Tuesday, October 10, 2017

Twenty Weeks

by Michael Dorf

This evening, Prof. Colb and I will be two of the four featured speakers on an inter-disciplinary panel titled Animals, Fetuses, and Morality at the University of Colorado. (With the cooperation of the technology, Prof. Colb and I will be participating virtually, because our flights were repeatedly delayed, canceled, rebooked, delayed, and canceled until there were no seats available to deliver us on time, so we're still in Ithaca.) We are very grateful to the sponsoring organizations--the Center for Western Civilization, Thought and Policy, along with The Center for Values and Social Policy--as well as to Prof. David Boonin of the UC Philosophy Department, who organized and will moderate the panel. We're also grateful to the other panelists, Theology Prof. John Berkman and Theology Prof. Charles Camosy, for agreeing to a topic that enables Prof. Colb and me to shamelessly promote our book on more or less the same subject. We look forward to a spirited discussion. I intend to organize my remarks around the bill passed by the House last week that would ban most abortions after twenty weeks of probable gestation--HR 36, the Pain-Capable Unborn Child Protection Act.

HR 36 is unlikely to become law because, although President Trump has said he would sign it, there are not likely 60 Senators who would vote for it, and unless and until the GOP changes the cloture rule for ordinary legislation (as opposed to appointments and reconciliation bills), that's what would be needed.

Even if HR 36 were to pass the Senate, it would likely be enjoined as unconstitutional on two or possibly three grounds: 1) Existing case law sets the point at which abortions can be banned, so long as there is a life and health exception, at viability, which is later than twenty weeks; 2) the exceptions set forth in HR 36 are narrower than those required by the case law; and 3) it's possible that at least one Justice (Clarence Thomas) would hold that the law exceeds Congress's affirmative power to regulate interstate commerce (because Justice Thomas takes a narrow view of that power) or to enforce the Fourteenth Amendment (because it restricts the actions of private actors, which, the Court has held, is beyond the scope of that power).

In the event that one of the five current justices who were in the majority in the Court's most recent abortion ruling, Whole Woman's Health v. Hellerstedt (WWH) were to retire and be replaced by a Trump nominee before a challenge to HR 36 reached the Court, it is possible to imagine a mixed rationale for striking the law: five justices (Roberts, Thomas, Alito, Gorsuch, and the newbie) would vote to overturn Roe v. Wade and WWH, but at least one of them (Thomas) would then invoke federalism grounds to join the four justices remaining from the WWH majority to strike down HR36.

But don't count on it. It is easy to imagine Justice Thomas saying that he would like to reconsider the Court's federalism jurisprudence at a later date or the Chief Justice engineering a result based on "issue" voting rather than "outcome" voting (a topic I've previously addressed here and here). And in the unlikely event that a future Court overturns Roe and WWH but invalidates HR 36 on mixed grounds, such a Court would uphold state laws banning abortion after twenty weeks because a state law would not be objectionable on federalism grounds. Thus, the fate of a law like HR 36, even if not necessarily the fate of HR 36 itself, will turn on whether President Trump gets to fill another SCOTUS vacancy.

What I've said so far may alarm pro-choice readers of this blog. As someone who is pro-choice, I am certainly alarmed by many recent developments, including the House passage of HR 36. At the same time, however, as a vegan who favors animal rights, I am heartened by the logic of HR 36 and similar state measures. As I've explained before, Prof. Colb and I wrote Beating Hearts: Abortion and Animal Rights partly to answer a question that was routinely asked of us by pro-life friends in the animal rights movement and by others who thought our positions inconsistent: Why were/are we pro-lives of non-human animals but not pro-lives of human fetuses?

Beating Hearts takes that question very seriously. To grossly over-simplify our answer, we think that sentient beings--those beings who have subjective experiences--have interests and thus are properly the objects of moral concern. Thus, we give moral concern to sentient beings of all species, including all of the various animals typically used for food and fiber and human animals past the point at which they become sentient. We thus think that abortions of sentient fetuses are a matter of serious moral concern. We nonetheless do not think that the law should properly forbid even immoral abortions of sentient fetuses based on what many readers will find to be a familiar set of feminist reasons.

