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Roe vs. Wade

Updated on July 10, 2014

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The Roe vs. Wade Court.
The Roe vs. Wade Court. | Source

Roe vs. Wade Oral Argument

Roe vs Wade -- Oral Argument

What is At Stake

The Supreme Court in Roe vs. Wade essentially refrained from settling issues that are ultimately metaphysical. This is the most, if not the only, meritocratic democratic institution (notwithstanding the inevitable political taint of appointments, the Justices are overachieving jurists with degrees from the top Law Schools.) Understandably, this one institution is most leery of giving the impression that they operate as an all-knowing nocturnal council like the one Plato would have rule his Utopian political system. Even though it is rare to find members who are so well educated, and are even competent in logical matters, the Justices of the Supreme Court are authorized to discharge an interpretative function vis a vis the Constitution and, whatever political or ideological leanings they have, they cannot rely on explicit substantive views of their own. They speak the language of constitutional interpretation. It is difficult for them to smuggle their own ideological preferences but, admittedly, this is something they are able to do with ingenuity. It is more difficult to do this when it comes to explicit adoption of moral theories and it seems even harder to author and foist on the populace metaphysical views. The main issue in Roe vs. Wade and in the debate surrounding abortion is metaphysical. There is a reason why this sounds surprising. And it is bad news because metaphysical issues have been recalcitrant - offering inexhaustible satisfaction to the pure contemplative but, quite often, generating paradoxes and puzzles that prove frustratingly resistant to solutions.

Metaphysics is a term that originated accidentally. Aristotle's series of lectures "After the Physics" designated what followed after the "Physics" lectures had been completed. The subject matter of Metaphysics was the first principles (archai) which Aristotle took the totality of things or Nature to be ruled by. By "metaphysics" we can understand any inquiry into the kinds and attributes of things that exist, resolutions about questions regarding what is possible or actual, and broader methodological concerns about how such issues are to be understood and adjudicated in theory. Notice that the debate on abortion ultimately turns on whether the fetus possesses a certain attribute - as carrier of rights, including the right to life enumerated in foundational documents.

A school of thought known broadly as the Analytic School of Philosophy takes metaphysical inquiries as such to be the result of confusion about the use of language. Linguistic confusion occurs when someone asserts a sentence like "a triangle has four angles" as true - the proposition expressed by this sentence cannot possibly be true. But all logical errors are also matters of linguistic confusion insofar as the logic of a language is fixed by the definitions of certain key words in the language (words like "not", "and", "all", "some", etc..) The everyday user of language is indeed linguistically confused more often than it should be the case. It is the competent user of language that is the ideal standard - which is only appropriate given that, for instance, we cannot teach a language by having an incompetent speaker's scribbles as textbook. The readiness with which metaphysical subjects give rise to problems and puzzles is suspicious. On the other side, however, metaphysical positions cannot be absent. If we accept a theory like Quantum Physics, for instance, we automatically buy into its metaphysical content - we accept certain kinds of things as existing, and we accept such things as having specified properties,... The Analytic School's correction is rather that metaphysical specifications are to be settled entirely within theories and never posited as if such matters can be addressed across the board. The logic of the language itself precisely quantifies over what it is supposed to exist within the theory (with the question as to such things "really" exist being itself outlawed).

Let us recap: the whole issue about abortion is whether the fetus, as defined, is rightful carrier of certain rights, which are also defined and enumerated in legal documents. One could take the view that, even if the fetus is a person in the relevant sense, killing it could be along the lines of justified homicide. This view has been taken but it does not play a major role in the current debates and it did not catalyze the Roe vs. Wade decision. Whether kind x possesses a property of kind y is what is at issue. Such things do not fall under the competency or expertise of scientists or any other rigorous discipline - unless it is philosophy. As we saw above, a prescription from a philosophically anti-metaphysical school is to restrict metaphysical issues to some relevant theory and let the theory specify what counts as an existing thing and what properties such things have and do not have. Here we can see, perspicuously, what problem we are facing. What would the relevant theory be in the case of the abortion debate? It sounds counterintuitive to "construct" the properties of the fetus within a theory. The justices in Roe vs. Wade who were in favor of the decision refrained from harnessing theoretical resources from constitutional interpretation. The material seems to be missing for doing this within a constitutional theory. The legal tradition has been silent on such criteria as "formation of a unique genetic signature" which fixes conception as the threshold to personhood in the relevant sense: the requisite scientific knowledge was not available. Or, consider this with respect to the moral issue: suppose that the mother's wish to carry the fetus to fruition confers personhood to the fetus. This is desirable on both sides of the debate because pro-choice advocates too may agree that murder of a pregnant woman should count as double murder (insofar as choice about abortion would be still permissible.) But this is not an intuitively appealing solution. Accepting this solution also seems to result in inconsistency - as you can tell. This particular defect can be remedied, however. The fetus-wanted and fetus-not-wanted are to count as two different metaphysical types. So, there is no contradiction in "you cannot legally destroy fetus-wanted but you can legally destroy fetus-not-wanted." The problem is that "wanting" strikes most people as NOT being a morally criterion for differentiating metaphysical types within a moral theory.

