly) suggests, what we need is a full-scale campaign of boycotts, then a whole campaign of cancellation is thereby vindicated. And if the general onslaught against sexual rights doesn’t stop with abortion, we’ll need more than that.
A lot “if” clauses there, I grant, but none that strikes me as hard to affirm, at least from within broadly liberal assumptions.
From a Facebook discussion in which a pro-choicer responded to John’s proposal by suggesting that it was over-simplified and impractical: people in red states couldn’t possibly be expected to boycott companies within their state that supplied them with essential goods and services, and too many companies are involved to boycott them all.
And an exchange with John himself:
John J. Davenport
Thanks, yes I would not want academic institutions or arts venues to be affected. There might be other possible exceptions I have not thought of yet to consider as well.
John J. Davenport In general, boycotts end up requiring a lot of exception clauses or judgment calls. Yet they can still make a difference. More energy has to be invested on the main thrust of the boycott than on calling out every last person who seems to violate it.
“I would not want academic institutions or arts venues to be affected.”
From my self-interested standpoint within an academic institution in Alabama, this qualification of course gratifies me. But beyond that, it’s also true that academic institutions (and possibly arts venues as well, depending perhaps on definitions) in places like Alabama are likely to be staffed by folks whose support for abortion rights is significantly greater than that of the state’s population as a whole, and so are poor choices as targets for such a boycott.
Nothing talks louder than money in the U.S. …
This is asserted as proverbial wisdom. But it’s actually a contestable empirical claim. It’s not obvious to me that it is true; if it is true in the case at hand, I’d need to see some kind of evidence.
If the proposed strategy is: 1. pro-choice consumers boycott corporate goods produced in states with anti-abortion governments, 2. pressures from the boycott convince corporations to lobby state governments to change anti-abortion policies, then 3. state governments respond to pressure by repealing their anti-abortion laws, then the entire success of the strategy depends not only on consumers’ ability to successfully exert pressure on companies operating in, say, Texas or Alabama (i.e., go from 1 to 2), but also on corporations’ ability to successfully exert pressure on the Texas or Alabama state governments to make a radical departure from their current policies on abortion.
Let’s stipulate that a pro-choice consumer boycott can mount so much consumer pressure that you successfully convince Hyundai to deliver an ultimatum to the State of Alabama that either they repeal the state’s heartbeat bill abortion bill, or Hyundai will up sticks and relocate to a state with liberal abortion laws. What happens now? Does this (A) convince anti-abortion politicians in a state like Alabama to buckle and substantially change their policies on abortion? Or (B) make it likely that rigidly anti-abortion politicians will be replaced in upcoming Alabama elections by less anti-abortion or less rigidly anti-abortion politicians, who might consider changing policies on abortion? Or (C) make it likely that fewer anti-abortion politicians will be elected in Alabama elections, and a greater number of pro-choice politicians will be elected in their place? Or does it (D) do little to change the composition, dispositions or decisions of politicians in Alabama state government, but somehow accomplish substantive policy change in some other way that I haven’t thought of? (If so, what way?)
If it doesn’t do any of these things, what’s the risk that instead it (E) does little or nothing to change the composition, disposition or decisions of politicians in Alabama state government, but does provide them with reasons to bolster their support from conservative Alabama voters by making a show of defying or punishing corporate interests that try to manipulate Alabama politics, etc. etc. (Much as Ron DeSantis, for example, has used Disney’s unsuccessful objections to the anti-gay “parental rights” bill to strengthen his political position among Florida Republicans — and done so in a far more politically divided state, where the Religious Right is a far less predominantly popular, powerful and influential part of state politics than they are in states like Alabama, Mississippi or Texas)
Yes, this. Boycotts against corporations operating in anti-abortion states are ill-conceived because they’re not aimed at the people who could change the law. Any corporation that did yield to such boycotts would be far more likely to make itself a target for Republican populists in the states in question than to influence the state government, and a government can inflict financial loss on a corporation much more reliably than a boycott campaign can manage.
Mr. Davenport’s proposal could work only in a nation where the extreme pro-abortion position had popular support, and was being opposed mainly by powerful entrenched interests – which is a mirror image of the real situation.
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I’ll give references separately, but I think Davenport’s argument has an obvious structure that doesn’t require much further empirical support. His claim is that a set of prominent corporations have supported the candidates who in turn have promoted anti-abortion-choice policies. If those same corporations are targeted by effectively boycotts, they can perhaps be persuaded to re-think that support. Both radgeek’s and Michael Brazier’s skepticism about the boycott is based on speculations to the effect that the “perhaps” may backfire. They may, but there is no certainty that it will, and no clear probability that it will. If the anti-abortion movement had been deterred by such speculations, it would have given up in 1974. It had the foresight not to be so easily deterred. Five decades of persistence in the face of such free-floating skepticism paid off. The pro-choice camp has something to learn from that.
It’s impossible to provide “empirical evidence” for the supposition that Davenport’s boycott strategy will work beyond providing evidence for the preceding facts (i.e., that corporations have bankrolled anti-choice candidates, and our somewhat vulnerable to a boycott by pro-choice consumers). The situation we face is unprecedented, and Davenport’s argument is a proposal for action to meet that unprecedented situation. In the nature of the case, there can’t be empirical evidence (in the sense of replicable social science) proving that a future contingent proposal will function as an effective means of responding to a novel situation. One has to try it and see. But the plausibility of the proposal is obvious: if the anti-choice movement has been bankrolled by large corporations, then if these same corporations foresee damage to their bottom line, perhaps they will stop. Even if they don’t stop, a boycott relieves those who support such corporations of the charge of complicity in their injustice.
Every boycott has this dual aspect to it, a kind of Plan A and Plan B: either it aims instrumentally to change policy, or of not, it aims to free the boycotters of complicity in injustice. Morally speaking, if it has justice on its side, it succeeds in either case. I think this one has justice on its side.
It’s worth remembering that Davenport’s boycott is not a stand-alone affair. He’s not just saying “let’s boycott” and leave it at that. As he says in the Ms essay, the boycott has to be conjoined to an electoral strategy, and the electoral strategy has to be conjoined to larger political reforms, including reforms of the electoral system. John has a forthcoming book on constitutional reform. I’m reading the manuscript, and find the argument persuasive. I guess you’ll have to wait until it comes out, but suffice it to say that the boycott proposal is one part of larger set of proposals, and has to be seen in that context.
First, Davenport is assuming that when the corporations he has in mind donate to anti-abortion candidates, they do so because the candidates oppose abortion. This is very unlikely. I’m fairly certain that corporations generally support candidates, not because their views on justice or political theory align, but either because the candidates have endorsed policies which would help the corporations’ revenue, or in hopes that when such policies are brought forward the candidates will be inclined to favor them. Influence on political theory runs the other way, from candidates to corporations. This is, for instance, exactly the relationship Nancy Pelosi has with Silicon Valley, which is why she’s such an effective fundraiser, and why technology firms are heavily Leftist.
This fact of life makes Davenport’s proposal easier in one way, since he’s not trying to force the corporations to act against their convictions. But it makes it nearly impossible in another, because he’s asking them to sacrifice their profits for a goal which isn’t theirs and has nothing to do with them. That can be done, it has been done in the past … but only with, yes, strong popular support. Which, for abortion, doesn’t actually exist.
I admit that I hadn’t read Davenport’s article itself when I first posted, but based my remarks solely on what was said here. Having repaired this omission, I can now say that the article is slightly unhinged – the work of a man who, confident of being heard only by the like-minded, is expressing his shock and outrage in whatever terms occur to him. I am also not surprised that Davenport believes the American people want abortion to be nearly unrestricted – “Abortion access is a mainstream cause: If you give the mostly quiet majority of this nation a direct and meaningful way to push back together, they will take it.” In this he is simply mistaken. On all the questions in play – abortion itself, the originalist schools of jurisprudence that the Federalist Society exists to promote, and the conservative movement as a whole – I can’t say that US popular opinion has endorsed the positions Davenport opposes, but popular opinion is more in favor of them than against them. Any close reading of the polls will confirm that.
Finally, you won’t be surprised to learn that I disagree completely with Davenport, and you, on what justice requires for abortion, and about the gravity of the situation. Even if I agreed, however, I wouldn’t agree that a boycott which isn’t focused on changing policy, but just on avoiding complicity with injustice, is worth doing. It strikes me as cheap grace – or virtue signaling, in the modern idiom. It merely confirms, in the boycotter’s mind, that he is a fine fellow, more in tune with high moral concerns than the common man; the attitude of the Pharisee who thanked God that he was not like other men. That’s a danger even for boycotts that are aimed at a practical target; ones that are not, where feeding one’s spiritual pride is the only likely result, should be avoided.
Irfan Khawaja: It’s impossible to provide “empirical evidence” for the supposition that Davenport’s boycott strategy will work …
To be clear, I was not asking for empirical evidence that Davenport’s proposed boycott strategy, or strategies, will work. Of course that depends on knowledge of future contingent events that we don’t have yet, and couldn’t reasonably guess at unless such a strategy is fleshed out in more detail and actually attempted under real-world circumstances.
