Category Archives: Abortion

Abortions and the Majority


A lot of people think the Democrats in the US don’t have a chance of winning the upcoming midterm elections in the US or the next presidential race. They might be right.  But I wonder if they should try a new approach. A surprising new approach. After all, do they have anything to lose?


According to conservative commentator Andrew Sullivan, the recent US Supreme court decision in Dobbs is an opportunity for the people on the left and the centre. He says, “they should call the religious right’s bluff.” The majority of the people don’t want what the religious right wants. The Democrats should campaign on that. They can get lots of support. Biden is in the doldrums. He should leap at this chance to hammer on the conservatives. Sullivan says they should make Americans realize the consequences of a ban on abortions. Few Americans want that. They should make the Republican pay!


Sullivan says that no country has a constitutional protection for the right to an abortion. Canada certainly does not have it. No one in Canada cares. Even the conservative party that contains many who would love to follow the American right and ban abortions are too scared to even hint that this is what they want. My own MP Ted Falk is basically blocked from discussing this by his party leadership because they know the liberals in Canada would make a lot of hay if he “came out of the closet.”


It is the same with gay marriage. 70% of Americans now support gay marriage!  They are getting used to it. The Republicans can’t ban it. It would be political suicide. The Democrats should jump on this. This is their golden opportunity. Liberals have to be bold or they don’t stand a chance.

It’s time to attack the extreme right and the closely allied radical Christians head on. This is not an opportunity to be missed. Democrats should not shrink from the challenge. They might be surprised at how popular this view would be.

Culture war is a multiparty war.


Abortion Rights and Wrongs: Back to the Uncertainty Principle

I recognize that the Uncertainty principle can be used against me. I argued that Russell’s uncertainty principle, that it is wrong to inflict a certain harm to achieve a dubious good means that neither the doctor nor the mother should be prosecuted for choosing abortion.  That is because, I said, it is uncertain whether or not the mother or the doctor or both are committing a serious moral mistake. Some say yes others say no. There is room for reasonable people to disagree.


However,  does this same principle not mean neither the mother nor doctor should participate in an abortion, because as I have argued, it is uncertain whether or not that is justified. Since it is uncertain the mother and doctor should not inflict certain and serious harm—namely death of the foetus—because they might be wrong. The uncertainty principle works both ways!


That is true, but that is why I argued for adopting both a pro-life and pro-choice position. The mother and doctor should have the right to choose abortion. The choice should be theirs. But—at the same time—although I hope they choose life, they should be allowed to choose abortion! Because of that uncertainty! They should decide, not the rest of us. In case of uncertainty, the mother and her medical advisor should decide what is right and what is wrong in the circumstances. If we could be certain we as the public could have the right to decide just as we do in case of murder. We say murder is certainly wrong and if someone commits murder they should be punished by the law. Few disagree with this.  I think this is a consistent position. What do you think?


Dignity and Life: Pro-Life and Pro-Choice


Abortion rights of women versus the right to life of the foetus have been the focus of numerous cases before American and Canadian courts for decades. Frankly, in neither jurisdiction has the matter been satisfactorily settled. I think the reason is that no court has properly delineated those rights and how they must be resolved. I am going to try to tease out a better foundation for the law.

First, I have always believed that the right to privacy is an odd basis for the US Supreme court to strike down legal prohibitions against abortion as it did in the landmark case of Roe v. Wade. I always thought that was a weak position and could later be challenged by subsequent courts as in fact now recently happened in the Dobbs case.

In my view no one should be surprised. Privacy was always a weak foundation for such an important right and everyone should have been wary of it. As a result decades of women and their allies did not bother trying to persuade states to open up abortion rights because they felt they did not need the states on their side because they had the Supreme Court on their side. Now we know what a weak position that was. Frankly, the same thing has happened in Canada. There is no proper foundation to the right to an abortion. There is no constitutional protection for that right in Canada, just as there no longer is the United States.

