Wednesday, October 07, 2015

From the Debt Ceiling to Abortion: Justified But Regrettable Decisions

by Michael Dorf

In yesterday's post, Prof. Buchanan took note of two arguments that we have been hearing for characterizing a debt-ceiling impasse differently from the way in which we have been characterizing it. Both of those arguments aim to avoid the conclusion that should Congress fail to raise the debt ceiling, anything the president might do in response--including nothing--would be unconstitutional. Under each, tools of statutory interpretation would be used creatively to find that Congress somehow has tacitly instructed that in the event of such a scenario, the president should prioritize some spending over some other spending. As Prof. Buchanan explained in reliance on our earlier jointly published work, these arguments fail. Here I'll examine the psychology underlying their appeal and then connect it to my latest Verdict column.

Conventional wisdom in Washington says that should the drop-dead date pass without a debt ceiling increase, the president will have to "cut spending." As Prof. Buchanan noted, this conventional wisdom is partly based on a very strained analogy to prior government shutdowns (which involved failure to appropriate funds, not failure to authorize borrowing to cover the difference between revenue on hand and recent legally binding appropriations). But another part of the appeal of the moves Prof. Buchanan described, I think, is simply the herd instinct. The leadership class in Washington thinks that the rest of the leadership class thinks that the president would have to "cut spending" (or, in our view, default) in a debt-ceiling crisis--and that this is likely the intention of Congress. Even if that's true as a matter of the subjective intent of some members or perhaps even a majority or blocking minority in the House, it doesn't follow that this is the law. Any number of cases could now be cited for the proposition that the subjective intentions and expectations of our lawmakers do not control--especially where (as Prof. Buchanan noted yesterday), we are discussing their intentions and expectations with respect to the absence of legislation.

Into this mix I would add an additional motive. Some of the resistance to the Buchanan/Dorf analysis of the debt ceiling problem comes from what I would call a psychological need for rationalization. Whatever course the president must (or can) take, the psychological mindset goes, is, ipso facto, legal. People dislike our conclusion that the best (or, as we would have it, least bad) option could still be unconstitutional. In our first debt ceiling article, we explained why in both the debt ceiling context and other contexts, having only unconstitutional options is a conceptual possibility, but we also explored an alternative approach in which, after one determines that a certain path is the least unconstitutional, one labels that path constitutional as a consequence. We concluded that this approach is both conceptually clumsier and affirmatively dangerous because it tends to minimize the risk of embarking down a path that will lead to only unconstitutional options in the first place.

Nonetheless, as a matter of human psychology, there is something attractive about saying that if a course of action is, all things considered, the best (or least bad) course under the circumstances, then this course of action must be good. And in the context of constitutional law, a course of action that is unconstitutional cannot be thought good--even if it is less unconstitutional than all the other paths. This leads me to think that at least some of the resistance to the Buchanan/Dorf approach is rooted in cognitive dissonance: People don't want to admit that they may find themselves in a situation in which a course of action is, all things considered, best, but still unconstitutional.

The debt ceiling article pushed back on this psychological disposition by drawing on Oren Gross's work on torture, William Styron's novel Sophie's Choice, and Michael Walzer's discussion of the "dirty hands" problem of warmaking even in the fighting of a just war in accordance with jus in bello. But we did not deny that it is a real disposition.

Now let's shfit gears in what will seem like a non sequitur, but I promise to tie it all back together. My Verdict column discusses the #ShoutYourAbortion movement, in which women who have had abortions are encouraged to tell their stories in order to destigmatize abortion. I explain how the approach is similar to the process of coming out as gay or lesbian but I also argue that #ShoutYourAbortion is unlikely to be nearly as successful in changing public attitudes.

The organizers of and participants in #ShoutYourAbortion have responded to pushback that women should not be "bragging" about abortions by saying that "shouting" an abortion does not mean bragging. Instead, the idea is that our social norms forbid women from stating publicly that they have had abortions. "Shouting" is a metaphor for neither remaining silent nor whispering.

Maybe that's true for some but it's easy to see how one could draw a different conclusion. For example, here is what #ShoutYourAbortion co-founder Lindy West recently wrote in The Guardian: "There are no 'good' abortions and 'bad' abortions, because an abortion is just a medical procedure, reproductive healthcare is healthcare, and it is a fact without caveat that a foetus is not a person. I own my body, and I decide what I allow to grow in it."

That strikes me as at best confused. Whether a fetus (American spelling) is a "person" depends partly on normative criteria. It is not simply a "fact"--with or without caveat. There are feminist arguments to the effect that even assuming a fetus is a person with interests and rights, those interests and rights do not justify overriding a woman's interest in making fundamental decisions about her own body. I find those arguments persuasive, but it hardly follows that there are no "bad" (in the sense of immoral) abortions. Suppose that a woman decides in the 26th week of pregnancy that she wants an abortion of an otherwise healthy fetus because she has come to realize that the baby that would be born would be dark-skinned (perhaps because she had previously made a mistake about who the father of the pregnancy was). Certainly that is a bad reason for an abortion even though one might think (as I do) that the law oughtn't to forbid women from having abortions for bad reasons. Still, it is not "just a medical procedure."

Now the vast majority of abortions occur earlier in pregnancy (when by my lights, they don't raise the serious moral issue of killing a sentient being) and women generally have abortions for better reasons than racism. But even then, it's not so clear that an abortion is a morally neutral act.

Let's take a case that seems straightforward to everyone but the hardest core pro-lifer. Suppose a woman in the later stages of pregnancy will die without an abortion (and that there is no way to deliver the fetus/baby prematurely without killing the woman). Most people would say that a woman who decides to save her own life at the expense of the fetus has not acted wrongly. Nonetheless, the abortion is an occasion for moral regret even though it was legally and morally justified, because it resulted in the death of the fetus. One can make an all-things-considered best decision and still recognize that the decision was tragic. Killing in justifiable self-defense is another example. So is killing in accordance with the laws of war in a just war. In each case we can say that the act is justified and that the person has reason not to regret committing the act, even as she regrets having been (even if through no fault of her own) in the situation that gave rise to the tragic choice.

To say nonetheless that a woman ought to "shout" her abortion even in circumstances in which the abortion was an occasion for moral regret--even if she has good reason not to regret the choice, all things considered--is to succumb to the same psychological phenomenon as besets the debt ceiling trilemma-deniers. A choice--whether by the president to issue bonds in violation of the debt ceiling or by a woman to have a lifesaving abortion that kills a sentient fetus--can be the least bad (or even call it "best") choice under the circumstances, but still an occasion for sorrow.