The empirical claim that I was describing as contestable, and that I said was in need of some evidence (either in general, or with reference to the issue at hand) was not Davenport’s strategy will work, but rather the proverbial principle that Davenport uses rhetorically to motivate the claim that it might work: Nothing talks louder than money in the U.S. …
This is actually a contestable empirical claim about how politics works in the U.S., one on which the feasibility of the boycott strategy depends and one which I think is, to put it very lightly, under-argued, and not obviously a good theory in application to political facts on the ground on this issue. It may be a pretty good explanation of why (say) auto-makers like Hyundai or BMW have gotten big tax breaks for locating their factories in Alabama. I don’t think it’s a good explanation of why the state of Alabama banned elective abortion in 2019, or why that ban has now come into effect.
On the contrary, I think it is far more likely that the situation is this: money matters in U.S. politics, but on at least some highly salient issues (salient to voters in U.S. election), for at least some levels of government, popular support from voters speaks louder than money. In this connection, I would suggest the following hypothesis: Abortion is now banned in Alabama, not because (a) moneyed interests in the state support anti-abortion politicians, nor (b) moneyed interests in the state have failed to withdraw their support from anti-abortion politicians, nor (c) companies operating in Alabama, or the state’s overall economy haven’t yet been appreciably hurt by the state’s abortion ban, but more likely because (d) abortion bans are popular with most Alabama voters, and support for harshly anti-abortion laws makes Alabama politicians more likely, not less likely, to be elected.
Unlike Michael Brazier, I think this situation is awful. I wish that abortion bans weren’t as evidently popular in Alabama as they are; I would like that to change, and insofar as I have any idea how to change this situation on the margins, I have tried to, for decades of my life both before and after this recent turn of events. I think it was better when the tyrannical majority was legally forbidden from enacting abortion bans here, and I think that the unleashing of the state government on this issue is both unjust and concretely destructive for human well-being in my home state. But I do not think a sober look at Alabama state politics suggests that pro-choice boycotts of businesses that operate in Alabama, or give campaign contributions to anti-abortion politicians in Alabama, or simply of holding a conference or concert in the state of Alabama (!) is a well-targeted measure for changing that situation.
IK: Every boycott has this dual aspect to it, a kind of Plan A and Plan B: either it aims instrumentally to change policy, or of not, it aims to free the boycotters of complicity in injustice. …
Sure, I understand and agree that boycotts may be valuable as a morally cathartic act by the boycotter even if the boycott are not practically effective in dissuading or impeding the target of the boycott. That’s fine. There are plenty of instances where this is worth doing. I’ve boycotted Chick Fil-A for years
But the calculations here are rather different when the immediate target of the boycott is not actually the party inflicting the injustice, i.e., when we are dealing with an indirect or secondary boycott. There’s nothing categorically wrong with these, but precisely because the target of the boycott is not the primary subject of the moral complaint, the instrumental question for prospects of success is necessarily more pressing, and the cathartic question about the moral status of doing business with the target of the boycott is necessarily more attentuated, because their active role in the injustice being protested is more attenuated.
In the nonce, holding a rock and roll concert or a family reunion in the state of Alabama while Alabama still has shitty anti-abortion laws just is not a form of “complicity in injustice.” That’s dumb. It’s not just dumb, it’s wildly indiscriminate and if recommended as a general practice it’s really perverse in spirit; the proposal is for relatively affluent pro-choice consumers, most of whom are not subject to Alabama’s abortion laws, to attempt (either successfully or not) to punish, isolate and impoverish Alabamian people in general, not only those who are directly or indirectly responsible for the Alabama government’s abortion bans, but also the actual victims of those bans that the boycotter claims to be concerned for.
Davenport’s other two recommended targets (big companies headquartered or operating in states with anti-abortion laws, or big companies that give campaign contributions to anti-abortion politicians in states with anti-abortion laws) are different kettles of fish, but again, in these cases, I just doubt that it’s reasonable to suppose that (for example) buying a car that Hyundai manufactures in the state of Alabama is meaningfully to become morally complicit in Alabama’s anti-abortion laws. Hyundai’s operations in Alabama are largely completely irrelevant to what Alabama’s politicians do about abortion laws, because those pols’ views on this are overwhelmingly shaped by the (regrettably!) very strongly held views of the majority of Alabama voters, not by Hyundai’s business or Hyundai’s campaign contributions.
I can’t speak for Michael, but at least in my case, you overestimate how much my comments depend on the likelihood or unlikelihood of political backfire. I think that backfire is possible and that that’s worth considering, based in part on real-world examples of how other intense culture-war conflicts and attempted corporate interventions in those conflicts have played out in other states’ politics.
But my main point here is not about that. My main point is that Davenport’s proposed strategy rests on tacit and explicit claims about the social, economic and political forces that lead to anti-abortion laws, which I think to be weakly supported and probably false. And I think if false, those claims are likely to misdirect pro-choice activism into proposals that are either futile or, if “effective,” actually destructive in their practical effects.
They are claims which, I fear, is largely of a piece with the very common tendency in a lot of liberal and progressive political circles to imagine that oppressive policies in the United States are typically or always imposed against the will of majorities due to the overpowering minority influence of right-wing political elites. My own view is that this is a pretty good explanation for some policies (for example, if you want to know why the U.S. government rammed through TARP and other controversial bail-outs during the great financial meltdown), and it is a really dubious explanation for others (for example if you want to know why conservative Southern states have such bad abortion laws or anti-gay and anti-trans laws).
My view is certainly not that pro-choice activists should be “deterred” by the difficulty of the task, or that they should give up on activism because those laws are generally popular with voters in the states where they have been imposed. My view is that they should address themselves to the situation at hand, and not delude themselves with implausible theories about the role of Coca-Cola or Texaco in shaping anti-abortion politics.
IK: They may, but there is no certainty that it will, and no clear probability that it will. If the anti-abortion movement had been deterred by such speculations, it would have given up in 1974. It had the foresight not to be so easily deterred….
The recent legal and political victories that the anti-abortion movement racked up have something important to say about activist persistence and commitment, but in my view they have very little to say about the viability of indirect boycotts as a method to persist in, which is what I’m addressing here. Anti-abortion activists didn’t succeed mainly because they spent a lot of time and energy boycotting companies that, e.g., make donations to Planned Parenthood. (Some Religious Right groups have in fact done this over the years. I submit that it hasn’t mattered a lot to most of the companies targeted, or to Planned Parenthood’s operations.) Rather, they succeeded because they spent decades working to change the climate of opinion in their churches and in Republican primaries, to change the minds of popular and powerful groups (like, say, the Southern Baptist Convention) about abortion, to support intellectual work challenging the jurisprudential framework that had supported Roe and Casey, to get a lot of their favored candidates appointed to federal courts, etc. etc. etc. If pro-choice activists want to learn something from that, I’d say there are smarter lessons to learn than “Let’s boycott Coca-Cola to make Georgia repeal their abortion law.”
My point about pro-choice activism certainly isn’t “It’s hard, so don’t bother trying.” Of course it’s going to be hard to change Alabama’s or Texas’s abortion laws. My point is, “This proposed strategy rests on a social and political theory about abortion laws that I suspect to be false. If so, then it doesn’t matter whether it would be easy or difficult to put into practice, because it’s actually attacking the wrong target.” The things that I would recommend pro-choice activists do instead are also very hard (because, e.g., it’s hard to change people’s minds about issues like abortion), but I think those are very difficult long-term projects that are much better targeted to addressing the issue at hand.
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Several quick points.
(1) I like the sentiment behind such a boycott. But I wonder about the prospects of success (and what “success” consists in), if the pro-abortion-rights perspective remains “maximalist” (on-demand abortion rights up to 25+ weeks as against the European norm of 15 give or take, being pretty much okay with even-later-term abortion on the sly for most any pretext). Attitudes toward abortion, particularly later-term abortion, have shifted to the right over the last generation or so in this country. I worry then, that, unless the definition of success is something like not having any states with post-6-week abortion bans/restrictions (“heartbeat” standard) but acquiescing in post-15-week bans/restrictions, the prospects of success are perhaps not so great.
(2) If cancellation is something like a dominant moral consensus regarding someone as a moral reprobate and excluding them from polite society, then boycotts need not be part of any such thing. (I take cancellation in this sense to be an extreme tactic, often used — by the right as well as the left — in ways that are deplorable, especially relative to a broadly pluralistic and liberal overarching moral or social ideal.) That’s why I can be against cancellation in most cases, but often in favor of boycotts!
(3) Resisting immorality or injustice can be expressive of personal moral ideals (one’s “identity” perhaps) or a good move to make in social, moral practice. In both respects, one can (and often does) have strong reason to resist (or protest or boycott) regardless of the chances of success at discouraging the target behavior or situation. (Relative to ideal-expressive or good-move-in-moral-practice “goals,” resistance etc., is pretty much automatically successful. As I usually have no idea whether any given kind of resistance will be successful I generally take the main reasons for people to resist, etc. something immoral or unjust to be the moralized-personal and more narrowly moral reasons mentioned. People often cite the “changing things” reason as their main reason and I think they are often wrong or confused about why they are doing what they are doing.)
