Abortion: Life and Liberty

Lately I have really been questioning the foundations of my political beliefs, which can be roughly classified as Libertarian.  I chose the topic of abortion to anchor my internal debate to a matter of practical importance.

One of my fundamental axioms is that each person has their own set of values and preferences.  Pretty much everyone agrees that we need a publicly funded system of defense and justice to protect our right to live and work in peace.  And putting aside socialist theory for the moment, for the most part we agree that we should all be free to pursue our own idea of happiness according to our own skill and ambition.

But we also live in a society that in several important ways finds it acceptable to force us to act according to the moral preferences of others.  One way that this happens is that we are taxed and the proceeds are redistributed through a number of social welfare programs.  Another is that we expect everyone to live according to certain moral norms aside from those necessary to protect the basic liberty of our citizens.  Protecting the lives of the unborn is one such moral imperative that is enforced to some extent, but as we are all aware, is still the subject of intense debate in our society.

Yesterday I watched a video that actually showed the process of late term abortions, as well as the aborted bodies of a number of fetuses at various stages of development.  It was very disturbing to say the least.  I think we can all agree that abortion is a very tragic practice.  In any case, it seems to me that regardless of whether these fetuses are considered human beings, they are yet not autonomous citizens of our society.  But if we want to prevent them from being killed we must force adult members of our society to continue through pregnancy and the labor of birth.  So the question is whether my extreme disgust at the practice of abortion, together with my sympathy for the little beings, is enough to justify forcing another member of my society to act against her will.

Despite the attempts of people on both sides to argue to the contrary, I resist the idea that there is an easy answer to this question.  I think it is clear that an abortion constitutes a tragic end to a human life.  It is also clear to me that to force a woman to carry a child is a violation of her liberty.  A fetus is alive but it is not yet an autonomous member of society, so before we extend it the full protection of our laws we have to resolve the underlying moral questions.

So if most people agree with me that abortion is tragic, is there any reason we shouldn't make it illegal?  I there are several considerations we should take into account:

• First, even if we don't agree with what they are doing we should realize that by restricting the liberty of our neighbors we are harming them.  This is true even if we think the immediate harm done to them will be beneficial in the long run (e.g., if they later regret having an abortion), or if the harm is necessary to prevent harm to someone else.
• Second, by violating the liberty of the minority we may find our own moral agency at risk in the future.  Without strict limits on the degree to which we can coerce each other, we may enjoy some moral victories while we are in the majority but find ourselves (or or descendants) oppressed to some degree if we are ever in the minority.
• Third, even if we are part of a stable majority coalition of like-minded people that is not likely to suffer oppression without such limits, it is possible that our moral coercion will cause significant social unrest and perhaps even rebellion among those who don't share our moral preferences.  At the very least, we may find it difficult to enlist their help in promoting other political objectives.
• Finally, we may find it appealing on principle to live in a society where there are strict limits on government coercion.

To be honest, the fourth consideration is probably the most compelling to me even though I hesitate to simply take anything "on principle."  I prefer to have reasons that are tied to concrete interests.  The primary interest underlying the appeal is probably based on the second consideration.  I have some vague notion that if we don't limit government, it will come back to haunt us in all sorts of other ways.  But while I can think of a number of ways that the government currently forces me to do things I don't agree with, it is not clear to me that restricting abortions would make my situation significantly worse in this regard.  I am hesitant to rely solely on a slippery slope argument.  So perhaps my Libertarian sentiment is really based on the third consideration.  Maybe I hold out hope that the rest of society would listen if I said: "Ok, I will let you make your own decision on abortion and marijuana if you let me decide whether I want to buy health insurance, etc."

In the end, I think that there are better ways of pursuing my moral preferences (including the desire to protect the unborn) than using government coercion.  I am inherently skeptical of relying on the state to resolve every social problem we face, and I think we do so at some risk to our own freedom.  However, I understand that there are many people who believe that our moral duty to protect the unborn overrides each of the considerations I mentioned.

On the Overturning of Proposition 8

This news is truly remarkable: a federal judge has ruled that California's constitutional amendment banning gay marriage (a.k.a. Proposition 8) is unconstitutional.

There are several concepts that need to be understood in order to analyze this decision.  The most important is the hierarchy of judicial standards that courts use to determine the constitutionality of legislation (especially laws that are challenged based on the constitutional requirement that people should be treated equally under the law). There are three basic standards:  the rational basis standard, intermediate scrutiny, and strict scrutiny. 

The reason for this hierarchy of standards is that in general courts want to give legislators the benefit of the doubt, but in certain special cases there is reason to take a more skeptical approach.  The rational basis standard is the default judicial standard.  It says that laws can treat people differently as long as there is a rational connection to some reasonable government interest.  The law doesn't have to be perfectly well crafted.  It just has to have a rational basis.  Laws judged on this basis are usually found to be valid.

Strict scrutiny is used when fundamental rights like the freedom of speech are at stake, or when laws discriminate based on a "suspect classification" (i.e. race).  These laws must be based on a compelling interest, and they must be narrowly tailored to meet that interest.  Laws judged under this standard are usually overturned.

