McFall v. Shimp: More Analogous to Legal Abortion Than We Usually Think

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In 1971 Judith Jarvis Thomson analogized the legal prevention of abortion (i.e., anti-abortion laws), in the case of a rape pregnancy at least, to legal compulsion to endure the use of one’s kidney by a stranger for nine months. She expected readers to agree that such a compulsion would be “outrageous,” and even most pro-lifers agreed that indeed, our society should not institutionalize such compulsion. Almost all pro-lifers defend, legally if not morally, a passive right to refuse such that the needy person dies of their own disease – unless perhaps there are special circumstances * and the demand on one’s body is almost trivial, such as the donation of one pint of blood. Thomson’s paper pioneered a genre of similar arguments for abortion rights, known as “bodily-rights arguments” (or more specifically “right to refuse” bodily-rights arguments).

Soon enough after 1971, in a Pennsylvania court in 1978, Judge John Flaherty ruled that Robert McFall did not have a right to any of the bone marrow of David Shimp, even though McFall’s life might be saved by it and he might otherwise die. There was no known public disagreement with the ruling. This bore out the contention that a legal compulsion to endure the use of one’s internal organs, at least if the one being compelled was not responsible for the condition that had created another born person’s need to use them, would be unacceptable if not outrageous.

So the legal prevention of abortion, i.e., anti-abortion laws, compelling a woman to endure the use of her internal organs (at least if she was not responsible for the condition that had created another person’s need to use them, that is, a pregnancy), is clearly unacceptable – if such legal prevention of abortion is really analogous to the legal backing that McFall sought in trying to use some of the bone marrow of Shimp.

In fact, legal prevention of abortion is disanalogous in a number of ways to the legal backing that McFall sought in trying to use some of the bone marrow of Shimp; but the pro-life side has focused more than anything else on one disanalogy: the fact that McFall was left passively to die of his own disease, whereas in an abortion, the pregnant woman actively kills or hires someone to kill her unborn child.

I would like to argue here that that distinction, while worth making, is not sufficient in itself to justify the legal prevention of abortion, and that such legal prevention can only be justified by the cumulative import of a number of disanalogies.

The problem with simply pointing out that McFall was left passively to die of his own disease, whereas a pregnant woman actively kills or hires someone to kill her unborn child, is that, once Judge Flaherty ruled against him, McFall “took no for an answer.” He did not proceed to start taking Shimp’s bone marrow.

But an unborn child does not take no for an answer. An unborn child is tiny, it is innocent, it is unconscious, but nevertheless it is capable of refusing to take no for an answer and proceeding, without going through the courts, to start using its mother’s uterus and consuming its mother’s blood.

So in order to make the McFall v. Shimp situation more analogous with an unwanted pregnancy and a proposed abortion, let’s see how that case could hypothetically have played out instead of how it actually played out. This may get a little fanciful, but we already knew that any hypothetical that is really analogous to pregnancy will be fanciful.

Let’s say Judge Flaherty delivers his 1978 verdict, including his well-known comment “For a law to compel the defendant to submit to an intrusion of his body would change every concept and principle upon which our society is founded.”

At this point something understandably snaps in McFall, and he develops a psychotic delusion that Shimp is a bone-marrow-dispensing robot. (So that whatever he may do to Shimp, he will be innocent by reason of insanity, just as an unborn child is innocent.)

He follows Shimp home, and before Shimp knows what is happening, McFall has tied him to his own kitchen table and is proceeding to take some bone marrow.

There is no lethal threat to Shimp, and he knows it, but nevertheless he manages to get a concealed handgun out of his pocket. His only possible target is McFall’s head. He fires and kills McFall.

Now he has committed an active killing, as when a woman aborts. But how much less justified is he than if he had passively let Shimp die, which pro-lifers say should legally be okay? He has not killed gratuitously. As when a woman aborts, he has done it under circumstances where he had said no, but the person needing to use his body had refused to take no for answer.

So soon Shimp is back in Flaherty’s court. The prosecution has charged Shimp with criminal homicide, because he actively killed McFall. There is no dispute about the facts of the case.

Shall Judge Flaherty say to Shimp, “I said earlier that a law cannot compel a defendant to submit to an intrusion of his body. But I take that back. Under your circumstances with McFall, the law did require you to submit, because your only alternative was active killing and the law does not permit active killing. True, there is no law worded ‘if your only alternative is active killing, you must submit,’ but our homicide laws, since I interpret them as applying even in your situation, have the same effect” – ?

I don’t know how Flaherty or any judge might rule, but since we are using this scenario only as an analogy for abortion, the point is what the law should be rather than what it presently is. I once debated with an intelligent pro-choicer who thought that acquittal of someone in Shimp’s position would be “uncontroversial.” I responded with my moral intuition that, as long as any harm likely to be done to Shimp were no greater than is done to a woman in an average pregnancy in a developed country, Shimp should not be legally permitted to use lethal force. But I found the pro-choicer’s view extremely understandable. Hence I do not consider that making the distinction between actively killing, and passively letting someone die of their own disease, is, alone, a knockdown response to the right-to-refuse argument. In ethical debate, if an analogy is to have its desired effect, it works by analogizing the situation containing the debatable issue to a situation where the right and wrong are not in debate. But if the McFall-Shimp story had played out in the way I have suggested, a way really analogous to abortion, it would have been a situation where the right and wrong are in debate.

If it is a fact that no law or precedent can compel a person to do X (for instance, “submit to an intrusion of his body”), that does not mean that there is an automatic corollary “the law allows lethal force to save oneself from X.” In many situations of “cannot compel a person to do X,” there would be no such corollary. However, when Flaherty said that a law cannot compel a person to submit to an intrusion of his body, he went on to say that for a law to do so “would change every concept and principle upon which our society is founded. To do so would defeat the sanctity of the individual and would impose a rule which would know no limits, and one could not imagine where the line would be drawn.”

To be consistent with those ponderous words he used on the first occasion, Judge Flaherty would either have to find active killing under the circumstances that Shimp faced to be permissible, or would have to be very sympathetic to such a finding. He would not find active killing to be as obviously impermissible as pro-lifers would like it to be in a situation analogous to abortion.

If Flaherty’s strong words are true without exception for any circumstance, and if our homicide laws would operate in the above hypothetical circumstance such that Shimp would have to submit, then those homicide laws “would change every concept and principle upon which our society is founded. . .,” so seemingly such laws could not stand – meaning that in that circumstance the law would allow lethal force. Flaherty’s words, with which no one seems much to disagree when we are talking about born persons, describe a non-negotiable right to refuse, meaning a right that can be defended by almost any means necessary.

Remember that in the hypothetical scenario, McFall is proposing not merely to injure Shimp’s body, but to use it. This distinction is at the heart of the concept of bodily rights, and the effect, I think, is to bolster Shimp’s right to defend himself.

When we point out that abortion is not just the withholding or withdrawing of help, but active killing, the right-to-refuse argument loses a lot of the sizzle it might otherwise have, so we should definitely point that out. It is a point worth making. But any motivation for a pregnant woman to actively kill stems from the absence of a passive option for freeing herself – unlike the passive options open to Shimp (the way his case actually played out) and to Thomson’s kidnap victim (that person could simply disconnect without actively killing) – and the absence of a passive option means by the same token that the woman is in a trap and that therefore the taboo on active killing also loses its sizzle. Active killing is the minimum level of force necessary for her to free herself. The more reason of a self-defense nature you have for killing someone, the less the moral difference between actively killing them and passively failing to help them becomes. Under some circumstances, actively killing someone for self-defense reasons might even be more moral than failing to help. So the point about active killing does not do the desired work of showing that a woman procuring an abortion is disanalogous to Shimp. Let’s make the point about active killing, but not expect it to completely defeat the right-to-refuse argument.

Fortunately, there are, as I said earlier, other disanalogies between the prevention of proposed abortions on the one hand, and compelled organ donations on the other. I don’t think any single one of the disanalogies can defeat the right-to-refuse argument in the case of rape, but I think a cocktail of disanalogies/arguments, taken together, can defeat it even in that case.

