ROE VS WADE VS PHILOSOPHY - THE ILLUSION OF LAW

Last week the thing that many liberal Americans have been telling us might happen started to happen. The Supreme Court began making moves to overturn the legislation, Roe vs Wade, on which the constitutional right to abortion in the US is enshrined. A provisional vote was taken, and leaked, suggesting that the Court intends to move forward with striking down the 1973 ruling. If this happens, then abortion access for all Americans becomes a zip-code lottery as legal decisions around reproduce rights devolve to each individual state. If recent changes to the law in Texas are anything to go by, this will mean utterly restrictive laws on abortion will fall on some Americans, and even in places where abortion access may be more readily available, such availability will become tentative and vulnerable to the whims of future legislators.

First things first. Although I am an American citizen and therefore technically affected by the potential changes in legislation, the last thing the world needs is another man weighing in on this crucial issue of women’s reproductive health. So it’s important to say up-front that anything I say here should be qualified with the fact that, as a man, I am writing from the entirely privileged position of being able to comment on something I will never have to experience personally, about laws which will not affect my own physical health. While I still think that thinking about such issues is the right of anyone, when it comes to bodily autonomy those whose bodies are being legislated against should clearly be the ones leading any discussion about what, if any, limits to that autonomy might be imposed. It is no-one else’s place to do so. So even though in this post I will be arguing for that continued autonomy and the continuing right to choose, it is still worth noting that my thoughts on this matter are neither here nor there: the women whose bodies and bodily autonomy is at stake are the voices around which any serious discussion should be centred.

The other thing worth noting up front is that one of the founding principles of Philosophy Unleashed is that it is a place to go “beyond the curriculum” and discuss things not covered by GCSE and A-level courses in Philosophy. Abortion ethics, as every student knows, is central to any current examination specification in either Religious Studies or Philosophy, and most undergraduate courses in Ethics will also cover it. So I will be careful here not to simply rehash the standard arguments most people will have already covered. Suffice it to say, my position on the basic idea of abortion has been expressed above: I am sympathetic to Judith Jarvis Thomson’s argument that even if one might consider the potential life of an embryo or foetus to have some value, perhaps even granting it full moral “personhood”, this “valuable” life or “person” is one which is entirely dependent on someone else in a deeply significant way for its continued survival. To allow it to use your body to survive is a wonderful gift a person might choose to bestow, but it is not an obligation. If the violinist in Thomson’s thought experiment, or a foetus in real life, is “unplugged” from the body it is relying on for sustenance, we can acknowledge the tragedy but understand it is the person whose body was being used’s right to do so. And the “tragedy” is only acknowledged if you accept the premise that the foetus or embryo is a life with value at that stage in development, which is deeply arguable. There are many lives destroyed every day for which we do not mourn. Microscopic, bacterial, insect, animal, but also fully developed human ones, elderly and deep in bodily and mental decay for whom we consider the death a “blessing” rather than a tragedy, or those sick with devastating illness for whom death is considered a welcome escape from intolerable suffering. It is not obvious that the end of a life is an inherently terrible thing, or that all lives are of equal value at all stages of development. For instance, I am a vegetarian but not a vegan. I wouldn’t eat a chicken, but I’d still eat its egg.

My point is that I am not here to debate the ethical rightness or wrongness of abortion because a) we do that in class all the time already and, b) for me there is no debate: whether you consider the embryo/foetus worthy of moral consideration or not, the termination of the pregnancy in either some or all circumstances remains entirely compatible and should be the choice of the pregnant person as it is their body in which the embryo/foetus is growing. I am aware that religion has lots to say about this, but America is a pluralistic multi-faith society with a constitutional separation of “church and state”. A freedom to choose is also entirely consistent with those with religious conviction - either patient or doctor - still choosing not to have, or to perform, abortions, so distinct religious arguments about “sanctity of life” and the status of a “soul” have no relevance here. One can maintain such beliefs while understanding that pluralism acknowledges that others don’t, and that the same right which allows you to believe A allows them to believe B. Again: making abortions safe, legal and accessible ensures everyone can choose what is right for them.

