Jane Haddam’s WordPress weblog

Moral and Legal

with 6 comments

I wonder why everybody has so much trouble with this.

I don’t agree with Cheryl.  I don’t think it is impossible to separate the moral and the legal when it comes to making law.

In fact, not only is it not impossible, it is desperately necessary.  The law exists to keep the peace.  That’s all it exists for.  It is not a substitute for morality, and it cannot safely be used to enforce morality.

JD and Mique give me arguments–and they are, again, all MORAL arguments, not legal ones.

Nor is it my suggestion that would take us on a path to Peter Singer–it’s Mique’s, JD’s, and the rest.

Consider this: 

First, there is the suggestion that abortion is MORALLY all right if there has been a rape, because in that case the woman is an “innocent victim.”

But the child didn’t commit the rape–why is it morally all right to kill it?  Isn’t the child still innocent?

And if it IS morally all right to kill it, then what else is morally all right–can I kill my rapist’s child by another woman? 

If I can morally murder an innocent person because of an immoral act committed against me by a third party, where does my moral right to kill end? 

When women declare that men who oppose legal abortion are interested in punishing women for having sex, and not in preserving the life of the child, this is the kind of argument they mean. 

The child in this case is just as “innocent” as the woman is.

The issue here is this:  what may a government be allowed to require of its citizens?

If the government may require some of its citizens to put their physical bodies to the use and benefit of other people against the donor’s will, what are its limitations (if any) in making such a demand?

At the very least–if we are to uphold the principle that there must be no double standards–the government should require that men provide the same sort or services to their biological children.  If the men don’t want to, they should be arrest, tied down and forced. 

Any other course of action would be to give the game away–to return LEGAL abortion policy into a regime for punishing women for having sex.

If it’s really the child’s life we care about, then surely both parents, and not just one, should be obligated to provide the use of their bodies to keep the child alive.

But why limit the right of the government to command such services just to  your biological children? 

If we’ve searched the country and there is no other available donor, why shouldn’t you be required, whether you want to or not, to provide the kidney or the bone marrow or whatever is needed?  After all, the child has done nothing to deserve to die.

And no, I don’t think “you don’t have to do anything to kill the child” takes kidney donation, et al, off the table. 

Leave the kid to starve, or let it play unsupervised in a dangerous area, and watch how fast you’ll be charged with negligent homicide. 

It seems to me self-evident that no government should be allowed to have any such power over its citizens.  And, on top of that, it has a number of advantages over the present legal reasoning on abortion:

1) it leaves the moral case against abortion intact, and in no way implies that it is morally acceptable to kill of f people who are disabled or ill.

That is, in fact, what our current legal reasoning on abortion does–it allows abortions when otherwise banned (in, for instance, the second trimester) if the child is likely to be born with birth defects or a congenital illness.

And that is, as well, where Peter Singer’s ideas get their force–because he’s quite right.  There isn’t much difference between aborting before birth or “aborting” after it, and if we can kill the child because it is disabled in the womb, we have no reason to refuse a right to kill the child once it is out of it.

What I’m saying here is that you have no right to kill the child at all.

You only have a right to terminate the pregnancy. 

At the present state of technology, you often  have to do the second to get the first–but technology marches on, and if it becomes possible to keep the child alive outside the womb, then removing the child from the womb will be all you have a right to expect to have no interference with.

2) The second advantage this approach has is that it requires no tortuous readings of the Constitution, no resort to privacy rights or penumbras.

When these arguments have been made on issues of organ donation, etc, they have been made on 13th amendment grounds–that is, as issues of slavery and involunary servitude. 

These are not small things. 


Written by janeh

August 28th, 2012 at 11:22 am

Posted in Uncategorized

6 Responses to 'Moral and Legal'

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  1. I haven’t argued that it should be legal to have an abortion in the case of rape or the child’s disability or illness.

    Last I heard, men can be required to support children they sire, although their bodies aren’t used quite as directly as women’s are.

    I don’t think, I never have thought that outlawing abortion is primarily a way of punishing women for having sex. I have read about an individual who seemed to have such a belief and there are probably others out there, but such ideas are profoundly irrational, starting with the assumption that certain people – those conceived by ‘illicit’ sex – are so subhuman that they need to be eliminated because their very existance is a punishment to their mother. I grew up in the pre-birth control and pre-legal abortion era, and, yes, an unwanted pregnancy could be devastating to the mother. But there will be many things in life that devastate us, and we don’t generally get to kill the person least responsible. We need to deal with the situaion in the best (and, yes, that’s a moral term) way possible and move on.

    That idea is already almost gone from our society. Surveys on abortion, euthanasia and assisted suicide seem to show that most of our society is perfectly happy to demand whatever is required from the rest of us in order to escape through death something they don’t want to face – and to hell with whatever effect this will have on the most helpless among us.