* Listen at 5:23.

© 2019

 

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We Are All Helping Commit Abortions – Should We Be?

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[Edit: These first two paragraphs were added August 3, 2021, on the occasion of publication by Human Defense Initiative:

Today the foremost topical issue on the minds of the US pro-life world is the survival or demise of the Hyde amendment. US pro-life leaders are engaged, with one voice, in moral appeals to the obviously-deaf ears of the Democratic Party proponents and supporters of legislation that would have the effect of killing the Hyde Amendment, likely permanently. It should be obvious by now that these moral appeals will not work and may be little more than an exercise in feeling good. They will not work because the proponents of the legislation understandably perceive that while the US pro-life leadership may do some grumbling and whining, once the legislation is enacted and goes into effect, that leadership and all US pro-lifers will passively acquiesce in paying those lethal taxes – i.e., they will acquiesce in becoming parties to abortions and part of the abortion machinery. They will not resist paying the taxes. Becoming parties to abortions, they will lose their moral force, and the victory of the abortion juggernaut will be assured.

What would strike actual hesitancy, or even fear, in the hearts of the proponents of the legislation would be a pure moral flame in the form of a tax-resistance movement. They would fear it, because that principled tax revolt would be a black eye for Democratic Party rule, and because many people, in trying to understand that revolt, would think much more deeply about the reality of abortion than they had thought before – which could only benefit the pro-life side. So let pro-life leaders declare now their intention to organize such a movement if taxpayer funding of abortion is enacted. Some possible orientation is provided here.]

Michael Bowman’s conscience recoils at the idea of paying federal income tax, because some of it would go to Planned Parenthood. Federal funding of Planned Parenthood is not supposed to go for abortions, but Bowman, a software engineer who lives in Oregon, says that the $500 million dollar annual amount funds “knives, scalpels, [operating] rooms . . .,” etc. Moreover, whether or not he has mentioned it, federal funds do go directly for abortion in cases of rape and incest. Hence to pay taxes is to be complicit.

(Even if tax money did not actually help facilitate abortions, one might well find it morally repugnant to fund an organization that symbolizes, whitewashes, and misrepresents abortion, and one might object on those grounds. But Bowman has not expressly made that particular argument.)

Some would reply to Bowman that taxes are inevitable, that their various uses cannot please everybody, that they are a price of living in society, and that therefore taxpayers are absolved of any responsibility. To that thinking he responds:

The United States Federal Government and state governments are not responsible for keeping the conscience of its citizens “clean and intact.” That duty falls to the individual, there is no shifting of responsibility from the individual to the government. A Citizen cannot say “The Government made me do it!”

In the end we are all responsible for our own lives, souls and consciences, and our Founding Fathers knew this. This is why they elected to keep government in a small box, and to keep the power in the hands of the individual; so that the individual could live in a manner which did not cripple his conscience, or force him to surrender his soul to a small group of people in government that have their own agenda for power! *

To show the absurdity of thinking that the government can bear our moral responsibilities, Bowman sometimes asks listeners to imagine some of the hideous atrocities the government might order us to commit if we started to accept that it really does have the right to order us. Bowman wishes people to understand that if our government can force those who abhor abortions to participate in them, it can force its people to do anything. Eventually it becomes clear that citizen obedience of that kind is unacceptable and that we cannot escape from ourselves. Even for many who do not share all of Bowman’s small-government philosophy, his “there is no shifting of responsibility” will strike a chord. Liberals who have shared that latter idea have a long history of conscientious objection on different issues. Whatever powers we may want to give the government and whatever technical resources we may think should be at its command, it will never have the power to make us feel right when we have done wrong.

But what if the government of the land we live in falls into hands that do in fact order us to violate our consciences? Bowman’s above statement doesn’t say, but he has answered that question in his actions. He has not paid federal income tax since 1999.

Bowman was indicted for tax evasion in February 2017. But as the National Review has related, the law under which he was charged defines “evasion” only in terms of concealment of income or other intentional deception, whereas Bowman had been transparent about what he was doing. In April 2018 Judge Mosman of the U.S. District Court in Oregon dismissed the felony evasion charge. However, the prosecutors could still seek a new indictment. [Edit: Bowman has now said that the government has dropped the felony charges permanently.]

A more immediate issue for Bowman is four misdemeanor counts of willful failure to file tax returns, for which he was charged at the same time as the felony charge. Each of those counts could carry a sentence of a year in jail. However, he writes that he expects to win, because “I asked them for accommodation almost 20 years ago, and they failed to comply with federal law.” The trial is scheduled to start this August, and may see a big turnout of pro-life demonstrators.

Is Bowman completely alone in resisting taxes for the reason he did? In covering his April 2018 trial, The Oregonian noted: “[Kenneth] Medenbach . . . said he’s following Bowman’s lead, refusing to pay taxes, citing his own religious beliefs against abortion.”

After the recent Cuomo-led institution of taxpayer funding of abortion in New York State, a bookstore owner named Jon Speed closed his store for one day in order to reduce, by a token amount, the sales-tax revenue available to the state.

Jon Speed closed his store for one day

Only Three out of 100 Million?

Out of about 100 million pro-lifers in the US, there must have been a few other instances, that I haven’t yet heard of, of tax resistance related to abortion. And of course pro-lifers are active in the legislative sphere in opposing taxpayer funding of abortion in the first place. But as regards dutifully paying federal income tax and state taxes that are already in place, essentially the pro-life response has consisted of total acquiescence. Moreover, some pro-lifers are aware that Facebook, Starbucks, Ben & Jerry’s, Microsoft, Paypal, General Electric, ExxonMobil, PepsiCo, United Airlines, Bank of America, Wells Fargo, etc., all donate or have donated to Planned Parenthood, and that if they use those companies, one effect will be to increase Planned Parenthood’s revenues. And yet there has been no organized boycott of those companies, even the ones that it would be almost painless for us to boycott. (As I write this, a boycott of Netflix is shaping up, though not because of funding. Let’s see if it goes anywhere.)

At this point we should make it clear that Bowman himself just wants to live his life as a free individual with a clean conscience. He chose not to pay taxes not with the purpose of starting a movement, but simply because he found his conscience to allow him, as an individual, no alternative. If there is any message he would like to send, it is not that others should do as he did, but that we should all understand the Constitutional limitations of government power in the land that we live in. And according to Bowman and his lawyers, those limitations in relation to the consciences and religious convictions of citizens are enshrined in Title 42, Chapter 21b of the United States Code, to be discussed below.

Yet though Bowman is not asking anyone to follow his example, what he says about conscience will inevitably make each pro-lifer ask themselves, “What about my conscience?” Joe Biden’s recent capitulation on the Hyde Amendment makes it clearer than ever that shortly after Jan. 20, 2021, big-scale federal tax funding of abortion might be the law of the land, and if pro-lifers seem ready to be walked over acquiescently in the event that it is, its proponents will be thinking “Why not?” Among some proponents, there may even be a component of wanting to break the spirit of pro-lifers.

There are three questions that pro-lifers will have to grapple with:

1. Is Bowman correct that payment of taxes is moral complicity in abortion? What about patronizing or using companies who support abortion?

2. Through what tax and other avenues does our money presently go for abortions?

3. If we are presently complicit, what options do we have regarding each of those avenues to rescue our consciences, and to do so in a way that will force other Americans to appreciate the strength of our convictions?

Let’s look at those three questions.

1. Is Bowman correct that payment of taxes is moral complicity in abortion? What about patronizing or using companies who support abortion?

If a prisoner in a concentration camp is ordered to kill a fellow prisoner or die oneself, then one should choose to die, clearly. On the face of it, to supply money, one of the essential cogs of the abortion machine, is to be no less instrumental in abortion than to use one’s hands to kill. But I have heard two main arguments against such an analogy:

a. Considering all the ways that your federal and state taxes will have to be spent, only a minuscule amount of it will ever go for abortion.