If you find the foregoing paragraph pellucid and you agree, great. If you find it Delphic, I recommend that you read the book, which includes many steps omitted above. If you follow the argument but you disagree with our bottom line because you think that the harm caused by abortion of sentient fetuses outweighs any countervailing concerns--i.e., if you are pro-life, then the rest of this essay is for you. After all, we didn't write Beating Hearts for the sole purpose of reconciling pro-animal and pro-choice positions. We also were and remain interested in how various positions on each issue interact with each other. If someone who is pro-life reads our book and comes away thinking she is still pro-life but now thinks she ought to be vegan, I would be delighted.

So now, an argument in seven steps.

1) HR 36 recites findings to the effect that human fetuses are capable of feeling pain at 20 weeks, notwithstanding what appears to be the more widely held view among scientific experts that the capacity develops later. The important point for present purposes is not whether the House of Representatives is right or wrong about the timing but that the reason the House selected 20 weeks is that this is when, according to the bill itself, fetuses can experience pain. The important point, in other words, is that HR 36 evidences the view that the capacity to experience pain grounds a right to moral concern.

2) That observation has implications for other animals that experience pain, not just human fetuses. Indeed, HR 36, Sec. 2(8) itself recites a finding about the capacity of other animals to experience pain as a ground for its conclusions with respect to humans.

3) To be sure, the authors, sponsors, and supporters of HR 36 undoubtedly did not intend to say or imply anything about animal rights, but we often reveal the implications of what we say without intending to do so. Here there are two implications: a) the capacity of a being to experience pain grounds a morally significant interest in avoiding such pain; and somewhat more controversially, b) the capacity of a being to experience pain grounds a morally significant interest in continuing to live.

4) In response to points 2) and 3), someone who is pro-life but indifferent to animals' interests might say that while the interest in avoiding pain is important, it is not sufficient for moral consideration. The relevant being must also be human. But what possible reason, other than naked speciesism, could justify such a claim? If there are beings very much like humans on other planets, would it be morally objectionable to enslave, torture, and kill them for our own pleasure? I doubt that anyone who is pro-life (or pro-choice for that matter) would think so.

5) Ah, my resistant interlocutor will say, but that's because both humans and the human-like extraterrestrials have certain capacities that warrant moral consideration and that animals lack. That move won't work, however, because whatever capacities (most) humans will eventually possess that translate into moral entitlements are not possessed by 20-week human fetuses.

6) Accordingly, we can expect the objection to be made that 20-week human fetuses have the potential to become the sort of beings who have the sorts of capacities that ground morally significant interests and rights. But what a strange argument this is. Human zygotes have the very same potential, but HR 36 does not protect human zygotes. Nor can that be explained simply by the fact that the House is trying to work within the limits of what the law allows, because current constitutional law doesn't allow HR 36 (as discussed above). No, it seems clear that in selecting the capacity for pain, the authors, sponsors, and supporters of HR 36 either themselves believe or are appealing to a widely held pair of beliefs that are not about any capacity that most humans eventually and uniquely come to possess: namely, they are appealing to the beliefs identified by the sub-points I labeled a) and b) above in point 3). To repeat: a) the capacity of a being to experience pain grounds a morally significant interest in avoiding such pain; and b) the capacity of a being to experience pain grounds a morally significant interest in continuing to live.

7) Thus far I have focused on how the logic of HR 36 has implications for animals other than humans. I want to conclude by noting the particular implication it has. Point b)--if appropriately generalized--means that animals capable of experiencing pain and, conversely, capable of deriving pleasure and other positive value from their lives--are entitled to live; they are not just entitled to be treated humanely. Much of Beating Hearts is an argument against so-called "happy meat" (and happy dairy and happy eggs). We argue that sentience grounds a right against being made to suffer for no good reason (and that a human taste for dairy cheese is not a good reason, especially given the alternatives), and that it also grounds a right against being killed for no good reason (and that a human taste for beef burgers is not a good reason, especially given the alternatives). The logic of HR 36 points in the same direction of that additional point.

