Balkinization: Selective Funding of Abortions For Racist Reasons

Selective Funding of Abortions For Racist Reasons

Mike Paulsen asks, provocatively, whether if one supports the morality and legality of abortion, one could logically condemn or prohibit private citizens from giving money to pregnant women to have abortions for the specific purpose of reducing the number of black babies (or female babies) that come into the world.

But how could it be "genocide" to abort what is not a human life? Is this not a category mistake? Under the cruel "logic" of abortion rights rhetoric, the fetus has no racial identity, because the fetus has no human racial identity. There is therefore nothing wrong with abortion targeted at specific races. The pregnant woman may have a racial identity, but the aborted fetus has none.
. . . .
Abortion-rights supporters dare not admit that the aborted fetus has a racial identity that can be recognized as such or that he or she has a gender identity that can be recognized as such. For that would give away the game.

Mike's first claim is that it is impossible for supporters of abortion rights even to recognize that fetuses will develop into males or females, whites or blacks, because to do so would concede that they are human beings and that abortion is murder.

(By the way, my understanding is that it may be difficult to tell the racial identity of a person just from their DNA if (1) you can't see them and (2) you don't know who their parents are, but I will put that aside for the moment, because I assume that Mike can stipulate that the racial identity of the biological parents is known).

I don't see why there is any puzzle in acknowledging that some fetuses aborted are female and others male, any more than there is a puzzle in acknowledging that some fertilized ova which never implant are female and others male. Indeed, the same is true of frozen embryos in fertility clinics that are never implanted. People speak of the characteristics of such embryos all the time, but this does not commit them to the view that the frozen embryos are living human beings and that disposing of them is murder. (At the same time, the state can restrict who can dispose of frozen embryos-- for example, it can restrict this right to the biological parents.).

No one I know of who supports abortion rights denies that fertilized ova, blastocysts, embryos, and fetuses all have human DNA that codes for/develops as familiar human characteristics. Recognizing this fact does not, by itself concede that fetuses are identical to born infants or that abortion is murder. Nor is there any logical difficulty in acknowledging that a fetus, if carried to term, will be a boy or a girl, white or black.

Mike's second claim, it seems to me, is far more interesting and important. Suppose that some person or group of persons seeks to fund the abortions of poor women because of the likely race of the fetus (based on knowledge of the race of the biological parents) or because the fetus is developing as a female. So, a very rich white man announces publicly that he will pay for the abortion of any black women who wishes to abort her child because he wants to reduce the number of black babies born. Does the logic of abortion rights mean that the state cannot prohibit the funder from offering this deal on these terms, or, what is a different question, that the funder is doing nothing morally wrong in making the offer?

I don't see why the state cannot ban funders with certain bad intentions from making selective offers to pregnant women based on the identity of the child. Surely the state can make it illegal for a private party to give money to a pregnant women to abort a fetus on the basis of the funder's belief (correct or incorrect) that the fetus has a particular racial, religious or gender identity, or likely sexual orientation.

It does not matter that the woman who aborts has very different reasons for seeking the abortion-- for example, that she is emotionally and financially incapable of becoming a mother at this point in her life. We can condemn the funder's action as immoral-- and make them illegal-- even if we think the mother is making a very different and morally difficult decision and is also exercising a constitutional right.

The flaw in Mike's argument, as I see it, is this: selective funding of a third party's constitutional rights does not automatically receive the same degree of constitutional protection (or enjoy the same moral status) as the third party's exercise of those rights. Suppose that a private party offers to perform free sterilizations/vasectomies on blacks but not whites for the express purpose of limiting the number of black babies born in the future. The state may also prohibit this, even if the women and men who would take the money have perfectly good reasons for wanting to choose sterilization or vasectomy, and even if the right to do so is constitutionally protected. The state could well decide that private parties should not be permitted to engage in racial eugenics based on invidious motivations, even if there is a constitutional right for the individuals they fund to choose not to have children.

Nevertheless, behind Mike's hypotheticals is a deeper question: if we don't think that individual decisions to abort are per se immoral, what is morally wrong with private decisions to fund some people's reproductive choices and not others on a potentially massive scale? The answer is that what is morally wrong are certain forms of eugenics. The issues of when forms of genetic engineering are morally permissible are very difficult. However, we do not have to have a general theory of eugenics in order to conclude that it is wrong to engage in private eugenics for the specific purpose of reducing a particular racial group in the population out of a belief in the inferiority or undesirability of that racial group. The same, I would argue, is true of a concerted campaign to limit the births of men or women, gays or straights, or members of religious or ethnic communities. We can condemn such private eugenic campaigns to induce pregnant women to abort as immoral without concluding that all abortions are per se immoral.