But the problem with this argument is that when we pay our taxes, we set an example. And once everyone pays, there will be thousands of abortions every year, in a big state like California, of babies who would otherwise have been spared.

b. As a pro-lifer wrote to me, “There’s probably something our taxes go to that would be morally objectionable to nearly every single person who pays taxes.” And yet if everyone withholds all tax money, we will lose much of the benefits that our Homo sapiens cooperation instinct could otherwise provide us for our mutual defense and our general welfare. Advanced civilization could not exist without a tax system involving mutual concessions.

This argument assumes that advanced civilization is of more value than preserving our innocence in relation to mass killing, an assumption that Bowman has attacked with effective reductio ad absurdum arguments. Moreover, I feel that civilization could in fact afford to accommodate refusal to pay taxes for a certain kind of reason. For more on this, see here. Let’s ask ourselves, if our tax money were being used to suction, poison, and dismember born children, would we acquiesce to that?

2. Through what tax and other avenues does our money presently go for abortions?

Even if we don’t pay income tax and don’t live in states with tax funding of abortion, probably all of us, through our spending habits and other actions that enrich people or companies in other states, do contribute to abortions, sometimes unknowingly, and in certain ways that are avoidable and other ways that are harder to avoid. For more on this, see here.

3. If we are presently complicit, what options do we have regarding each of those avenues to rescue our consciences, and to do so in a way that will force other Americans to appreciate the strength of our convictions?

As the link I provide under 2 makes clear, we cannot completely avoid leaving an abortion “footprint” on the earth in financial terms. But I would think that any pro-lifer would consider it their moral duty to minimize their footprint – their money that goes to abortion – at the cost of some degree of sacrifice of comfort and convenience for themselves. Preferably in a way that attracts attention to their strong convictions. Minimizing would begin with educating themselves as to where their money goes. I have tried to list the options for minimizing, some of them involving little sacrifice for a pro-lifer, some of them involving a lot, here.

Apart from what is incumbent on us for our own consciences, if we totally acquiesce in funding abortions but would not acquiesce in funding the killing of innocent born children, we send a message that we do not really believe an unborn child to have the moral value of a born child.

And incidentally, for the public to see a significant number of pro-lifers ready to make sacrifices, and to do so using an approach that cannot be painted as disturbing women, would go far toward burying some of the theories that pro-choice feminists often peddle as to what motivates pro-lifers.

One of the options, of course, is that chosen by Bowman. Let’s look again at his case. Basically under some circumstances, though not as it has worked out for him so far, such a case could hinge on Section 2000bb-1 of the United States Code. Bowman thinks that the courts and the IRS are afraid of opening the Title 42, Chapter 21b floodgates: its Section 2000bb-1 (Section 3 of the Religious Freedom Restoration Act), line (c) says, “A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government,” and according to (b) of that section, the government (not just the IRS) would have to demonstrate that funding Planned Parenthood with the money of a religious objector “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” For more on this, see here.

On February 26 of this year, Bowman kindly spared me a little time on the phone, so that I could begin to fill in the partial picture of his adventures and thoughts that I had already gleaned from the media. Some of what I learned on that occasion is at the foregoing link. On that occasion Bowman also shared a wry observation on present-day political realities, saying that if the US government forced taxpayers to pay for erecting costly Jesus statues everywhere, then even though erecting those statues would not kill anyone and abortions do, we might see an outcry against compelled taxation for statues, and support for the idea that objectors should be accommodated, greater than is presently caused by the deaths of unborn children.

I mentioned above my belief that pro-lifers should be ready to embrace some degree of sacrifice to minimize their abortion footprint. Bowman is pro-life, but not in the most common sense of the term, because he does not advocate making abortion illegal. (He says only that abortion is between a woman and God and the woman’s conscience, and that if she aborts, he does not want to be a part of it.) Yet he sees the hideousness of abortion as much as any pro-lifer, and to avoid being a part of it, the sacrifice that he has been ready to make has been a big one. He was and is ready to go to jail.

I have not had the chance to meet Michael Bowman personally, and I do not know anything about him except data closely related to his fight with the IRS. I don’t know whether we should try to make him a poster child for the pro-life movement, and he makes it clear that he would not want to be. What he has undeniably contributed with his show of guts, however, is to throw a key moral and legal issue into clear relief for us, and it’s up to us to take it from there. Those who want to discuss this, let’s please meet on this Facebook page.

* Email of 31 March 2019.

© 2019

August 6, 2021 update:

Above we wrote, “The trial is scheduled to start on August 12 [2019] in Portland . . .” That trial ended on August 16. It ended in a hung jury, to the surprise of legal experts, who had considered it an open-and-shut case for the prosecution. During the trial, the judge (the same judge who had dismissed the felony case) had allowed Bowman “to raise what’s called a ‘good faith’ defense that he believed the government owed him an accommodation based on his reading of the federal Religious Freedom Restoration Act and the Oregon Constitution.” The judge immediately declared a mistrial, and six days later he phoned the lawyers on both sides and “signaled that in a retrial he wouldn’t allow Bowman to raise” that defense. (See “After mistrial, judge says he made mistake in allowing man to argue religious objection to filing tax returns.”)

Believing that that flip-flop gave them no chance of avoiding conviction in the retrial, Bowman and his lawyer decided not even to contest, but instead to appeal and hope for better treatment in a higher court. Accordingly, Bowman was convicted in the Dec. 9, 2019 retrial, and immediately appealed, and remained free pending sentencing. His sentencing finally  came on Aug. 20, 2020: four years’ probation (though technically he could have received four years in prison, and the prosecution had asked for fourteen months in prison). The judge “also ordered Bowman to pay $138,026 in restitution . . .”

The first hearing in the appeal trial has not been scheduled yet.

 

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See also “Bowman Wins Near-Total Legal Victory. Now the Pro-Life World Is on Trial Morally.”

Refusing Tax Participation in Abortions – a Legal Basis?

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This blog post is one branch of a broader stream, “We Are All Helping Commit Abortions – Should We Be?”

 

Michael Bowman’s conscience recoils at the idea of paying federal income tax, because some of it would go to Planned Parenthood. He has not paid federal income tax since 1999.

Bowman was indicted for tax evasion in February 2017. But as the National Review has related, the law under which he was charged defines “evasion” only in terms of concealment of income or other intentional deception, whereas Bowman had been transparent about what he was doing. In April 2018 Judge Mosman of the U.S. District Court in Oregon dismissed the felony evasion charge. However, the prosecutors could still seek a new indictment.

A more immediate issue for Bowman is four misdemeanor counts of willful failure to file tax returns, for which he was charged at the same time as the felony charge. Each of those counts could carry a sentence of a year in jail. However, he says that he expects to win, because “I asked them for accommodation almost 20 years ago, and they failed to comply with federal law.”

The first thing we as pro-lifers can take away from Bowman’s case is that it may not be illegal for others to do the same thing he did, provided they do not fail to file transparent tax returns. But remember that “the prosecutors could seek a new indictment to replace [the dismissed one]” in his case, and the present legality of transparent refusal (if, as the judge thought, it really is legal) would seem like a loophole that could easily be closed.

On February 26 of this year, Bowman kindly spared me a little time on the phone, so that I could begin to fill in the partial picture of his adventures and thoughts that I had already gleaned from the media. If even a transparent refusal to pay income tax had been a crime, Bowman would have had to defend himself, and would have been able to defend himself, with Title 42, Chapter 21b of the 1993 Religious Freedom Restoration Act* – and I learned that that is how he had really wanted to defend himself. But that did not work out for him. As he stated in a video interview by the Christian Broadcasting Network, “when we raised the RFRA, [Judge Mosman’s] initial knee-jerk reaction was, ‘Well, if we accommodate you, we gotta accommodate everyone who has a religious opinion.’”

