My other worry about rights language is the moral psychology that is often presumed by those who use that language. It was not by accident that I came to terms with some of the problems of rights language was in testimony before a congressional committee on experimentation with children.
In a theory of justice John Rawls had admirably acknowledged that at least in relationship to animals his account of justice did not require those lacking a capacity for a sense of justice were owed strict justice. Rawls was clearly making a point about his understanding of justice but many draw a similar conclusion about the capacity which must be present in order to claim rights. The congressional committee therefore had trouble explaining why we should protect children against experimentation because children did not have the moral psychological capacity to claim rights.
Questions of the moral psychology necessary to claim rights are particularly important for how one thinks about the morality of abortion. If the fetus lacks the characteristics necessary to be a person and is therefore not capable of being a rights bearer does that mean that abortion does not need to be justified. Or even more radical, if the fetus lacks the capacity to claim rights do we need the language of abortion at all? "Termination of pregnancy" is a description that seems perfectly adequate if the fetus has no rights. Of course, "termination of pregnancy" suggests that this is purely a medical procedure that raises no moral questions at all.
My problem with Hauerwas' argument is that he assumes a position of authority from which he then pronounces judgment on all who disagree with him. I'm familiar with Rawls' theory of justice, and failed entirely to understand what it has to do with Hauerwas' discussion here, but that's another matter. My focus now is on that last sentence of the quote:
Of course, "termination of pregnancy" suggests that this is purely a medical procedure that raises no moral questions at all.
This is precisely the fact situation which Dobbs has laid bare, and precisely the point upon which Roe changed everything. Abortion is a medical procedure, just like breast augmentation is. But breast augmentation is primarily a procedure done for cosmetic purposes; while abortions are primarily done for medical purposes. The presumption of the arguments during the 50 years of Roe (we need a phrase for that, don't we?) was that abortion was akin to breast implants: done for vanity reasons only, or reasons we who were not involved could certain describe as vain ones, all the better to be morally superior to them. (Which is back to my problem with Hauerwas' argument, because morality should be discussed in the humblest terms possible; and he doesn't give any indication of doing that.)
But suddenly we discover that "life of the mother is at risk" is not such a bright-line standard, and pregnant women are at risk of death or serious and life-long consequences because doctors and hospitals are quite reasonably concerned with criminal prosecutions and civil lawsuits. And abortion is no longer suggestively "purely a medical procedure," it is factually purely a medical procedure. But one so sharply limited it elevates the fetus above the life of the pregnant woman. Which, ironically, is elevating a "right" in a way I think Hauerwas wants to criticize. (And have we so quickly forgotten maternal mortality rates in childbirth, which dropped in the 20th century with advances in medical procedures? Did we think that was all just due to nutrition or something equally innocuous? Or are we suffering another version of the vaccine problem: since we don't have as many childhood diseases and deaths from diseases, we don't need vaccines?)
So maybe I should just point out that Dobbs has made Hauerwas' argument anachronistic. Whether or not abortion is moral (or ethical; there is a distinction, though I don't think Hauerwas draws it), it should be legal. Criminal law is not based on what is "ethical" (or moral). British law (and American? I haven't researched the matter) once allowed for "breach of promise" suits, because a male suitor who entered into an engagement for marriage with a young woman had entered into an enforceable contract, and could be sued for breaching that contract and harming the reputation of the woman. A man who broke off an offer of marriage had behaved unethically. There are all kinds of problems with that concept in the present day, but it was a matter of imposing an ethical concept through the legal system. More to the point, miscegnenation statutes made criminals of couples in "mixed-race" marriages. Why? Because it was "unethical" and "immoral;" not because it brought harm to anyone. Most of our drug laws function on the same basis. Murder or reckless driving can bring harm to innocent victims; to not invalidate such actions with criminal laws destroys the order of society. But we still have alcoholics and gambling addicts who destroy families and themselves; yet alcohol is legal, and gambling ever more so. DUI/DWI is a separate matter from drinking in a bar or at home. My Southern Baptist friends may think my consumption of alcohol is immoral; Mormons might think I shouldn't drink so much coffee, or any at all. But are their morals enforced by law?
You will argue abortion is still different, a life is involved. But is a life involved in contraception? The Roman Catholic church says "Yes." Do they get to ban contraception for all of us on that basis? No more than the Baptists can ban alcohol for us all, or the Mormons coffee. Or not more so far, anyway.
So, yes, there is a problem of how we discuss, understand, and want to implement "rights." Today parents think they have a "right" to protect their child from "graphic novels" because, well...comic books are scary.
An excerpt from the most recent brief I co-authored & filed in the Virginia Beach obscenity action vs. Gender Queer. You can read our opening and reply briefs in their entirety here: https://t.co/leO21PBPiH pic.twitter.com/WhMdxeKdMS— Comic Book Legal Defense Fund (@CBLDF) August 18, 2022
Here's an excerpt from the petitioner's brief arguing for having Gender Queer declared obscene. Note the general attack on the alleged dangers of graphic novels - sound familiar? /jt pic.twitter.com/i79UKpYpE2— Comic Book Legal Defense Fund (@CBLDF) August 18, 2022
When the absolutely shittiest people match with the absolute shittiest politicshttps://t.co/5IJ4fvR2S1— 18Hat793 (@Popehat) August 18, 2022
After one competitor “outclassed” the rest of the field in a girls’ state-level competition last year, the parents of the competitors who placed second and third lodged a complaint with the Utah High School Activities Association calling into question the winner’s gender.
David Spatafore, the UHSAA’s legislative representative, addressing the Utah Legislature’s Education Interim Committee on Wednesday, said the association — without informing the student or family members about the inquiry — asked the student’s school to investigate.
The school examined the students’ enrollment records.
“The school went back to kindergarten and she’d always been a female,” he said.
To protect the student’s identity, Spatafore said he would not reveal the sport, the classification of play nor the school the student attended.
He told committee members about the events in response to their questions of whether the UHSAA, which sanctions and oversees high school activities, receives such complaints and how they are handled.
Spatafore said the association has received other complaints, some that said “that female athlete doesn’t look feminine enough.”The moral status of an opposition to such a program of reducing the desire for or need for abortions is certainly far more worth
My daughter took after her father: not athletic in the least (except as a hiker. She lives in Colorado now.) But had this investigation happened to her when she was in high school, I'd still be spitting blood. I question what "right" these parents had to invoke this kind of investigation, especially one where the parents were apparently never notified of it.
This is disgusting on several levels, and raises again the definition of "rights" and how we use the term, and how freely it gets tossed around like a sword and shield, simultaneoualy. I'll just end with this: Rawls' theory of rights is a pretty weak reed to rest any discussion on. His entire theory of justice is an extended series of crude abstractions meant to counter utilitarianism, but taking that "moral philosophy" which isn't (see, e.g., Dostoevsky and the best thing LeGuin ever wrote) so seriously it ends up just being a footnote to it. I'm sure Hauerwas has rhetorical purpose in citing Rawls (as a worldy, but still negative, example, I assume; which would be right, IMHO), but I just had to get that off my chest.
Thought Criminal has a really good discussion of that quote. This doesn't replace that; it's just my $.02 on the issues Hauerwas raises; and my take on the question of abortion today.
You should go read what TC has to say, too.