Instead, I want to look at the illusory nature of law and why, in this case especially, that fact must be considered in any serious discussion about abortion legislation.

What do I mean by the “illusory nature of law”? Very simply I mean the idea that having a law against something stops that thing from happening when, very clearly, it doesn’t. Consider murder, rape, theft, violence, etc. All of these things are very strictly legislated against around the world. Some places use extreme forms of capital or corporal punishment even to enforce such legal bans. Others use lengthy prison sentences and other punitive measures of control and coercion. Other places, still, use more restorative or transformative approaches to justice. And yet, in all places, murder, rape, theft and violence still occur. The law doesn’t stop it from happening, but it does a few things. Laws against certain acts:

Communicate to a society that such an act is undesirable and considered to be “wrong”
Attempt to deter people from committing the act through fear of consequence
Punish those who do the act anyway despite the communication and attempted deterrence in order to reiterate both (1) and (2) and, in some cases, gain retribution for the act.

So given 1-3, we can conclude:

4. Laws only ever manage to minimise the frequency of a prohibited act, they never fully stop an act from ever happening.

Given (4) then, we have to acknowledge the illusory nature of the law when considering the ethics of a law. Law does not stop prohibited acts from happening entirely, but sometimes, by having a law against something, we like to believe that it does. The sense of safety such legislation brings is comforting. But ultimately it is an illusion: the crimes will continue regardless, albeit possibly at a lower rate and with the possible consequence of punishment if they do.

Intentions are an important part of moral consideration, but so, too, are consequences of an action, even with good intentions. If I intend to cure everyone of cancer and truly believe I have found a magic medicine which will do so, but in the medical trials for the drug my medicine actually ends up giving cancer to all of the participants, one might say that I acted ethically despite the terrible consequences because my intention was good and I acted cautiously and went through proper procedures to check the medicine’s safety. If, however, my intention to rid the world of cancer remained and after the failed trial I tweaked the recipe of the drug a little bit and decided to forgo the trial stage this time, confident in my amendments, and just start giving the new drug to people by adding it to their food, any negative consequences this time - even if only 50% of those who had the drug got cancer from it this time - are entirely my fault, even if they were not my intention, because I did not act with due caution and consideration of the likely consequences. A freak gas explosion in a block of flats is not necessarily the fault of the landlord. A gas explosion in the flat that had complained of a gas leak and where the landlord had neglected to ever inspect the gas appliances is something the landlord now has moral responsibility for allowing to happen. All the good intentions in the world don’t absolve us from paying heed to the actual consequences of our actions and, once attention is paid, we must be held responsible for what we knowing cause.

Once the illusory nature of law is acknowledged then, we have to acknowledge that our intentions are made clear with the establishment of a law, but the existence of a law and the intentions which created it do not absolve lawmakers from the moral consequences of those laws. If, therefore, the intention of a law is to communicate a belief to society that a particular act is considered to be wrong (in this case, abortion), and to hope to deter it, but the consequences of imposing such a law are bad, it is important to consider if that belief could be communicated in an alternative way that leads to better consequences, and alternative approaches to deterrence were possible too. If so, then these alternatives ought to be pursued rather than imposing a law we know to have bad consequences. Given that the law will never fully stop the prohibited act from taking place, and only ever limit it, limiting the act must be the key justificatory basis for the law’s existence. If limiting the act can occur just as effectively, or more effectively, through alternative means and with less negative consequences, then there is no justification to have a legal prohibition.