Bowman says that he has been trying for twenty years to get government lawyers to sit down and have a deep discussion with him about Title 42. They have always avoided that conversation, he says. This should get our attention. He thinks that the courts and the IRS are afraid of opening the Title 42, Chapter 21b floodgates: its Section 2000bb-1 (Section 3 of the RFRA), line (c) says, “A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government,” and according to (b) of that section, the government (not just the IRS) would have to demonstrate that funding Planned Parenthood with the money of a religious objector is “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

The government seems to have avoided discussions with Bowman about this section, on principle or due to some uneasiness, despite the fact that they stood potentially to collect $350,000 in back taxes from him, and might have avoided the considerable legal fees that they have fruitlessly spent prosecuting him. Pro-lifers should think about that possible uneasiness.

Moreover, secular conscientious objectors could claim discrimination if their objections to funding Planned Parenthood based on exercise of conscience or philosophy were not counted the same as objections based on religious exercise.

It is not clear why an accommodation door almost as big as the accommodation door that the judge was afraid of opening, was not opened as well by the judge’s dismissal of the case, except that the dismissal left the government with the chance to try again.

As regards the “compelling governmental interest,” the Founding Fathers certainly created a government that would “promote the general Welfare,” a goal that may be called compelling, but would Jefferson, Madison, et. al. really have wanted religious or secular conscientious objectors to fund Planned Parenthood, under penalty of going to jail? Bowman thinks that funding Planned Parenthood doesn’t promote the general welfare, and I completely agree. But then there are the Katha Pollitts of the world, who think that no-restrictions taxpayer-funded abortion would be the best thing for humanity since the invention of agriculture.

Hobby Lobby won its case based on the RFRA. It might be argued that because of the vital nature of taxation, the government could afford to be more lenient in allowing people to refuse to make direct payments (for abortifacient contraceptives, in that case) than in allowing people to refuse to pay taxes. Nevertheless, there may be a good legal argument that funding Planned Parenthood is not for the general welfare, and that argument may become even stronger if ever the Hyde Amendment is repealed and federal money starts flowing to PP unabashedly for abortion, and not ostensibly for healthcare. Strongest of all, it seems to me, is Bowman’s argument that even if there is really a compelling governmental interest in funding PP, forcing religious people to pay is not the “least restrictive” way to go about it. A checkbox on the income-tax form that allows people to fund PP if they wish to donate might, as he points out, serve the purpose.

* The Religious Freedom Restoration Act of 1993 has seven sections, which have entered the Code of Laws of the United States of America (or “United States Code”) as Title 42, Chapter 21b of the Code, with numbers starting at 2000bb. Section 3 of the Act, headed “Free Exercise of Religion Protected” and quoted in part above, has entered the Code as Section 2000bb-1 of the Code.

© 2019

 

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How Our Tax Dollars and Our Spending and Other Habits Support Abortions, and What We Can Do About It

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This blog post is one branch of a broader stream, “We Are All Helping Commit Abortions – Should We Be?”

 

Federal funding of Planned Parenthood has received a lot of attention. That funding is not supposed to go for abortions, but one person who objects to participating in that funding says that the $500 million dollar annual amount funds “knives, scalpels, [operating] rooms . . .,” etc. Moreover, whether or not that person has mentioned it, federal funds do go directly for abortion in cases of rape and incest. Hence to pay taxes is to be complicit.

(Even if tax money did not actually help facilitate abortions, one might well find it morally repugnant to fund an organization that symbolizes, whitewashes, and misrepresents abortion, and one might object on those grounds.)

Federal Planned Parenthood funding aside, tax funding of abortion goes on more unabashedly (or even proudly) in fifteen states. In fourteen of them, state dollars paid as Medicaid (not presently the federal dollars paid as Medicaid) reimburse a clinic whenever it does a“medically necessary” abortion for a Medicaid recipient; in any of those states that define “medically necessary” as Doe v. Bolton defines “health,” that restriction can be considered meaningless. And in California, meanwhile, the slogan is “Medical justification and authorization for abortion are not required.” There in California, Medicaid money comes out of the state General Fund, which is fed mostly by state corporate taxes and sales taxes.

So if you attended the Walk for Life in San Francisco and bought your poster materials in California, a little of the sales tax you paid went for abortion. Moreover, if you use Google, every time you click, it makes advertisers willing to pay a little more ad money to Google. As a result there are more Google employees in Santa Clara receiving paychecks and buying more Teslas, and the sales tax they thus pay results in unborn children being suctioned out who would not have been otherwise. If you spend money in any way at all that increases the employment or incomes in any state that uses sales tax money as Medicaid reimbursements, some of your money will end up as sales-tax money and eventually abortion money.

Therefore, if paying tax money that goes for abortions is complicity, as I think is undebatable at least to some extent, we are all complicit – those living or spending their money in some states more so than those living or spending their money in other states.

But then, even apart from taxes, your purchases from within your own state or from any other state will help enrich countless people, some of whom will use the money to commit different kinds of violence, and unconscious effects of that kind cannot be deemed complicity. (Some of the people enriched will also spend to prevent violence.) If you purchase from companies in a state like California, that merely enables that state’s government to squeeze out a little more money for abortion than if you had purchased from a state like Mississippi – a small degree of complicity if you do it knowingly.

And if you patronize or use Facebook, Starbucks, Ben & Jerry’s, Microsoft, Paypal, General Electric, ExxonMobil, PepsiCo, United Airlines, Bank of America, Wells Fargo, etc., a certain amount of your money will end up donated to Planned Parenthood.

What Pro-Lifers May Decide to Do

1. Some pro-lifers, if they are encouraged to think about it enough, might be ready to follow the example of Michael Bowman in Oregon, who has not paid federal income tax since 1999 lest some of it go to Planned Parenthood. Pro-lifers who must work as employees and a portion of whose wages are likely to be withheld in advance by their employees can endeavor to work for pro-life employers also ready to resist.

2. Some might be ready to concertedly, in a way that will get attention, move from a state where sales taxes go toward abortion to a state where they do not.

3. Some might be ready to organize, in an attention-getting way, to completely boycott Amazon, Starbucks, Ben & Jerry’s, Paypal, General Electric, ExxonMobil, PepsiCo, United Airlines, Bank of America, Wells Fargo, and other companies who donate to Planned Parenthood.

4. Some, without reducing their abortion footprint, might, if they come to understand it better, be willing to offset it – by increasing their support for CPC’s, by redoubling their efforts to undo tax laws, etc.

5. At the very least, pro-lifers should be better educated about their abortion footprint. An abortion-footprint app could be developed: It might ask you about 25 questions – where you live, how much you make, what brand of gas you buy. Then it will estimate what your footprint is – it will itemize all your money streams that are ending up supporting abortion. You will see that you are sending money to PP via Exxon, for example. Then you switch to Shell or whatever, and the app will show you that your footprint has become smaller. The abortion footprint of the typical taxpayer will be minuscule, but that is beside the point, because one’s money going toward abortion sets an example, and collectively a failure by the consumers and taxpayers of some states to resist will result in thousands of abortions a year that would not have occurred otherwise.

6. A pro-life barter website could be launched where, for example, a pro-lifer who needs a refrigerator could acquire a used one by exchanging a used dishwasher, without having to pay sales tax. The economic impact of such a website might be negligible, but it could attract some public attention to the seriousness of pro-lifers’ convictions and make people want to understand the reason for those convictions.

Those ideas proceed in order from harder for pro-lifers to commit to, to softer and more palatable.

© 2019

Tax Funding of Abortion, and the Philosophy of Taxation

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This blog post is one branch of a broader stream, “We Are All Helping Commit Abortions – Should We Be?”

 

If a prisoner in a concentration camp is ordered to kill a fellow prisoner or die oneself, then one should choose to die, clearly. On the face of it, to supply money, one of the essential cogs of the abortion machine, is to be no less instrumental in an abortion than to use one’s hands to kill. But I have heard two main arguments against such an analogy:

1. Considering all the ways that your federal and state taxes will have to be spent, only a minuscule amount of it will ever go for abortion.

But the problem with this argument is that when we pay our taxes, we set an example. And once everyone pays, there will be thousands of abortions every year, in a big state like California, of babies who would otherwise have been spared.