The pro-life movement may not recognize it yet, but its champions have expressed a view in HR 36 that should take them a substantial distance towards animal rights.


Joe said...

"Human zygotes have the very same potential, but HR 36 does not protect human zygotes. "

Given their druthers, many voting for this would vote for a broad law that at the very least gave states the discretion to ban abortion. This is seen as a small camel's nose under the tent to chip away. Like "partial birth" abortion bans, the reason it gets broader support is notable & the essay explains such support.

The bill falls on various grounds, including on the facts and the law. As to the law, the idea is that at the very least there should be a broader health exception. It also draws the wrong line -- the line now is viability. A 20wk ban in practice, depending on how one counts, might even in practice be a 18wk ban -- weeks early. But, its backers quite openly disdain current law, and there was some success chipping away when a national ban on a single abortion procedure was passed.

The backers will differentiate from animals basically because they think there are legitimate exceptions to limits on harm to animal. The authors clearly disagree diet, entertainment and in many cases at least [the limits are a bit harder here] research and medical use. [See, e.g., "Mercy for Animals," a new book on caring for farm animals, and the exceptions in place; the book's push for reform clashes with the authors' sentiments to some extent.]

The potentiality, if applied correctly, of certain things is duly noted. Consider a true "respect for life" which big picture will advance liberal ends.

Joseph said...

Any chance the panel discussion will be recorded, published on youtube?

Shag from Brookline said...

Query: Might "animus" play a role in challenges to HR 36 if enacted into law?

Michael A Livingston said...

One of my proudest boasts is that I attended Cornell for four years, visited perhaps a dozen times, and have never once flown from Ithaca/TC Airport. I intend to do everything possible to continue this string.

Michael C. Dorf said...

1) Joe: I don't think this is a camel's nose bill, because it's clearly invalid under Roe/Whole Woman's Health. The only way the courts would approve it is if they were to overrule the abortion decisions and if that were to happen, pro-life legislators would go a lot further.

2) Joseph Simmons: Right now we're working out the tech for making it happen at all. If there's a recording, I'll post an update.

3) Shag: I doubt it. Although there is an argument to be made that anti-abortion laws reflect animus against women, even I don't think that.

4) Michael: To be fair, most of the problems were caused elsewhere in the system. If we had skipped our first flight and driven to Newark or Philly, we would have gotten stranded there due to cancellations. However, you are certainly right that flying out of a small airport exacerbates the problems of a generally very unpleasant air travel system.

Joe said...

Perhaps, I'm using "camel's nose" wrongly.

The dissent in GONZALES v. CARHART strongly argued that the law there was "clearly invalid" under Casey/Stenberg, but Congress pushed the envelope, in part looking into the future where O'Connor would retire. The majority didn't simply overturn Casey/Stenberg. It in some unclear way moved the envelope.

If a 20 week law was upheld, it would not necessarily overrule the abortion decisions, except in the way Casey "overruled" Roe by weakening its standard. Whole Woman's Health etc. could be retained, but applied to abortions before 20wks (or those after with the narrow exception the bill would allow).

So, I see it was a type of camel's nose -- it is trying to get the courts to accept an allegedly minor law as part of a long term plan to put in place more extensive anti-abortion legislation. Part of this strategy is pushing the envelope, even beyond what the current law would accept. The current Court (by the time the matter reaches them, without Kennedy, perhaps) could then accept it, weakening the current doctrine in the process.

[As an aside, I am similarly pessimistic about a mixed federalism/liberty beat down of the law, but darn that would be appreciated as a matter of honesty. OTOH, a federalist path against DOMA was strongly made by many of the usual suspects, but Thomas had no problem upholding it.]