By now, we can appreciate the difficulties that surround the issue. It is broadly understood, of course, that this is a difficult issue - theoretically, not just emotionally. We see now that the source of the difficulty is not something that scientific experts or juridical experts, and so on, can address: it is one of those old-fashioned kinds of problem that have always bedeviled - and intrigued - a tribe known as metaphysicians. Isn't this surprising. Revisit the Roe vs. Wade majority opinion to see how this is put there: since religious and cultural traditions, philosophical views and theories cannot agree as to when life in the relevant sense begins, the Supreme Court cannot possibly act as some kind of Platonic super-tribunal about substantive matters. They did not and they went on to split the difference as it were. In ancient lore, Solomon's threat to split the baby in two, in order to divide it between the two claimants, revealed the true mother. In this case, the splitting has not satisfied either side - although it is the pro-life side that feels more aggrieved.

Metaphysical problems are notoriously resistant. They require elaborate theoretical frameworks and subtle conceptual distinctions to adjudicate. There is no patience for such sophistication in popular confrontations. So, this is bad news all around. Nor is it to be expected that science will make some discovery that may shed light on this subject. Suppose science established that the fetus can feel pain at an earlier point than what we think the case is. Is feeling-pain a relevant criterion for conferring legal-status property to the fetus? This is not a subject on which science has expertise. There is supreme irony in all this. The most rigorous academic discipline outside of Math and Science is Philosophy but, in our culture, it is also the most maligned and misunderstood. It is Philosophy we need to even begin to understand what the fight is really about. It is also true, however, that philosophic sophistication and rigor seldom dispose of old problems in such a way that everyone agrees with the result.

Common Fallacies in the Debate

A fallacy is an error in reasoning. Errors in deductive arguments are formal or structural and are known as Formal Fallacies. Errors in inductive reasoning are known as Informal Fallacies. One has to show that a fallacy has been committed - just calling a name will not do it. It is not a subjective matter whether there is a flaw that makes an argument weak and, so, unacceptable. Subjectively, one may well be persuaded by weak arguments - it happens a great deal more than it should - but this does not mean that psychological conviction makes a weak argument strong for the person who accepts it. The argument is still weak - the person has been fooled!

Let's see if we can recognize common fallacies that are committed in the debate over abortion. These informal fallacy types are not unique to this debate, of course.