2. As a pro-lifer wrote to me, “There’s probably something our taxes go to that would be morally objectionable to nearly every single person who pays taxes.” And yet if everyone withholds all tax money, we will lose much of the benefits that our Homo sapiens cooperation instinct could otherwise provide us for our mutual defense and our general welfare. Advanced civilization could not exist without a tax system involving mutual concessions.

It is true that cooperation on government funding requires mutual concessions, and while on the one hand pro-lifers might lose in conscience terms by paying for abortion, on the other hand, other people would in return agree to fund something that we want and they oppose. In 1982 the Supreme Court held that “Because the broad public interest in maintaining a sound tax system is of such a high order, religious belief in conflict with the payment of taxes affords no basis for resisting the tax.” Regarding the deeper philosophy of taxation there must be a vast legal literature with which I am mostly unfamiliar. However, I think in the first place that the argument about the benefits of mutual concessions might be a good argument for the proposition that the government should in general impose tough consequences for conscience exceptions – in order to guarantee that few people will demand them – but not such a good argument for the idea that a real person of conscience should not withhold taxes and accept the consequences. The argument assumes that civilization is of more value than preserving our innocence in relation to mass killing. We shouldn’t automatically assume that the universe is better off with a civilization that is seriously morally compromised, than it would be without. The assumption yields to reductio ad absurdum arguments. What if we even suppose that our tax money were being used to suction, poison, and dismember born children – would we acquiesce to that?

And secondly, would civilization really collapse? While the government could not afford to let all conscientious tax defaulters off, it could afford to let some off, and it seems to me that compunctions about killing human beings are in a class by themselves in terms of most deserving accommodation. There must be no blow to the conscience so excruciating as the realization that one has unjustly killed and cannot undo it.

So compunctions about killing human beings are most deserving of accommodation. If in thinking about the need for mutual concessions and the danger of a breakdown thereof, we limit our thinking to that most deserving category (that is, if society decides that only such compunctions merit “appropriate relief against a government”*), then pro-lifers who refused to pay for killing the unborn would only have to fear that other people might refuse to pay for killing some human beings whom the pro-lifers wanted them to kill.

People differ on military conscription, but even most of those who are skeptical that the US has ever in history fought a just war could probably at least imagine a benevolent and altruistic state that under some circumstances should require its citizens to kill enemy combatants. Now suppose that if I refuse to pay for killing the unborn as they want, some people will refuse to help kill those enemy combatants as I want, and moreover will refuse to pay taxes for it. But my answer is that that is a chance I would be willing to take. Let the government cut its coat according to the cloth that is available of willing participation in killing.

 

* See Section 2000bb-1 of the United States Code (Section 3 of the Religious Freedom Restoration Act of 1993). Some of it reads:

. . . Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person –
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.

. . . A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government . . .

© 2019

A Daunting Disadvantage for the Pro-Life Side

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In September 2021, Consistent Life Network kindly reprinted this article. However, the Appendix does not appear on their blog.

I derive my consistent pro-life position differently than do most. I do not think that, as an ultimate philosophical truth, the lives of all human beings are of equal value. I do not think that the life of a person with no consciousness, or little consciousness, left, and who is unlikely to recover, is as valuable as that of a healthy ten-year-old. I even think that the life of a healthy 25-year-old with enough consciousness to be thrilled by art, or scientific understanding, is more valuable than the life of a healthy 25-year-old whose dreams are only about physical comforts.

And the above are my thoughts only about one’s value to oneself. I think also that in assessing overall value, we should think about people’s utility value: we should think about the contributions to humanity a person is capable of, and is likely to make. We should conceive that some people’s utility value is actually negative. Utility value too should be part of the equation, thinking philosophically.

However, I also feel strongly that it is imperative that as a social convention, every human life must be deemed to be of  equal value. (I have explained further in the last paragraph here.) Thus for all practical purposes, I share the consistent pro-life philosophical position that all human lives are of equal value, on which consistent pro-life policies or political positions are based.

Of all the consistent pro-life policies or political positions, I have always chosen to focus my own efforts most on the position which often (I mention this incidentally only) is not consistently pro-life: the anti-abortion position. This is partly because numerically, legal abortion normally accounts for vastly more human-rights violations than say, capital punishment or unjust war; but also because it is only anti-abortion philosophy that necessarily brings out consciousness as what I consider the basis of human value. And although in philosophy about capital punishment or unjust war or rape, it may not be so necessary for apologetics purposes to bring out consciousness, for me it is ultimately consciousness that makes those things wrong as well.

Let me turn now to the fact that establishing the importance of consciousness is so necessary, as I have suggested, for effective philosophical anti-abortion apologetics. Many people in the public may agree in general on the importance of consciousness, but they have to be convinced that some of their convictions, particularly their conviction that killing innocent born human beings is normally wrong, depend as well on a usually-unarticulated belief that what is wrong about killing is the fact that doing so deprives those born human beings of their future consciousness life. And this is often hard for people to see, resulting in a daunting disadvantage for the pro-life side.

That a zygote or early embryo is indeed a full-fledged member of our human family, in the only way that is morally relevant when abortion is considered, can be convincingly shown by an argument that is usually attributed to Don Marquis. It is an argument focused on consciousness. We owe much gratitude to Marquis for the most precise and thorough formulation of the argument so far, but actually the essence of the argument has been present for a long time in Indian philosophy. It may also have been stated perfectly, sixty years before Marquis was born, by pro-life feminist Victoria Woodhull, the first woman to declare her candidacy for the US presidency:

. . . We are aware that many women attempt to excuse themselves for procuring abortions, upon the ground that it is not murder. But the fact of resort to this argument only shows the more palpably that they fully realize the enormity of the crime. Is it not equally destroying the would-be future oak, to crush the sprout before it pushes its head above the sod, as it is to cut down the sapling, or to saw down the tree? Is it not equally to destroy life, to crush it in its very germ, and to take it when the germ has evolved to any given point in the line of its development?

(I’m assuming that what she felt, in the case of human beings, was that it was the consciousness of the evolved germ that would make it so wrong to crush the germ.) I also once tried framing the argument in a way that I think was effective for some people.

I should mention that another argument, focused on human membership in general and not necessarily on consciousness, that seems to have convinced many people of the humanity of the unborn, is the equal-rights argument used by the Equal Rights Institute.

But to an important extent, these arguments require very careful presentation and depend for their impact on very careful thinking by those who hear them. And they take a while to sink in. I feel that for a normal mind that is a blank slate on this issue, there is nothing obvious about the humanity of the unborn.

Even a pro-life person commenting under a recent Secular Pro-Life blog post wrote, “life at conception sounds strange.” It surprised me at first to hear that from a pro-lifer, since the reality that a human life begins at conception is a fundamental tenet for our side. But then the reality of a human life at conception (or rather, the reality that that life has status as a full-fledged member of our family) sounded strange to me also till I had thought about it quite a bit.

In the circles that I grew up in in the 1950s, abortion was not a topic of conversation. I first remember hearing about abortion shortly after I turned fourteen, when a movie called Blue Denim was released. But even that movie’s implication that abortion was something heinous did not explain why it should be heinous, and as best I remember, the unborn continued to seem insignificant to me until I began to think about it seriously decades later. In my early twenties, I had been alarmed by The Population Bomb, and I had probably thought of abortion as a good thing.

Here is a comment by Javier Cuadros on the power that “original appearances” have over the minds of people and even of most scientists. [Edit: Without understanding and remembering what the DNA of a human zygote or embryo is designed to do, we will perceive that organism as if it is frozen in time, instead of perceiving it with its future dimension]:

Science is a process of knowledge in which we penetrate ever deeper. . . . As the observations multiply . . . it is typical that the original appearances . . . are shown to be incorrect. The reality is different. . . . This is why I have always been puzzled about the reluctance of scientists to apply the same program of investigation to the nature of the human embryo. Are human embryos men and women and thus entitled to the inalienable right to life and respect for their dignity and physical integrity, or are they not? Here, many scientists . . . are for applying the simple criterion of appearances. No, [embryos] are not men and women, they say, because they do not look like a person. Agreed, they do not look like a developed human being. But the earth looks like it is stationary. . . . shape does not make a human being. It has been shown that the most fundamental element of the presence and identity of a human being is the existence of [complete human genetic information] . . .

