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.


Joe said...

I think advocates sometimes speak in generalities and not regarding special cases but do think at times people exaggerate in these cases. Over at RH Reality Check, e.g., it is said at times that there is no "baby" inside the womb, which to me is a bit silly, given someone who is generally pro-choice will use that term at least late in pregnancy. If someone at eight months is asked "when is your baby due," the woman doesn't think "what a confused person" or only accepts it as something that will happen in the future.

Shag from Brookline said...

Shorter conclusion for debt ceiling: "DAMNED IF YOU DO, DAMNED IF YOU DON'T."

Contrasting shorter conclusion for abortion (penultimate paragraph of post): 'DAMNED IF YOU DO, DEAD IF YOU DON'T."

David Ricardo said...

Every non-therapeutic (the use of abortion as birth control) abortion is a ‘bad’ abortion and a moral failing. This is not because the act itself is morally wrong, indeed a woman does have the right to rule and control her body when a fetus is non-viable. But a non-therapeutic abortion is a bad abortion because it is 100% avoidable, it happens only because of ignorance and/or blind allegiance to religious beliefs that equate the evil (in their minds) of family planning with abortion.

The technology exists to theoretically prevent every non-therapeutic abortion and in practice to eliminate the overwhelming majority of them. But this technology is stymied by individuals, some religious oriented, some just irrationally oriented and as a result since Roe there has certainly been millions of abortions that have not been caused by women but have been caused by religious and political leaders who have prevented women from having access to or knowledge of products and services that prevent unwanted pregnancies. Some of them have acted for what they believe, others have acted to exploit the politics of the issue. But for the true believers, having sincere belief does not convert an act of evil into an act of good.

One will never know how many abortions Planned Parenthood has prevented or whether or not that number is greater than the number of abortions they have performed, but one suspects that the prevention number is greater than the performance number. But one thing is likely, that the number of abortions prevented by organizations like Planned Parenthood and the availability of family planning has far, far exceeded the number of abortions prevented by so-called right to lifers.

And those who are fighting and sometimes winning the battle to prevent ACA from providing wide spread, low cost access to family planning are far more complicit in the number of abortions performed than Planned Parenthood or any other provider. They have much to answer for.

Greg said...

I'm going to start with a fairly curt response to Mr. Ricardo. Forgive this aside.:

But a non-therapeutic abortion is a bad abortion because it is 100% avoidable

THIS ISN'T TRUE. Many abortions are done because other methods of birth control failed. Condoms, used consistently and correctly, have a better than 25% chance of failure over 10 years. Other forms of birth control have similar failure rates.

Dispelling this myth, and many of the other myths surrounding abortion is one of the points of the "Shout your abortion" movement.

While I'm not involved with it, the whole point of the "Shout your abortion" movement is to try to remove some of the social isolation for people actually going through the decision to have an abortion (or ultimately not to have one.) Even though 30% of women have had an abortion, I suspect closer to 1% are willing to actually admit it to anyone besides their health providers, and often not even them. The point isn't to help the women who've already had an abortion (although I suspect it does) and it isn't to change people's attitudes about abortion (although it might do that in the long run,) it's to help women going through abortion right now to feel less isolated and alone. It's one thing to hear than 1 in 3 women have had an abortion even though no one you know admits to it. It's a completely different thing for even 1 in 20 women who you personally know to admit to having had one.

Even if every abortion is making the best of a bad situation, that's no reason not to admit that unwanted pregnancy is something that happens to millions of women, and that many of them choose to have abortions. Raising awareness of abortion isn't just about abortion, it's about unwanted pregnancy in general, and recognition that women are not alone in their struggle with it. It is an effort to, even in a small way, provide support to individuals trying to make an incredibly painful and personal decision in the face of a society that tells them that they are bad for even being faced with the choice in the first place, and that no one else has ever been in their situation. (Hence, the curtness above.)

David Ricardo said...

