Friday, September 03, 2021

Sauce for the Gander

The Texas anti-abortion law enshrines the idea that others' interests legally trump an individual's right to bodily integrity.  Of course, many would question whether a six-week embryo really has morally significant interests yet, but put such worries aside for now.  I'm interested in how broadly this principle should be applied.  For there are many needy individuals out whose moral status is much clearer than that of an embryo.  Just consider any dialysis patient, for example.  If bodily integrity is no longer sacrosanct, should we not pass laws mandating the removal of excess kidneys to help those in need?  Better yet, since most of us (I think) still regard violations of bodily integrity as a serious moral cost, perhaps one could instead mandate just that those who have mandated that others' bodily integrity be violated for another's sake should themselves be subject to mandatory kidney donation.  They've already implicitly consented to the principle at stake, after all.

As a bonus, we don't even need the State to get its hands dirty -- just further specify that the law empowers any concerned citizen to harvest a kidney from anyone responsible for the Texas law (including, e.g., those who offered legal, financial, or other support to the legislators in the crafting of their bill).  I'm sure such a proposal would immediately be met with universal support, right?

In other news: Trumpists finally proved that birthright citizenship is a mistake.  Nice as it may sound to welcome new-comers into our country with open arms, there are those whose values are plainly incompatible with liberal democracy.  If allowed into the country -- and eventually to vote -- they will threaten the very foundation upon which America's greatness rests.  Political views -- including illiberal, anti-democratic values -- are all-too-often transmitted from one generation to the next within cloistered cultural communities who refuse to integrate with the rest of society, culminating in acts of terrorism and insurrectionist violence like we saw in January.  The only solution is that children of Trumpists must be denied citizenship and deported immediately.

6 comments:

  1. Hi Richard,

    I disagree with the law and I think giving weight in the law to the alleged interests of six weeks old embryos is a significant moral mistake. However, if we do put the worry about those interests (or similar matters and arguments) aside, couldn't one make the same argument using abortion bans after viability or after 20, 22 or 24 weeks (or some other variant), as long as they make no exception for rape or relevantly similar cases? Those laws have existed for at least decades I think, in at least several states (perhaps most? I'm not sure) and other Western countries.

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    1. Sure, the argument can be made that others are also being inconsistent here.

      Though there are some responses available in defense of late-term bans that don't apply earlier. For example:

      (1) 20 - 24 weeks gives plenty of time for most pregnant women to discover their pregnancy and arrange to get an abortion if they really want it. So one could argue that those who pass up the opportunity for an earlier abortion have implicitly consented to carry the fetus to term. (Though this argument neglects that the woman may learn important info, e.g. from fetal scans, that reasonably cause her to change her mind and withdraw her consent for continuing to provide gestational life support.)

      (2) The magnitude of the infringement upon bodily integrity depends upon how long one is forced to provide life support to another against one's will. It's a bigger violation of bodily integrity to require this for 8 - 9 months than to merely require it for another couple months. Perhaps the lesser infringement is justifiable in order to save another's life. (In Thomson's violinist case, you surely couldn't unplug yourself if you only had to wait one day to save the violinist, for example.)

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    2. In re: (1), that is a good point, though I would say this also neglects cases in which a woman - perhaps a teenager - is not allowed (by parents, husband, abusive boyfriend or whoever) to seek an abortion until she manages to escape. So, if we're talking about the principle involved - rather than the number or percentage of women it harms -, laws that apply later in the pregnancy do not seem to avoid the charge on this account.

      In re: (2), it depends on that, but also on the resources needed to provide the fetus, which are much greater at 22 weeks (for example) than they are at 6. And while 2 months vs. 8-9 seems like far less, if we compare a 22 weeks vs. a 6 weeks law, given that a pregnancy is expected to last for about 40 weeks, the infringement is for about 18 weeks vs. 34 weeks, and the 16 extra weeks are those in the infringement period with the burden is the least. So, it's not so clear to me how much worse it is. Maybe it's less than twice as much? But then the suffering is not linear, so it's hard to tell. At any rate, I think the biggest difference between these laws is the percentage of women who actually wouldn't manage to get an abortion in time, rather than the amount of suffering meted out on those who don't manage to (side note: Personally, I'm against any restrictions against abortion, even if I consider that some abortions would be wrong).