  1. Straw Person: attributing to the other side weak arguments - not the stronger arguments that are actually available to them, but arguments that are indeed unpersuasive and which the other side does not have and does not need. This attribution pushes in the opposite direction of what is known as the Principle of Charity which requires attribution to the opponent of the strongest possible arguments for that position; one may then try to refute those arguments. Examples: a. Those pro-choice activists just want to never stop partying and having fun. (The conclusion is implied that the justification for the pro-choice position is hedonistic or self-directed.) b. Those pro-life activists are religious fanatics. (The conclusion is implied that the best the pro-life can do in supporting their views is to fanatically appeal to some religious text.) These examples also show that another fallacy can be committed: ad hominem, which consists in claiming that certain actual or exaggerated characteristics of the other side are relevant in the debate when in fact such attributes are not at all relevant.
  2. Is/Ought Fallacy: When a moral statement is supposed to follow as conclusion from premises none of which is a moral statement. Claims about what rights one has or does not have are moral statements. Claims about biophysiology of the fetus are not! Example: The fetus cannot feel anything. Therefore, the fetus cannot have a right to life. The premise is non-normative, non-moral - it is factual. The conclusion, however, is moral! The argument requires an additional premise to avoid committing the fallacy: Any entity that cannot feel (pain) does not have a right to life. Now, we don't have the fallacy but we have a premise that does not come across as warranted or supported. The argument does not commit the is/ought fallacy. As recast, it is a deductive argument; it is actually valid, structurally correct, but it has a premise, as we saw, which is not supported as true: the argument is unsound - unless one could support that one premise, which would then be a conclusion of some other argument that also needs to be examined. It is sometimes easier to spot and show the fallacies than it is to construct arguments... Can you now tell how turning to medical and other scientific experts to draw conclusions about moral claims and rights also commits this ought/is fallacy?
  3. Slippery Slope: Shockingly, some famous debaters on the issue have committed this fallacy. This fallacy is easily recognizable. A claim is made that, once something has been allowed, other consequences or chain-reactions will follow all the way to some unacceptable, even catastrophic, result. If it is indeed the case that such consequences are significantly likely, there is no fallacy. Otherwise - if it can be shown that those dreaded consequences do not follow or results will be stopped or prevented in some way - then we have a fallacy. Example: If the fetus is granted recognition as carrier of rights, then the same should be done with sperm and unfertilized eggs. But this is surely absurd. Therefore, the fetus should not be recognized as a carrier of rights. As cast, this is a deductive argument. Still, the premise about what else follows from recognizing the fetus is not warranted. Whether they are right or not, the advocates of the conception position offer specific justificatory criteria; those criteria do not carry over to include sperm and eggs. As deductive the argument is not sound (although it is structurally correct or valid.) Recast as an inductive argument, it takes on a more pragmatic flavor: if the fetus is recognized, then it is more and more likely that recogntion in this sense will be extended to sperm and eggs, etc.. Again, because there are criteria offered to prevent this slide toward the other side of conception, the argument commits the fallacy of slippery slope.
  4. Analogical Fallacies -- Weak Analogy: A famous essay by Judith Jarvis Thomson of MIT, written in the seminal days before Roe vs. Wade, made a less known case, relying heavily on analogies between abortion and other situations. The thrust of the position was that, even granting that the fetus is a carrier of the right to life, abortion could still be justified in the ways in which most people would agree that justified homicide can be justified. The content of this essay is not well known for obvious political reasons, since it yields a premise to the opposition. From an argumentation point of view, it is always a good strategy, if possible, to grant as much to the opposition and then bring down the hammer of refutation of the opponent's position. Thomson's article includes some notoriously weak analogies. The fetus is analogized to a famous and precious person who is in dire medical need, with the mother being someone kidnapped and hooked to the precious person for ongoing blood ttransfusions over a nine-month period. She surely has a rigt to refuse even if the precious peerson dies as a concsequence. The analogy is seriously weakened because of the consanguine relationship between mother and fetus (although gestation for someone else would be a different matter, although with contractual issues arising); it weakened because, unlike the kidnapped woman, the pregnant woman most likely arrived at the point of pregnancy by other, quite different means (although rape seems to fit the analogy better.) In other analogies tried by the author, the fetus is analogized to a germinating microorganism that sneaks inside a room, is inhaled by the mother and starts growing inside her. This analogy too can be attacked for many points of what is called disanalogy with respect to the case under discussion.
  5. Begging the Question (Circularity): This fallacy occurs when what must be proven appears in the premises. There is a burden to support a conclusion by means of a good argument; when one would automatically have accepted the conclusion by just accepting the premises, the conclusion is not really supported. Begging the question is a species of circularity in reasoning. A standard example in textbooks is a specious argument seeking to establish that God exists by appealing to the Bible's assertion that this is so; the additional premises, which is needed, is that the Bible is truthful; this too needs support, which is provided by the added premise that the Bible is the work of a God who never lies. This, however, implies that God exists - to be the author, God must exist. What was supposed to be supported as a conclusion in the argument has been smuggled into the premises. So, the question as to whether God exists has been begged. When dealing with arguments that commit the question-begging fallacy, we must be able always to tell which question exactly is begged. For example, Hitler's demagogic speeches, offering a bestiary of examples of this fallacy, tend to beg such questions as to whether Hitler and Germany are one the same, in some kind of mystical union, or whether Hitler's will and decisions are the right decisions which the general will of the German people would have decided if they decided correctly... In abortion debates, it is the fundamental questions for the debate that are usually begged: is the fetus a person in the relevant sense? does the right to reproductive choice extend beyond the rights of the fetus (if the fetus is a person in the relevant sense)?
  6. Various Appeals (Fallacies of Irrelevance): When some reason, opinion, criterion, or any thing that is not relevant to what is being discussed is appealed to, brought in via the premises to presumably support the conclusion, we have a fallacy of (ir)relevance. The philosopher and activist Jeremy Bentham attended sessions of the House of Lords in the UK once for the express purpose of recording fallacies in speeches and he ended up listing all kinds of irrelevant appeals - to patriotism, to the tradition, to the glory of the nation, etc... Of course, there is no "appeal" fallacy if what is being appealed to IS relevant to what is discussed and what is to be taken as proven. If the prospect that England might be dishonored is at stake, then we cannot charge that there is an appeal-to-the-glory-of-England fallacy. Common fallacious appeals are: to false authority (so-and-so advocate life/choice: therefore, this must be the right position); appeals to force/threat (we are threatened with losing our rights if the other side prevails); appeal to ignorance (they cannot prove that x; therefore, let's take not-x for true); appeal to accident (when an inessential property is appealed to -- if brought to term, the resultant baby is most likely to have a harsh life; therefore, it should not be brought to term); abusive appeal to the person or the person's circumstances (known also as ad hominem: those conservatives and religious fanatics support life; therefore, this cannot be the right view; or, irresponsible, selfish women put their careers above the fetus; this cannot be the right view); appeal to the people or the right people (in Latin, ad populum: the "cool" people are all pro-choice; therefore, this must be the right position; or, all our church members are pro-life; therefore, this must be the right position.)

© 2014 Odysseus Makridis


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