As a Purely Empirical Matter
On the power of the state, there is no denying that it has the power of life and death over its citizens. The state:
1. ...decides who will or will not live under the death penalty for crimes. 2. ...decides abstractly that many will die or live depending on whether some policy, such as installation of airbags in cars, is implemented. 3. ...decides who can or cannot come to live within its boundaries, even though that decision may have life or death consequences for the would-be immigrant. 4. ...routinely sends to their deaths citizens who have enlisted in the armed forces.
Therefore, as a practical matter, there is no debate about whether the state has life or death power over its citizens. We may have opinons as to whether that *should* be the case, but purely empirically, the state has that power.
Now, is there anything empirically remarkable with the state's delegating its life-or-death power to individuals? Not in the least. Police daily make decisions about when to use or not to use a weapon. Un-elected regulators are given the power to decide critical implementation of policies. Doctors are empowered to evaluate degrees of risk and choose policy on an individual basis accordingly. Moreover, Kevorkian cases aside, "going off the respirator" and other choices are fairly routine. Bartenders make highly impressionistic judgments about who is or is not sober enough to have another drink, with highly unpredictable consequences. So, is there anything novel about delegating life-or-death decisions to pregnant mothers? Not as a practical matter.
Does society have the right to deprive the unborn of rights? Yes, because it also deprives the already born of rights. Nor does it always do so with due process, as in the case of immigration applications or in deeming that so many people shall die (as a statisstical certainty) per year because this or that regulation is "too onerous" to implement this year.
Now, is it ethical to abort or to have a death penalty?
The ethical question is highly complex and not easily solved. For here we argue about what "ought to be" rather than what is. The debate is over what policy preferences to impose on the state to limit its powers.
1. The position that being an unborn fetus is a protected privilege is a position which has the force of law if the state says so and does not if the state does not. Individual ethics cannot resolve the matter to the satisfaction of everyone. It is purely a question of coalition building. "I am unutterably opposed." "I am opposed except in cases of rape or incest." "I am opposed except in cases of rape, incest, or spinal bifida," etc. All these things do is sort the political spectrum out into varying degrees of commitment according to the situation, much like the taxes. (I support taxes of 0%, taxes of 10%, of 50%, except on the very poor, etc.). This procedure does not solve the ethical issues. It merely confounds them with the process of political coalition building.
2. There is nothing particularly wrong with looking at all life-death issues controlled by the state (pre-birth abortion), post-birth termination (as in the death penalty, or slaying people who might be protected by various automotobile safety devices), armed services, keeping the terminally ill alive, quality of life/death for Alzheimer's or vegetative-state persons, etc., and simply saying: yes, the state has the right to determine who will live and die, now let us discuss the implementation. The anarchist position needs to be clearly stated: it would prohibit *any decision* by the state or its delegated authorities. Thus saying that the "state should decide" (state commissioners) which old person shall live or be allowed to die or saying that the "state shall leave to the family the decision" of which old person shall live or be allowed to die is functionally the same. Both are rooted in the state's right to decide the matter. "Family choice" bestowed by the state is still an exertion of state power, through the family as delegates.
But, the whole point is, that it is not inconsistent to argue that the state can either keep to its own agents (as in death penalty criminal cases) or delegate life and death decisions at all phases of the human life cycle. For this is in fact exactly what it does. The anti-abortionists argue that life begins at the moment of conception. When else could it begin? The pro-choice argument is that there are contravening rights and that these are necessary and practical to society (such as eliminating dangerous illegal abortions which will happen anyhow).
Note that making abortion illegal does not mean that illegal abortion has to be made a homicide case. One could make abortion illegal and set the fine as a misdeamonor offense with a $1.00 penalty for conviction on the first offense and a $5.00 penalty for each conviction thereafter. Even were society to decide that life began at conception and that stopping it was a crime, that does not mean it has to be penalized as murder. The notion that "abortion is murder" has no meaning as a legal term because legally murder can only occur if the law says it does. The notion that "abortion is murder" rests on a belief that anything that there is some kind of power or ethos (God, etc) "beyond the state" adherence to which makes it *necessary* that the *law* define "abortion as murder."