Charles Fried, is a lawyer who formerly represented the United States under President Ronald Reagan. He has impeccable conservative credentials but now argues that Roe v. Wade is based not just on privacy, because an abortion is a medical procedure in a hospital involving many people. He now thinks the right to an abortion is based or grew out of, a decision of Justice John Marshall Harlan II in dissent in the 1961 of Poe v. Ullman, a case in which the court left standing a Connecticut law forbidding the use of contraceptives but Justice Harlan’s dissent provided what Fried then considered, and still considers to be the more solid “foundation of the law of privacy and personal dignity”. It is a combination of the two rights. It is a fundamental aspect of the dignity of women that they control their own reproductive processes. To him (and to me) that seems like a stronger foundation because it accords more with what people actually believe. They believe, that whether or not a woman may have an abortion should be determined by her alone. But how do I get to this position?

 When I was a young lad in university, I wrote an essay on the subject of abortion rights. I thought my argument was pretty sound at the time. I still think the basic idea was sound; I just think I could have expressed it with greater elegance. I will try my best to that now.

I had not at the time read a very valuable chapter of a book by Bertrand Russell. It was not written on the subject of abortion at all, but I think that is views can shed a powerful light on the dimly subject of abortion rights. I referred to his position in an earlier post and referred to it as “the Russell Principle” and the “Uncertainty principle.”


Russell talked about uncertainty in that essay and made some very important points that I think bear on this issue. My reasoning (which I still believe is solid) was based on what I believed was the fundamental principle of criminal law, namely, that we must only convict if it can be proved beyond a reasonable doubt (not absolutely) that the accused is guilty. Why is that the case. I would say the rationale for this is the more fundamental idea that we should not inflict a certain evil on people for the purpose of a good that is doubtful. The same applies to the act of prosecution itself. An action such a destroying a foetus should only be prosecuted if it can be established beyond a reasonable doubt, that the harm inflicted on the mother or physician is less than the harm avoided. Personally, I cannot be certain enough to justify prosecuting the mother or the physician.


The state has no right to impose its view on her and prevent her from getting this procedure. The state should not be able to impose on her the obligation to carry the child, at least up to viability. The state has the right to prohibit murder because it is certain that his is a harm which justifies the interference with personal freedom. There is no such certainty in the case of abortion as I argued in an earlier post.

I think it is imperative for those of us who enter the fray of the abortion debates to recognize and never forget that there is more one than side to that debate. We must recognize and even empathize with those who take a contrary view. In the fight over women’s reproductive rights versus the right of the foetus to life it is not a case where all sweetness and light is on one side. Of course, those who enter this debate usually strongly disagree. Their side is pure good; the other side is pure evil.

The late writer David Foster Wallace hit the issues squarely when he said, much more eloquently than I did in 1969 in my university essay. Wallace said in effect that the only coherent position was to hold both positionsi.e. pro life and pro choice. That has been my position for all these years, but naturally, I did not express it as well as Wallace did when he said,


“In this reviewer’s opinion, the only really coherent position on the abortion issue is one that is both Pro-Life and Pro-Choice…

Argument: As of 4 March 1999, the question of defining life in utero is hopelessly vexed.  That is, given our best present medical and philosophical understandings of what makes something not just a living organism but a person, there is no way to establish at just what point during gestation a fertilized ovum becomes a human being.  This conundrum, together with the basically inarguable soundness of the principle ‘when in irresolvable doubt about whether something is a human being or not, it is better not to kill it’, appears to me to require any reasonable American to be pro-life. At the same time, however, the principle ‘when in irresolvable doubt about something I have neither the legal nor the moral right to tell another person what to do about it…is an unassailable part of the democratic pact we Americans make with one another…and this principle appears to me to require any reasonable American to be pro-choice.