According to the CDC

Implants have failure rate of 0.05%, and intrauterine devices have a failure rate of between 0.2% and 0.8%. Other methods have a higher failure rate, but if the desire to avoid an unwanted pregnancy is so great that it results in an abortion one would think that the motivation exists to use the most effective method.

I know full well that statistics can be manipulated or misread, and there is a lot of evidence about the different effectiveness of actual usage vs perfect usage. (I suspect the 25% figure quoted earlier is highly suspect because of imperfect or irregular use of condoms.)

But the evidence that increased use of family planning practices reduces abortions seems uncontested.

From the NY Times

"WALSENBURG, Colo. — Over the past six years, Colorado has conducted one of the largest experiments with long-acting birth control. If teenagers and poor women were offered free intrauterine devices and implants that prevent pregnancy for years, state officials asked, would those women choose them?

They did in a big way, and the results were startling. The birthrate among teenagers across the state plunged by 40 percent from 2009 to 2013, while their rate of abortions fell by 42 percent, according to the Colorado Department of Public Health and Environment. There was a similar decline in births for another group particularly vulnerable to unplanned pregnancies: unmarried women under 25 who have not finished high school."

Wow! So who has prevented more abortions, Colorado family planning activities or Mike Huckabee?

As I said in my post, I recognize that in actual practice use of contraception would not prevent 100% of unplanned pregnancies, but it certainly would prevent a huge number of them and hence a huge number of abortions. And I repeat, the culprits here are not women but are those individuals who use political and religious power to prevent education, access and low prices for family planning products and services.

But I will amend my statement to read

"But a non-therapeutic abortion is a bad abortion because it is 99.95% avoidable"

Greg said...

We may be talking past each other.

You're saying that better education and availability of birth control will reduce abortions. I completely agree.

I'm saying that calling all abortions (and by association, unwanted pregnancies) "bad" is to automatically shame even those who WERE using contraceptives, and WERE using them correctly.

My point is that this really happens, to real women... a LOT of them. They deserve to understand that they are not alone and not to blame. Yes, there may have been better methods available, but I am pretty educated on this topic, and even I am surprised by how ineffective the CDC considers most methods of birth control.

Quite frankly, the CDC numbers are TERRIFYING. I was using the 3% "consistently and correctly" annual failure rate for condoms in my 25% over 10 years number. According to the CDC, the BEST non-IUD, non-implant non-permanent method has a 6% annual failure rate in typical use, or a failure rate of 46% over 10 years.

Unfortunately, IUDs have a 3-5% expulsion rate, and a rate as high as 22% in adolescents. For these individuals, and IUD may not even be an option, and they're stuck with one of the dramatically less effective (according to the CDC) other methods.

I'm not saying abortion should be anyone's first method of birth control, far from it. I'm not saying that better education about contraception won't reduce the number of abortions, it will. I'm just saying that we need to respect and support the women who find themselves in the unenviable position of having an unwanted pregnancy, especially those who were actively trying to prevent that pregnancy, instead of shamaming them by telling them it could have been easily avoided.

Greg said...

Now, misspelling "shaming" in my last sentence, I deserve all of the blame, and a certain amount of shame for that. :)

David Ricardo said...

The previous post reads far more into my commentary then I had intended, a normal occurrence given the problems of having a discussion over the Internet as opposed to face to face conversations. Mr. Dorf in his post argues that some abortions are ‘bad abortions’ and I am enlarging on his comments with a different view.

It is not correct to equate calling non-therapeutic abortions ‘bad abortions’ to ‘shaming’ of women who have them. I don’t think a reading of my comments support that conclusion. In fact I would argue that a non-therapeutic abortion that could have been prevented is just as much the fault of the male participant as the female. Men have as much responsibility here as women. I simply argue that given family planning technology today preventing an unwanted pregnancy is possible to a high degree of certainty. If the parties involved are so determined not to have an unwanted pregnancy that they will have an abortion to end it, then they have an obligation to take the maximum steps available to prevent the unwanted pregnancy.

