Abortion, Democracy, and Erring on the Side of Freedom

by Alberto Giubilini

(crosspost: this article appeared with a different title in iaiNews)

The leaked draft opinion by Supreme Court Justice’ Samuel Alito foreshadows the overturn of the 1973 Roe vs Wade ruling. Roe vs Wade grounded women’s (limited) right to abortion in the US in the 14th Amendment of the US Constitution and its implied right to privacy. Acknowledging the pervasive disagreement over the morality of abortion, the Supreme Court has now decided to “return the power to weigh those arguments to the people and their elected representatives”.

In this way, the Supreme Court is in fact democratizing the legal availability abortion. Which raises the ethical question about whether the legal availability of abortion should be a matter of democratic procedure, as opposed to a constitutional matter around fundamental rights. I side with the latter view. I do not think a decision over women’s right to abortion should be a matter of democratic procedure such as a State election or a referendum. And I am going to provide reasons for why I think people on either side of the abortion debate can share my view, assuming they accept some fundamental tenets of liberal democracy.

Constitutional rights and democracy

It is important to get some details straight first. The new ruling is not about the legal permissibility of abortion. It is a ruling about where, in the US, the legitimate authority to regulate abortion lies. Roe v Wade took the American Constitution to support a right to abortion. This new ruling places the authority on individual States. This means elected representatives in each State will have the power to regulate abortion in their own jurisdiction. By electing their representatives, people in different States will have a say on whether and to what extent women should have a legal right to access abortion services in that State.

I also want to avoid the misleading claims that the US Supreme Court is itself moving to end abortion. It isn’t. It is enabling States to take responsibility for that decision by declaring the Constitution silent on the matter. In fact, many states will keep abortion legal, although the ruling will result in some other States banning or severely restricting legal abortion.

The US legal system can seem of little relevance outside the US. Each country legislates about abortion using its own Constitutional and legal mechanisms. For instance, Ireland held a referendum in 2018 to lift its Constitutional ban on abortion, which allowed the Parliament to eventually legalize abortion in certain circumstances. However, most liberal democracies, exactly like the US,  enjoy a separation between some form of constitutional law and ordinary law. The former sets the limit for the latter, thus guaranteeing that certain civil liberties and fundamental rights are not threatened by a majority supporting illiberal laws.

There is a sense in which there is no real tension between the two models, as they both fall within the realm of democracy. For instance, the composition of the Supreme Court in the US is itself the result of democratic procedures: its members are appointed by democratically elected Presidents. They reflect the values of the people who elected those Presidents. And the Constitution can in principle be amended by democratically elected representatives.

However, Supreme Court judges are not there to reflect the values of the President who appointed them (and who the people voted for), but to judge whether some laws contradict the Constitution. Moreover, even if judges’ own values can affect the interpretation of the Constitution, we need to bear in mind that  nomination of a new Supreme Court member in the US or its equivalent in other countries is a rare event. Some of the members might reflect values that the majority of people no longer hold. Constitutions, in the US and elsewhere, are also very difficult to amend. Amending a Constitution typically requires a very large majority of  elected representatives and happens very rarely. Although they are democratic procedures, these are less sensitive to people’s current values than referenda or political elections. Referenda and elections are more frequent, easier to run, and can be set up relatively quickly to respond to changing circumstances.

Thus, the Supreme Court in the US is democratizing abortion by making it more sensitive to people’s views here and now, within a smaller community (a State) at a certain time (the length of a legislature before new State elections are held). A right to abortion will become a matter of simple majority rule.

What can possibly be wrong with it? Isn’t that how democracy works? It depends on what kind of democracy we are talking about.

 

Fundamental rights, abortion, and the limit of majority rule

We live in liberal democracies. Protection of some fundamental rights and liberties is not subject to a simple majority rule. There are strict safeguards to protect fundamental rights and liberties against the simple majority rule. Ethically, politically, and historically, civil liberties and other basic rights precede and are the foundation of liberal democracy, not the other way around. If certain democratic procedures don’t preserve such liberties and rights, it is these democratic procedures, not the liberties and rights, that should be changed.

Some would be tempted to conclude from all this that the right to abortion should be grounded in some Constitutional protection (as Roe v Wade did). They would claim that rights over one’s body (or one’s privacy, if one accepts the justification behind Roe v Wade), are not the kind of things that should be left up to a simple majority rule. They are precisely the kinds of things that liberal democracies exist to protect.

