Principled compromise and the abortion controversy

Philosophy and Public Affairs

Volumn 33, Issue 4, 2005, Pages 317-348

  May, Simon Cǎbulea ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

ANALYTICAL APPROACH; ARTICLE; CONFLICT; ECONOMICS; ETHICS; FEMALE; FINANCIAL MANAGEMENT; GENETICS AND REPRODUCTION; GOVERNMENT REGULATION; HUMAN; INDUCED ABORTION; INTERPERSONAL COMMUNICATION; LEGAL ASPECT; MEDICAID; MORALITY; POLICY; POLITICAL SYSTEM; POLITICS; PREGNANCY; THERAPEUTIC ABORTION; UNITED STATES;

ANALYTICAL APPROACH; GENETICS AND REPRODUCTION;

ABORTION, INDUCED; ABORTION, LEGAL; DEMOCRACY; DISSENT AND DISPUTES; FEMALE; FINANCING, GOVERNMENT; GOVERNMENT REGULATION; HUMANS; MEDICAID; MORALS; NEGOTIATING; POLITICS; PREGNANCY; PUBLIC POLICY; UNITED STATES;

EID: 33644868977     PISSN: 00483915     EISSN: 10884963     Source Type: Journal    
DOI: 10.1111/j.1088-4963.2005.00035.x     Document Type: Article

References (59)