But if it is true that there is something "trans-statal" about murder then it would be contradictory not to admit, as an immigration matter, anyone who wanted access into the United States (or other country) who was in fear of his/her life or in danger of imminent starvation; for the notion that is is morally ethical to exclude such people depends on the state having a claim to sovereignty (a practical power of decision) which *exceeds* the divine right to life, and in some sense circumscribes obligation. In other words, we would need an ethos which says it is against the law to let others (mothers, doctors, etc.) kill the unborn in our country but within the law to let others kill the born (from massacres, hunger, etc.) in another country. The logical contradiction is trying to create a deistic base on which to make policy, because it is above and greater than the state (presumably valid in all places and moments of history) and then trying to limit the practical import of that principle to one particular issue (rights of the unborn) in one particular state.
In any case, it is clear that the ethical issues can be construed in any of dozens of different ways. The only question is whether they should make policy.
3. In a society which governs itself by majoritarian principles the notion generally is that the majority gets its way and the minority does not. As a practical matter this too is often contravened, as when a highly energized minority prevails over an apathetic majority. But in any case on the matter of abortion it would appear there is a reasonably energized majority and an energized minority. There is nothing which says that the issue can't be debated and re-opened forever, and to the extent that political factions are organized on this principle they will be open to coalition building with those who have other agendas.
There is no logical basis for assuming that current positions couldn't easily be reversed, purely as a practical matter. Left-liberals would argue that abortion is an extermination policy and that what is needed are aggressive welfare state policies (on contraception, pre-natal care, adoption placement). Right-conservatives would argue that such policies create an immoral "caretaker entity" (the state) which corrupts individual incentives by creating reliance. Abortion could be practical because it would keep the unborn from becoming a burden on the taxes of those who had no interest in maintaining the children of the poor (for example).
To conclude, conflating emotional responses (as for example, saying, a woman can say she doesn't want to have *a* baby *now*, as opposed to saying she doesn't want *this* baby--because it is deformed, has the wrong father, or whatever) and politics is not particularly useful. We can try to elaborate a consistent government policy about the preservation of life and implement that policy. Or we can elaborate an inconsistent government policy about the preservation of life and implement that policy. Nowhere in our constitutional guidelines does it say we must be consistent.
There is, in fact, nothing in the nature of government or in the abortion issue itself which says that we have to have the particular constellation of interests and parties that we happen to have today. No one particular religion has moral pre-eminence, and even if religions could concur on this matter, which they do not, they do not as a group have the right to impose their views on non-believers.
This is not an issue for which a neat solution may be found. Indeed, the only solution that has a practical chance is highly aggressive marketing and availability of contraception for everyone who reaches puberty, and even the successful implementation of such a policy would still not satisfy the moral criteria of all parties. Fundamentalist Baptists and Catholics alike would decry such a policy. Only sexual abstinence would have the desired impact, but it would face non-compliance from rapists (at a minimum) and, as a practical matter, by anyone who decided that his/her personal choice included being sexual and as a consequence having sex.
It would appear, therefore, that the issue as such is purely and simply a matter of power, and the struggle for power. There is a group that would like to control another. The linkage between Ken Starr qua fundamentalist, persecuting Clinton, and the whole "moral agenda" of the American right, persecuting all people whose sexuality is not expressed in a manner compliant with their own, hinges on precisely this dimension of power: things are one way, they want them another way. If it *seems* that the issue is one of *control and domination*, it is because, at its foundation, that is what it *is.*
-- Gregory P. Nowell Associate Professor Department of Political Science, Milne 100 State University of New York 135 Western Ave. Albany, New York 12222
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