However, things are not that simple. A right to abortion would need a stronger justification than an appeal to women’s rights to privacy or right over their body. For, of course, a right to abortion is not just about women’s rights over their body or their privacy. If it was, there would be very little left to discuss. A right to abortion is also about a human being’s right to life.

The challenge, from an ethical point of view, is to identify the rights at stake, their respective strength, and the relationship between them. Does a human foetus have a right to life? Why? And even if it does, should a pregnant woman be under a legal obligation to protect that life, or does her freedom over her body clear her of any such responsibility? These are difficult questions, which I only mention to illustrate the ethical complexities at stake.  Even if you support abortion rights, you would still need an argument for why a foetus does not have a right to life or for why a woman’s right over her body trumps that right. A right to life, when it exists, is a at least as fundamental and as worth of protection in liberal democracies as a right over one’s body or a right to privacy. So what is to be done when there is an apparent clash between fundamental rights?

We are in the presence of irresolvable disagreement on a fundamental ethical (and, for some, religious) issue. Those who think a foetus is a person with a right to life would find it hard to accept that a woman’s right over her body, or a right to privacy, or her right not to become a mother trump the foetus’ right to life. If abortion is (comparable to) murder the threshold for its justification must be much higher than that. Those who think a foetus does not have a right to life, or that women bear no responsibility for the preservation of such life, would claim that any state imposition on what can be done to women’s body violates one of those fundamental rights that liberal democracies are meant to protect.

We are not going to solve this disagreement. The question, then, is whether, in light of irresolvable disagreement on matters of civil liberties and fundamental rights, liberal democracies should legislate on the basis of a simple majority rule. My answer is still no, but the justification is not simply based on the fact women’s right over their body or their right to privacy are fundamental liberties. It is about how these types of fundamental moral disagreements should be settled in liberal democracies.

Reasonable pluralism is a key value of such democracies: we need to find ways to live with and respect each other, with all our irresolvable ethical and religious disagreements. To this end, not all disagreement is acceptable. What makes disagreement reasonable, and therefore acceptable, is the fact that individuals can live up to their own values while respecting fundamental liberties and rights of those who don’t agree with them, including their freedom of conscience, their right to life, to private property, and so on. Thus, liberal democracies allow as much freedom as possible to each individual while guaranteeing equal freedom to other individuals. Disagreements about the permissibility of murder or theft, for instance, are not reasonable because these acts deprive others of some fundamental rights (to life or to private property). That is why the legal permissibility of killing other people or depriving them of their private property are not up to a majority rule.

Abortion falls in the same category. This means that in liberal democracies the right to abortion is protected by a basic principle of freedom to live up to one’s own ethical views, or freedom of conscience, as long as this is compatible with the enjoyment of equal freedom by those who have a different view. If we think that the disagreement on abortion is really irresolvable, and if both parties want to be reasonable in the sense described above, freedom in the liberal democratic sense of the term means that those who are opposed to abortion should be free to live up to their own moral views (no one should force them to have abortions) as long as those who are in favour of abortion can live up to theirs (no one should force them to forgo an abortion).

After all, although the overturning Roe v Wade would be welcome by pro-life people, it is unclear why they would themselves want the right to abortion to be up to a mere majority rule. If you think abortion is murder, you would consider the right to life of the foetus another fundamental right that liberal democracies should always protect, no matter what the majority happens to think here and now – just like your right to life or your right to private property, and so on. Protecting a right to life of the foetus in that way would require the same complex procedures typically adopted to amend Constitutions or to ground rights in existing constitutional safeguards.

Whether a right to life of the foetus should be protected via Constitution can be up for debate, of course. But that kind of debate has its own ‘rules’ that are independent of democratic procedures. A discussion about what rights a Constitution should protect has certain constraints on what kinds of reasons and arguments are admissible, which democratic procedures like referenda and elections do not have. For example, in secular pluralistic societies, arguments about what Constitutional rights exist should not appeal to specific religious faiths, whereas nothing prevents a majority from voting for or against a certain policy or a certain candidate on the basis of their religious faith.

Whether it is possible to justify in this way a Constitutional right to life of a foetus (by sacrificing a right to abortion of women) is a question I am happy to leave open. But as long as that justification and that Constitutional constraint do not exist liberal democracies should err on the side of freedom. In this case, the freedom to live up to one’s own ethical views on abortion. A state banning abortion might not violate any Constitutional constraint, but would violate a principle of freedom of conscience (in this case, about abortion) which Constitutions are meant to protect. If current Constitutions cannot protect it in their current form in the case of abortion, that might well be a reason to amend them in that direction. In the US as well as elsewhere, we might want to avoid the risk of turning liberal democracies into illiberal ones.