1. George Sher, "Subsidized Abortion: Moral Rights and Moral Compromise," Philosophy & Public Affairs 10 (1981): 361-72
2. Patrick Dobel, Compromise and Political Action: Political Morality in Liberal and Democratic Life (Savage, Maryland: Rowman and Littlefield, 1990), p. 80.
3. Richard Bellamy and Martin Hollis, "Consensus, Neutrality and Compromise,"in Pluralism and Liberal Neutrality, ed. Richard Bellamy and Martin Hollis (London: Frank Cass & Co., 1999), pp. 54-79, at p. 76; Richard Bellamy, Liberalism and Pluralism: Towards a Politics of Compromise (London: Routledge, 1999), p. 114.
4. Joseph Carens, "Compromise in Politics,"in Nomos XXI: Compromise in Ethics, Law, and Politics, ed. J. Ronald Pennock and John Chapman (New York: New York University Press, 1979), pp. 123-42, at p. 135.
5. Colin Bird, "Mutual Respect and Neutral Justification" Ethics 107 (1996): 62-96, p. 92.
6. Stephen Macedo, Liberal Virtues: Citizenship, Virtue, and Community in Liberal Constitutionalism (Oxford: Clarendon Press, 1990), p. 71.
7. David Wong, "Coping with Moral Conflict and Ambiguity," Ethics 102 (1992): 763-84, p. 779.
8. Arthur Kuflik, "Morality and Compromise,"in Pennock and Chapman, pp. 38-65, at p. 51.
9. John Rawls, Political Liberalism, paperback ed. (New York: Columbia University Press, 1996); Charles Larmore, Patterns of Moral Complexity (Cambridge: Cambridge University Press, 1987).
10. Before the first democratic elections in South Africa in 1994, a compromise between the major parties led to the inclusion of a Government of National Unity provision in the interim constitution: All parties registering more than 10 percent of the vote were to be represented in the cabinet. This compromise was morally acceptable since coalition government violates no fundamental democratic principle. In contrast, the U.S. slavery compromises of 1820 and 1850 were morally unacceptable since they permitted the practice of slavery in Missouri and the New Mexico territory seized in 1848. Perhaps there was no way for abolitionists to eliminate slavery before the Civil War, but that would make the compromises unavoidable, not morally acceptable.
11. It is worth emphasizing this point. If the pro-life position were to be correct then, on the argument advanced here, there would be no principled reason to forge a compromise that permitted (at least elective) abortion. It does not follow from this that intransigent pro-life proponents are acting justifiably when they refuse to compromise in a position of advantage. Those who refuse to compromise unjustifiable positions are acting improperly, not because they refuse to pursue principled compromises, but because their positions are unjustifiable from the beginning. The error lies at the first order, not the second. This means that the moral stakes are high when we come to a conclusion about the moral permissibility of abortion, the justifiability of a military conflict (see n. 40 below), or any other profoundly controversial moral question. Some may prefer a less daunting approach. But why should we accept a philosophical analysis that made our moral dilemmas seem any easier or less consequential than they actually are?
12. Ronald Dworkin, Life's Dominion: An Argument about Abortion, Euthanasia, and Individual Freedom (New York: Alfred A. Knopf, 1993).
13. Sher, p. 369.
14. Gutmann and Thompson, p. 88. That moral accommodation often involves moral compromise is indicated by the language that Gutmann and Thompson use: Pro-choice advocates should "move a small but significant way towards accommodating pro-life concerns"and should support policies "even if they would otherwise place those policies significantly lower on their own list of political priorities"(ibid., pp. 87-89). In this way, moral accommodation usually involves some moral loss. Gutmann and Thompson are clear though that moral accommodation does not warrant "compromising one's moral convictions solely in the interests of agreement,"which I take to be a rejection of morally unacceptable compromises, not moral compromise per se (ibid., p. 85). See also Amy Gutmann and Dennis Thompson, "Democratic Disagreement,"in Deliberative Politics: Essays on Democracy and Disagreement, ed. Stephen Macedo (New York: Oxford University Press, 1999), pp. 243-79, esp. p. 266.
15. Gutmann and Thompson, Democracy and Disagreement, p. 73.
16. Dobel writes that nowhere is the need for moral compromise "more evident than in the continuing conflict over abortion [but] I would not even attempt to suggest a compromise...[except that any compromise should involve] respecting the need for an autonomous time of decision...as well as recognition of interests in protecting the potential person in the fetus"(Dobel, pp. 87-88). Bellamy and Hollis write simply that "there are a host of middling positions between those who oppose abortion of any sort and those who believe it should be freely available on demand up to 26 weeks or beyond"(Bellamy and Hollis, p. 75). Macedo does briefly suggest that Jane should revise (r) and drop (w): "legalized abortion, perhaps, but only up to a certain point in the pregnancy, and only with consultations that help insure that the decision to abort is carefully considered"(Macedo, Liberal Virtues, p. 72). But no elaboration is offered. Bird advocates setting viability as the point after which abortion should no longer be legal (Bird, p. 94). The reason for this is that neither conception nor birth could serve as points that would enjoy the support of both pro-life and pro-choice camps. Bird also suggests that the beginning of the second trimester might be a reasonable compromise criterion (ibid., p. 91).
17. Martin Benjamin qualifies his endorsement of a restriction of (r) to the first trimester with the observation that pro-life proponents may simply never be able to agree in good conscience to any compromise permitting abortion. Given the deeply religious identity of most pro-life proponents, one cannot "persuade them to compromise without changing them into different people"(Benjamin, p. 169). Nevertheless, Benjamin is optimistic that there may be political and philosophical ways to circumvent this obstacle. Benjamin also seems to suggest that (j) may be weakened or dropped entirely: "it might be best, if historical conditions were to make it possible, to shift the focus [of the abortion issue] from the Supreme Court to Congress"(ibid., p. 166).
18. Sher, p. 371.
19. Ibid., n. 6.
20. Justice Brennan, writing in dissent in Harris v. McRae, 448 U.S. 297 (1980) at 334, quoted in Gutmann and Thompson, Democracy and Disagreement, p. 99.
21. Gutmann and Thompson, Democracy and Disagreement, p. 90.
22. That this claim about women's ability to choose is compatible with neutrality about the ultimate rightness or wrongness of abortion can be illustrated by the claim of some pro-life proponents that women who have elective abortions are selfishly pursuing their own interests to the detriment of their maternal responsibilities. So it is quite possible to think that abortion is profoundly wrong and that the ability to have an abortion is in women's interests. That said, there are also many pro-life proponents who think that the emotional and psychological harms of abortion outweigh the benefits, so my claim is not uncontroversial.
23. Gutmann and Thompson, Democracy and Disagreement, p. 88.