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Let me just stick to issue (1) for now. You describe “maximalism” as though there were something problematic about it. Why is maximalism about abortion problematic? Why, in particular, is it problematic in a context in which the right to have one is systematically under assault?
You say this:
I’m particularly puzzled by the first parenthetical: what would success consist in if the pro-choice side aimed at abortion rights on demand up to 25+ weeks after conception. The answer is self-evident: in that case, success would consist in having a right to abortion on demand up to 25+ weeks after conception.
You seem to be suggesting that there’s both something unrealistic and untoward about the goal. The goal is no more unrealistic than the anti-choice goal, ca. 1974, of overturning Roe vs. Wade. Yet that “unrealistic” (“crazy,” “unfeasible,” “politically suicidal”) goal has, through enormous political foresight and persistence, been fully achieved by the other side. For fifty years, I have heard people assert with great certainty that it couldn’t be done, but anyone who has actually read the jurisprudence from Roe onwards knew that it would or at least could someday happen. (I remembering predicting it to you and Jason Raibley 12 years ago.) I don’t see why creating statewide legislation for abortion on demand past week 25 should prove so difficult to achieve, given, say, the next five decades to pull it off. It doesn’t have to be the proximate goal to be a remote or ultimate goal.
More important, why is it untoward? I wasn’t aware that the European norm was 15 weeks (legal norm or medical norm?), but also don’t regard it as important or relevant. There are a lot of things that Europeans do that we don’t do. America isn’t Europe. For one thing, our system of pre-natal care is inferior to theirs, as, in general, is our system of preventive care and of access to care as such. So women often defer pre-natal care much longer in the US than they do in Europe. Hence the need for abortion later in pregnancy.
Relatively few abortions take place after week 25, but the few that do so are often medically necessary. This article from the Kaiser Foundation gives the relevant facts:
This one sentence strikes me as conclusive: “Reasons individuals seek abortions later in pregnancy include medical concerns such as fetal anomalies or maternal life endangerment, as well as barriers to care that cause delays in obtaining an abortion.” The “barriers to care that cause delays” are real, and account for a large number of cases that might, at superficial glance, appear frivolous or irresponsible. There may well be later abortions that are in some sense done from some sort of imprudence or irresponsibility, but we’re now talking about an unknowably small fraction of 1% of total cases.
The real irresponsibility arises from the desire to exploit this miniscule set of cases and turn it into a pseudo-rationale for biomedical police state in which every D&E becomes a presumptive act of murder, and every surgical suite becomes a presumptive crime scene. That genuinely terrifying prospect has to be treated as a de facto declaration of war against the rest of us, one that doesn’t brook moderation, accommodation, or compromise. The pro-choice side should be aiming at a right of abortion on demand from conception to the point at which c-section is medically indicated for childbirth. For adults at least, abortion should be legal (and available without legal restriction) at every point in between. And it would take only the slightest nudge to get me to delete the “For adults” proviso.
I meant “maximalist” mainly in a strategic sense. Point taken on the analogy to overturning Roe turning out to be doable (though perhaps the more strictly analogous right-wing project would be codifying a pretty strict abortion ban nationally). I didn’t think it would happen because of public opinion, but I think my view here was a function of living in something of an epistemic bubble. Unless Republicans go all-in for 6-week bans with no exception for rape and whatnot, I don’t see the standard pro-choice position winning.
However, we do differ on the substance. I think women are obligated not to abort developed-enough fetuses (and that enforcing this obligation forcibly, via law, is a prima facie reasonable option). This is for the same sorts of reasons that we are obligated (and required by law) not to abuse and kill animals. (The reasons here are not those of Scanlonian-type obligations not to wrong persons.) And, yes, I suppose this is part of why I think that just pushing hard on the standard pro-choice line is likely to fail.
I take both the maximialist pro-choice view and early-term bans to be beyond the pale morally, but I also take women to have a fundamental right to on-demand early-term abortion (and most abortions are early-term). I’m happy to have this fundamental right written into the Constitution, but stretching the limits of procedural justice (including cannons of reasonable interpretation) in order to achieve substantive justice is dangerous (though, with John Roberts, I was for a narrower, non-Roe-overturning ruling in Dobbs based on a stare decisis or reliance principle). Our frozen-in-time Constitution (too hard to amend) is certainly a problem, though.
They’re obligated not to abort fetuses even when it’s medically necessary to do so? That’s the claim you’re making in the first proposition before the parenthetical. The majority of later abortions happen for medical reasons. I don’t think it’s reasonable to ban such abortions, prima facie or in any other sense. I’m not sure why you do.
“Developed enough fetuses” can have serious developmental abnormalities that can only be detected in the later stages of pregnancy, and “developed enough fetuses” can impose serious medical risks on the mother that might not be dealt with until later in the pregnancy. Your view entails that it’s prima facie reasonable for someone in this situation to be forced to bring the fetus to term, then be saddled with the burden of caring for a severely developmentally abnormal child, or be forced to bring a fetus to term despite any risk to her. That doesn’t seem reasonable to me. It seems a gratuitous, avoidable way of ruining someone’s life.
Suppose that the would-be mother gets COVID in month 8 or 9. She lacks the energy to walk to the bathroom–but she should be forced to undergo 5-7 hours of active labor? Your view entails that that’s a prima facie reasonable medical outcome. It isn’t. It’s like consigning someone, in advance, to a torture chamber.
If abortion has any justification at all, and there is any moral priority of mother-to-fetus to be observed, this seems the paradigm case–medical necessity. But you’re punting on the paradigm case.
Enforcing that obligation would not be prima facie even if medical necessity were the kind of thing that law enforcement was competent to judge. But it absolutely is not competent to judge cases of medical necessity. “Medical necessity” is one of the most contested concepts in bioethics and medicine. Arguments about the conditions under which it is or isn’t satisfied go on for months and months in arguments between providers and payers, involving hundreds or even thousands of pages of documents, dozens of expert witnesses, n-level appeals, and more often than not, inconclusive findings (in the sense of a lack of consensus on the findings). The idea that police departments of criminal prosecutors can successfully process this level of complexity strikes me as having zero plausibility. It’s not prima facie reasonable; it’s prima facie absurd. But it’s quickly becoming the law of the land.
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My statement of the obligation not to abort was elliptical, with the omitted bits being the exceptions! Of course there are exceptions for the life and health of the mother! So I’m not thinking what you are thinking that I’m thinking. Also I don’t have any fundamental disagreement with your assessments of the cases you present.
I don’t have a worked-out view of the grounds for the obligation not to abort. But if we have an obligation not to kill family pets, but not an obligation not to kill livestock that we own – something that is true, I think – this suggests something relevant to any obligation not to abort. In the case of pets, but not the case of livestock, we are in a fundamentally “welfare custodial” relationship with the animal and this explains the obligation not to kill it, abandon it, neglect it in ways that it is permissible to neglect a livestock animal, etc. I think the same sort of consideration grounds the obligation not to abort fetuses. And this probably would not apply only to later-term fetuses. So I’m now more inclined than not to revise my statement of the obligation not to abort in the (roughly) pro-life direction indicated by this thought. (Plausibly, the fundamentally welfare-custodial relationship forms, in normal mothers, with things like quickening and seeing images on sonograms. The widespread availability of the latter, I think, corresponds to a shift in public attitudes toward when aborting is unacceptable. If my speculation here is correct, this is a matter of the creation as much as the discovery of the obligation not to abort.)
I also don’t have a worked-out view of when the public, legal enforcement of such a moral obligation (or any moral obligation) is appropriate. Though, very roughly, I take the relevant standard to go something like this: if inadequate compliance with an obligation — or even with some rule that one is not, or not aside from its codification into law, obligated to follow — affects society (and hence the individuals in society) in a detrimental-enough way and if other methods of enforcement are not enough to achieve adequate compliance, then public, legal coercion is appropriate. It strikes me that legal sanctions against killing or abandoning household pets are appropriate and that, if this is right, then something similar is likely true for aborting fetuses: when there is some unambiguous public marker that reliably-enough indicates that a fundamentally welfare-custodial relationship is present (perhaps when the fetus is X number of weeks into its development) then the obligation is (probably) present and effective coercive legal sanctions, if practical, are appropriate.
(I suspect that, in both the animal and the fetus case, the detrimental impact on society is, most fundamentally and directly, a matter of too many people with too much influence tending to have morally insensitive or indecent attitudes or character — not their having some greater tendency to, say, abandon or kill the rest of us because they would do this to a fetus (though this might be a relevant consideration as well). Rightly or wrongly, but I suspect rightly, we take the prevalence of certain morally bad attitudes (here an insensitivity to what is required of one when one is in a fundamentally welfare-custodial relationship and one of great importance) to be something of vital public concern, something that it is appropriate to address via the coercive regulation of abortion (if this is effective and necessary, other methods of enforcement or incentivization failing). Perhaps the important questions here, then, are those of the nature and importance of the public bad and the effectiveness and necessity of mitigating it through prohibiting abortion or its provision after X number of weeks of fetal development.)
