Category Archives: Skeptical Philosophy

Democracy and Abortion rights

Abortion, Skeptical Philosophy

 

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.

The Uncertainty Principle

Abortion, Ethics, Liberalism, Skeptical Philosophy

 

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

Abortion, Skeptical Philosophy

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.