      However, the magnitude of the trumping of bodily integrity does not seem to be involved in the kidney argument, at least as far as I can tell. For example, if we consider the magnitude, then someone might reply that if we consider the magnitude, then removing a kidney is a considerably worse burden on bodily integrity than continuing the pregnancy. An alternative response would be that the distance between forcibly removing a kidney and forcing the continuation of a pregnancy for the last (roughly) 34 weeks is considerably greater than the distance between forcing the continuation of a pregnancy for the last (roughly) 34 weeks and forcing the continuation of a pregnancy for the last (roughly) 18 weeks.

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    3. It's an interesting question how to compare forced pregnancy vs forced kidney removal in terms of which would be a "worse burden on bodily integrity". Pregnancy is plausibly a greater burden in that it impedes one's ordinary functioning for much longer, and I believe that childbirth may also involve a greater risk of severe complications (incl. death)? But perhaps there's some intuitive sense in which removing a bodily organ -- even a largely redundant one -- counts as a greater violation independently of the effects on one's health and well-being?

      But yeah, I agree that (2) isn't a major factor here. I think (1) may be better, since even if there's the possibility of rare cases in which someone really didn't have an opportunity for abortion before 20-24 weeks, that's far from the norm and possibly difficult to feasibly exclude using the blunt instrumental of the law, so might be treated as an unintended cost of the policy rather than as a fully endorsed case of it working as intended.

      But if you don't think that works either, again, I'd be pretty comfortably concluding that these other states are also being inconsistent in their respect for bodily integrity.

      If we move beyond specifically bodily integrity to human rights inconsistencies more broadly, just compare the Covid authoritarians in Australia: "it is not about human rights. It is about human life," says Victorian Premier Daniel Andrews. What that man is doing with two kidneys still, I just don't know.

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    4. I agree it's not the main factor, and the answer you give in the case of (1) is more plausible. Still, in terms of the effects on health, I suspect the removal of the kidney is worse, but I do not have statistics so I don't actually know. One can avoid these objections by replacing mandatory kidney removal with mandatory blood transfusions, though. Blood is regenerated, so the person recovers in full. And in less than 34 or even 18 weeks, given normal amounts transfused. Yet, the law does not allow these, either.

      One possible reply by the supporters of abortion restrictions would be to distinguish between what already happened vs. what hasn't, i.e., before a violation of bodily integrity that keeps the status quo vs. one that does not. For example, if someone already took a person's kidney by force and put it into an innocent third party who would die without it, not to allow the victim to take the kidney back doesn't strike me as a burden nearly as big as forcibly kidney removal. And arguably forcing the continuation of a pregnancy is a lesser burden that forcibly impregnating a woman - e.g., for the sake of saving frozen embryos. I think even if the distinction is correct, it is insufficient to justify a ban on abortion, but if the distinction is correct in principle, it could be used to weaken the mandatory kidney harvesting/blood transfusion analogy.

      That aside, I've been thinking about your violinist example. You say you "couldn't unplug yourself if you only had to wait one day to save the violinist". Do you mean that you morally shouldn't, that you are not legally allowed, or that a legal restriction would be morally justifiable? Or something else? Compare that with life-saving blood transfusions: they are not legally mandated: you are legally allowed to keep your blood, even if someone else will die unless you give them blood. And giving blood doesn't look like a bigger burden than remaining hooked for a day to the violinist. All other things equal (e.g., equal amount of blood needed), it seems like a lesser burden actually.

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    5. Oh, good point, I was just thinking that you morally shouldn't unplug in the one-day case, but you're right that it's an interesting further question whether legally enforcing this would be justifiable. (Probably depends on a lot of other contextual factors. In general, my view is that we should assign people whatever rights would have overall best results. I tend to assume that a strong presumption in favour of individual autonomy would be best, but it's always possible to imagine circumstances in which carving out an exception could be justified, especially for lesser impositions that do immense good for others.)

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