I think the case of abortion is fundamentally different because of the inalienability of one’s body.
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You are right that this is a disanalogy between the two cases of custodial obligation (if this is what you are getting at in your brief comment). However, I don’t see why custodial obligations could not extend to being obligated to do certain things and not others with one’s body. That entails the permissibility of at least this kind of public interference with one doing as one pleases with one’s body: blaming one for not fulfilling the custodial obligation by doing just this with one’s body. There is, here, a public interest in disallowing the violation of the obligation (just what this interest is and why we have it is an interesting question, but that something like this is present seems obvious). Plausibly, if this interest is strong enough, if coercive enforcement is effective, if other enforcement mechanisms are not, then taking public, coercive measures to assure or motivate compliance is permissible.
Does the fact that the target behavior is doing just this thing with one’s body make any difference? I don’t think so. Suppose having a certain kind of nose piercing done is illegal (due to it tending to cause health problems). But this is just one way of having a certain kind of desirable nose piercing done. It is not a big deal for me. It is unlikely that my broad right to autonomous action is violated, but the government is telling me what I can and cannot do with or to my own body.
What would do the right kind of work here is something different: that my not being able to get this kind of nose piercing was a somehow a huge burden for me (and for a general class of people that I am a part of, not because of something idiosyncratic to me). This suggests that the more promising disanalogy is this: while it is a huge burden for a woman to carry a fetus to term, it is not a huge burden to, say, require that I drop the unwanted dog off at the shelter rather and simply abandon it or stop feeding it. If that is right, then the important question is whether, when the general conditions for there being custodial obligation to the fetus are met (involving things like feeling the fetus move around and seeing a sonogram), requiring the woman to carry the fetus to term are too great, thus vitiating the custodial obligation. This is precisely what is claimed in cases of rape, incest and medical emergency for the mother. If the same is true for simply carrying the fetus to term (say, carrying it more than X amount of time), then the prima facie obligation to carry to term (not to abort) is defeated. I think this (and the grounds and nature of the custodial obligation) is where the action is at.
I agree with Roderick’s point about inalienability of the body, but I would be careful about granting what you say about non-human animals. Pet abandonment is immoral, but I don’t think it should be a crime. The reasons for doing it involve mitigating factors that aren’t well captured in law, especially criminal law, and already, it seems to me, animal rights advocates are starting to go overboard in their zeal for litigation/prosecution on behalf of animals. I’ve added an article that indicates where that zeal is headed, not so much because I’m a big fan of killing animals that bite others, but because the general tendency expressed by people like the lawyer in the article is problematic. We should not be encouraging the Richard Rosenthals of the world. We should be leashing them. They have enough power over the rest of us. We don’t need to give them more in the name of the warm, fuzzy creatures of the world, along with its holy innocent fetuses.
The distinction between livestock and family pets is a very, very hazy one, and absolutely not of the kind that can figure easily in criminal law. As you know, I live in a household that owns a rooster. Is it livestock or is it a pet? Traditionally, roosters were livestock. This one is regarded as a pet. It makes little sense to me to insist that an animal one could eat (and in different form, is commonly eaten) should be given legal status such that if it were abandoned, a crime would have been committed. Again, we have enough crimes on the books in this country. We don’t need to jam the law books with more, unless we absolutely have to.
But I still do not get your view on abortion. I’ve said twice now that most later abortions have a medical rationale. You’re now saying that you never meant to target them. But then, what is left of your view that later abortions should be criminalized? How exactly do you propose to filter out the “medically necessary” later abortions from the ones you want to criminalize? I don’t think you realize how pie-in-the-sky the whole thing sounds. Just try to picture, concretely, what is supposed to happen here. A patient is admitted to the hospital to have a later abortion. If the abortion is “medically necessary,” no crime is committed. If it is “unnecessary,” a crime is committed. The police can then arrest everyone involved.
First question: what is the legal criterion of “medical necessity” for purposes of criminal enforcement? And how are the police to seek probable cause to execute search and arrest warrants on this basis?
As long as the police are external to the medical action, this will be difficult to pull off. I hate to give the other side ideas, but I’m sure they thought of this before I did: the solution is to make the police/prosecution a part of the medical decision itself. Hospitals already have on-staff ethicists. Why not force them, as a condition of the receipt of Medicaid funding or other state funding, to make law enforcement a part of every decision to perform a D&E for pregnancies after n weeks? Put a prosecutor right there in the OR suite, embedded alongside the rest of the staff. Short of that, the poor dears will always be on the outside looking in, with the relevant evidence always in the possession of clinicians and the like.
There are no two ways about it: Once you start regulating medical procedures, you have to micro-manage them. That’s what we’ve seen in the case of the prescription of painkillers: prosecutors with zero medical knowledge posturing as experts on the relief of pain, and prosecuting physicians for clinical decisions about when to prescribe opioids, and to what degree. What better way to micro-manage an OR suite but to scrub in and become a part of it?
People can talk about these fine ethical distinctions all they want, but the hard fact is that if you try to write these distinctions into the criminal code, you will fail to capture every last nuance you regard as crucial in a philosophical discussion, and find yourself in a world where unsubtle cops and lawyers take over. All that you’ll have done is to empower these people to extend the biomedical police state they’ve already started to build. Already, in the state of Idaho the Republican Party has adopted a plank that bans abortion in all cases including those that endanger the mother’s health.
That’s refreshingly honest of them. If they really believe that the fetus has the same moral status as the mother, then why give priority to the mother when the two lives comes into conflict? The exception to save the mother’s life, or prioritize the issue of danger to her over danger to the fetus, is purely ad hoc. The Idaho Republicans should get credit for seeing through the charade. But their platform should also be an indication of where these people are headed, and how little confidence we should have in their professions of concern for the mother, or their desire for compromise, or indeed, anything that comes out of their mouths. Every concession we make to them is ammunition we give them. Every concession made to them has already been ammunition they’ve appropriated.
The supposed ethical impropriety of later abortions is, all things considered, a non-issue. And it would be obviated entirely be making early abortions and/or the day-after pill easier to obtain, which the other side has no interest in doing. I don’t find any kind of compromise acceptable with the “pro-life” camp–not on the second trimester, not on the third, and nowhere else, either. The pro-choice aim, like the pro-life one, should be explicitly maximalist: abortion on demand from conception until just prior to labor. The right to abortion should be exercised early if possible, and late if necessary, but always as a full-fledged, inalienable right that brooks no infringements.
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Initially, I had in mind gross abuse of animals being properly illegal (as well as immoral, something we are obligated not to do). These laws seem fine to me, but what is needed, to get an adequate analogy, would be laws against abandoning or killing household pets. At least regarding the abandoning, I agree that making this illegal would be unwieldy and might lead to more injustice, not less. I agree, as well, that the distinction between household pets and livestock is blurry. What I wanted and needed was an example of (i) custodial obligation that is (ii) properly legally enforced. I could have done better (so thanks for pointing this out).
The most essential thing is that, after the welfare-custodial relationship is formed, there is an obligation to carry to term. This obligation is public and moral, not merely a function of personal commitment or anything like that: part of the normative picture here is that, if the obligation is violated, one is appropriately blamed (by any given person). I think this has something to do with people in custodial relationships failing to care for innocent, sentient, pain-feeling victims, especially when they are human (however not-fully-functional or not-fully-formed they are). This obligation could be one that is commonly vitiated by the sheer burden of carrying to term (and I suspect that this is the strongest pro-choice argument at the level of the content and limits of the custodial obligation).
Whether or in what circumstances this obligation should be publicly, coercively enforced is another matter. This depends, in part, on a bunch of empirical stuff that I’m not qualified to comment on. You are in a better position to do this and I appreciate your points and scenarios, but I would still want to look to the more-restrictive European countries for better evidence: what are their legal regimes like, are they unwieldy, do they regularly result it women being forced to carry to term when they are not obligated to carry to term (or is there some other kind of injustice that regularly happens due to the coercive nature of the enforcement)? I agree, as well, that this is precisely the kind of nuance and empirical detail relevant to what the law can and cannot do well that is absent from the way most pro-life conservatives think about these matters (and how the stupid laws are written).
Though it is not the case being presented in our politics, I take there to be a reasonable case (along the rough lines indicated) for restricting later-term abortion – for legally enforcing, in certain cases, the custodial obligation to bring the fetus to term (not abort). I’m not particularly interested, not right now, in making the case for such legal restrictions (just the case for such a position having certain strong grounds and being reasonable).
I’m curious about this. You take there to be an inalienable political right to abort (it being impermissible for other people, and the state, to interfere with or restrict). This does not sit well with there being an important custodial, moral obligation to carry to term (in these and those circumstances, but not others – the precise content of the obligation would have to be filled-in). Do you not think that there is such an obligation?