This reviewer is thus, as a private citizen and an autonomous agent, both Pro-Life and Pro-Choice.  It is not an easy or comfortable position to maintain.  Every time someone I know decides to terminate a pregnancy, I am required to believe simultaneously that she is doing the wrong thing and that she has every right to do it.  Plus, of course, I have both to believe that a Pro-Life + Pro-Choice stance is the only really coherent one and to restrain myself from trying to force that position on other people whose ideological or religious convictions seems (to me) to override reason and yield a (in my opinion) wacko dogmatic position.  This restraint has to be maintained even when somebody’s (to me) wacko dogmatic positions appears (to me) to reject the very Democratic tolerance that is keeping me from trying to force my position on him/her; it requires me not to press or argue or retaliate even when somebody calls me Satan’s Minion or Just Another Shithead Male, which forbearance represents the really outer and tooth-grinding limits of my own personal Democratic Spirit. “


Of course, this is precisely not how we currently think about things. As Katie Roiphe said, in an interview on Amanpour & Company,

“We tend to believe that people who disagree with us are lunatics, or they’e  evil, or they are kind of the scum of the earth…The idea that you might take the best argument of the other side and to just think about it. I am adamantly pro-choice myself but I think it is kind of important not to engage in the mob tribalism that has brought us to the situation where we have the Supreme Court that we have, where we had Trump elected and I think that that habit on the right and on the left is very toxic and very dangerous and the David Foster Wallace quote kind of opened the door for me when I read it because I did think wait, what about if we did stop for a second and listen to other people and listen to the arguments of the other side instead of immediately demonizing anybody who thinks differently from us.”


Of course, in this era of deep polarization, both sides are likely to unswayed by a position like this that sees some sense in the other side. Both sides prefer to think of the other side as inherently of the devil. No one wants to actually consider the position of the other, which they believe is obviously wrong.


This brings me back to the position that Charles Fried espoused, namely the centrality of dignity that ought to be present in this discussion. First, let both sides of the dispute see that the other side is entitled to their position. Their right to dignity demands that they have the right to speak their mind freely and respectfully. And they deserve to be heard.

Secondly, let the pregnant woman have her dignity. Let her make this enormously difficult decision. She is in the best position to do that, not us braying from the ramparts of political debate. I say, let the pregnant woman decide. I hope she chooses life, but if she chooses otherwise I intend to respect that decision.

Democracy and Abortion rights


Charles Fried, the Attorney General for Ronald Reagan once argued before the U.S. Supreme in favour of prohibiting abortion rights in 1989 in the case of Webster v. Reproductive Health Services. In that case a Missouri statute forbade the use of state funds or facilities for abortions and on behalf of the federal government he argued that Roe V. Wade should be overturned. He thought abortions should only be permitted in the most extreme cases such when the life of the pregnant mother was at risk. Now in 2021 he has changed his mind. In 2021 he believed the rule of law required the court to uphold the old precedent of Roe v. Wade. (I don’t actually agree with this point).


Many thought the American law was settled by the case of Roe v. Wade. It has been the law for decades. Recently,  case went to the American Supreme Court out of Mississippi that challenged this.  This was the Dobbs case. It was the case that  overturned Roe v. Wade  The current Supreme Court  is packed with conservative judges after former president Donald Trump appointed 3 new justices to the court.


Currently, polls show that 60% of Americans believe that Roe should remain the law, but a very vociferous minority strongly believes that it should be overturned. The court ignored the majority as it should if the law requires it. Many American women are shocked that they have lost a right they have had for decades. How can that be?


Charles Fried said before the Supreme Court decided to overturn  Rowe v. Wade  “To overturn Roe now would be an act of constitutional vandalism — not conservative, but reactionary.He said that because he considers himself a true conservative in the style of Edmund Burke. As Fried wrote, “In 2005, testifying in favour of the confirmation of John Roberts as chief justice, I said that I thought he was too good a lawyer — a conservative in the manner of Edmund Burke and John Harlan, not a reactionary — to vote to overrule Roe.

