Arc Digital
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Arc Digital

On Legality and Morality

Abortion, unjustified killing, and overridingness

On Wednesday, I dropped an article arguing that abortion is wrong even if the fetus is not a person.

Nicholas Grossman, my colleague here at Arc, had this to say in response:

The political question is not whether abortion is moral, immoral (or, for that matter, amoral), but whether the government should outlaw it.

The underlying moral question, therefore, is this: even if aborting a fetus is immoral (under Marquis’ argument or another), is it moral for the state to force a woman to carry it to term, and punish her if she does not?

I think this response gets some things right but also gets some things wrong.

Let’s assume the response totally works.

I might respond: That’s fine. If a “pro-choicer” comes to accept the immorality of abortion, even if in the end they retain their political or legal opposition to it, the embrace of its moral wrongness is a good enough result. Even if all that comes of this argument is someone goes from thinking abortion is morally justified to thinking it is morally unjustified, that’s a solid enough outcome.

For reasons I’ll spell out in a second, I think it’s highly problematic to take the position that abortion is morally wrong but legally permissible, but it’s certainly an improvement, from my vantage point, over the view that takes abortion to be fine both morally and legally.

But moving away from an answer of that kind, I’d like to poke a bit at the way Grossman has construed the matter.

While it’s true that, strictly speaking, the political question isn’t “Is abortion immoral?” (which some might see as a category mistake given that politics is not the same as ethics), at the same time, the political question could entirely depend on the moral question. So even if we grant Grossman’s point, that is, even if we accept that the political and moral questions aren’t identical, the political could nevertheless supervene on the moral.

As far as I can tell, Grossman would agree with the above. Rather than pivot away from the ethics of the issue, his response tries to reinterpret what the relevant ethical question should be. He does a good job of keeping morality front and center.

For Grossman, the relevant question is:

Even if aborting a fetus is immoral (under Marquis’ argument or another), is it moral for the state to force a woman to carry it to term, and punish her if she does not?

Here’s my case for taking the question “Is abortion unjustified killing?” as singularly decisive; in other words, here’s my case for not even needing to consider Grossman’s question before determining the legality of abortion.

Politics covers a vast swath of human activity. Deliberation over zoning laws, for example, could proceed entirely along non-moral lines. But that doesn’t mean there aren’t other issues politics touches on that crucially rely on moral considerations. In the case of abortion, just as with slavery, euthanasia, and other conceptually similar social issues, the morality of the matter is the supreme consideration. “Whether government should outlaw it” — which Grossman has called “the political question” — relies precisely on the ethics of the issue.

It’s a mistake, in my judgment, to stress the dichotomy between legality and morality when it comes to social issues of this kind, as though the morality of abortion shouldn’t determine its legality, or shouldn’t enjoy supremacy when considering its legality.

So, am I saying legality and morality are basically the same?

No, we can make a distinction between the moral evaluation of an issue, which crucially depends on rightness/wrongness, and the legal evaluation of an issue, which incorporates rightness/wrongness into a larger complex of factors, taking into account other considerations such as the rightness/wrongness of other relevant actions, the role of the state, the interests of detractors, the legal rights of all involved, etc.

(There are some who deny that any meaningful distinction between morality and legality exists. For some, distributive justice is seen comprehensively and, as a consequence, any question of political interaction becomes a question of morality. John Rawls held an expansive view of “justice” in this way. But one need not take this view.)

The reason why it can seem as if I’m conflating legality and morality here — that is, the reason why it appears as though I’m settling the legal question by asking a purely moral question — is because in certain cases, the nature of the issue is of such great moral significance that it overrides any other consideration, such as the potential inconveniencing of others, the economic costs imposed upon the community, etc.

Consider a scenario in which the world is exactly as it now, except that at age 30, each of us by biological necessity needs to spend 9 months in a comatose state and attached to the body of another human being who is fully conscious and active, and over 30 years old. Without this period of incapacitation and reliance on the older person’s body for sustenance, the younger person cannot go on living. He or she will die without it.

Let’s assume that compatibility is highly person-specific; in other words, each person can only be aided by the life-recharging properties of a unique individual within society, and that this information about who your match is is easy to acquire and then the process itself is more or less manageable once the time comes.

Now imagine that someone declines their respective match from accessing his or her body. They do this either by going into hiding and thereby letting their match die off or by sabotaging the connection cables and effectively killing their match directly.

Would we be inclined to see this as an act of unjustified killing?

I think we would, but that’s beside the point.

The real import of this comes from the force of the question itself. The whole point is that if we do see it as unjustified killing, then that settles the legality of the matter. In other words, if we get a ‘yes’ to that question, we automatically get a ‘yes’ to Grossman’s further questions about whether the state should force someone to comply, or whether the state should punish those who don’t.

Here is the reason why: questions of life or death have the quality of overridingness. They override other considerations, effectively neutralizing their importance.

If Marquis is right that what makes killing you or I wrong is the same thing that makes killing a fetus wrong, then there is nothing that can trump this consideration on the hierarchy of moral values. It’s not like someone can plausibly say: “Yes, I killed that adult unjustly (or child), but should the state punish me for it?” This question wouldn’t really make sense to us.

If Marquis’ argument succeeds, then you can plug “fetus” into that sentence and you should get the exact same result.

That’s why, if we determine that Marquis is right about the immorality of abortion, that should ipso facto establish the illegality of it, since unjustified killing of that sort overrides any other consideration (such as, say, how much it inconveniences the person in our thought experiment from being attached to another human being for 9 months).

This, by the way, is also what makes the personal/legal distinction that folks such as Tim Kaine rely on to finesse their stance on abortion so worrisome. Kaine says he is personally against abortion but okay with it legally.

This means he is either (a) not really against abortion or (b) confused about what his moral commitments require of him.

Kaine calls himself a “devout Catholic,” yet the Catholic Church takes abortion to be murder. Does Kaine think it’s possibly justifiable to say: “I’m personally against murder, but okay with it legally”?

That’s why, in the two options I gave above, the first suggests Kaine doesn’t actually think it’s murder, or that it represents the intentional killing of an innocent human life. He may think the life isn’t a human one, or that it’s not a life at all, or he may think any number of other things, but one thing’s certain: if he really thought it constituted murder, he wouldn’t be all right with it legally.

But there’s a second option: it might be that he’s genuinely confused about the quality of overridingness that matters of life or death possess. This is highly unlikely, given that we all get the intrinsic wrongness of murder fairly easily. So the likeliest option is that he doesn’t really believe it’s as bad as his Church takes it to be, or as bad as your average pro-lifer takes it to be.

Here is the series in full.

Part 1: Abortion Is Wrong Even If The Fetus Is Not A Person by Berny Belvedere

Part 2: On Legality and Morality by Berny Belvedere

Part 3: The Legality and Morality of Abortion by Nicholas Grossman

Part 4: Misunderstanding Marquis by Berny Belvedere

Part 5: Abortion, Legality, and “Moral Value” by Ryan Huber

Part 6: What’s the Moral Value of a Fetus? by Nicholas Grossman

Part 7: Personhood and Value by Berny Belvedere




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Berny Belvedere

Berny Belvedere

Editor in Chief of Arc Digital

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