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9 Responses to Abortion, Democracy, and Erring on the Side of Freedom

  • spoke says:

    “Ethically, politically, and historically, civil liberties and other basic rights precede and are the foundation of liberal democracy, not the other way around.”

    I doubt the very strong causal-historical claim that is part of that sentence. What’s your evidence for it?

    “If we think that the disagreement on abortion is really irresolvable, and if both parties want to be reasonable in the sense described above, freedom in the liberal democratic sense of the term means that those who are opposed to abortion should be free to live up to their own moral views (no one should force them to have abortions) as long as those who are in favour of abortion can live up to theirs (no one should force them to forgo an abortion).”

    That’s a sleight of hand, just like the whole “reasonable pluralism” apparatus. Those opposed to abortion are not agent-relatively opposed. They see human induced abortion as equally wrong regardless of who and where (in what body) it is performed.

    The starting situation is that some claim that there are two types of interests that clash, those of individuals of type A and individuals of type B, and that the B interests are stronger. To that you propose a shift to give each A individual the legal power to choose an outcome to their local A – B interest conflict. That jump simply privileges, without any good reason provided to your interlocutors, the interests of the type A individuals. I doubt anyone will ever be convinced by that kind of move.

    I say all this as someone who think the moral case for abortion is very strong. There are reasons to put a legal right to abortion in place and to make it a safe, convenient, no cost public health care system service. But the only thing we can honestly do with the tools of moral philsophy is to make the ground level case for that as clearly as possible to voters and legislators. That may sound like a low or no progress situation, but then again it seems like most lay people have yet to think through even the philosophy 101 arguments on the issue.

    • Mark Dudley says:

      “The starting situation is that some claim that there are two types of interests that clash, those of individuals of type A and individuals of type B, and that the B interests are stronger. To that you propose a shift to give each A individual the legal power to choose an outcome to their local A – B interest conflict. That jump simply privileges, without any good reason provided to your interlocutors, the interests of the type A individuals. I doubt anyone will ever be convinced by that kind of move.”

      This is more of a “sleight of hand” than the “reasonable pluralism” statement (though both are, in fairness, subject to query).

      • Paul D. Van Pelt says:

        Astute observation and comment, Mr. Dudley. It is fascinating, the ways in which believes rd in a cause use a linguistic turn to make their agenda appear to be something less controversial than is intended. My assessment would have not been as kind.

      • spoke says:

        If you have an objection then do present it – your complaint ain’t worth anything until you do.

  • Alberto Giubilini says:

    Thank you for your comment.

    Regarding the first point, historically democracies have served the purpose of defending various kinds of freedoms (freedom against tyrants in ancient times; freedom against state intrusions more recently). Contemporary liberal democracies are meant to protect basic liberties that other kinds democratic experiments failed to promote. The French Revolution failed when it became an oppressive democracy, for instance. But I am no historian, so I might well be wrong in using the term ‘historically’ here.

    As for your second point, I wonder if we disagree or we are simply talking at two different levels: you seem concerned with the substantial moral aspect of abortion, I am here concerned with the political aspect. I agree my move is a “sleight of hand” from the point of view of the moral philosophy of abortion which you seem to adopt. But I am not concerned with the substantial moral aspects of abortion here. Of course, if you think abortion is murder, it makes no difference to you who has the abortion: it is equally wrong, no matter who the agent is (including the agents that pluralism would require you to respect). But what to do then? I could raise the same point about the democratic procedure, which is the alternative at stake here: if you think abortion is equivalent to murder, you would think it is so even if it is democratically endorsed. So I am not sure what the alternative would be here when it comes to regulation. You can have the best moral argument for why abortion is not (equivalent to) murder – or the best argument for the opposite view – but you’re not going to convince those who disagree with you. And yet the thing needs to be regulated somehow.

    If, as you rightly say, those who think abortion is murder would not accept the idea of other people committing abortions, then my claim is that the Constitution (or its equivalent) is the place where they should make that case, given how fundamental they take the right at stake to be. And perhaps that is also the place where the ground level case for abortion that you defend can be made more clearly, if the debate on how to amend or to interpret Constitutions requires a higher bar and more thorough examination of the arguments than a vote for your preferred candidate at the next election does.

  • spoke says:

    Thanks for discussing.