Fried now says that Roe has grown roots in American law and is therefore a firm constitutional right, which the court should not pull out by those roots. But that is what they did. He said the current Supreme Court is busy tearing up rights by the roots that have been there for a quite a long time. Examples he gave were the Voting Rights Act of 1965. In a recent case it said we don’t need those  rights anymore. As a result America has been flooded with voter suppression statutes. The right to vote has been stripped in many state since then. Fried believes the court has done this in order to please a minority “on one politically charged issue after another.”  Fried considers that constitutional vandalism.


Those are strong words considering that the Supreme Court of the United States, just like the Supreme Court of Canada, is permitted to overturn its own precedents. It is not bound by those precedents though both courts have acknowledged that this should not be lightly or often done for it does undermine certainty of law. Yet, it does do that from time to time, for example famously, in the case of Brown v. Minster of Education in the U.S. where doing so has been applauded by liberals even though long standing precedents were rejected. They did not consider that vandalism. Fried considered it the growth of the common law. Law changing with changing with changing times. How is that different?


By asking this question I do not want to be seen as approving the politicization of the American Supreme Court. That is another issue. This is what Justice Sonia Sotomayer said in the current Mississippi case before the court,

“Will this institution survive the stench that his creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible. It is what Casey talked about when it talked about watershed decisions. If people actually believe that it’s all political, how will we survive? How will the Court survive?”


To Katie Roiphe, the Director of Cultural Reporting and Criticism Program at NYU, it does seem that this is the Supreme Court entering the political fray and taking a side with one group of partisans against another. She sees it crippling to have the Supreme Court appear to part of “partisan fighting and this kind of political rage,” when it should be above the fray. But isn’t that what happened when the Supreme Court originally decide Roe? She enlisted conservative icon Justice Scalia to support her argument. Justice Scalia had said in 2015 in the SSM case,

“a system of government that makes the people subordinate to a committee of 9 unelected lawyers does not deserve to be called a democracy… This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.…”


Those are powerful words by Justice Scalia, but we must remember they were uttered in a decision of the US Supreme Court to recognize same sex marriage by overriding a law enacted by a democratic government. Many liberals have widely praised the decision of the US Supreme Court, but will they like it so much, when such reasoning is used against their own holy causes, such as voting rights, or laws permitting unlimited rights to donate funds to political candidates? Democracy is complicated and we should be careful about over simplifying it.


Others see the current trajectory of the American Supreme Court and American law towards authoritarianism. As Mary Fitzgerald of Open Society Foundations in the New York Times, “If Roe falls, the United States will instead join a small cadre of increasingly authoritarian countries that have become restrictive on abortion in recent years.” Justice Fried agrees with Fitzgerald because he sees the 3 Justices appointed by Trump as joining “a process of undermining the ability of the court to reign in an authoritarian president…If we get an authoritarian president in 2024, the court will not be there to protect us.”


Charles Fried made the important point that this is not unrelated to the issue of gerrymandering. The process of gerrymandering where voting district are designed to put as many possible voters in one district to dilute the effect of that group. It  is inherently undemocratic for it gives some people a more powerful vote than others. Gerrymandering allows a minority to get into power and do what the majority does not want. “The American Supreme Court should have put an end to it.” Even though gerrymandering has created unfair and inherently undemocratic systems of government, Fried said,

“the Supreme Court said ‘not our department.’ Well if it isn’t their department to protect democracy I don’t know what is…I do have a long perspective. I was born in Prague in 1935 Czechoslovakia was a real democracy and the demons of hell came out and spoiled that fro 50 years! Now I see those people remerging and I hear the same tunes and it scares me.

And those are the comments from a Republican who served a Republican president. A true conservative in other words. I wish we had more like him.

What is a child?