Once we realize that a single-celled organism is a full-fledged member of our human family, a belief that there should be legal protections normally follows. But if that realization really does take quite a bit of thinking for many people, that puts the pro-life side at a tremendous disadvantage. That the pro-life side has nearly been able to overcome that disadvantage is a real tribute to the resolve of pro-lifers and to the human love for the truth. But the disadvantage remains, so that we have won over neither the culture nor the law.

Pro-lifers recognize this disadvantage. For many pro-lifers, their go-to attack on Roe v. Wade is to point out that it does not prohibit late-term abortions. They know that only a developed fetus is likely to win much sympathy from those who have not spared time for deep thinking.

Let’s think in more developmental terms about how this situation arises. What would children’s perceptions of the unborn be, once they learned simply that people start out in their mommies’ tummies, if those children were otherwise uninfluenced by their parents, teachers, etc? What would the most naive perception be, and how susceptible to change is it (I think very susceptible) once they start hearing pro-choice slogans and pro-life slogans, once they learn a smattering of embryology, see an ultrasound of their younger sibling, etc.? This is all very deep and complicated, and calls for a lot of research. But some things seem clear enough:

Religious pro-lifers must grow up with a kind of rote belief in the humanity of the unborn, but probably sometimes as well a real sense of brotherhood and sisterhood with the unborn that is instilled by their parents. And some people born into a religious pro-life family eventually think deeply and do their homework and come to a real sense of brotherhood and sisterhood that is not just rote.

I believe that anyone who thinks deeply and does their homework will eventually come to a real sense of brotherhood and sisterhood with the unborn, if the development of that sense does not come in conflict with some hardened ideological commitment. But it is normally a small minority of people who think deeply and do their homework. If a person neither thinks deeply and does their homework, nor receives pro-life training from their parents, I think the default will be for most people always to feel that the unborn are insignificant. After all, the unborn are out of sight, and even if we could see a small clump of cells, the genetic information driving the growth of those cells would be beyond our normal senses. Cuadros explained this well above.

Few people will seriously undertake “a process of knowledge in which we penetrate ever deeper,” either scientifically or philosophically, so I think most people, at least most secular people, dependent as we all are on our five senses and normally lacking deep thought, will tend to feel that the unborn are insignificant, making the contest of images a daunting struggle for the pro-life side. Or at least, most people’s thinking will be inchoate and therefore malleable and suggestible. If people’s minds are malleable, are their minds more likely to be influenced by the “precious human life” side of the debate, or by the “brainless clump of cells” side?

Well, many people have strong selfish reasons to adopt the “brainless clump of cells” perception and become pro-choice, whereas hardly anyone has strong selfish reasons to adopt the “precious human life” perception and become pro-life. There is nothing tangible to gain from coming to the defense of those who have nothing and cannot come to our defense in turn. So an accumulated power of human selfishness helps the pro-choice side that does not help the pro-life side.

The ranks of pro-lifers also wane because of the strong trend in the West for people to lose their religious beliefs. If they lose those beliefs, they will lose as well any perception of the unborn that they had acquired purely as rote belief.

As people age they become more pro-life, presumably because they have had more time to think about it. But by the time they become pro-life through aging, they may have few years left as voters and as role models.

These are the daunting demographics that explain why a correct view struggles so much to become a winning view.

In the buildup to the May 2018 referendum in Ireland, the Repeal the 8th campaign circulated a list of strategy instructions. The last item on the list, understood to be a vital mantra, read simply “Savita, Savita, Savita.”It seems that the death of Savita Halappanavar in Ireland, though tragic and heart-rending, was due to medical negligence, but what if it had resulted from that country’s laws? (See Appendix.) Should a law that has saved a hundred thousand unborn children be discarded entirely if it leads to the death of one born person, or should that law, rather, be revised and refined, trying to prevent even one such death ever again, but recognizing that we can only try to the extent humanly possible?

Abortion is being legalized in Ireland to a large extent because Savita was adult-sized and visible, and the legions of the unborn who die helplessly are all small. It is frustrating that people’s thinking is so mechanistic, but this is the reality, and it is understandable. Though the realization of a pro-life feminist agenda in society will make things vastly better, to some extent when there are unwanted pregnancies there will never be a perfectly happy solution – we will always have to seek the least of the evils. If Roe v. Wade is repealed, some US state with pro-life laws will eventually face some situation not unlike what occurred in Ireland, and the response may be, as it was in Ireland, to discard the new laws. If that happens, it will be because of the daunting disadvantage.

There is every possibility that after some years of pro-life laws in the US, pro-choicers will be shouting the equivalent of “Savita, Savita, Savita.” Poor Savita should not have lost her life, but neither should our sisters and brothers who happen to be in the “tiny” phase of their life. Savita was adult-sized, visible, and relatable. The whole reality is heart-rending, but some policies are clearly better than others. For one who has thought deeply, the unborn are also relatable to every moral perception, and they are dying not on extremely rare occasions, but by the millions. For their cause to have any chance, we must educate day and night. Perfectly convincing arguments are available, but they are not arguments that can be downed just like a Pepsi. To have any chance, we must “educate, educate, educate.”

Appendix

It seems that the death of Savita Halappanavar in Ireland, though tragic and heart-rending, was due to medical negligence, but what if it had resulted from that country’s laws in a sense somewhat like the following? –

Suppose that in the time interval in which a million or several million unborn children will be saved by a particular anti-abortion law, one pregnant woman, due to some extremely rare medical condition that cannot be diagnosed accurately in advance, will also typically die as a result of the law?

Will public opinion accept any such trade-off at all, no matter how disproportionate the numbers of those saved? If the unborn are not perceived as full-fledged members of our human family, the answer will be no.

And there is no anti-abortion law that is foolproof against being misrepresented. If a woman is refused an abortion and thereafter, for whatever reason, dies, it will be easy for manipulative people to stoke sentiment against the law – unless the unborn are perceived as full-fledged members of our human family.

© 2019

A further note, added June 4, 2019 –

Above I wrote “many people have strong selfish reasons to adopt the ‘brainless clump of cells’ perception and become pro-choice, whereas hardly anyone has strong selfish reasons to adopt the ‘precious human life’ perception and become pro-life.” Today under a Yahoo News article about abortion, this was one of the comments:

mikehunt8 hours ago
You will NEVER stop me from getting abortions. NEVER. You see, I paid for an abortion for my college girlfriend years ago. It was the single, best financial decision of my life. I was able to stay in school, persue a career that paid little at the start but had huge potential, and now I am a millionaire who goes on expensive vacations all over the world. And I have ALL of this because I was able to focus on school and my career, instead of an unwanted kid. Now I have more than enough money to fly my wife to any country she wants, to get an abortion. And there is NOTHING a pathetic, poor, unsuccessful republican like you can do to stop me. Go on, try it… I dare you. Hahahaha

This is what we’re up against. There are no such financial inducements spurring us to become pro-life.

You may leave a reply, if you wish, without giving your name or email address. If you do give your email address, it will not be published. Back up your work as you type, in case of accidents.

Some future posts:

Life Panels

A Trade-Off of a Sensitive Nature

Unborn Child-Protection Legislation, the Moral Health of Society, and the Role of the American Democratic Party

The Motivations of Aborting Parents

Why Remorse Comes Too Late

The Kitchen-Ingredients Week-After Pill

Unwanted Babies and Overpopulation

The Woman as Slave?

Abortion and the Map of the World

A Look at a Major New York Times Article

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Secular Pro-Life has published an article of mine under their paid blogging program.

 

Some further thoughts on the SPL blog post:

Looking again at the post, I regret the wording “The editorial board who wrote this [NY Times] article are either obtuse or dishonest.” I don’t think it was inaccurate to say that, but I’m normally careful to follow the advice of The Economist Style Guide: “Do not be hectoring or arrogant. . . . Nobody needs to be described as silly: let your analysis prove that he is.” So I apologize. I could have simply pointed out that the article is full of untruths and sloppy logic, without becoming personal.

