Monday, June 12, 2006

Legal Legitimacy and Abortion Politics

I didn't get a chance to blog on this before I left, but I want to now plug this post by Leon H. Wolf on how law gains legitimacy in the public eye, and what the implications of having it (or not having it) are. Wolf specifically examines the question of abortion.

One of the crucial problems with the abortion debate is that both sides consider themselves to be fighting for sacred principles. Pro-lifers think that abortion is murder (in which case allowing it is tantamount to consent to murder). Pro-choicers think that being able to have an abortion is crucial to women being full members of the social community--without it they are second-class citizens, slaves to their ovaries. I've always thought that the normative case for overruling Roe v. Wade and then "letting the states decide" made little normative sense: the only way abortion is not clearly a woman's right is if it's murder, and I think a few constitutional clauses would pose a barrier to a state deciding to simply legalize the slaughter of innocents.

But Wolf articulates a pragmatic reason for sending abortion back to the states:
Whatever one might say about the process which gave us the rules encapsulated in decisions like Loving or Lawrence, it can hardly be doubted that the American public, almost as a unified whole, accepts the principles contained therein as legitimate. In the thirty-three years since Roe, no such mellowing has occurred - no legitimacy has been obtained - the debate is as rancorous as it ever was, and more so. Ugliness lies on the horizon.
[quoting Paul H. Robinson and John M. Darley] [A] number of studies... suggest that the level of commitment to obey the law is proportional to what Tyler calls the law's perceived "legitimacy," by which he means a community's perceptions that, first, the law instantiates their moral beliefs, and, second, that the law came into being via fair procedures conducted by the appropriate authorities. [end quote]

Presently, this feeling is lacking on the part of pro-lifers - who don't feel yet that this is an issue they have lost by legitimate means. The legacy of the current abortion law has been bequeathed not by democratic processes, but rather by fiat from a majority vote on a panel of 9 individuals far removed from democratic accountability. Adding to the furor, over the past decade and a half, 7 of those individuals (at any given time) were appointed by Presidents who professed similar beliefs on the abortion issue.

Wolf argues that if pro-choicers managed to get democratic ratification for their views, it would finally take the wind out of the sails of the pro-life movement. I'm still not swayed of the pragmatic attack on Roe generally. Specifically responding Wolf's points, I'd argue that on this particular issue democratic procedures can't or won't provide the legitimacy he wants because both sides think of themselves as representing groups marginalized in the democratic polity (pro-lifers representing unborn children who cannot vote, pro-choicers representing women [especially low-income women] who face rampant sexism and misogyny in America). Jim Crow, too, was enacted in an era of formal constitutional equality between the races. Democratic legitimacy is a boon when a group that is on the losing side of a dilemma still accepts that the procedures are neutral and they had their fair shot. When groups do not from the baseline trust that the polity will fairly consider their interests (a feeling which is, of course, ratified when they lose--which one side has to), then democracy will not confer legitimacy.

But the general claim about legitimacy being conferred from the perception of fair (often democratic) procedures is a solid one, and one that pops up again in issues such as the Iraqi elections and the immigration debates. I'd note with regards to immigration that the immigrants themselves have no reason to think that their interests are being duly considered when congress adopts immigration laws, so there will always be a significant gap between the black letter law and the respect that it is given by its target class. I'd also note that this does not translate effectively to disregard for other laws--as John Hart Ely notes, laws are looked upon with particular suspicion by a insular minority when they specifically target that group. So immigrants will be suspicious of immigration laws, but not, say, murder laws. That helps explain why immigrants have lower rates of violent crime than your average third generation American. The myth that allowing illegal immigration breeds disrespect for the law has its premise wrong: illegal immigrants will disrespect laws it feels are illegitimate--but that's the same as any other group and certainly does not include every law. The way to stem crime in the illegal community is to make it so that they do not fear the authorities, who can deport them. In other words, make them legal.


Douglas Gray said...

I would like to counter by suggesting (& focusing on the abortion) the debate isn't one regarding procedural justice. By framing the abortion issue in terms of procedural justice, it suggests we all agree there can only be one right answer (a premise I reject). Instead of viewing the abortion debate as one of procedural justice, I view it as a conflict of visions. Conflicts of visions occur when there is disagreement over the scope and weight of relevant information. While we can agree that like cases should be treated alike and different cases should be treated differently (concept of (procedural) justice), in the abortion case, the "two" sides refer to different criteria and methodologies for articulating what is just (conceptions of justice). By recognizing the existence of plural conceptions of justice it can be argued there is more than one right answer on a particular issue. Phrasing it differently, it is possible for both sides to be right and judges must refer to moral and practical criteria to reach their verdicts. Schraub's piece refers to 'democracy' as a relevant legitimizing criteria. I don't necessarily agree that democratic principles, are in principle, systematically relevant (note: I'm not interpreting Schraub as making this argument - perhaps he is). Democracy as a systematic relevant criteria is vulnerable to majoritarian rule problems and makes the rights of minorities vulnerable.