I don’t want to drag this out too much, but I don’t see any plausibility in the idea that a woman has any obligation whatsoever to bring a fetus to term unless she decides, after due reflection, that it’s all things considered a good idea to do so. There is no “custodial” relationship there whatsoever in any case where she simply decides “no.” The ascription of such a relationship just strikes me as begging the question. You certainly can’t enter into a custodial relationship by error or accident, which is true of most unwanted pregenancies.
I am unconvinced that the fetus is a member of the moral community requiring the ascription of rights or unchosen obligations of justice. Genotypic continuity with full-fledged human beings is far from sufficient. Cases like anencephaly prove that mere outward phenotypic resemblance can’t do it, either. An anencephalic fetus is not entitled to rights-like protection. To cross the relevant moral line, the entity has to be capable, or bear the traces of erstwhile capacity, for distinctively human action. It’s not clear to me that fetuses ever do, even in the latest stages of pregnancy. But the vast majority of abortions in those cases involve medical issues of this pattern:
Make sure to click the link that goes with the text “doctors feared making those decisions too soon…”
Consider what the failure to think things through has done here. Right-wing legislators have these vague, quasi-medical ideas about protecting the interests of the unborn while “balancing” that against the need to make exceptions for the mother’s health. What does that mean? If we construe “health” broadly enough, then any would-be mother facing with the prospect of a late abortion (even through irresponsible delay) will be facing the prospect of considerable psychological trauma. Is it healthy to have a child under such conditions–i.e., you’re not sure you want one, but you’ve come this far, so you might as well? No, it isn’t. It’s insane.
Unless you thought that the fetus had a moral status on par with the mother’s, it would make no sense to bring a child into existence under such conditions. It would be unhealthy in an obvious, non-literal sense. But of course, if you think that the fetus and mother are morally speaking on a par, it’s ad hoc to make an exception to save the mother’s life at the fetus’s expense at all. If both lives are at stake, and only one can be saved, there is, on such a view, no reason whatsoever to favor the mother’s life. The mother’s actualization of moral agency has no greater moral status than the fetus’s potential for it. If the mother is to be given any moral priority to the fetus (sufficient to justify saving her before saving the fetus in cases of conflict), then the thought you relegate to a semi-parenthetical carries the day: the sheer burden of carrying the fetus to term, and then laboring to bring it into existence, vitiates the claims that can be made on the fetus’s behalf.
I imagine that the preceding conception of “health” will be too broad. So the alternative becomes a narrowly medical one, and the narrow one becomes “medical necessity” or “medical emergency.” But though those concepts have clear instances, they involve a great deal of unclarity, both ontological and epistemic. Even in contexts as narrow as surgery, there is no fully agreed-on definition of “emergency” or “necessity,” and this standard account shows where the ambiguities lie:
Click to access ORMVol26No7ManagingUrgentCases.pdf
Note how Class E emergencies just drop out of the taxonomy because it was “too complicated” to leave them there. “Too complicated” is a logistical concept, not an ontological one. It’s too complicated to have Class E emergencies in a taxonomy of this kind because it’s too hard to manage an OR if you put them in your taxonomy. It doesn’t follow that, ontologically, there are no cases that fit the category. But cases of that sort, though emergencies, are bound to be ambiguous and complex.
Anyway, set aside Class E and focus on Class D. There are two ways of handling a Class D emergency. You can deal with it by operating ASAP, or you can wait 48 hours to see how it develops. It can, in some contexts, be justified on grounds of caution to wait. But there’s another, extra-medical reason for waiting: you may want your Class D emergency to graduate into an emergency higher on the chart so as to be absolutely sure that it’s a True Emergency, i.e., the kind of all-out TV-ready dramatic fare out of “ER” or “Rescue 911.” Because that’s the only kind of emergency that you can, with certainty, sell to the lawyer or judge or cop or legislator or juror who holds your life and livelihood in their hands.
That is what these anti-abortion laws are forcing physicians to do to their patients. They’re forcing physicians to let patients suffer through class D emergencies so that those class D emergencies can become class C, B, or A emergencies that give the providers legal cover against prosecution or litigation. The patients themselves are to be treated as collateral damage of the conflict between providers and “pro-life” legislators.
Morally speaking, that is a crime whose turpitude far, far exceeds even the most frivolously-done D&E. Our basic moral priority should be to make this dynamic stop happening, not to worry about a would-be “custodial obligation” that somehow descends on unwanted pregnancies.
Bottom line: I don’t think you’ve established or made plausible that women have a custodial obligation to unwanted fetuses, and your claim that they do in virtue of the fetus’s sentience sits in tension with your view that the mother has priority in cases of conflict because of the burdens of pregnancy and childbirth. It is not consistent to say that the fetus’s being an integral part of the mother is morally irrelevant while granting that the mother’s need to expel the fetus from her body has moral relevance. The latter fact has moral relevance because the former does. They both do. One can’t simply abstract from the predicament of pregnancy, treat the fetus as though it wasn’t part of the mother’s organ system, then give it protected status while ignoring the fact that protecting it requires either demanding that the mother expel it through herself by force, or forcibly slicing through the mother to protect the thing she won’t expel.
As for the animal issue, I think it’s mostly irrelevant. Yes, I think it’s immoral to abandon a pet. But a pet is not remotely analogous to a fetus. A pet owner voluntarily, self-consciously, intentionally comes to have a pet under that description. For the most part, people have abortions because they’ve made a mistake, or some unforeseen event disrupts their plans, not because they self-consciously decided to get pregnant, then decided to abort. Even in the latter sort of case, if the decision to abort arises from the would-be mother’s sudden fear of childbirth, it has no analogue in the pet case. Abandoning a fetus because you’re afraid of the tribulations of labor is not equivalent to abandoning your pet because you don’t feel like taking care of it. Maybe a woman afraid of labor should overcome her fear and go through with it, but that requirement (if it is one) is not in the moral neighborhood of the demand that a person take care of their pet, having voluntarily come to adopt a custodial relationship to it.
One gives birth to a fetus, not to a pet, and childbirth is hardly a trivial matter. I don’t think men should be putting themselves in the position of passing adverse judgment on women who get cold feet about childbirth, any more than people who have never gotten into a fist fight should be judging the bravery of, say, police officers facing down a well-armed gunman. Lack of standing to judge doesn’t seem to stop either set of people, but probably should.
It wouldn’t be immoral to abandon a feral animal that happened to “befriend” you, but that you didn’t want to care for. It certainly wouldn’t be immoral to refuse to have a custodial obligation to a feral animal that grew inside you, and decided to hang out inside of you for nine months. These cases are more analogous to that of unwanted fetuses than ordinary cases of having a pet. So I see no greater immorality in “abandoning” an unwanted fetus than I do in abandoning an unwanted feral animal that’s attached itself to you, even in cases where you might partly have encouraged its doing so.
I also think that the distinction between pets and non-pets is morally arbitrary, especially for a view that’s trying to honor the claims of the fetus as the kind of being it is by likening our obligations to fetuses to our obligations to animals. If the fetus deserves consideration in virtue of being sentient, etc., then animals deserve the same thing, not because they’re our pets, but by virtue of having the relevant characteristics, whether they’re our pets or not.
I like animals, and abhor cruelty to them, but there’s no escaping the fact that human life requires their subordination to us. Put aside eating them. We can’t engage in intensive agriculture without pest control, and can’t feed ourselves without intensive agriculture. Pest control requires treating animals as disposable, of a lower moral priority than human beings. We can’t live without a built environment, but can’t build one without displacing and killing animals. Same problem. We can’t survive without vehicular transportation, but vehicular transportation leads, predictably, to vehicle-animal collisions. It would be impossible to treat vehicle-animal collisions in the way that we treat vehicle-human collisions without bringing the entire enterprise of transportation to a halt. Finally, regrettable as it may be, medical progress still requires animal model experimentation (I can get the references later, but a fair bit of COVID research depended on animal model research). So while animal cruelty is wrong, and animal sentience has moral weight, any plausible account of the ethical treatment of animals has to take stock somehow of the preceding facts.
Animals are complicated. On the one hand, they’re precious and elicit love and affection. On the other, there are contexts in which it’s entirely permissible to treat them as mere means. So it’s not enough to say that when you have a custodial relationship over an animal, there ought to be a law that enforces the requirements of that relationship. Abandoning your own cat is a clear case, but what about de-clawing it? Torturing your dog seems a clear case, but what about a scientist experimenting on a rat? The custodial nature of the relationship doesn’t resolve even the simplest problems that might arise, whether for ethics or law. And I’ve so far bracketed veganism and vegetarianism altogether. If abandoning a pet is bad, why isn’t factory farming a lot worse? If it should be illegal to abandon a cat or dog, why shouldn’t it be illegal to debeak chickens by sawing or burning off their beaks? A view like yours needs to explain why the enforcement of the apparently clear-cut norms you’ve selected doesn’t lead, step-wise, to an animal rights police state.
We already seem to be skating toward a fetal rights police state. I guess my preference is to leave the chaos there, rather than extend it to anything else.
