Saturday, July 12, 2008

Laws against abortion with exceptions--an analogy

Caveat: What follows is not intended to mean that I endorse a democratic ideal of the family nor that I think that husbands have to defer to wives when it comes to forbidding their children to do things. It is meant for illustrative purposes only.

Suppose that you and your wife become alarmed by the fact that Junior is starting to do some bad things that you never had to have explicit rules about before. In particular, he's doing X and Y, which you quite reasonably regard as species of the same wrong act. In fact, if you prohibited someone from doing X, he'd probably assume he was also prohibited from doing Y unless you expressly stated otherwise. Your wife thinks that Junior should be stopped from doing X but should be allowed to do Y. You and she go back and forth for a while and can't come to any nearer agreement. Meanwhile, Junior is merrily going on doing both X and Y without the slightest fear of reprisal, fear of God not being Junior's strong suit, and fear of man (namely, his parents) not having been brought to bear on the situation. It seems to you rather important that he should be stopped, right away, from doing as much of this stuff as possible. So after one more conversation with your wife, you go to Junior and give him the following speech:

Son, we've not been stopping you from doing X and Y, but that situation is about to change. From now on, if you do X, you will receive such-and-such a punishment. You are hereby forbidden to do X. Unfortunately, your mother and I cannot agree about Y, so for the time being you are not threatened with any punishment from us for doing Y. This doesn't mean that Y is not wrong or that you shouldn't be punished for doing Y just as much as for doing X, and the situation with regard to Y may well change later on. Meanwhile, we're going to make good and sure you get in big trouble if you do X. Got that?

Now, I don't think anyone could say that you were authorizing or endorsing your son's doing Y. Nor does there seem to be any important distinction here to be made between the "author" of the prohibition thus stated and its other supporters. In this case, even though you are the one who wants to prohibit both acts, you are the "author" of the speech to Junior, and your wife is its supporter, rather than vice versa, but it seems to me obvious that that fact does not put you in the wrong. That is to say, you would not be in any morally better situation if your wife made a parallel speech to Junior and you "voted" for it or endorsed it in some other way. In fact, by putting yourself forward as the "author"--the one actually to speak to Junior--you can be especially careful that nothing that even looks like an endorsement of the moral licitness of Y gets into the speech, and you can warn Junior that his days of freedom to do Y may be numbered.

I think this is actually quite a good analogy for the situation of a pro-life legislator who gets an opportunity to write and propose a law outlawing abortion in some cases but allowing exceptions in others, where such a law will vastly improve the legal protection for the unborn in his jurisdiction, and who does so.

It might also be worth pointing out that the heinous and iniquitous court decision Roe v. Wade is not analogous to either of these things--to the pro-life legislator writing a law with exceptions or to the parent speaking to his child. For Roe really did attempt to lock the states into a situation where they could not protect unborn children, and it did so by saying (which was patently false) that abortion is a constitutional right. In so doing Roe's intention and effect was to strike down state laws that protected the unborn. Roe in that sense really did "authorize" abortion in a very specific way, and it is to Roe most of all that we should apply statements about the evil of "laws" (or in this case, the quasi-laws that are court precedents) that authorize abortion.

See here and here for the background to this post.

11 comments:

William Luse said...

Well, if it's provoked you into posting here about it, I'd better go catch up on the conversation. I'll be back. That doesn't mean I'll have anything useful to say.

William Luse said...

I left comments in the original thread at his place, and in the topmost post, but I'm not sure they move us anywhere. I tried banging my head against the wall but it didn't work.

zippy said...

Perhaps it comes to this:

In my understanding, a simple vote for a composite piece of legislation is to assert a change of state from current law. However, to craft the piece of legislation from individual provisions, each chosen for a purpose, is to assert each individual provision in itself.

I think the differences of opinion relate to whether we accept that, or not.

Lydia McGrew said...

Yes, I don't think I do accept that distinction. One reason that I don't is that the crafting of the proposed legislation doesn't make it law anyway. In one of the threads on your site, you at one point referred to "the very act that"...brings the provisions of a law into effect. But if there is anything that is the "very act" that does that, it isn't the drafting of the language of a proposed law but rather the vote of the legislature. A proposed law is _nothing_ in the governmental system of the state or country--it's just words on paper or on somebody's hard drive. It represents a set of ideas, but it has no effect. It's the consent of the legislature, their joint decision, measured and indicated by a vote, that puts it out there and that, for example, outlaws things (in what you would presumably consider a positivist sense of 'outlaws').

So in that sense, the person--or more likely, people--who did all the wheeling and dealing, the back room discussion with prospective supporters and so forth and who took their probable votes and their ideas or objections into account and actually wrote down the words is really not acting as a legislator any more than anyone else who votes for the bill. Because in the end, it's the vote that counts.

And although I agree that my scenario in the main post has the unfortunate potential to trivialize the issue, I think it gets at that well. The two people making the decision to punish some action do their negotiating and agree on what they are going to tell the person who is being ruled. At that point, the person who pushed for fewer restrictions on his action is _obviously_ the person responsible for the "exception clause," and it doesn't matter one bit that the person who wanted more restrictions is actually the one who creates the literal language in which the prohibition is worded to the subject of their rule. That certainly doesn't make him any _more_ responsible than the other person for the exceptions. His speech is the result of the negotiations and simply represents and enacts the consensus of the ruling body.

William Luse said...

it's just words on paper or on somebody's hard drive.

Well I'm not going to accept that. I'm willing to buy that voting for a law might be as bad as authoring it, but not that voting for it is worse than authoring it. The only question is whether either involves formal, as opposed to material, cooperation. The father in your scenario was not "the one who created the literal language in which the prohibition is worded to the subject of their rule." The mother did that. The father's speech was his reluctant vote to go along. So was he formally cooperating with what he knew to be evil when he gave that vote? Can he very well claim not to intend that the boy go on doing Y if he knew equally well that he would?