Anti-abortionists define any foetus of six weeks or more as being a “child.” Some even go so far as to say the child is created at the moment of conception. As a result, if you accept that definition the deliberate destruction of a foetus can legitimately be seen as murder or manslaughter. However, the question is do they in fact believe that the foetus as so defined is a human child?

We should look not just at what they say, but how they act. Often, actions speak louder than words. For example, how do people treat the death of a spontaneously aborted foetus by miscarriage? Often (usually?) they do not treat it as the death of a child. For example, they have no funeral for the foetus. Miscarriages are experienced by 20-25% of women. Rarely do people ask police to get involved in such deaths. Police do not investigate the death as they would if a child died. Nor do coroners get involved. The government does not allow a person to claim tax benefits for children under after the child is born.


All of this is evidence that actually people do not treat the death of a foetus as the death of a child. They only take that position for the purpose of winning an argument. They don’t actually believe that is true.


As Susan Grimsdell said in the Guardian Weekly, “they only define foetus as a child if the woman chooses an abortion to abort it; when it’s spontaneous they’re not interested. This clearly indicates it’s choice they object to.”


After birth things are different. Our actions speak pretty loudly.

The Uncertainty Principle


When we recognize that there is uncertainty in a debate, such as the debate about whether or not abortions should be banned or prohibited, we should realize some fundamentally important things. In this respect I have learned a lot from the British philosopher Bertrand Russell. This is the principle that he stood for:

“In the sphere of practical politics, this intellectual attitude has important consequences. In the first place, it is not worth while to inflict a comparatively certain present evil for the sake of a comparatively doubtful future good. If the theology of former times was entirely correct, it was worthwhile burning a number of people at the stake in order that survivors might go to heaven, but if it was doubtful whether heretics would go to hell, the argument for persecution was not valid. If it is certain that Marx’s eschatology is true, and that as soon private capitalism is abolished we shall all be happy ever after, then it is right to pursue this end by means of dictatorships, concentration camps, and world wars; but if the end is doubtful or the means not sure to achieve it, present misery becomes an irresistible argument against such drastic methods. If it were certain without Jews the world would be a paradise, there could be no valid objection to Auschwitz; but if it is much more probable that the world resulting from such methods would be a hell, we can allow free play to our natural humanitarian revulsion against cruelty.”


The Russell principle, if I may call it that, is that it is wrong to inflict a certain harm to achieve a dubious good. The more uncertain the future goal one is trying to achieve the less must be the harm one employs to obtain it. It is permitted to inflict violence to avoid a certain greater harm, but it makes no sense to inflict a certain harm to avoid an uncertain future harm unless that future harm is much worse than the means. It has to be so much worse that the risk of inflicting unnecessary harms is justified in order to avoid such a catastrophic harm.

This requires a rational analysis of the probabilities. The more dubious the future goal the more gentle must be the means employed to obtain it. The problem with the modern utopians is that they inflict a certain substantial present harm to achieve not just a dubious future goal, but an impossible goal! As a result, since banning abortion inflicts a certain harm on the mother by removing her ability to choose abortion, we are not entitled to do that because we might be wrong. Perhaps the foetus is not a human life until birth when it is severed form the mother. Then it would be wrong to punish the mother.


I have explained why I think it is not rational to claim certainty in the abortion debate. Some think abortions are evil because they required the killing of a human being. Others think abortions are justified because the life at stake is the mother and she should be the one to decide what she should or should not do with it. The mother has autonomy to decides.

John Locke, the first of the great British empiricists, that Russell saw as his mentors, held that our knowledge is always uncertain and this fact should always be taken into consideration when we contemplate any action. When we are uncertain of being right or wrong we should take what Russell called the “liberal creed.” That is the philosophy of live and let live. We should not be fanatical. As Russell said, “The genuine Liberal does not say ‘this is true’, he says ‘I am inclined to think that under present circumstances this opinion is probably the best.” For example, he believed in democracy but even there he insisted on taking a limited and undogmatic view of democracy, because he might be wrong. He would advocate the same approach for the abortion question.