In the abortion case, I'll frame my argument in terms of rights. The pro-life community posits it is possible for embryoes/fetuses (opinions vary over the stage of pregnancy when this right comes into existence) possess rights. Accordingly, abortion constitutes a violation of the rights of embryoes/fetuses. The pro-choice community, on the other hand, (as far as I know) does not see the issue as one of embryo/fetus rights. If they did, this would be an issue of procedural justice. Rather, the pro-choice community posits their arguement in terms of women possessing the right to control reproductive organs. From my perspective the abortion debate more closely resembles a conflict of visions rather than one over procedural justice.

I share my thoughts not to force feed my opinion but rather to contribute constructively. I'm sure some will think otherwise.

Anonymous said...

Perhaps, but my guess is that abortion and other issues like gay marriage and assisted suicide keep coming up because they are very emotional issues for some people and because they are subjects of rigid religious dogma. Either way they will always be fertile ground for demogogues.


...not really anonymous, just don't want one more ID and password.

Mark said...

Isn't your concluding statement a trival one? To stem a illegal community from breaking the law, make the thing they are doing which defines them as illegal, legal and the crime goes away.

Take shoplifters. If we take the "community of shoplifters", we can stop them from breaking the law by legalizing shoplifting. Ok. It might true, but that's just a tad silly and not a very useful observation.

jack said...

Dave, I don't think your characterization of the debate is very accurate.

Pro-lifers think that abortion is murder (in which case allowing it is tantamount to consent to murder). Pro-choicers think that being able to have an abortion is crucial to women being full members of the social community--without it they are second-class citizens, slaves to their ovaries.

I don't think the anti-abortion movement, by and large actually believes abortion=murder. They definitely use that rhetoric but I assume at least a degree of hyperbole because if they actually believed that they're tactics would be far more extreme. If abortion procedures didn't exist and there was a popular practice of butchering babies when they exited the womb would you just be protesting and voting Republican? If you really believe abortion is murder how do you engage in a society filled with so many murderers? Certainly a lot of pro-lifers believe abortion destroys something morally valuable but I don't think most "pro-lifers" at a root level believe that abortion is equivalent to murder.

I also think a very large portion of the anti-abortion movement isn't even concerned with the fetus qua fetus. Thats the only way to explain widespread opposition to contraception and trivial attempts to provide real financial support for young mothers. Its not a coincidence that so many of the same people who oppose abortion also oppose equal rights for homosexuals and in some cases support laws prohibiting sodomy. In a lot of ways the issue is more about controling people -what they do in the bedroom- rather than concern for fetuses.

The plurality of Americans is uncomfortable with abortion and recognizes a fetus's value as the potential for human life but doesn't think a fetus equals human life and thus supports abortion rights.

I think from a political perspective the pro-choice movement could really benefit from a larger effort to win legislative/popular support for abortion rights. By and large the choice movement has focused only on protecting Roe. This has been a disaster because Roe (by which I really mean Casey) isn't actually strong enough to prevent legislative restrictions that make abortions virtually unattainable. This means that even though abortion still has constitutional protect an abortion is very difficult for a lot of women to get. The referendum in South Dakota is a good start- the choice movement needs to stop competing on one front and work to expand access to abortion rather than spending all of its resources on blocking judicial nominees.

That doesn't mean it should give up Roe/Casey. Constitutional protection is a last resort for the movement in case it can't turn around legislative restrictions. It also keeps the anti-abortion movement from using the courts to achieve their own ends (which is absurd to think about right now but not inconcievable at some future date- why not expand the 14th to cover the unborn?). Also, since so many states have prohibition statutes just waiting for Roe to be overturned I'd rather have the choice movement overturn such laws before declaring open season on abortion rights. Legislative efforts would be hampered of course because constitutional protection is still in place but the closer the court gets to overturning the stronger the legislative effort will be.

Also, the pro-choice movement will probably be more successful in legislatures if it spends more resources there- there is a plurality/narrow majority in favor of abortion rights which the movement can't take advantage of (to the same extent) in the battles over the judiciary. The more motivated/interested minority that opposes abortion rights will, in the long term, have an advantage in part of government less accountable to the people.

Of course, a very academic proposition to begin with since (unfortunately) the cultural left doesn't meet regularly in a satanic coven and thus can't just agree to have our activist judges overturn Roe and Casey.

Randomscrub said...


I think characterizing the pro-life side of the debate as being more about controlling people than the fetus is quite a stretch. All of the positions you cite as support for a "they want to control your life" view of the debate are fairly standard (historically speaking) teachings of the Christian Church (in the small-c catholic sense). Is it not a bit more likely that these people simply believe the historical moral teachings of the church? No need to pin it on a need for control.

I'll second "d fresh" that the two groups are operating from different premises, and so convincing someone to change sides means conincing them that fetuses are (or are not) rights-possessing people. That's why I'm for overturning Roe and leaving it to the states. Nothing objective can answer the question of whether fetuses are moral persons deserving of rights. Science cannot answer it, and religion is (rightly) not allowed to. But there are extremely strong moral cases to be made for either position. Let the people of each state decide, and if the individuals believe strongly enough that their state voted poorly, they can move.