Intermediate scrutiny is used for laws that differentiate based on gender.  As the name implies, the standard is intermediate between the other two.  The Supreme Court has not made a clear statement about whether laws that differentiate based on sexual orientation should be considered under the rational basis standard or the intermediate standard.

The interesting thing about the Prop 8 case, known officially as Perry v. Schwarznegger, is that the judge stated that the strict scrutiny standard ought to be used, but then overturned the law under the rational basis standard.  My guess is that he wanted the best of both worlds.  He felt that gays have been subject of so much discrimination they deserve to be declared a suspect class, so he wants to create a little bit of judicial precedent for that idea.  However, he also knows that there is little existing precedent for that standard so he didn't want to base his ruling on shaky ground.

In any case, he flatly declared that "excluding same sex marriage couples from marriage is simply not rationally related to a legitimate state interest."  The judge considered the following justifications for the amendment:

1. Reserving marriage for heterosexual couples,
2. Proceeding with caution when making social change,
3. Promoting heterosexual parenting over homosexual parenting,
4. Protecting the interests of those who oppose gay marriage,
5. Discriminating against gay couples,
6. All other interests.

I find this list rather interesting.  (1) is pretty much a statement of the effect of the law, not the purpose for it.  (4) and (5) seem designed specifically to make the law seem discriminatory.  (2) is thrown in there as a potentially valid argument that is compelling to some, but is not enough by itself to justify any form of discrimination.  (6) is a throw away category.  You can't make a reasoned argument about whether "all other interests" are compelling.  (3) is the most potentially compelling argument, but I am pretty sure he threw it in there precisely because there was an expert witness how testified that gay and lesbian couples raise perfectly fine children.  Typically higher courts do not question the facts discovered by lower courts, and there really isn't any compelling evidence I know of that would justify overturning this "fact".

I didn't read the argument of the defense, so I can't say for sure whether this list is a good summary of their argument.  What I can say is that this list skips the one primary reason that I have taken as the most important justification for marriage:  encouraging couples who are likely to procreate to do so within the confines of a stable relationship.

There are a few biological facts that justify marriage.  First, humans need a lot of care to become self sufficient.  Second, only women get pregnant.  These two biological facts have led to a pretty much universal convention that men who get women pregnant are encouraged by society to stick around and help care for their offspring.  For the sake of argument, let us postulate that caring for children is a legitimate state interest, and only concern ourselves with the question of whether marriage is rationally related to this interest.

One might argue that men are not required by law to get married before getting a girl pregnant, or that the law has other means (child support) of holding men responsible.  One might also point out that lesbian couples can get pregnant, and that gay couples can raise children.  But these points are not necessarily relevant to a judicial argument based on the rational basis test.  A law subject to rational basis scrutiny does not have to be narrowly tailored to an interest.  It only has to be "rationally related" to that interest. 

So what does it mean to be rationally related?  I think it has to do with two concepts: probability and causality.  Laws that regulate actions are rationally related to a particular interest if that action will, with some sufficient threshold of probability have a causal impact on the interest.  In this case, will sanctioning marriage make it more likely that couples will make babies within the confines of a stable relationship?  And of course, since the case is about gay and lesbian couples, will sanctioning marriage between homosexual couples make it more likely that they will make babies within a stable relationship?

**I want to distinguish here between two effects.  The first is the quantity of babies.  The second is the proportion of babies that have stable, committed parents.  For purposes of this argument, let's focus on the second effect.

I think the answer to both of these probability/causality questions is yes.  However, that doesn't necessarily resolve the legal issue because again, the law doesn't have to be "narrowly tailored".  There is another relevant factual issue: whether the likelihood that a couple will have a child depends to a great extent on sexual orientation.  I think it does.  My understanding of the facts is that the heterosexual couples are more likely to have a baby than homosexual couples.  I also think this fact is based on biology, and not an artifact of existing laws.  So, I think that the gay marriage ban should pass the rational basis test based on its relationship to the state interest in making sure that babies are born to committed parents, even though gay couples can be committed parents too.  They are just less likely to have kids without the commitment.

The reasoning I present here is somewhat similar to that underlying another question that has been in the news recently: should gay men be allowed to donate blood?  The FDA currently bans gay (sexually active men within the past 30 years) men from giving blood.  An advisory committee recently recommended upholding the ban.  The reason is that while both gay and heterosexual men can have HIV, gay men are much more likely to be infected.  A perfectly tailored ban would simply prevent people with HIV from giving blood.  But again, a rule doesn't need to be perfect in order to be "rational" in a broad sense (and thus constitutional).

Having made this argument, I must admit that I am a little uncomfortable with it.  At some level I think the judge is right in his assessment that the real basis for the ban on gay marriage is the sentiment that many people hold that gay sex is immoral.  I agree with his conclusion that such moral sentiments should not be the basis for discrimination.  I simply think his analysis missed an important consideration.