Law vs. Morality
We can disagree and both be right, and the law needs to allow for that
Note: this is the third article in a series. It started with a discussion of different forms of government in “United Nations: libertarian dream” and continued with an argument in favor of local governance in “Pixelated boobs: the case against a global government”. In this installment, I examine a specific case of applied governance.
Previously, I argued that the best way to optimize governance—maximize the benefits while minimizing the harm to our liberties—is to govern at the lowest, most local level possible. I‘d like to illustrate this point with a specific example. Something light and non-controversial: abortion.
At one end of the spectrum, some argue that the “morning-after pill” is a form of abortion and should therefore be banned or at least restricted. At the other end, some jurisdictions allow abortions for any reason and at any gestational age.
So at one extreme, we have the absolute anti-abortion position
I’ll offer the following as an example of the Roman Catholic Church’s views on the matter:
Similarly excluded is any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation—whether as an end or as a means.1
Anything done before, during, or after the act of sexual intercourse that prevents procreation is forbidden. This means contraception as well as abortion. Someone who follows Roman Catholic teachings will reject abortion for any reason.
Personally, I do not hold this view. However, I acknowledge that someone may adhere to this position because they sincerely believe that all life—to include incipient life—is a sacred gift from a Creator, that this Creator has a plan for everyone, and that no human has the right to meddle either with life or with the plan. This doesn’t automatically mean that such people hate women.
At the other extreme, we have the absolute pro-abortion position
I’ll use the example of the People’s Republic of China, which allows abortion for any reason and at any point prior to delivery. As long as the fetus hasn’t made its way out of the birth canal, it’s fair game in the Middle Kingdom.
Again, I personally don’t subscribe to this view. But I acknowledge that someone may sincerely believe that a person has total sovereignty over their own body—including stuff that goes into and out of it. This doesn’t necessarily mean that they like to murder babies.
The extreme positions don’t represent the majority of us
At least, I’d like to think that they don’t. So my working assumption is that most reasonable people will find themselves somewhere in between the two absolutist positions described above. Summarized:
We should all be able to enjoy the physical act of love without having to commit to having and raising a child. At the same time, there’s a point at which aborting a fetus, even if it is still inside the mother’s body, turns into killing a human being.
Where is the point at which a fetus becomes a baby? There is much debate on this, with answers ranging from “moment of conception” to “detectable heartbeat” to “viable lungs” to others. Each camp can produce scientific and medical experts to support their point of view. However, I submit—and I hope you will agree—that a full-term fetus that just hasn’t made its way down the birth canal yet is already a human being—just one that happens to be physically located inside another human being.2 If we can accept this, then we must accept that somewhere between conception and delivery, the fertilized egg became a human being. And from this, it follows that at some point, abortion stops being just a medical procedure performed on the mother, and it also becomes the killing of a human child.
I am not saying that abortion is right or wrong; I am saying that we must recognize the objective reality of what abortion is. And having acknowledged it for what it is, we can hopefully recognize that some people may sincerely believe that abortion is infanticide without also hating women. And that some other people may sincerely believe that an immature embryo is just a clump of cells, and that the mother’s right to bodily autonomy allows her to choose not to have a child—without turning her into a murderer. Which is to say, it is possible to be pro-life without being a misogynist, and to be pro-choice without being infanticidal. We are all just people trying to do the right thing the best way we know how.
If we try to impose a single standard on everyone, we are guaranteed to piss off people on both sides. No matter where we draw the line, some will think that we’re murdering babies and others will think that we’re infringing on women’s bodies. There will always be pressure (from both sides) to move the line, and there will always be people who feel that the policy is morally wrong and that they have the duty to change it—including through extreme or violent means. The logical solution is to allow different jurisdictions to have their own local policies, and to allow citizens to have input on those policies—or to move to a different area if they choose.3 You know… democracy.
But how can the Supreme Court just make abortion illegal?
The Supreme Court didn’t do that.
The 1973 Roe v. Wade decision (410 US 113) found that the Fourteenth Amendment to the US Constitution established a Constitutional right to abortion. The 2022 Dobbs v. Jackson Women’s Health Organization decision (597 US ___) found that the Amendment, ratified in 1868 in the wake of the American Civil War, had nothing to do with abortion and was never intended to regulate abortion (one way or the other) at the Federal level.
There is a hierarchy of laws in the US. At the top is the Constitution, which is the supreme law of the land. Below that is Federal law, then State law, and finally local laws such as county and city ordinances. Each echelon trumps all levels below it. Since there is no Federal law on abortion, prior to Roe the States could decide what their abortion policies were. After Roe, there was a Constitutional requirement to make abortion legal, which overruled any State laws on the matter. After Dobbs, this Constitutional requirement was no longer in place.
So, Dobbs returned the question of abortion laws to the States. Dobbs did NOT make abortion illegal. It also did NOT forbid a future Federal law or even Constitutional amendment to make abortion explicitly legal, if that’s what the American people want to do. To reiterate: all Dobbs did, was find that the US Constitution does not establish the right to an abortion. Everything else is still fair game.
But the majority of Americans want abortion to be legal!
For example, see the polls referenced in this article.
Setting aside the fact that the referenced article conflates overturning Roe v. Wade with making abortion illegal (which it didn’t), it does mention a number of polls that show general support among most Americans for keeping abortion generally legal. I’m adding these qualifiers not to make it seem that support is low, but rather to reflect the fact that views vary widely depending on the circumstances—like how far along the pregnancy is, with support dropping off greatly for 2nd trimester and beyond.
But for the sake of argument, let’s suppose that a majority—51%—of Americans were fully and totally supportive of abortion in any circumstance. Hell, let’s make that number even higher: 90%, an overwhelming majority. That would still leave 10%—33.4 MILLION people—who oppose it. I already talked about the tyranny of the majority in Libertarian Dream. Would it be right for the 90% to impose its will on the 10%? Keep in mind: we’re not talking about imposing a new sales tax; we’re talking about legalizing something that 10% of population believes is the murder of an innocent child.
This question is easy to answer if we assume that all 33.4 million are evil misogynists who need to be re-educated and forced to comply. But why should it be easier for us to assume that people who disagree with us are inherently evil? Why should it be so much harder to accept that they might be good people who just view things differently?
Let people build their own paradise—or purgatory
Allowing the States to set their own laws allows Americans to determine what kind of society they want to live in, and to have a hand in shaping that society. Yes, other places in the country (and around the world) will have laws that we don’t agree with. But who among us is prepared to say that we, and we alone, know the one true correct way to live, and are prepared to impose this way—through force if necessary—on every other human being in the world? Shall we list off some historical examples of what this mindset has led to?
Let people live the way they want to live in their own corner of the world. Make them deal with the full consequences of their decisions.
You know… democracy.
HUMANAE VITAE, https://www.vatican.va/content/paul-vi/en/encyclicals/documents/hf_p-vi_enc_25071968_humanae-vitae.html
Think of it this way. Suppose a baby is delivered at exactly 40 weeks. Does this mean that it is not yet a human being at 39 weeks, 6 days, 23 hours, and 59 minutes? How about 58 minutes? How about 57?
See “Pixelated Boobs” for the in-depth argument.