    “I wonder if we disagree or we are simply talking at two different levels: you seem concerned with the substantial moral aspect of abortion, I am here concerned with the political aspect.”

    I think we disagree about those levels and how they interact. I think the whole realm of normative political claims is reducible to moral philosophy. I think all of the “reasonable pluralism” talk and lots of other stuff expounded by Rawls and others is false or meaningless or, at best, reducible to rules of thumb that can, depending on the time and context, instrumentally justified by moral philosophy.

    But you seem to think normative political issues are in contact with some independent realm of reasons that let us settle what to do politically in cases where large groups of people (at least superficially, without having reflecting much at all on the topic) express different opinions on a practial ethics topic. At least that’s what I take people who use rawls-y words like “reasonable pluralism” to be doing and so I interpreted you to be in that bucket of people.

    “If, as you rightly say, those who think abortion is murder would not accept the idea of other people committing abortions, then my claim is that the Constitution (or its equivalent) is the place where they should make that case, given how fundamental they take the right at stake to be.”

    I don’t think they’d accept that. They’re primarily against abortions, not committed to this or that view on political-legal constitutional structures or processes. The latter things are of instrumental value to them. From their POV the status quo is really bad and because of that they want to take whatever practical path that is currently available to make it less bad. In the US today that seems to be the state level majoritarian path to block or impede abortion access i.e. the path that the upcoming supreme court decision will make available. If they succeed with such state level rules then they’ll probably next try to expand and entrench anti abortion rules to all states and ultimately put them in a constitution. But not because they accept any principled “shoulds” about constitutions, only because they wager that doing so would make their rules more difficult for opponents to remove.

  • Paul D. Van Pelt says:

    This article is well-stated and thoughtfully researched, seems to me. I have written down some of my own opinions on the matters discussed and submitted those to a local, big city newspaper in the state. That state is, in political parlance, red. Therefore, a reader of this comment could draw an easy conclusion: the response to my observations has produced resounding silence from the newspaper. I did not seriously expect a response—party because of the off-year election; partly because the newspaper is as red as the state itself. In any case, my—or any—opinion on the high court’s handling of this re-hearing does not count for much. Here is the origin of that analysis:the high court is two-thirds Catholic. We know how the Church views abortion, birth control and reproductive issues generally. It seems pretty clear It does not think much of same sex relations or transgender matters either, although some appearances suggest otherwise. So, a reasonable inference may be made: the court will do the Church’s bidding. And that of a large plurality of citizens. Error on the side of freedom seems unlikely.

  • Ian says:

    The distracting perspectives regarding the historical basis of liberty is a fundamental aspect in a debate of this type. If the freedom of the individual is expressed as assured at the coming together of a social group of equally powerful individuals in that worldview a view is formed. Other worldviews may place power at different points in that particular paradoxical social scale during the formative periods or during later times of revolutionary changes, and form different views. All those views are relevant but appear more as a distraction if pluralism is accepted.

    The points regarding the right to life juxtaposes the individuals freedom within a social group with that of a new life (Which is normally and paradoxically immediately considered a member of all social group(s)). The overall perspective presented is unclear in its expression about what point life starts (a frequent difficulty deployed in such debates, so ignoring it is a sound tactic but ignores a critical factor in an age of science). Does a new life begin during the coming together of two living beings before conception? Does it start at conception (when does conception occur? At the time of the spermatozoa penetrating the ovum, or when the ovum begins the multiplication of cells whilst being reliant upon the goodwill and health of its host?), is the conception a freely made choice, accident, or exertion of power? Does this process only exhibit life once movement is possible, survival is possible, brain activity is measurable, or birth occurs. Those and other considerations, such as times when people are allowed to attempt to reproduce, as well as determinations of life which rely upon level of intelligence or other physical measures are also known to have been, and at times are practiced. Most of these measures (based upon determinations of point of life) also rely upon expressions of social power exerted in various ways mainly over the female. That exertion of power appears as a critical issue which is intimated but not directly mentioned.

    One of the points generally avoided by many in favour of denying the possibility of abortion is where the life of the unborn child(ren) severely threatens the life of the mother. Which life(s) become more important then, the child(ren), or the mothers (whose survival may provide the potential for many more children)? The arguments responding to that approach mostly rely upon views of the female being nothing more than a breeding machine, and ignore those fundamental freedoms which accord with being a living human being, and so as such reveal the state of their own worldviews.

  • Paul D. Van Pelt says:

    My reply/response to Mr. Dudley got corrupted somehow. Sorry, sir. I hope the intention overcame the mechanics.

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