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“A fair bit of COVID research depended on animal model experimentation…”
I understand that there’s a moral difference between gratuitous, deliberate, malevolent cruelty and painful, even torturous methods used for a higher moral aim. But it’s very hard to write laws that target all and only cases of the first without making inroads on the second. That’s as true of attempts to secure the rights of animals as it is of fetuses.
As my other comment makes clear (but to answer your question directly), I absolutely do not think that there is a moral obligation to bring a pregnancy to term, or a custodial relationship involved in the sheer fact/act of becoming pregnant.
I agree with the Michelle Goldberg column 100%. I often think her columns are ideological and stupid. This one was great. Admirably factual, analytical, insightful. And yet full of moral punch. No “righteous mind” messing up good thinking here.
I have to think more about whether such considerations make, say, outlawing abortions after 15 weeks or 20 weeks (or whatnot), with exceptions for undue burden on the mother (rape, incest, medical necessity) impossible to implement without regularly violating a woman’s moral right to abort for sufficient cause. It seems to me that some of these questions regarding medical necessity are the result of badly-crafted law or law that has not yet gone through the judicial-interpretation ringer. We might also take a look at how often, and why, such problems come up in European countries that are pretty restrictive with regard to at-will abortion.
What’s wrong with any of these columns by Michelle Goldberg? She’s written five columns for the NYT on abortion since Dobbs (four below, one I cited earlier). Everyone of them seems on target to me.
I don’t know anything about the European approach to abortion, but I do know the Israeli approach, which I find wrongheaded.
I don’t think abortions should be a committee decision of this kind. That said, Israel has very recently changed its approach to abortion (as a result of Dobbs). I don’t know the details there.
You’ve claimed this would be the result of Dobbs before. But why on Earth do you think so? It seems wildly unlikely to me. Logically, what we should expect to happen after Dobbs is what happened before Roe, because Dobbs just restored the legal situation that obtained before Roe was decided. Did such things happen routinely before Roe? In fact, were there any cases where a physician was charged with performing an abortion when he had actually presided over a natural miscarriage?
A law such as this would, in my opinion, be as far into lunatic extremism as the proposal from Elizabeth Warren two weeks ago, that crisis pregnancy centers be outlawed because they advise pregnant women not to have abortions. The main difference, of course, is that nobody I know of has advocated for physicians to be presumed guilty of murder if a fetus dies under their supervision, while Elizabeth Warren is a current US Senator and submitted her proposal as a bill in Congress. (Incidentally, Warren’s bill makes a mockery of the “pro-choice” label, and it’s a serious contender for the most cruel policy put forward by a US politician while in office. To tell a woman made desperate by pregnancy, with no means of supporting a child, that no one will help her unless she kills her baby … what would the National Welfare Rights Organization have said about that?)
“In fact, were there any cases where a physician was charged with performing an abortion when he had actually presided over a natural miscarriage?”
I don’t know about that, but I know that in the ore-Roe era, if a woman had an illegal abortion that went bad and was bleeding out and came to a physician for assistance, the physician would turn her away on grounds that assisting after the fact with an abortion would expose him to legal penalties.
While I don’t see how that was morally justified – does treating someone for the results of self-mutilation make one complicit in the mutilation? – it’s well short of Irfan’s nightmare of police monitoring every obstetrician and investigating every stillbirth.
IK: More important, why is it untoward? I wasn’t aware that the European norm was 15 weeks (legal norm or medical norm?), but …
It’s a legal norm, and actually the legal situation is somewhat more restrictive even than that — there are a couple of extreme outliers — the UK and Netherlands on the pro-choice side, Poland, Malta and Liechtenstein on the anti-abortion side — but almost every country in Europe bans elective abortions after 10-14 weeks, depending on the country. Elective abortions are illegal after 14 weeks in France and Spain, after 12 weeks in Germany, Italy, Ireland, Greece, Czechia, Denmark, Norway, etc. etc. etc., after 10 weeks in Portugal, etc.
Some of the Nordic countries allow for women to request later abortions on a pretty broad range of grounds (including not only medical reasons for a therapeutic abortion, but also broad social or economic reasons for not being able to continue the pregnancy or raise the child). But this is not the norm, and in those countries where it’s available, later abortions have to be specifically approved by a bureaucratic procedure, and are not available as a matter of right.
All this FYI only. I also don’t think that the (very different) context of European reproductive rights has to determine what is or isn’t reasonable for activists to pursue in America.
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(Good comparative references in the footnoted table here: WikiPedia: Abortion in Europe, and in this report from Center for Reproductive Rights: European Abortion Laws: A Comparative Overview.)
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Also, the ballot.
~Voting for or against right to procure an abortion in fall of 2022~
Arizona: Has a ban on abortions beyond 15 weeks of pregnancy. At that point the human fetal brain is recognizable as a mammalian brain, not yet as primate, let alone, human brain. Anti-abortionists (Republicans) control both legislative chambers by only two members in each, and either can be flipped to the abortion-rights side (Democrats). Three anti-abortionists judges on the Supreme Court are up for re-election; even with their replacement, the majority will remain with the anti-abortionists. The anti-abortionist Governor and the anti-abortionist Attorney General are seats open in this election.
Georgia: Has a ban on abortions beyond 6 weeks of pregnancy. At that point, the human embryonic brain is recognizable as brain of a vertebrate, such as a fish, not yet as brain of a mammal. Some seats in the state legislature can be flipped to abortion-rights protectors, but not enough to flip either of these anti-abortionist chambers. Governor and Attorney General are up for vote in this election.
Kansas: Has legal abortions up to 22 weeks of pregnancy, which is the point at which the human fetal brain begins makihg changes that will bring it to the distinctively human form of primate brain. An initiative-question on the ballot this fall would amend the state bill of rights to say there is no constitutional right to abortion, opening the way for the Republican-led legislature to restrict abortion rights.
Other States in which state-directed abortion rights are being voted on this fall, at least implicitly, are:
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Totally agree. As I say above, we need at least a three-pronged strategy: boycotts, voting, and constitutional reform. No one of those will suffice.
Thanks for the discussion. There is always some risk of “revenge” effects in reply to a boycott, but the advocates have the advantage of a single-issue focus. For this one to work, it is not required that corporations leave the worst states. They can simply start donating to state politicians who would restore at least some modicum of abortion access. Or even less: they can stop donating to total abortion banners. Companies can also decide not to set up headquarters in these states, and even think twice about make them central places for their warehouses and manufacturing. In short, there is a large range of responses that companies could consider to get off the Choice-cott list. I’m working on a webpage for the boycott itself, which you can see here: http://www.boycottforchoice.org/
But it really needs to be taken over by some celebrities who can popularize it, draw in donors, set up a non-profit board etc. The oddest thing about the boycott article is that is required me to publish the idea. I do not understand why lots of big-name folks did not think of it and attempt to publicize such a measure earlier. I’ve seen a few vague gestures in this direction, but nothing systemic. Then again, I do not keep up with as much a social media as many do. So maybe this has been on Twitter and I missed it?
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Also I agree with Mr. Brazier that there is no reason to penalize a state for offering women (a) assistance in affording child-care and (b) advice and support on adoption if they wish to consider that route. These are perfectly good options, whereas abortion in later months is doubtless an ugly thing for anyone to go through. Perhaps the federal law Warren should introduce could require that if a state outlaws abortions before 15 weeks, then this state must offer a broad array of services and support to the mother including some basic income? I wish I could envision a constitutional compromise on this issue that has torn the nation apart for so long, and overshadowed so many other important social and economic issues needing attention in the process. An amendment outlawing abortions in the seventh month and later, except in cases of serious risk to the mother’s life or health (and rape or incest), but making abortion legal at will through the first 15 weeks, while allowing states discretion on the weeks in between these thresholds, might once have worked. Now I fear the way the Supreme Court seats were filled during Trump’s administration itself has so poisoned the well that such a compromise is likely impossible.
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No federal law on abortion – in either direction – would be constitutional, because regulating abortion isn’t one of Congress’s enumerated powers, nor is it implied by those powers. And if you disagree with that, the current Supreme Court doesn’t, and will decide cases on that basis.
Allowing the state legislatures to do as they see fit on abortion is the constitutional compromise you’re seeking. It takes the matter out of national politics, and it cuts the connection between the abortion debate and the argument about Constitutional interpretation (which is what made the abortion debate so toxic in the first place.) It isn’t necessary to have a uniform national law on this issue, any more than we needed a uniform national law against alcoholic beverages. It isn’t like slavery, which was prone to spread into jurisdictions that didn’t want it because slaveownership was a continuing relationship that the owners wanted to preserve.
(Responding to Michael Brazier)
For now, let me just deal with your very last sentence, which is almost literally dead wrong.
Can prosecutions in abortion cases spread into jurisdictions where abortion is legal? Yes, they can.
Take two states with contiguous borders, A and B. Abortion is a felony in state A, but legal in state B.
Imagine that there is a hospital in state A where abortions are done (in the OR). Suppose that the entirety of the OR’s day shift staff lives in state B. Likewise, the hospital’s business office is in state B. Its revenue management company is in state B.
