What’s Wrong With the Abortion Debate? #211 (P)

Thoughts on Roe v Wade, democracy and its limits

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Before we begin, let me point you to a gripping article I just read in The Guardian: “Cocaine, class and me: everyone in this town takes drugs, all the time – they’re part of the civic culture.” It’s the kind of article that stays in one’s mind for a long time after reading it, especially if, like me, you live a mostly privileged and protected life, far away from the despair and pain that millions of people have to endure daily. I have never taken drugs (except for the usual experimental quantities of weed at age 19, just like multiple US presidents), and it is eye-opening and terrifying to see how different the world can look if you are forced to live your life at the harder end of it.

Let me also mention that last week I republished a 2017 piece on Daily Philosophy that might be of interest to some: Religion and Happiness. Are religious people happier?

After a brief break in the news, the “Roe v Wade” debate is back in full swing. Today’s online Guardian is all about the supreme court’s overturning of the 1973 decision. Now each state in the US can decide for themselves whether abortion will be legal within their borders or not.

The Guardian, June 25, 2022

If you are reading this, you are probably aware of all the common arguments in favour of and against abortion — and I’m not going to repeat those here. (But I will write an article on the Daily Philosophy website about the whole abortion debate, in case you’re interested to read more). Today I would like to mention a few points that seem to not be talked about at all in the public discussion. I am not an expert on bioethics or US law, so I might be getting the details wrong, or perhaps you’ve already heard these arguments better elsewhere, in which case I apologise for wasting your time.

Anyway, here we go.

The limits of democracy?

The abortion debate is in a unique class of problems that touch on the very fundamental rights of human beings. And what right can be more fundamental than the right to reproduce (or not) where the mother is concerned, and the right to live (where the fetus is).

What makes the abortion question more impactful than many others is the worry that it might be wrong to decide issues of such importance through democratic means. Democracy clearly has its limits. Even if the German Nazi state had (hypothetically) democratically agreed to kill the German-Jewish population in the 1930s, it would not have been right to do so. A democratic mob cannot overturn or ignore basic human rights, and this is why changes in a country’s constitution usually require more than a simple majority, and sometimes are entirely impossible. Parts of the German Basic Law, for example, cannot be changed without entirely dissolving and re-constituting the country with a new Basic Law.

Should a democratic majority, even if it is legitimate, have the right to prescribe to a mother whether to bear a child or not? This is a difficult question to answer. Democratic administrations have many rights that affect our lives in very fundamental ways. Your government can, for example, imprison you for life. But usually such state actions can only be taken under certain and very restrictive conditions. A whole, independent judicial system is, in principle, available to protect citizens from the arbitrary exercise of state power (even if this does not always work as intended).

In the case of abortions in the US, one could say that abolishing the protection of Roe v Wade has indeed strengthened US democracy. Where previously states could not follow their citizens’ collective will and outlaw abortion, now they can. Nobody is forced to outlaw abortions, though. Many states have already publicly declared that they will not only keep abortion legal for their own citizens, but also that they will welcome abortion-seeking women from other states. If more democratic choice is considered a good, then the supreme court’s decision had indeed contributed to that good.

But the question remains: Should such choices be made democratically, or are they of such importance that they should be protected by a country’s constitution?

Source: Canva.com

The broken mechanics of US law

This question leads us to another point, one that was also briefly mentioned in a Guardian comment today:

The story is not about the Democratic politicians, whose leadership on abortion rights has been tepid at best, and negligent at worst, since the 1990s. In the coming days, people who have voted to uphold the Hyde Amendment, a provision that has banned federal funding of abortion since 1976 – effectively limiting the constitutional right to an abortion to only those Americans wealthy enough to afford one – will tell us how terrible this is. They will issue statements talking about their outrage; they will make platitude-filled speeches about the worth and dignity of American women. They will not mention their own inaction, persisting for decades in the face of mounting and well-funded rightwing threats to Roe. They will not mention that they did nothing as all that worth and dignity of American women hung in the balance (...) Moira Donegan in The Guardian

Although the piece ends up making a different point, the idea here is worth considering. The mechanics of law-making in the US are broken, if fundamental values like the human life and freedom of millions rest on one single decision that a court made half a century ago. If this point is so important to society, why has none of the Democratic governments since 1973 ever done anything to strengthen the pro-abortion legislation, for example by changing or amending the constitution, by engaging in a 50-year dialogue with the population on the issue, or by strengthening secular education and opposing the spread of fundamentalist Christian ideology?

The fundamental problem of federalism

In a more general sense, perhaps the abortion debate in the US can be seen as an instance of a bigger problem, that is: How is a federal state to deal with the tension between federal government and constitution and local governments? Every federal state has the same problem of balancing power and preferences between the central and the local governments. The problem is the same in the US, the ex-Soviet Union and ex-Yugoslavia, in China, in Great Britain and in the EU. But different countries have attempted different solutions.