 

You may leave a reply, if you wish, without giving your name or email address. If you do give your email address, it will not be published. Back up your work as you type, in case of accidents.

Some future posts:

Life Panels

A Trade-Off of a Sensitive Nature

Unborn Child-Protection Legislation, the Moral Health of Society, and the Role of the American Democratic Party

The Motivations of Aborting Parents

Why Remorse Comes Too Late

The Kitchen-Ingredients Week-After Pill

Unwanted Babies and Overpopulation

The Woman as Slave?

Abortion and the Map of the World

Falsehoods and Sloppy Logic in a Major New York Times Article

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On December 28, 2018, The New York Times published a 13,500-word article attributed to its editorial board. A comprehensive critique of that article is in the works. Here I will just offer a list of some of the specific falsehoods, and instances of poor logic, in the article:

That long attack on fetal personhood nowhere directly addresses the question, Is the unborn in fact a person, and thus entitled to rights? In terms of any direct examination, the question remains an elephant in the room throughout the article. But the article strongly suggests that the unborn child is actually a zero as regards moral importance. According to the authors, any ostensible belief in fetal personhood is mainly a ruse to mask social reaction . . . to a perceived new permissiveness in the 1970s.

That implication by the authors that those who champion fetal personhood do not really believe in it is overwhelmingly false, and they seem to be trying hard to avoid the elephant in the room, the obvious question right under their noses – which would be a form of intellectual dishonesty. Only in one sentence near the end do the authors address at all whether it is possible that a fetus is, in fact, a person. That sentence is, And it reflects a tragic reality: There are circumstances in which the interests of a fetus and those of a pregnant woman collide. But if the death of a fetus is truly a tragedy, then why the authors’ sly (or unthinking) suggestions to the effect that any “tragedy” is just a ruse employed by neurotic personalities, and that Ronald Reagan was only convinced by cynical “Republican strategists” to deem it a tragedy?

Another example in the article of misrepresentation of facts –

Right in the second paragraph is this claim:

In fact, a fetus need not die for the state to charge a pregnant woman with a crime. Women who fell down the stairs, who ate a poppy seed bagel and failed a drug test or who took legal drugs during pregnancy — drugs prescribed by their doctors — all have been accused of endangering their children.

The first sentence (in the context of an article about “a relatively new [legal] concept”) implies that the woman who fell down the stairs broke some Iowa law by doing so. An actual glance at the linked article is enough to show that that implication is false. And the “poppy seed” article linked to does not actually use the word “accuse” nor report any accusations in any legal sense of the word. The same with the “legal drugs” article.

Two examples in the article of poor logic –

What if, as many opponents of abortion hope, the court rules that the fetus has “personhood” rights under the Constitution?

In that event, all abortions would be illegal

This does not follow logically. The statement is arbitrary. Their premise seems to be that it can never be legal to kill a person, but we know that that is not true.

The doctrine of fetal personhood represents a sharp break from the great traditions of Western law that, at their philosophical core, seek to preserve space for the individual to live free from the tremendous power of the state.

If we’re going to appeal to the great traditions of Western law, women won’t be allowed to vote or own land.

Here are some further examples in the article of falsehood, misrepresentation of facts, lack of supporting evidence, or poor logic. I won’t explain the problems with these statements unless requested. Probably those who have read the article can see the problems –

Some common forms of birth control could become illegal if personhood becomes accepted law. And, for many anti-abortion activists, that’s the goal.

the feticide law and increase the maximum penalty for feticide to 20 years, which prosecutors apply to. . . . convict Purvi Patel of feticide and child neglect after she took pills to induce an abortion at least 23 weeks into her pregnancy.

a dead woman was kept on life support against her wishes

the anti-abortion movement’s determination to establish the legal “personhood” of fetuses — and to make sure that their rights supersede those of the women who are carrying them. In 1984, the conservative activist Paul Weyrich, the founding president of the Heritage Foundation, explained: “I believe that if you have to choose between new life and existing life, you should choose new life. The person who has had an opportunity to live at least has been given that gift by God and should make way for new life on earth.”

A pregnant woman would cease to exist as an autonomous person.

In the unimaginably hard, profoundly intimate moments when a pregnant woman must weigh her own needs against the possibilities of a fetus growing inside her

Political ambition has also played a powerful role.

(c) 2019

 

P.S. January 14, 2019: The above-mentioned comprehensive critique of the Times article is now ready: “A Look at a Major New York Times Article”

 

You may leave a reply, if you wish, without giving your name or email address. If you do give your email address, it will not be published. Back up your work as you type, in case of accidents.

Some future posts:

Life Panels

A Trade-Off of a Sensitive Nature

Unborn Child-Protection Legislation, the Moral Health of Society, and the Role of the American Democratic Party

The Motivations of Aborting Parents

Why Remorse Comes Too Late

The Kitchen-Ingredients Week-After Pill

Unwanted Babies and Overpopulation

The Woman as Slave?

Abortion and the Map of the World

The Cocktail That Defeats Bodily-Rights Arguments

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In September 2021, Human Defense Initiative kindly reprinted this article. However, the “I would not question” disanalogy below is a later addition that does not appear on their blog.

The most convincing bodily-rights arguments for abortion rights say that everyone should be legally permitted to refuse to let their internal organs be used, even if such refusal will result in the death of an innocent person. Such arguments analogize legal prevention of abortion with compelled organ donation/use among born people. I feel that such arguments cannot be defeated by pointing to any single disanalogy or by any other single argument, but feel that they are defeated by a “cocktail” of disanalogies/arguments. My moral intuitions say that the cumulative force of the following set of disanalogies/arguments does clearly defeat such bodily-rights arguments:

• 99% of unborn children result from a voluntary act by two people who know that a child thus created will be dependent on the mother’s body. By that voluntary act, the two people incur an obligation toward that dependent child. It may be that neither any similar act in and of itself, nor any circumstance in and of itself, would be sufficient for anyone to incur an obligation to let one’s internal organs be used by a needy born person, but such an act would at least contribute toward such an obligation; and thus the voluntary act that results in an unborn child adds its weight on top of all the arguments that, taken together, I feel, disallow abortion even if there was no voluntary act –

• See “Bodily Rights and a Better Idea: the Short and Easy Version”

• Abortion is active killing of a child that would likely otherwise have lived, whereas when someone passively refuses to let their body be used by a sick person, the person dies of their own disease. I feel there has been a tendency in recent years for pro-life groups to over-rely on this one disanalogy, but nevertheless, the disanalogy should be identified.

• A person whose organ is demanded had rarely benefited from an organ transplant prior to the demand on themselves, so in a requirement to give blood or bone marrow or a kidney, there would be a lack of reciprocity. But in a country where abortion is legally prevented, all women who might think about aborting had themselves benefited from the protection of those laws when they were small and had perhaps survived only because of those laws, so there is reciprocity. (The benefit that women had received when small is a fact that women should reasonably remember, also, but it is a fact whether they remember it or not. And by the way, it cannot be claimed that under pro-life laws anyone has any special rights. “Under pro-life laws, everyone before they are born will have the right to use someone else’s body without consent, and everyone once they are born will lose that right.”)

• While it is true that a woman who gives birth to a child who needs her blood or bone marrow or kidney (hers and only hers) in order to live is not legally obliged to give it to the child, such cases are very rare, and the woman never knows that that will occur. If she knew that (given conception and birth) that would always occur and if the sexual act was consensual, the situation would be different. [Edit: She then likely would be legally obliged to give a kidney. (If pro-life laws were in effect, the likelihood might actually be less, because then society would consider the fact that she had by that time already been legally obligated to carry the pregnancy to term, and that giving a kidney would be piling one obligation on top of another. But the point would still stand that if a born child’s need for a bodily donation were as inevitable as an embryo’s need for a uterus – if such situations were more like pregnancy – the parents’ legal obligations would be greater than they actually are.)] Even presently, I would support legally obliging parents to give bone marrow to their born children in some cases, and would support legally obliging even unrelated persons to give blood in many cases, perhaps on a lottery basis.