I have purposefully ignored the retributive dimension of punishment for the act. In a post of this size there is no time to go into a full rejection of the idea of retribution but suffice it to say that punitive retribution is in itself a morally problematic and controversial consequence of any law designed to carry out such a thing, as it adds an intentional further harm to the sum of supposed harms a law is there to ostensibly minimise. Given that either the prohibited act is merely believed (possibly wrongly) to be wrong or that it actually is (in fact) wrong, by adding further harm through punishment after the act we either run the risk of harming someone innocent for doing something society was wrong to prohibit in the first place or, if they are right to prohibit it, to do the very thing (cause harm) to someone that we are supposedly seeking to minimise through law. Again - law is illusory: so long as subsequent punishment forms part of its mechanism of preventing harm then it arguably continues to contribute to harm rather than to prevent it.

Given all of the above, let us acknowledge the truth about abortion: if abortion is made illegal then abortion will not stop. Abortions will continue to take place, as they always have. They will just be unsafe, unregulated and unequal in terms of who has access to them. We know this because abortion has not always been legal, and when it wasn’t, dangerous abortions continued to take place. Wealthier people in need of such procedures were still able to procure them from medical professionals seeking additional income and poor people were prey to unscrupulous make-shift unsafe surgeons also looking for a quick payday at a much lower rate and with much lower standards of safety and hygiene. Many women died.

If the intention of the law is to deter abortion, the most likely consequence is that only safe, hygienic, and easily available abortion will actually be deterred. This will cause great suffering for the many pregnant people in need of an abortion who will be forced into either unsafe conditions in which to have one, forced to put themselves at grave risk and carry dangerous pregnancies to term (or die trying), or forced to give birth to children they do not want and cannot look after. It does not deter abortion, it merely forces abortion underground. One need only look at drugs and other substance prohibitions to see a clear analogy. It is not that we don’t have drugs in society now that there are laws which forbid them, it is that drugs are pushed onto blackmarkets and criminal gangs, and are sold without the regulation which might make them carry less risk. The drugs remain, they are just taken in the shadows. But they are consumed nevertheless. And in the shadows, there lies more risk, not less.

Drugs are also instructive in how effective law actually is as a form of communication. The communication on drugs is clear: don’t do them. Yet many, many, people still do. Sometimes society communicates a moral opinion which it has got wrong, or which the rest of its citizens find unconvincing. As far as communication goes, the law is only an opinion, hence the ability to revise, revisit and reverse law at times. When opinion varies widely it is, perhaps, not the law’s place to communicate on our behalf something which not all of us believe. Law as communication is interesting, but not, by itself, justifying. Or, if the idea is that we ought to believe what the law is communicating, and the communication is intended to change our minds, then other forms of persuasive communication with less negative consequences ought to be pursued instead of blunt coercion.

For instance if (and it is a big if) as a society we really do agree that abortion ought to occur far less frequently than it currently does then there are other ways to communicate that idea and, by doing so, hope to deter people from getting an abortion. Many unwanted pregnancies, for example, come as the result of sexual assault. We need to work, therefore, on limiting sexual assault first before we tackle limiting the availability of something which may be needed to help survivors of sexual assault move on with their lives. Firstly, better sex education in schools from an early age, so that all citizens understand the potential consequences of sex and have a realistic idea of what sex is and the part it plays in human life. This means acknowledging sexual desire in all its diverse forms, the existence of pornography, masturbation and not putting unrealistic expectations on celibacy as the answer to all sex-related problems. It means educating about consent and working diligently against rape-culture in all its many instantiations. And, of course, it means education on how to use effective contraception, as well as the expectation for contraception to be a mutual endeavour between couples and not merely the responsibility of one person in a sexual partnership. Education about contraception should be accompanied by contraception being made widely available for free, for all, and made a visible part of our representation of sex in the media rather than ignored, as it so often currently is. Likewise, a shift in our discussions around parenting and the social encouragement to have children is needed so that people take the decision to get pregnant far more seriously than they currently do. There are too many of us. Over-population is a real thing. Yet currently the expectation is that you should want to have children. That if you physically can’t, that is a bad thing and we should be sad for you. That we ought to help you have them through IVF or surrogacy. That each child is a blessing, etc. I am not saying having a child is wrong, but it should definitely be something we think about far more than we currently do. Taking the consequences of having a child seriously combined with easily available contraception and education about safe sex would certainly be a feature of a society serious about limiting unwanted pregnancies - and yet currently we have none of those three key things. To ban abortion before we try these far less grievous other things suggests we are more interested in limiting abortions and denying women bodily autonomy than we are in limiting the number of unwanted pregnancies in our society.