Lydia McGrew said...

WEll, no, the mother didn't. She debated with the father and said whatever silly things she said about why she thinks the kid should be allowed to do Y. She didn't write the little spiel the father gave to the kid. The point I'm making here is that the writing of the law is just the work that goes into proposing how the will of the legislature or rulers is to be worded, or that goes into (in the case in the post) explaining what has been decided to the person who needs to know.

Of course, the father in the post is just being courteous to the mother. He could ignore her and stop the kid single-handed.

A pro-life legislator can't. But writing proposed legal language doesn't make a law. I mean, suppose he wrote it and then said, "Nah," and never even proposed it to anybody. It would be nothing. He could just erase the document. It's the whole legislative process, culminating most crucially in the _passing_ of the law, that makes it a law at all.

Of course, the guy who writes it and sponsors it votes for it too.

zippy said...

But writing proposed legal language doesn't make a law.

No; but it implies willing that that specific provision become law, as a means to some end. It definitely cannot be construed as merely tolerating that specific provision as a side-effect and not as a means to any end, whereas it is at least more tenable that voting for the composite law as an act might involve merely tolerating that that specific provision.

The one who votes for the composite law is not willing that specific provision as a means to an end. The person who authors that specific provision is willing it as a means to an end.

William Luse said...

WEll, no, the mother didn't

WELL, you've purposely constructed the scenario so that it appears that all crafting of legislation must be a collaborative affair, when in fact it need not be, and was not in Zippy's original stipulation. Kennedy and McCain might get together on some 3-exceptions legislation without consulting Senator Jones at all. Jones ends up voting for it, though he would not author it. This is an entirely believable situation, not likely to arise in a parental situation. (Unless the arrangement were polygamous and the mother could get another wife on her side.) I think you're trying to diffuse responsibility for the crafting of laws in order to let the pro-life politician off the hook, which is admirable, but I'm not sure this is the best way to go about it.

You didn't answer my question about formal cooperation, so I will. The father in your scenario is guilty of it. The only way to have preserved his integrity was to say, "She may not punish you for doing Y, but I will."

Lydia McGrew said...

If the matter is serious enough, of course the father should go ahead and punish the boy. His collaboration with the mom (as I noted in a comment on one of the threads at Zippy's place) is a concession on his part that he can easily avoid. It's optional. That's where the analogy breaks down. He can punish the boy single-handed. Legislators can't (at least not qua legislators, rather than qua vigilantes) punish abortionists single-handed. So any compromising in their case is not something they can set aside and go and "deal with the situation" by themselves as the father can.

The people involved in any collaboration I'm envisaging would be hypothetical pro-life legislator Smith and the confused people whom he canvasses and discovers are insisting on exceptions. (Probably he knew all about them already from previous conversations, for that matter.) Of course there might be some other person, Jones, who merely comes in and votes for the legislation when it comes up in the House of Representatives. But I'm assuming that one of the main people we're concerned with is Smith, a person who doesn't "believe in" exceptions but who discovers, by actual inquiry (which is meant to be analogous to the father's arguments with the mother) that he can't pass any protective legislation without at least one--let's say, a life of the mother exception.

Naturally he isn't going to put an exception in there just for the heck of it. I'm assuming that he's done his best to make inquiries and discuss things and knows that he can't get past this and that _nothing_ will be passed and _no_ children protected without this exception.

_That_ type of discussion or collaboration or whatever is an entirely plausible portrayal of the situation of Smith, the author--i.e. the main sponsor of the bill who probably drafts it after talking to people with the help of legal and legislative aides who work in his office. He then goes out and introduces it on the floor of the legislative body. And it seems to me that he might well be in almost exactly the same situation in terms of "consent" to the exception as Jones--because Smith only put it in there because of some other sixty people that he talked to personally who insisted on it.

William Luse said...

Smith only put it in there because of some other sixty people that he talked to personally who insisted on it.

That diffusion of responsibility I referred to. Look, now that Zippy has vacated the premises my interest wanes. I was enjoying the interplay. The nearest analogy I've been able to come up with is that Zippy (and I'm inclined to agree despite going intermittently wishy-washy) considers authoring a law tantamount to swearing an oath, in which a man holds in his hands his own soul. A 3-exceptions law, even if "moving in the right direction", is still an unjust law, and the man who writes it in will have difficulty claiming that he didn't mean it. I know that when I put my signature to something of any importance, I consider myself committed to it, as in the case that I enter into a contract with you on some matter, it ought to impress my conscience with the weight of a promise. Otherwise, it really is just 'words on paper', words I don't necessarily mean.

Now, if your conscience instructs you that a man can write such a law without intending it as an evil means to his end, that under double-effect the good indeed outweighs the bad, that the bad is not the cause of the good, and that there is no substantial difference between writing it and voting for it, then I'm not going to mess with your conscience. My initial interest in the subject concerned only how it might relate to Christians inclined to vote for Obama, which I still think would be a dastardly, downright evil thing for them to do. And on that subject I'm no longer much amenable to reason.

Lydia McGrew said...

You know my opinion on voting for Obama! Heck, I'm probably even slightly inclined in the direction of saying such a vote is _intrinsically_ wrong.

If people are bringing up abortion laws that fail to outlaw 100% of abortions as analogous to voting for Obama (and I suppose people will say anything if they want to justify voting for Obama), they certainly aren't the people I was addressing in the discussion. I was just discussing the question of writing laws to protect unborn children in and of itself.