• The younger and more defenseless a person is, the more protection they deserve, and taking advantage of another person’s helplessness is particularly ignoble.

• If the government forcibly seizes someone’s body part, it is the government who will initiate the use of force/violence, whereas if the government applies force against an abortionist or pill vendor (or even a pregnant woman, though pro-lifers do not propose that) to prevent an abortion, it is the woman (or someone coercing her) who proposed to initiate the violence.

• I would not question that a person whose body contains two kidneys is the sole owner of those kidneys. But a uterus is unlike a kidney in that a uterus is housing, and housing is a human right. Human rights are something that society as a whole has an interest in protecting, so housing is something that society as a whole has an interest in providing. And a uterus is in fact the only housing that will be adequate for any member of human society at one particular stage in their development.

Finally, a counter-analogy:

• If we ask whether one conjoined twin should be able to force a surgical separation that would kill their twin – even though waiting 6-9 months would ensure the survival of both – nobody will say the one twin’s right to bodily autonomy supersedes the other’s right to life. (Thanks to @DrSteveJacobs for this particular articulation. This counter-analogy too is not free from disanalogy. Between woman and unborn there is an asymmetry not present between the twins. The woman is clearly the host of the unborn, and had an existence prior to the unborn, and hence, through the conception, has lost something that she had once had. But how much importance should our moral intuitions give to that disanalogy?)

Our moral intuitions come out of our unconsciouses in some way we cannot understand, so ultimately no one knows why they hold the moral intuitions that they do. But I think that the above disanalogies/arguments are probably the reasons that I feel that abortions should normally be illegal, while I do not feel that organ donation/use should be legally compulsory.

The contribution that I hope this article will make to the defeat of bodily-rights arguments is to provide a foundation that can endure. It should have the power to endure, because there is flexibility for the specifics that rest on the foundation. The specific points can be added to or subtracted from or improved, while the understanding of the necessity of a cocktail remains.

© 2018

You may leave a reply, if you wish, without giving your name or email address. If you do give your email address, it will not be published. Back up your work as you type, in case of accidents.

Some future posts:

Life Panels

A Trade-Off of a Sensitive Nature

Unborn Child-Protection Legislation, the Moral Health of Society, and the Role of the American Democratic Party

The Motivations of Aborting Parents

Why Remorse Comes Too Late

The Kitchen-Ingredients Week-After Pill

Unwanted Babies and Overpopulation

The Woman as Slave?

Abortion and the Map of the World

Bodily Rights and a Better Idea: the Short and Easy Version

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Four years after writing the first version of what I would later call
“Bodily Rights and a Better Idea” (12,000 words), I have finally found a way to write a short and easy version:

 

1. The pursuit of happiness, whether it is earthly happiness or another kind of happiness, really explains everything that people intentionally do. I think that society grants rights based on the idea that an unfettered pursuit of happiness ought to be allowed unless there is some reason to fetter it. Society feels it ought to grant people the rights that people desire to have, unless those rights come in conflict with the rights that others desire to have, or unless they should seemingly be limited for some other reason.

Those “ought to’s” stem from society’s members’ moral intuitions and perhaps also from an implicit social contract. (In the case of bodily rights, which we will get to below, the moral intuitions stem in turn from empathy with people’s psychological sense of body ownership, since everyone shares that sense.)

2. Setting aside all the other variables that might arise, the strength of a right that society grants will vary according to the strength/intensity of people’s desire for that right.

3. People have a strong psychological sense of individual body ownership. There is no scientific or necessary philosophical reason to think that each of us own our own bodies, but we have that strong psychological sense. (Philosophically, it would be equally coherent to say that there should be collective ownership of the body parts of everyone in society. If ants had the skills for organ transplants, presumably an ant colony would operate with collective ownership. I am not recommending this, but I’m making the point that bodily rights stem from an inborn psychological sense.)

4. Because of that strong psychological sense in everyone, our moral
intuitions tell us that we (society) should grant strong bodily rights.

5. That psychological sense is not a fixture but an occurrence. It occurs particularly when our bodily ownership is challenged or when we imagine it being challenged. Moreover, there is no reason that it should be equally strong in the face of every type of challenge. As mentioned, the strength of a right that society grants will vary according to the strength/intensity of people’s desire for that right.

6. There are reasons to think (see section 7 of “Bodily Rights and a Better
Idea”) that an attempt to prevent abortion does not normally and on average elicit in pregnant women as strong a sense of bodily ownership (there is not as strong an occurrence of that sense) as an attempt to forcibly remove or use a body organ elicits in people in general. For instance, a woman might well feel at some level of consciousness that the unborn shares with her ownership of “their” uterus.

At least, we should not assume that a woman whose abortion it is proposed to thwart will necessarily feel an equally strong offense to her sense of body ownership as will a person whose kidney it is proposed to seize. It is an open question. If I am correct about how rights originate in society, then analogical right-to-refuse arguments do implicitly make that assumption, but the burden of proof is on them. Neuroscience may answer the question in the future. For now we have to research the question in less technological ways, and society has to use its intuitions.

7. If we (society) consciously recognized, which we have not as yet, that the strength of the psychological sense of bodily ownership varies from situation to situation, and if we confirmed that it is not as strong in pregnant women when prevention of abortion is proposed as in people in general when forcible removal or use of a body organ is proposed, our moral intuitions would not tell us to grant as strong bodily rights to a pregnant woman faced with prevention of abortion as to people in general faced with forcible removal or use of a body organ. Again, the burden of proof is on those who use analogical right-to-refuse arguments.

8. Once the role of the psychological sense of body ownership in society’s granting of bodily rights is understood, we can find a better ethics recognizing that role than the present concept of bodily rights. We can find a better idea.

 

The most convincing bodily-rights arguments for abortion rights say that everyone should be legally permitted to refuse to let their internal organs be used, even if such refusal will result in the death of an innocent person. Such arguments analogize legal prevention of abortion with compelled organ donation/use among born people. I feel that such arguments cannot be defeated by pointing to any single disanalogy or by any other single argument, but feel that they are defeated by a “cocktail” of disanalogies/arguments. My moral intuitions say that the cumulative force of several disanalogies/arguments does clearly defeat such bodily-rights arguments, and that the above-mentioned possible lesser strength of the sense of bodily ownership in pregnant women may qualify as one of them.

 

Appendix, July 2022:

If identity arguments and bodily-rights arguments can be defeated (if in the case of bodily rights, they exist and count for something, but they don’t outweigh the right to life), then killing an unborn is sufficiently like killing a three-year-old to make it impermissible Strong bodily-rights arguments depend on kidney-type analogies, so if such analogies can be defeated, abortion becomes a human-rights violation. There is no one disanalogy (not the above, in 7.,  “our moral intuitions would not tell us to grant as strong bodily rights to a pregnant woman faced with prevention of abortion as to people in general faced with forcible removal or use of a body organ” or any other single disanalogy) that can defeat the analogies, but a constellation or “cocktail” of disanalogies can defeat them. Even if “not . . . grant as strong bodily rights to a pregnant woman faced with prevention of abortion as to people in general faced with forcible removal or use of a body organ” fails, the rest of the cocktail is enough to defeat them. Please see the above link to a cocktail of disanalogies/arguments.

© 2018

 

You may leave a reply, if you wish, without giving your name or email address. If you do give your email address, it will not be published. Back up your work as you type, in case of accidents.

Some future posts:

Life Panels

A Trade-Off of a Sensitive Nature

Unborn Child-Protection Legislation, the Moral Health of Society, and the Role of the American Democratic Party

The Motivations of Aborting Parents

Why Remorse Comes Too Late

The Kitchen-Ingredients Week-After Pill

Unwanted Babies and Overpopulation

The Woman as Slave?

Abortion and the Map of the World