One day, a case comes into the OR during the day shift. It’s a late term D&E in a case of putative medical necessity, but one where the necessity is not patently obvious, and the fetus’s heartbeat can be registered. The staff now goes ahead and does the procedure.
Someone calls 911. The call is sufficient for a Terry stop of every member of the OR. Knowing this, the staff scurry home to state B, where they will be safe–for the night.
At this point, law enforcement has reasonable suspicion of the commission of a crime, but no probable cause. So they demand access to the hospital to do “interviews.” The hospital refuses. Law enforcement asks for access to the hospital’s data. The hospital responds that the data is housed in state B (with the business office and outsourcing company). Law enforcement responds that the data can, after all, be accessed inside the hospital on the hospital’s information system. The hospital says, “We don’t see a warrant, so forget it.” (Question: where is the data, anyway? HIPAA, a federal law, protects that data but allows a “law enforcement exception.” How does this exception work across state borders? How does it apply to medical data? Clearly, we’ll need federal laws to integrate HIPAA with constitutional criminal procedure.)
Meanwhile, the OR’s day shift staff is trapped in state B. The hospital is now “functioning” without an OR. The entire surgical schedule is now disrupted–potentially a cause of malpractice suits. Emergency surgeries have to be diverted elsewhere. The hospital scrambles to cover for the missing staff.
As they do this, random people start to squeal on the OR. Law enforcement then seeks a warrant on probable cause.
The hospital then disables its access (within the hospital) to medical data, so that access is only available from the business office and/or the outsourcing company, in state B. (I use the term “available” in a very, very loose way. Good luck accessing this data when you need it.)
Assume that law enforcement gets a warrant. Eventually, some members of the day shift staff give in, and show up at work. They’re arrested en route, once they cross into state A. Note that every member of the OR staff is potentially up for criminal sanctions here–physicians, nurses, EVS, sterile processing, pharmacy, etc. All of them helped enable the D&E the other day. Indeed, law enforcement has a strong stake in arresting all of them, then playing them against each other for information.
It doesn’t matter how this scenario ends. It’s obvious it can’t end well. But I’ve drawn it out enough to make my point.
In this scenario, state A’s law has disrupted the functioning of a hospital whose business office is in state B, and whose staff lives in state B. Indeed, residents of state B are practically held hostage by a law passed in state A, as are the hospital’s patients, and the hospital itself. The hospital, an interstate entity, has a strong interest in not permitting this scenario from happening. So does its outsourcing company, and any vendors that depend on OR business. So does state B. So does the staff that lives in state B. So does the non-day-shift staff that lives in state A and has to work overtime to cover for the staff living in state B. The adverse effects of state A’s law have spread into state B, a different jurisdiction.
Every element in this scenario is possible. So the scenario as a whole is a counter-example to your claim.
Let me add one last, obvious gruesome twist to my story. The patient is a resident of state B, but she’s still in PACU recovering from her procedure in the hospital in state A. The police obtain a warrant to arrest her. Getting advance word from Kojo, the EVS worker who always seems to know when something is going down, the PACU staff hustle the half-bleeding patient into a vehicle to rush her out of the state over the border. The police figure this out and give chase. A chase ensues, but the vehicle containing the patient crosses the state line. The police of state A continue into state B on the premise that law enforcement is permitted to cross jurisdictions in hot pursuit. State A’s police successfully stop the vehicle and arrest the occupants. The police from state B show up and inquire what the hell they think they’re doing. The police from state A respond that they are arresting suspected felons who resisted arrest. The police from state B respond that the suspects are in state B’s jurisdiction and cannot be transported out. The patient starts to bleed again. EMS arrives at the scene. Now they debate where to take the woman. Back to the hospital in state A, or to a more remote hospital in state B?
Meanwhile, the patient is bleeding out, as the advocates of state’s rights hasten to convince us that this is not a problem that ever crosses state lines.
Oh, I know–I’m exaggerating, right? What would I know? I just worked in an OR that did D&Es. Here is a film that describes the situation ca. 2017. People were getting arrested for suspected abortions after having “suspicious” miscarriages well before June 2022. Things were bad enough then. They’re about to get worse. The preview itself is enough to rebut claim that I’m exaggerating or that my scenario is implausible. The movie is better. Reality ca. 2022 is better still. More on that in a moment.
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(Responding to Michael Brazier)
As for the constitutionality of a federal law on abortion, I would say this: The Constitution’s “general welfare” clause should be read as giving Congress the power to protect the fundamental rights of the people of the United States. The Ninth Amendment makes clear that the Constitution recognizes fundamental rights that are not enumerated in its text. The right to bodily integrity is as obvious an instance of such a right as anything could be. In general, the criminal code outsources the protection of bodily integrity to the states via ordinary criminal law, but in a case where the states fail in that duty, I don’t see any constitutional barrier against federal action.
That by itself should be sufficient, but I would say that bans on abortion implicate constitutional rights in at least four other ways.
(1) For one thing, bans on abortion threaten to violate the First Amendment. This article cogently makes the point. The National Right to Life Committee has proposed model legislation for states that would make it a crime to pass along information used to terminate pregnancy. There’s a historical precedent for such laws, and the billboard scenario mentioned by Rienzi at the end is a plausible one.
Granted, that doesn’t bear on a constitutional amendment or federal law to protect abortion itself, but it does imply that abortion cannot somehow easily be contained within each individual state without affecting federal matters.
(2) Abortion also raises matters of Fourth Amendment jurisprudence, and so, of constitutional criminal procedure. HIPAA is federal law that protects the privacy of protected medical information. It contains an exception for criminal investigations. So, by implication, HIPAA would have to have a special “abortion exception” for criminal investigations involving suspected abortions. No one knows what this jurisprudence would look like.
Medical data is crucial to any criminal investigation in a medical context, but is not easy to localize. That would have to be settled, somehow. If a hospital’s OR is in state A, but its business office is in state B, and it outsources its data processing to yet another place, where is the data located for purposes of serving a warrant on a suspected abortion by a prosecutor seeking to bring charges for an illegal abortion? If a hospital is part of a system, and the system is located in a different state than the hospital, are warrants served on data to be served on computers within the hospital, or computers within the headquarters of the system? Or should they be served on the physical location of the server? These questions can’t be answered by state legislatures.
Constitutional criminal procedure is clearly a federal matter. Standards governing search and seizure, whether of property or persons, have to be uniform. That implies that the exceptions to HIPAA will have to be made uniform across states that demand access to medical information in cases of abortion, and those that don’t.
Again, this doesn’t bear directly on abortion per se, but it does prove, once again, that it is impossible to contain anti-abortion laws within the states that criminalize it without addressing federal issues or affecting other states. The abortion-driven exceptions to HIPAA will have to be consistent with constitutional criminal procedure generally, and will set precedents in other parts of Fourth Amendment jurisprudence–mostly likely bad ones.
(3) I’ve said before that I regard forced pregnancy as involuntary servitude, which violates the Thirteenth Amendment. That’s a federal matter, and a perfectly legitimate precedent for a constitutional amendment (or federal law) protecting abortion. Contrary to what you’ve said, the abortion issue is a lot like the slavery issue, and the view you’ve defended has all of the defects of the one taken by Stephen Douglass in the Lincoln-Douglass debates.
(4) Finally, contrary to the conservative derision for both things, I accept the doctrines of substantive due process and of incorporation of the Fourteenth Amendment to the states. The Fourteenth Amendment protects the “”life and liberty” against infringements by the states, and I regard prohibitions on abortion as violations of both life and liberty. So I regard them as fair game for federal legislation.
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Last point for now. Am I exaggerating the effect of Dobbs, and of post-Dobbs anti-abortion legislation? I don’t think so. On this point, I’ll just cite some references without making an attempt, item by item, to summarize the point of each reference. Cumulatively, I think they make clear my use of the term “police state” is entirely apt.
First of all, before we even get to abortion, consider a different issue: the drug war. I shouldn’t have to prove that the drug war has had seriously problematic consequences. But this piece by Maia Szalavitz draws the connection in exactly the right way. Anyone who thinks that law enforcement authorities wouldn’t intervene in medical matters beyond their competence, with horrific consequences for patients, is well advised to study law enforcement’s approach to opioid painkillers.
In the case of opioids, the “nightmare” has long since come to pass. If this is the template for law enforcement’s interventions in medicine, it is blatantly irrational to be sanguine about how they intend to proceed when it comes to abortion.
But we don’t need to speculate. This film, made in 2017, depicts the (literally) bloody zeal with which law enforcement has been willing to pursue women suspected of having abortions.
At 0:23 in the preview, there’s a reference to an investigation (later, an arrest) of a woman who was alleged to have had an “unlawful miscarriage.” That was more than five years ago, well before Dobbs.