    Why do you think you can separate law and morality?


    28 Aug 12 at 11:59 am

  2. I should know better than to get involved in a discussion of abortion. It almost always generates more heat than light.

    First point, I can’t find any convincing biological argument that says a fetus is not a living human being. As far as I’m concerned, abortion is the deliberate killing of a living human being.

    But I also think that we should not have unenforceable laws. In the present moral climate, a law against abortion can not be enforced. Neither can laws about drugs, gambling or prostitution. In my opinion all of those should be legal.

    I came across a claim (which I have not verified) that abortion is the most common surgical operation in the US and that over a million a year are performed. I do not like a society that considers the deliberate killing of innocent human beings to be a routine medical procedure.

    On the issue of abortion after rape, I agree with Jane that its illogical to accept it and than object to other abortions. It seems to me that in the case of rape, we are faced with a choice of evils and my personal choice is that abortion is the lesser evil.


    28 Aug 12 at 8:02 pm

  3. Yes. Thinking further about it, I also agree with Jane that it is illogical to draw moral distinctions, and I also agree that the logical extension of Singer’s argument is that it’s OK to kill children after birth. If you accept his basic premises, of course. I also agree, and have long argued whenever these topics arise, that the only “right” is, or ought to be, to terminate the pregnancy, and if the foetus is viable, all reasonable efforts must be made to preserve its life, if possible.

    But it follows that if the state ought not to have the power to force a woman to bear an unwanted child, then it ought not to have the power to force others to provide abortion services. Yet, without such a power, affordable abortion services will not be available to many women. So there we are right back where we started.

    I’m never impressed with the sort of argument that says that men should have no say in this debate because they have no skin in the game. Sure, there are men who have nothing useful to offer other than sexist claptrap, but John Donne said it all when he said “No man is an island, entire of itself…because I am involved in mankind”.

    The problem with taking the legal approach as separate to the moral questions is simply that it is relatively easy to pass laws. Strictly speaking (pace Godwin), Hitler and Stalin were probably acting well within their nations’ laws when they killed whole classes of people. We will still run into the moral conundrum if we debate Singer’s utilitarian ideas looking for a place to draw the line.

    Just as abortion will continue to raise hackles whenever it is raised because of the moral implications, so also will same sex marriage. I cannot escape the impression that what the radicals really want is not so much the relatively easily arranged legal right to abortion or same sex marriage, but the legislative authority to force conscience-conflicted individuals/organisations to provide the desired services.


    28 Aug 12 at 8:32 pm

  4. I noticed Jane says the legal cases have used the 13th amendment (no slavery) as a basis for not forcing transplants.

    I think there is another analogy.

    The law does not force you to jump into a river to save a drowning child. It does forbid you to throw a child into the river.

    Similarly, the law should not force you to donate a kidney. It does forbid you to injure the child’s kidney.


    28 Aug 12 at 8:49 pm

  5. Mique, I think you have it right about radicals wanting to force others to provide what they want, but I think it’s a bit deeper than that. People who want changes want approval. They want public acknowledgement that they are right. I’m not sure if this was always the case – I don’t recall reading that women fighting for the right to enter medical school or vote or control their own property after marriage felt this way, but I know only the basics of those battles. I know they often based their claims on justice and fairness – but that’s not the same thing as being acknowledged publicly to be right. It’s the difference between getting a spot in medical school and having everyone perfectly happy to consult a female doctor.

    The same sex marriage situation is particularly bizarre. You have people fighting for it – not for the individual contracts that could always be drawn up or the various civil contracts that have been devised, but for formal marriage. And they’re doing it right at the point at which marriage for heterosexuals has essentially lost all its symbolic meaning – it’s not a rite of passage (sexually or to adulthood) any more, nor a lifetime committment, nor a pre-requisite to reproduction. I don’t understand it – and the bigger the wedding celebrations get, the less importance is put on the joining of two families and all the other stuff that marriage was about. I suppose it has some lingering function as an affirmation that family and friends approve the relationship; a form of demonstrating approval, perhaps. I just don’t know.


    28 Aug 12 at 9:39 pm

  6. “The law exists to keep the peace. That’s all it exists for.”

    That is, I think, demonstrably not true. You may wish it were true. You may believe that keeping the peace is the only appropriate and safe use of law. You could even be right, though I doubt it. But it is not true of the real world, in which laws are written, passed and enforced for very different reasons, and argument from a false premise is unproductive.

    For that matter, aren’t you the person who thought a moral code could be derived rationally–no reference to divinity or tradition–by the effect of moral behavior on society? I’d say that pretty effectively blurs the line.


    29 Aug 12 at 9:15 am

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