Similarly, another major reason for abortion is simply the inability to actually raise a child one is pregnant with. A society that really wants to limit abortions and encourage those people to complete their pregnancy would be one that provides free childcare, well-paid maternity and paternity leave, and one which ensures every child born into it will be well-fed, well-housed, and well-clothed. It has always bothered me that the so-called “pro-life” groups don’t seem to care what happens to the foetus once it is born and make no provisions for ensuring the actual life of a child is worth living. With the world the way it currently is, it is arguably morally wrong to bring a new life into it without their consent, and we would do better to improve the living conditions into which new babies will be born if we want those pregnant with them to choose to give birth than force more new humans onto the earth.

Each of the above suggestions would contribute somewhat to communicating the message that embryos and foetuses are important, and each would deter people from getting abortions either through prevention of unwanted pregnancy in the first place or changing the circumstances which might make a pregnancy unwanted, all while maintaining a pregnant person’s bodily autonomy and their right to choose what is best for them without coercion or catastrophic consequences. Therefore even for those who believe abortion should be limited (which is, remember, the best that we can ask for with the establishment of any legal “ban”) there are far more effective ways of achieving that goal than by overturning Roe vs Wade and making abortion illegal. Ways without the negative consequences of forcing poor women into dangerous back-street abortions or taking away a woman’s freedom to choose what happens to their own body.

When we step outside the illusion of law we must accept that there are occasions where a pregnancy might simply have to be terminated or the mother will lose her life. There are other occasions where the risk is significant and a termination offers the best likelihood of survival. There are pregnancies caused by rape, through incest, or through many other traumatic experiences that it ought to be no-one’s burden to carry forever, or even for nine months. And there are pregnancies which are simply mistakes - the result of failed contraception, unthinking passion, or revised opinions about one’s sexual partner. It seems reasonable to be able to change your mind about something as life-altering as bringing a new human being into the world, especially when you will be bound to look after that person for the rest of their life. A key component of consent is knowing that giving consent for something today does not entail consent continues tomorrow. It is the mother’s body for her to give or not give and minds can change along with circumstances. Considering all of the reasons why abortion might be considered reasonable and/or sometimes necessary; the fact that laws only ever manage to minimise the frequency of a prohibited act and never fully stop an act from ever happening; the likely negative consequences of limiting abortion through a legislative ban (forcing it underground and open to exploitation, making safe abortions inaccessible for the poor and increasing social inequalities, a return to women dying who would not have died under current legislation, etc); and the range of alternatives methods to both communicate the idea that life should be valued and abortion resisted, and attempt to deter people from choosing to terminate a pregnancy, which are available without the same devastating negative consequences that legal prohibition would bring, it seems to me obvious that the Supreme Court, and any legislative body that looks to ban abortion, are not serious about minimising harm in their society and demonstrating the value of life. They are merely interested in controlling women’ bodies and enforcing draconian religious morality on societies which are out of step with the real-life pluralism of values those societies actually hold. A pluralism which necessitates a legal right to choose, reproductive rights for all, and nationwide access to safe and timely abortions on demand.

Author: DaN McKee

My book - AUTHENTIC DEMOCRACY: An Ethical Justification of Anarchism - is available HERE , from the publisher, and from all good booksellers. Read my Anarchist Studies journal paper on Anarchism and Character Education here. For everything else DaN McKee related: www.everythingdanmckee.com