Posted 7:41 PM by JB [link]

Comments:

The force of Mike's objection actually doesn't depend at all on the fetus being a person. A campaign to discourage the birth of black babies would be equally objectionable if no fetuses at all were killed - for example, by a private organization offering to pay a premium to any black woman who gets herself sterilized. So his clever hypothetical isn't really an argument against abortion at all.

# posted by

Andrew Koppelman : 9:24 PM

Yes -- exactly. Paulsen, I imagine, is incapable of acknowledging the moral equivalence of the racist-sterilization-funding and the racist-abortion-funding examples. He can't acknowledge that funding sterilizations for blacks only would be equally bad because, instead of locating the wrong where it really lies, in the eugenics and racism motivating the funder in either case, he tries to locate the wrong in the moral status of embryos and fetuses. But it just isn't there, and trying to pretend it's there leads to problems.

Indeed it gets much worse. By Paulsen's tortured logic, offering the racist sterilization funding, for eugenic reasons, would actually help _prevent_ the kind of phenomenon that he tendentiously calls a "genocide": large numbers of fertilized eggs from some particular racial or cultural group not developing into babies. Eggs are often fertilized and fail to implant. (This happens far more often than abortions do.) Because Paulsen apparently seriously believes that zygotes are people, the untold numbers of zygotes that fail to implant must be a mass slaughter of epic proportions. We can prevent this slaughter through sterilization, which will ensure that egg and sperm do not meet, and thus, no "people" "die." (I often wonder why people like Paulsen don't work on this issue -- so many more "babies" die this way every day than through abortions!) In any case, offering funding for sterilizations to blacks only would prevent the "deaths" of zygotes of that would otherwise have occurred -- thus _averting_ a genocide of "black" "babies"! This is crazy talk, but it's what follows when you really try to take seriously what Paulsen claims he believes.

# posted by

Joseph Fishkin : 9:49 PM

I) Eugenics is about reducing or eliminating the population of a group because we consider them unworthy.

Eugenics can only be considered immoral if you believe that all people have worth.

Abortion like eugenics is premised on the moral and legal fiction that unborn children have no worth.

In order for selective financing of the minority abortions to be immoral the same way eugenics is immoral then you need to concede that the killed minority unborn children have worth.

Of course, once you concede that unborn children have worth, then the entire enterprise of abortion becomes immoral.

You cannot have it both ways.

Either both eugenics and abortion are immoral because the affected human beings have moral and legal worth or both are moral because the affected human beings have no worth.

II) Another way of looking at this argument is as a matter of motive and constitutional rights.

Marty is arguing that abortion is a "constitutional right" but financing abortion to express racial hatred should be unlawful.

Let us apply that same reasoning to an actual constitutional right.

Freedom of speech is most certainly a constitutional right. However, under Marty's reasoning, we should make Barrack Obama's donations to fund Rev. Jeremiah Wrights racist hate speech unlawful.

# posted by

Bart DePalma : 11:40 PM

Abortion like eugenics is premised on the moral and legal fiction that unborn children have no worth.

No Bart, abortion is based on the emperical reality that many women's lives would be much worse if they were forced to carry pregancies to term.

That's the issue. It has nothing to do with eugenics. Pro-lifers either don't want women to have this right or don't care enough about it.

# posted by

Dilan : 12:51 AM

I think that the crux of Paulsen's question is this: if we consider fetuses "moral nothings," then how can there be any harm, because only moral subjects can suffer morally cognizable harms. Therefore, how is it coherent to talk about "immorality" when there is no one being harmed? But we know that there is a moral wrong here.

Paulsen's solution to this is to conjure up a victim--the fetus, who must now be given some kind of moral status, in order to justify our intuition that this program of genocide is wrong. Balkin's counterargument is obvious: what about someone bribing people to sterilize themselves. (A rigorous Roman Catholic might object that sterilization, or contraception, are also immoral. Fine. How about a program to encourage African Americans to join the priesthood or monastic orders, for the sole purpose of encouraging their celibacy?)

So who is the real victim in any program of genocide that does not involve killing or other fundamental violations against the living? (Pace Paulsen's implication, it can be genocide even if it does not involve killing. The Convention Against Genocide specifically mentions "Imposing measures intended to prevent births within the group" as a genocidal tactic, if taken with the right intent.) Even if this eugenic program is not genocide, as Balkin notes, it is wrong for the same reason many other eugenic programs are.