That was why Russell was more concerned with procedure than outcomes, when it came to political thinking. He urged the adoption of a political approach rather than a political dogma. Russell put it this way,

“The essence of the Liberal outlook lies not in what opinions are held, but in how they are held: instead of being held dogmatically, they are held tentatively, and with a consciousness that new evidence may at any moment lead to their abandonment. This is the way in which opinions are held in science, as opposed to the way in which they are held in theology.”


Russell argued in favor of neither dogma nor absolute scepticism. He thought his views were somewhere between the two opposing positions. He called his political views Liberalism born from empiricism. The most important premise of that point of view is that all ‘knowledge’ is to some degree doubtful. Some of course more doubtful than others.

That is a perfect summary of my own political philosophy that I have drawn from Bertrand Russell, Albert Camus, John Gray, Michael Oakeshott and other political thinkers. Russell pointed out that if one could be certain that heretics would go to hell where they would suffer eternal torment, it made sense to burn heretics so that they would not lead others astray. If on the other hand it was doubtful that heretics would go to hell then persecution of them would not be justified. Doubt leads directly to toleration; certainty to persecution. If you know that you are fighting for God’s camp, any measures, no matter how awful are justified. As Bob Dylan put it, “you don’t count the dead with God on your side.” As Albert Camus said in his brilliant book, The Rebel, we must “refuse to be a god.”

I accept this approach. Since it is doubtful whether or not abortions result in the death of a human being, we should be modest in our actions—because we might be wrong. Inflicting certain harm on the mother is not justified until we can be certain we are right and that the harm we inflict is less than the harm we avert as a result of the imposition of the harm. Our duty is to choose the course of action which will inflict the least harm and promote the greatest good.


Passionate Intensity

By now we have all seen a lot of heat in the abortion debates. Sadly, we have not seen much light.


This is what happens when the extremists take over the debate.  This is increasingly common in modern society. The extremists take over and yell at each other. The louder the voice, the more powerful the argument. At least that is the common view. In so many debates, together the fanatics drown out all the humble voices. Perhaps nowhere has that been demonstrated more clearly than in the current abortion debates. Both sides scream at each other and neither side sees the human in the other.

The great Irish poet, William Butler Yeats, got it right when he said, at times of crisis like we have now with abortion debate,  “The best lack all conviction; the worst are filled with passionate intensity.” Inevitably, that leads to disaster.

I begin with the recognition that both the pro-life position and the pro-choice position have some truth on their side.  The people who argue for pro-life and reject all counter arguments do so on the basis of the principle that human life is sacred. Basically, that is true. I accept that principle. But does that really solve the problem? Does it end debate right there? I think it does not.

After all what is human life? Where does human life begin? Are there two lives when a woman is carrying a foetus?  Or is there only one life—i.e. the woman who is pregnant? If so then it is only her life that is relevant to this discussion.

When are there two lives?  It is clear that once the child is born and it’s umbilical cord is severed from the mother then there are two lives. Earlier than that it is not so clear.

But perhaps there are two lives earlier than birth. For example, it has been the implicit rationale of the opinions of many that at some point—before birth—the foetus becomes an independent life. Some have said this point in time occurs when the foetus is viable. In other words, once the foetus is capable of living independently of the mother then from that moment it is should be treated as a human and it’s life is sacred and to abort it after that time is murder.

There is room however for debate about when this occurs.  Is the foetus a human life from the moment of conception, as some believe, or the moment of viability as others believe or the moment of a live birth?  My point is that until then there is uncertainty and we should recognize the uncertainty and we should be wary of absolute opinions. Such opinions are dangerous and can cause grievous harm.

We should be wary of the evils of certainty.

Bertrand Russel also got it right when he said,  “the trouble with the world is that the stupid are cocksure, while the intelligent are full of doubt“.  That is indeed the problem. The solution is to be aware of that trouble and act accordingly.