24. Alan Wertheimer notes the strangeness of Gutmann and Thompson's argument here in his "Internal Disagreements,"in Macedo, Deliberative Politics, pp. 170-83, at p. 176. The latter are attempting to economize on deliberative disagreement, but the question of a right to subsidized abortion is obviously one about which sincere and reasonable people seeking mutually acceptable policies could disagree. As such, it is odd that Gutmann and Thompson seem to insist on it as a fixed point, when they are not so insistent on other points of deliberative contention. It could be that Gutmann and Thompson are simply noting that Sher's rejection of such a right is a reasonably controvertible position itself. This could not support a rejection of Sher's (h), however, since that proposal could still be the best compromise position, all things considered, even though it is not without controversy. Shifting to public funding would require additional arguments.
25. Rawls, p. 6.
26. note
27. The Hyde Amendment to the Social Security Act came into effect in August 1977. In 1981, the Reagan Administration excised the rape and incest provisions, although they were later restored by the Clinton Administration. In June 1980, the Supreme Court ruled in Harris v. McRae that the federal government is under no constitutional obligation to fund abortion services.
28. The Alan Guttmacher Institute, "State Funding of Abortion under Medicaid,"State Policies in Brief, May 2005. The states are Hawaii, Maryland, New York, Washington (voluntarily), Alaska, Arizona, California, Connecticut, Illinois, Massachusetts, Minnesota, Montana, New Jersey, New Mexico, Oregon, Vermont, and West Virginia (under court order).
29. A 1999 study of North Carolina's intermittent provision of abortion funds found that when funds were unavailable 37 percent of women who would otherwise have obtained an abortion carried the pregnancy to term instead, as cited in
30. Heather Boonstra and Adam Sonfield, "Rights Without Access: Revisiting Public Funding of Abortion for Poor Women," The Guttmacher Report on Public Policy 3 (2000): 8-11, p. 10.
31. Boonstra and Sonfield cite a 1983 Alan Guttmacher Institute report which found that 60 percent of Medicaid recipients reported serious hardship in paying for abortion (including diverting money from rent, utilities and food, and even resorting to prostitution), compared with 27 percent of non-Medicaid women (ibid.). The same study notes that Medicaid-eligible women wait between two to three weeks longer than other women to have an abortion because of these difficulties in obtaining funds.
32. In 2001 the mean charge for an abortion at an abortion clinic was $364 at 10 weeks, $720 at 16 weeks, and $1290 at 20 weeks; see
33. Stanley Henshaw and Lawrence Finer, "The Accessibility of Abortion Services in the United State, 2001," in Perspectives on Sexual and Reproductive Health 35 (2003): 16-24, p. 18.
34. Ibid., p. 20. Four states (Idaho, Kentucky, Montana, and North Dakota) place restrictions on private medical insurance coverage of abortion.
35. The number of abortion providers dropped 14 percent between 1992 and 1996, including a 23 percent drop in the number of public hospitals performing abortions; see
36. Stanley Henshaw, "Abortion Incidence and Services in the United States, 1995-1996," Family Planning Perspectives 30 (1998): 263-70, p. 268.
37. Lawrence Finer and Stanley Henshaw, "Abortion Incidence and Services in the United States in 2000," Perspectives on Sexual and Reproductive Health 35 (2003): 6-15, p. 10.
38. Susan Cohen, "Global Gag Rule: Exporting Antiabortion Ideology at the Expense of American Values," The Guttmacher Report on Public Policy 4 (2001): 1-3, p. 2.
39. Susan Cohen, "Analysis Says Boost in Overseas Family Planning Aid Would Yield Improved Health, Fewer Abortions," The Guttmacher Report on Public Policy 3 (2000): 9-11, p. 9,
40. Cohen, "Global Gag Rule,"p. 2. In July 2002, President Bush suspended the entire $34 million U.S. contribution to the United Nations Population Fund (unfpa) on the uncorroborated grounds that the unfpa 's program in China constituted a violation of the 1985 Kemp-Kasten amendment that prohibits support for any program of coercive abortion or involuntary sterilization; see
41. Susan Cohen, "Bush Bars unfpa Funding, Bucking Recommendations of its Own Investigators," The Guttmacher Report on Public Policy 5 (2002): 13.
42. Gutmann and Thompson, Democracy and Disagreement, p. 89.
43. Gutmann and Thompson note that "although we permit conscientious refusal in military service, we do not extend the permission to taxes"(ibid.). My argument does not rule out conscientious objection to military service, and in fact helps make sense of the distinction between the cases of conscription and taxation. Conscientious objection can be justified by the actual injustice of the ends served by military conscription. For instance, the justification for refusing to serve in the apartheid-era South African Defence Force stemmed not from the fact that objectors reasonably believed that white male conscription perpetuated an unjust system, but from the fact that they were right to believe this. It is not the presence of conscience that is relevant here, but its veracity. In contrast, public funding for abortion services, by hypothesis, does not serve unjust ends. Moreover, in cases of justifiable military conscription, those objectors whose pacifist beliefs render them emotionally and psychologically incapable of using a weapon may be appropriately redirected to noncombat units even if this does not reduce their complicity in the overall war effort. In this case, moral beliefs are only of extrinsic relevance; many factors may incapacitate soldiers, and not every conscript with sincere moral objections to war is incapable of serving in combat. There is no parallel with taxation, because nobody is psychologically or emotionally incapable of paying tax (nor, for that matter, is any pharmacist incapable of providing women with "morning-after"contraception). I develop this position on the relative insignificance of conscience in a work-in-progress paper.
44. The Presidential Campaign Fund check-off box is itself not without controversy. Opponents of public funding of political campaigns quite correctly reject the idea that (m)-type devices constitute voluntary donations from a subset of taxpayers.
45. Dobel, p. 86.
46. Stephen Darwall, "Two Kinds of Respect," Ethics 88 (1977): 36-49
47. Larmore, chap. 3.
48. Gutmann and Thompson, Democracy and Disagreement, p. 79. Gutmann and Thompson refer to Darwall's concept of appraisal respect in a note to the quoted text.
49. Wertheimer, p. 175.
50. Gutmann and Thompson, Democracy and Disagreement, p. 54.
51. Ibid; p. 55.
52. Ibid. See also pp. 52-53 and p. 73.
53. John Rawls, Justice as Fairness: A Restatement (Cambridge, Mass.: Harvard University Press, 2001), p. 6.
54. Ibid., p. 122ff.
55. Ibid., p. 14ff.
56. Rawls, Political Liberalism, p. xliv; see also pp. 49-50.
57. Saying that (A) is compatible with political liberalism should not be read as any endorsement of political liberalism. Nothing in the way I have presented (A) or defended it from compromise should be read to suggest that it is in any way a good policy because of the existence of reasonable moral pluralism. In particular, the requirement of state neutrality in (n) can be defended without appeal to the fact of reasonable moral disagreement about the ethics of abortion. The state simply has no interest in making any judgment on this point, once the right to choose is enshrined. State advocacy of a particular position on the ethics of abortion may undermine the ability of women to exercise the right to choose autonomously.