To go back to Mr. Dorf’s original topic where he and Mr. Buchanan have argued here and elsewhere about the least unconstitutional action by the President in the event the debt ceiling is not raised (and that therefore the President is legally justified in issuing debt above the ceiling amount), I would argue that there is an analogy with abortions. Anyone is free to believe that family planning practices and abortions are grievous sins that result in sending the participants to everlasting damnation. But I would argue that even if one takes that position, family planning and the prevention of unwanted pregnancies is the least ‘damning’ of the soul, that using contraception is not the equivalent of abortion in term of ‘evil’ and that by denying men and women access to low cost effective contraception those who do so are committing a far greater evil, namely a higher number of abortions then would otherwise take place.

No one has an abortion for the purpose of having a abortion. Non-therapeutic abortions occur because of unwanted pregnancies. End (reduce) unwanted pregnancies and one ends (reduces) non-therapeutic abortions. It’s as simple as that.

Shag from Brookline said...

Are "good" and "bad" regarding abortions being viewed here in some collective fashion rather than the individual decision of a woman? I view "good" and "bad" from the viewpoint of the woman considering making such a decision.

I must disagree with David to the extent that even with an intended pregnancy, subsequent events may compel some women to decide to abort. The decision may be sad and difficult for the woman, not necessarily bad, but good for her circumstances.

Greg said...


You are absolutely right that the male bears equal responsibility. I chose to focus on women because, unfortunately, often the males in these situations will solve their unintended pregnancy problem by simply leaving, or by trying to force the abortion on the woman. Also, women seem to disproportionately bear the shame of abortion, even though responsibility should lie equally with the male. I wasn't trying to imply that you personally denied male culpability by my focusing only on women. I will switch to using the term "couple" rather than "woman."

If the parties involved are so determined not to have an unwanted pregnancy that they will have an abortion to end it, then they have an obligation to take the maximum steps available to prevent the unwanted pregnancy.

I'll answer this with a question, and then assume the answer (due to the latencies involved in blog communication.)

Are you saying that if a couple does not use the most effective method of birth control available to them that they are morally culpable for having a "bad" (meaning preventable) abortion?

I'm assuming below that the answer is "Yes." If the answer is "No" then forgive the assumption.

This judgement is what I'm concerned about. If the couple are required to take the "maximum" steps available to prevent the unwanted pregnancy then we are back at abstinence only. Abstinence is the only 100% effective way of preventing pregnancy. Any other method is less effective, and just a matter of degree. If the couple has to use the most effective method to avoid moral culpability and judgement for a "bad" abortion then abstinence is their only choice.

Again, I understand this wasn't your point, but you're unintentionally making the same moral judgement as those who say abstinence is the only morally defensible choice, just arbitrarily allowing the second most effective method (but not the 6th most effective) for no reason that is obvious to me.

Shag from Brookline said...

Whose moral judgment are David and Greg focusing on? It does not seem to be that of the individual woman considering abortion. Whose moral judgment should govern?

David Ricardo said...

Interesting question.

It was not my original intent to make a moral judgment; in using the term 'bad abortion' I may have inadvertently given that impression. But one benefit of posting on forums like this one, forums where both the sponsors and respondents are serious and intelligent (except for the occasional levity) is that the postings force one to examine one's position. And in that spirit I believe it turns out I am making a moral judgment, specifically that if a woman feels so strongly opposed to an unintended pregnancy that she will have an abortion in the event such a pregnancy occurs, then she and her partner have a moral obligation to use the most effective method of birth control available. But I did not and do not intend to 'shame' those that do not do so, I am merely setting out my own position and its rationale.

But that moral judgment pales in intensity beside the much stronger moral judgment that I make. That judgment is that those individuals who restrict knowledge of and access to legal and safe methods of birth control for whatever reasons are directly complicit in the occurence of abortions even as they maintain there opposition to the practice. That many do so in the name of religion or the so-called 'right to life' movement is an even greater disservice to intelligence, morality, decency and consideration of people's rights. And those persons do deserve shame in the hope that in shaming them they will ultimately learn of their hypocrisy and change. And no, I am not optimistic about that outcome.

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