In responding to Michael Young, I referenced five columns by Michelle Goldberg in The New York Times. Four of them (the latter four, chronologically) document cases that perfectly well justify my use of the term “police state.” If you don’t regard them as instances of a police state, you don’t know what a police state looks like. This is one of the cases she describes:
The nightmare dynamic in this case is unavoidable. In any case where you have a fetal heartbeat and a looming medical problem for the mother, no medical action can be taken to abort the fetus unless the medical problem can conclusively be proven to be medically necessary, in some cases on a very narrow construal of medical necessity. Bear in mind that abortion for medical necessity is not an exception but an affirmative defense, so that invoking it in one’s defense involves a shift of the burden of proof to the defense.
In other words, in any case in which you abort a fetus with a heartbeat and invoke medical necessity, you are presumptively guilty of homicide. God help you if you can’t come up with conclusive evidence–in an anti-abortion state, with a jury of your anti-abortion peers judging your guilt–that the abortion really was medically necessary to save the woman’s life. Your best bet as a provider is to wait until the woman is really about to die, then rush in and save her from the death to which you brought her. In that case, you can better hope to prove that you aborted the fetus to save the mother’s life. Otherwise, your affirmative defense could fail.
That’s what a biomedical police state looks like. Anyone who works in that OR, from the surgeons through the nurses down to the EVS staff, is putting their liberty on the line every time they do a D&E.
Of course, a case in which a 10-year-old rape survivor has to travel from her home state to another to get an abortion is not exactly evidence of the benevolence of the anti-abortion regime, either.
The right-wing press has been full of scorn, both for this physician and for the case itself. It’s worth looking at with open eyes. This is the wave of the future, or at least its first tide.
This article gives a good overview of the chaos unleashed by Dobbs:
This is characteristic of a police state:
This is the basis of the hazy language and glaring omissions:
What to do if the fetus has a heartbeat, but the mother faces “medical necessity”? Medicine is full of slow-moving medical “emergencies” and quasi-emergencies, and mere urgencies that haven’t yet become emergencies, but might. In a case where the providers face criminal prosecution for doing an abortion, and only have an affirmative defense at their disposal (which implies a reversal of the burden of proof), the predictable, even “rational” thing to do, is to wait for any medical urgency afflicting the mother to become an outright emergency that threatens her life before doing an abortion on a fetus whose heartbeat has been detected. It becomes understandable in this context why the law is so “hazy” and so full of omissions.
Once charged, the burden of proof is on the suspect. It becomes his or her problem to mount an affirmative defense. The legislatures are siding, in advance, with the prosecution. Why should they help the defense by enumerating what counts as an affirmative defense in every relevant case? If they don’t, it becomes the job of the defense not only to mount an affirmative defense, but to define the criteria for one. With two jobs to do rather than one, the prosecution ensures a better conviction rate. That’s how police states work. Haze and lacunae are to their advantage, or at least perceived advantage.
More of the same from this article. The surrounding context gives a rationale to what would otherwise seem like an act of confusion or cowardice: “I’m not going to touch this case because it’s not worth it” (p. 319, far right column).
If you can be arrested for performing an abortion, and the burden of proof will be on you to prove that you did so out of medical necessity, but you didn’t wait “long enough” to prove medical necessity to a jury inclined to define it more narrowly than you, then get ready to be found guilty of, say, a Class A felony. Because that’s what’s designed to happen. That it hasn’t happened yet doesn’t mean it isn’t designed to. It’s taken the anti-abortion camp 50 years to overturn Roe vs. Wade. It’s plausible to suppose that they have the patience to wait a bit before they arrest and convict their first abortion providers. I’m not one to sit still, waiting for that to happen. And I don’t think anyone on the pro-choice side should be expected to do so, either. Whether the nightmare is actually here or imminent is a moot point. The machinery is there to make it real.
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First, there isn’t a “general welfare” clause in the Constitution. There is a clause containing that phrase in Article I, but it’s the one that empowers Congress to levy taxes; grammatically “to provide for the general welfare” in that clause limits and explains the power to tax, and is not a distinct power in itself.
Second, the Fourth Amendment issue you raise has no relation to abortion as such, and in fact could easily arise without an abortion happening at all. The question is, can a state search for records relevant to a crime in its jurisdiction which are kept outside its jurisdiction? (It would come up, for example, for Internet gambling sites.) There’s no need for a special “abortion exception” for HIPAA – the exception for criminal investigations already covers it, once the question about a search across state lines is resolved.
Third, the idea that the Bill of Rights applies to state governments is supported by the Privileges and Immunities clause of the Fourteenth Amendment, not the Due Process Clause – which in any case just restates a clause of the Fifth Amendment. All the Due Process clause does is require that, if a state does deprive a person of life, liberty or property, it must have previously passed a law allowing it to do so, and follow the procedure laid down in that law.
The main defect of Douglas’s “popular sovereignty” position, as Lincoln pointed out to devastating effect at Freeport, was that it simply ignored the Dred Scott decision – which denied that the descendants of slaves were US citizens or ever could be, and thus that they had any of the rights that citizens possessed. No analogous defect exists in my position, because Dobbs didn’t create a federal law against abortion – rather, it removed the law that Roe</> and Casey imposed. And the similarity between slavery and abortion cuts the other way than what you suppose; like Dred Scott, Roe</> based its finding on the premise that a specific class of entities are not citizens and have none of the rights of citizens.
Finally, can you honestly tell me that the people who passed the Thirteenth Amendment believed that a forced pregnancy is “involuntary servitude” and covered by its text? The history of abortion laws is against you – the first restrictions were passed in the 1820’s, and the real push for banning the procedure took place after the Civil War. It would be very peculiar for a practice to become more widespread after a law forbidding it was passed, don’t you think? And it’s their opinion, not yours or mine (or currently seated judges) that controls the legal meaning of the Thirteenth Amendment.
“All the Due Process clause does is require that, if a state does deprive a person of life, liberty or property, it must have previously passed a law allowing it to do so, and follow the procedure laid down in that law.”
That interpretation of the Due Process clause is not self-evident. I think there’s a good case for the “substantive due process” interpretation.
“Finally, can you honestly tell me that the people who passed the Thirteenth Amendment believed that a forced pregnancy is ‘involuntary servitude’ and covered by its text?”
Probably not, but as Spooner points out, we have no access to their subjective intentions; what we have is the document. And as Lyons points out, what contested phrases in the Constitution refer to is to be determined by our best theories about the referents, not by the theories held by the ratifiers.
Analogy: suppose the parliament declares that all persons of Scottish descent shall be ineligible for the throne. And suppose that they are unaware that Prince Hoofroo, whom most of parliament supports for the succession, is in fact of Scottish descent. In that case, the Parliament would in fact have declared Hoofroo ineligible, even if the answer to “can you honestly tell me that the people who passed the No Scottish Succession law believed that Prince Hoofroo is of Scottish descent and is covered by its text?” is no.
Click to access 1050-LYONS.pdf
Click to access 1050-UNCON.pdf
(Responding to John Davenport)
For reasons I offered to Michael Young above, I don’t think it’s advisable to have any legal restrictions on later abortions. Late abortions are generally done for medical reasons (including psychiatric ones) that involve difficult judgment calls, trade-offs, etc. There is no adequate way to capture this fact in a constitutional amendment or in the criminal code in such a way as to prohibit all and only those later abortions that are clearly “frivolous” or “unnecessary,” while capturing all of the ones that are genuinely “necessary.” The attempt to do so can only have one predictable effect: to prohibit abortions in cases where women unskilled at navigating both the legal and the health care systems at once (while pregnant) find themselves accused, by unscrupulous and insensitive prosecutors, of having an “unnecessary” abortion by some ineffable, malleable criterion of “necessity” that the relevant parties make up as they go along.
I work for a company which pursues insurance denials on behalf of medical providers, meaning that we appeal insurance denials of payment to providers in cases where the insurance company claims “lack of medical necessity” as the rationale for the denial or payment (or for underpayment). Our business model is premised on (the factually correct) assumption that medical denials are an open-ended affair. Insurance companies deny payment for medical procedures performed, invoking “lack of medical necessity.” We appeal on behalf of hospitals, invoking “medical necessity.” They rejoin, invoking “lack of medical necessity.” We initiate a second-level appeal, invoking “medical necessity.” And on and on and on and on, generating hundreds, even thousands, of pages of documentation on each side, in a desperate attempt either to deny payment (them) or get payment (us). Who wins the battle? Whoever has the most staying power. In a different sense, who wins? Anyone who stands to make money off of the process.
There are some clear cases of medical necessity, some clear cases of non-necessity, but many, many cases that involve shades of gray, and complex combinations of medical, economic, moral, legal, and other considerations. “Medical necessity” is not the clear-cut concept that people have tried to make of it. I am skeptical, to put it mildly, that the relevant complexities can be captured in law, then fairly enforced by law enforcement agencies or prosecutors of the kind who inhabit actual police departments or prosecutor’s offices. It’s best to leave this to the doctor-patient relationship. Or rather, to the doctor-patient-insurance company-billing office-revenue cycle-management-company relationship. Bad enough that the former has morphed into the latter. We should be trying hard not to let it morph into something even worse.
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