I would say it is the group being harmed (or its members). I think some notion of "group rights" is inherent in the idea of "genocide"--that's what separates genocide from "mere" mass slaughter. Or perhaps humanity, for having lost the diversity that the racial/ethnic/etc. group brought. But you don't need to refer to the moral rights of the potential human being (whether a fetus, or an unfertilized egg/sperm pair that will never meet because their creators have both taken vows of celibacy) to get there.

# posted by

Andrew : 1:52 AM

dilan said...

BD: Abortion like eugenics is premised on the moral and legal fiction that unborn children have no worth.

No Bart, abortion is based on the emperical reality that many women's lives would be much worse if they were forced to carry pregancies to term.

OK, under your reasoning, it would be immoral not to finance the killing of unborn children because the lives of women who bear their children to term are much worse off. Therefore, the racist who wants to finance the killing off of unborn African American children is actually doing African Americans a moral service. In such a case, perhaps the racist should be rewarded rather than legally sanctioned as Marty argues.

# posted by

Bart DePalma : 9:31 AM

andrew:

How can African Americans as a group be harmed by killing off their unborn children if their unborn children are without moral or legal worth? The group would theoretically lose nothing.

How does this equation change if a third party racist finances African Americans killing off their own unborn children? African Americans as a group have still lost nothing regardless of the motive of the one who pays for them to kill off their own unborn children because the children are worth nothing.

The conundrum for those who support abortion on the moral and legal fiction that the unborn child is worthless but are instinctively repelled by the idea that a racist is paying African Americans to kill off their progeny so the race will die out is that your instinct is based on the obviously correct assumption that unborn African American children have worth and this assumption undermines your rationalization for abortion.

# posted by

Bart DePalma : 9:47 AM

"Abortion like eugenics is premised on the moral and legal fiction that unborn children have no worth."

"No Bart, abortion is based on the emperical reality that many women's lives would be much worse if they were forced to carry pregancies to term."

"if we consider fetuses "moral nothings," then how can there be any harm, because only moral subjects can suffer morally cognizable harms. Therefore, how is it coherent to talk about "immorality" when there is no one being harmed? But we know that there is a moral wrong here."

No, No, and No. The crudeness of thought here is amazing.
The logic of the legality of abortion is that the state should not be allowed to define the morality of such a complex issue. The fetus is both a [potential] life and not: "A" and "Not A." Every argument for absolutism on one side or the other opens the door to positions we do not accept. So the decisions stands that whereof it cannot speak it must be silent. The mother speaks for herself and for the fetus. The mother defines the moral terms. not the state not the church, not Michael Stokes Paulsen.

The state is a blunt instrument. To say that morality begins where the state begins is as ugly and vulgar as to say that it begins with concrete names. It begins with the question of naming, not the answer. This argument is as bizarre as the one on religion, secularism and "neutrality."

# posted by

D. Ghirlandaio : 10:00 AM

dg:

The rule of law is premised on the People through their legal representatives allowing some acts and proscribing others on the People's view of what is right and wrong.

# posted by

Bart DePalma : 10:20 AM

The rule of law is premised on the People through their legal representatives allowing some acts and proscribing others on the People's view of what is right and wrong.

No Bart, the rule of law is premised on the people through their elected representatives -bound by common principles and often enough a founding document etc etc.- deciding when the state should and should not be empowered to act, and how.

# posted by

D. Ghirlandaio : 10:41 AM

There is limited value in use of such an extremist pro-life sentiment as a counterpoint to the fairly strong pro-choice stance of the regulars of the blog.

I thought the same thing about the use of Paulsen in Balkin's collection of fantasy (I use the word somewhat gentlely) Roe opinions and I think it now. In that collection, btw, the second strong opponent voice also was pretty extreme. She, e.g., suggested even contraceptives were problematic.

I will let others point out that the "rule of law" doesn't mean just letting the majority determine things. I think DG eloquently hits to the core of the issue here. The issue does consist of many aspects, but the individual moral choice issue does have much weight for me.

And, I think it really does the pro-life side something of a disservice for it to be expressed so quite honestly weakly. A person actually can be quite pro-life and feel deeply that moral choice still means this is an individual decision. Allowing divorce doesn't mean one must divorce. etc.

