by Michael C. Dorf (Updated with Audio)
This morning during the 10 am hour, Prof Colb and I will be on air in Philadelphia on WWDB-AM Talk 860 and everywhere else via TuneIn, iHeartRadio, and streaming from the webpage. We'll be joining Laurent Levy, host of The Other Animals. (Update: Here's the audio. We come in at the 11:30 mark.) We'll be talking about some of the topics in our book Beating Hearts: Abortion and Animal Rights. Certainly the abortion piece is much in the news. Meanwhile, as Prof Colb's post on Wednesday on the insanity defense and so-called humane animal products shows, human treatment of animals remains relevant to just about everything.
Depending on how the radio segment goes, I may write a follow-up post. Meanwhile, I want to use this space today to talk a little bit about attributions of motives in the abortion debate.
Last week, I wrote a blog post criticizing Justice Thomas's concurrence in Box v. Planned Parenthood of Indiana and Kentucky, in which he argued: (a) that there was a historical connection between the eugenics movement of the early 20th century and the founding of the movement for legal abortion; and (b) that this connection therefore tainted the motives of the modern abortion rights movement. I (and others) suggested that this was a fallacious guilt-by-association argument.
On Twitter and elsewhere, I received some pushback from people who thought I misconstrued Justice Thomas's argument. My critics made two sorts of claims: (1) Justice Thomas was merely highlighting the risk that abortion without grounds restrictions could lead to eugenics, thus justifying the challenged Indiana law (which bans abortions based on race, sex, and disability grounds); and (2) some people today do support abortion for eugenics grounds. I find both defenses of Justice Thomas's concurrence to be weak. After explaining why, I'll focus on the nature of point (2).
It is not plausible to read Justice Thomas as merely highlighting a risk of abortion without limits on reasons. True, Justice Thomas begins by asserting that Indiana's "law and other laws like it promote a State's compelling interest in preventing abortion from becoming a tool of modern-day eugenics." He then says that this is not a "merely hypothetical" concern. He then writes or quotes 25 paragraphs on the history of eugenics in the U.S. Even if one construes the remaining portions of his concurrence as making the argument that in the contemporary context abortion is being used for eugenics, the core of the concurrence clearly makes the guilt-by-association argument.
Moreover, even the parts of Justice Thomas's concurrence that could be construed as making the claim of contemporary risk succeed, if at all, only by using a tendentious definition of eguenics. His core U.S. example is the familiar claim in Freakanomics by Steve Levitt and Steve Dubner (based on a paper by Levitt and John Donohue), that legal abortion led to less crime. But that's not eugenics. That's a population effect. Consider a close analogy. If overall birth rates decline because of the availability of contraception, and if some benefit accrues -- higher wages for workers, say, because of labor shortages -- that's the same sort of phenomenon. Yet no competent speaker of the English language would call either effect an instance of eugenics. Eugenics requires a motive to "improve" the gene pool.
Justice Thomas cites some arguably relevant statistics, but they're not from the U.S. He points to sex-selection abortion in Asia, citing a NY Times op-ed by my colleague Sital Kalantry on sex-selection abortion in India. Had Justice Thomas and his law clerks bothered to read all the way to the end, they would have noticed that Prof Kalantry is identified as the author of a book on the same subject. And had they then looked in the book, they would have noticed (as I pointed out in last week's post), that she finds that Indians who come to the U.S. do not bring with them the preference for boys.
Justice Thomas also cites a statistic about the prevalence of abortion of fetuses with Down Syndrome in Iceland. This is potentially more relevant. Although Iceland is not the U.S., abortion of fetuses with Down Syndrome is common in the U.S. I know people who have Down Syndrome and others who have raised children with Down Syndrome, and I fully understand why they are troubled by the prevalence of abortion on this basis. I too find it troubling.
However, to call such abortion decisions an instance of "eugenics" strikes me as generally inaccurate. I suspect that most potential parents whose CVS test or amnio reveals a likely case of Down syndrome and choose to abort do so not because they are trying in any way to "improve the species" but because they believe themselves incapable of providing the sort of love and support required to raise a special needs child. They may be mistaken in that judgment. The decision might even be deemed unethical (although I personally hesitate to judge highly personal decisions that others have to make). But to call such a decision an instance of eugenics is unhelpful.
More broadly, the charge of eugenics strikes me as of a piece with a good deal of the abortion debate. In addition to charging people who have abortions or who favor legal abortion with eugenics, many in the pro-life movement frequently accuse Planned Parenthood and doctors who perform abortions of being in it for the money. Here is a typical example: "Planned Parenthood is in the business of abortion, its priority is not in women’s health care, and its central focus is padding its bottom line." This sort of statement is common and completely ludicrous. There are so many ways for a medical doctor or organization to make money that do not involve receiving credible death threats from anti-abortion vigilantes, that a doctor (or any person) who went into this line of work for the money would need to be not just greedy but incredibly stupid.
Some of the attribution of bad motives goes in the other direction too. A great many people who are pro-choice criticize people who aim to forbid abortion as trying to control women's bodies. It's true that this is the effect of laws proscribing abortion, and that is a reason why many people oppose abortion prohibitions, but it takes a further leap to infer that people who oppose abortion do so because such prohibitions control women's bodies. Over the years, I have argued with a great many people who are pro-life, and none of them has ever offered patriarchy or misogyny as a reason for opposing legal abortion.
Could some abortion opponents be lying about or unaware of their own motivation? Sure. But that's always true. Maybe some people who are pro-choice are closet eugenicists or even lying to themselves about their motivation. Subject to one caveat to which I'll return, claiming that people with whom you disagree are acting in bad faith is generally a bad idea for two main reasons:
(a) It's not persuasive. Imagine you're arguing for or against the death penalty, or increased infrastructure spending, or invading some foreign country, and your interlocutor says you're actually just promoting racism. Is that likely to induce you to reexamine your position? If you are undecided about some question and you hear one side in the debate accuse the other of being in league with Nazis (when on the face of things they pretty clearly don't appear to be), is that likely to make you more sympathetic to the position espoused by the person making the comparison?
(b) It's generally not relevant. Accusations of bad faith and hidden motivation are a form of ad hominem argument, which misses the point. If someone has a bad reason for a position he holds, that's a reason not to be persuaded by the bad reason, but there could be good reasons for that position.
Now the caveat: There are contexts in which motive matters, because it affects the social meaning of some practice or for other reasons. That is much more likely to be true of government motive than of individual motives in argument, however. Thus, one can think, as I do--that the SCOTUS erred in Trump v. Hawaii and would err if, as expected, it sides with the Trump administration in the pending census case, without also thinking that the best way to conduct the abortion debate is to accuse one's interlocutors of bad faith.