But, support of any belief is hurt when the principles at issue are voiced so poorly. This "all or nothing" bit was weak with the academic freedom debate and it is now. Legalization of abortion does not suggest some belief that embryos etc. (I find "fetus" misleading esp. since some want to even ban emergency contraception) have no value or moral worth at all.

The majority who support legalized abortion surely don't think that. This includes many who morally oppose it in many cases. It cheapens the public's intelligence therefore to say otherwise.

Dilan's scorn is well earned here. But, MP and others of his ilk, not all pro-lifers earned it, imho.

# posted by

Joe : 10:52 AM

"Mike Paulsen asks, provocatively, whether if one supports the morality and legality of abortion, one could logically condemn or prohibit private citizens from giving money to pregnant women to have abortions for the specific purpose of reducing the number of black babies (or female babies) that come into the world."

Let's get the race/ism out of it, as in fact, in terms of both "slippery slope" and "When they came for me," the majority of racists in the US would be for abortion of all who are non-white.

That's the objective "neutrality" of the issue, Paulsen's racist focus on the first of those "problems" as if the only one notwithstanding.

# posted by

JNagarya : 11:07 AM

"No Bart, the rule of law is premised on the people through their elected representatives -bound by common principles and often enough a founding document etc etc.- deciding when the state should and should not be empowered to act, and how.

"# posted by D. Ghirlandaio"

[Good to see you argue for some degree of stability in gov't and laws. :)]

Exactly. If Bart had an actual education in actual law, instead of merely being a bullsh*tter, he would be aware of several fundamentals (these in no particualr ardoer, as they all operate simultaneously):

1. We are to be "A system of laws, and not of men." -- John Adams. That reminds of a third factor -- the rule of law -- which he leaves out whenever it is convenient to his argument for selective lawlessness and criminality. Convenient to his criminal ends.

2. Ours is not a "majority rule" -- "mob rule" as the opponents of our democracy, as is Bart, would usually insist -- system. We the people, whether actual or self-appointed majority, are also required to function within the limits of Constitution and laws.

3. The Constitution is framed in such a way as to protect minorities from oppressions by the actual or self-appointed majority. As example, the First Amendment is intended to protect unpopular (presumed to be that of a minority) speech, as popular speech (presumed to be that of a majority) needs no protection.

Again, in keeping with his consistent incoherence and irrationality, Bart selectively rejects the rule of law in toto when it suits his ends. His opposite extreme, of course, is to reject the universal legal prohibition against torture.

He has no moderate position because he has no actual education in actual law.

# posted by

JNagarya : 11:23 AM

Joe --

"There is limited value in use of such an extremist pro-life sentiment as a counterpoint to the fairly strong pro-choice stance of the regulars of the blog."

I happen to be opposed to abortion. But I don't have the right to impose my views on others -- a fact of socialization that bullies ignore to the peril of only others than themselves.

Were's the humility in that hubris that is required of Christians?

Still, we're dealing with the same old racism/white supremacism -- and opposition to affirmative action because it levels the playing field for all -- wrapped in pseudo-law legalese.

Should it surprise that such comes from those who falsely believe or knowingly lie that the US was based upon the "bible" in effort to falsely present themselves as morally superior and compassionate?

(The same goes for their appeals to "Natural Law" -- which is just another invocation of "Divine Right".)

# posted by

JNagarya : 11:30 AM

"Good to see you argue for some degree of stability in gov't and laws."

I sent you up to Canada before, did you follow the link? Did you learn anything? Or are you still a reflecting mirror for Nino Scalia: identical but in reverse?

# posted by

D. Ghirlandaio : 11:43 AM

JNagarya is a case in point in the simplistic use of labels. Against abortion but still pro-choice in some fashion, particularly when the state would be the one blocking the way.

I don't know MP's beliefs as to the Bible etc. but Andrew Koppelman upfront suggests the "clever" nature of his hypo is actually more evidence of its phoniness. The argument would work for a race selective absistence campaign etc. as well.

As with his mock Lawrence ruling, MP's reasoning is slanted for a cause. It really does it no favors. Balkin is friendly with the guy, so is more polite. But, we can state these things a bit more bluntly.

# posted by

Joe : 12:49 PM

The conundrum for those who support abortion on the moral and legal fiction that the unborn child is worthless but are instinctively repelled by the idea that a racist is paying African Americans to kill off their progeny so the race will die out is that your instinct is based on the obviously correct assumption that unborn African American children have worth and this assumption undermines your rationalization for abortion.

Bart, you are intentionally ignoring Andrew's point. I think you hold the following premises: (1) abortion is morally unacceptable, (2) voluntary sterilization is morally acceptable, (3) voluntary celibacy and/or monasticism is morally acceptable.

It is undisputable that sterilization or celibacy can have exactly the same effect on a birth rate as abortion. If there is nothing morally wrong with an individual voluntarily being sterilized or joining a monastary, does it logically follow that there is nothing wrong with a racist third party paying African Americans to be sterilized or become monks so that the race dies out?

And if there is a moral distinction between individual, voluntary sterilization or celibacy and attempts to socially engineer the sterilization or celibacy of a race, what is it?

# posted by

Essayist-Laywer : 6:01 PM

Paulson should be ignored. Everyone who likes him thinks he is bright because he makes outlandish arguments, but in truth he is an utter disgrace to dissent. Most of his arguments are thin, or in this case, nonexistent. He simply phrases his objections in such a way as to obfuscate how unpersuasive his arguments are. He contributes nothing more to the legal community than being a constantly ineffective devil's advocate.

Lest we forget, this is a guy who thinks John Yoo had some great ideas and who teaches an ethics class while belligerently defending Cully Stimson. Perhaps at UST he can better pursue his priorities: (1) God (2) Law (3) Reason.

# posted by

la Rana : 9:28 PM

"Paulson should be ignored."

Refuted first. And exposed for what he is in the process.

"Everyone who likes him thinks he is bright because he makes outlandish arguments, but in truth he is an utter disgrace to dissent."

There are those who mistake outlandishness for the sake of outlandishness for creativity and intellectuality. It is in most cases an at best average intellect impressed with itself to the degree of being pseduo-intellectual -- like those who admire them. Doubtless there are those who actually believe that Feith is some sort of intellect (having-a-pulse is not the same as intellect) -- some sort of intellectual. Intellectuals, by contrast, tend to have at least one foot in the real world, not both fighting to be the first up his/her arse.

"Most of his arguments are thin, or in this case, nonexistent. He simply phrases his objections in such a way as to obfuscate how unpersuasive his arguments are."

Not only unpersuasive but warmed-over poorly disguised cliches.

"He contributes nothing more to the legal community than being a constantly ineffective devil's advocate."

I'd not encountered him before this instance. I was suprised -- and appalled -- to learn that he's a professor. I've rarely had to deal with a professor who wasn't up to the academic, let alone intellectual, qualification. And I won't name about the real-world lawyer who taught a class I was in -- the school preferred actual hands-on real-world lawyers as teachers to those who were "only" academics.

Not only was this lawyer's mentor/hero a former mayor who was convicted of tax evasion (and a non-disbarred partner in the firm), but the lawyer gave assignments which turned out to be free research for his law firm. (Try to get one's papers returned inn that situation.)

"Lest we forget, this is a guy who thinks John Yoo had some great ideas and who teaches an ethics class while belligerently defending Cully Stimson."

I don't know who Stimson is, but ethics and Yoo have as much in commmon as Saddam Hussein and bin Laden: mutual enemies.

"Perhaps at UST he can better pursue his priorities: (1) God (2) Law (3) Reason."

Ah, "God" v. Reason. Determinists are unconscious/closet totalitarians.

# posted by

JNagarya : 10:54 PM

Bart writes:
I) Eugenics is about reducing or eliminating the population of a group because we consider them unworthy.

Dictionary:
eu·gen·ics (y-jnks)
n. (used with a sing. verb)
The study of hereditary improvement of the human race by controlled selective breeding.

# posted by

John : 5:22 PM

bitswapper:

[Bart writes]:
I) Eugenics is about reducing or eliminating the population of a group because we consider them unworthy.

Dictionary:
eu·gen·ics (y-jnks)
n. (used with a sing. verb)
The study of hereditary improvement of the human race by controlled selective breeding.

Indeed, if you look at the entymology, that's what it says:

1883, coined by Eng. scientist Francis Galton (1822-1911) on analogy of ethics, physics, etc. from Gk. eugenes "well-born, of good stock," from eu- "good" + genos "birth" (see genus).

That being said, it's acquired (perhaps somewhat undeservedly) other connotations over the years. It's still a rather bigoted concept IMNSHO.

Cheers,

# posted by

Arne Langsetmo : 10:02 PM

Speaking of which:

[Bart writes]:
I) Eugenics is about reducing or eliminating the population of a group because we consider them unworthy.

"Bart"'s preferred method is bombs and bullets.

Cheers,

# posted by

Arne Langsetmo : 10:04 PM

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# posted by

Unknown : 4:53 PM