Keyes to the Kingdom
I find I never really have to check IrishLaw. I always know that she's posted something interesting because it's reduced Chris Geidner to fits of apoplexy. He's sort of my canary in the Mines of Moritz Law School, if you will. (More on McGreevey later.)
Of note recently, she came out in support of Alan Keyes (the new Illinois Republican Senate candidate, because we couldn't draft Ditka) speaking on abortion, in which he voiced his disapproval of abortion even in cases of rape or incest. Well, actually, she disagreed with what Will Baude said about Keyes:
Well, that is an argument. It's a terrible one, but it is an argument.Abortion is not designed to punish the aborted fetus ("killed baby," if that terminology is more to your liking)-- it's designed, in the case of rape and non-consensual incest, to restore a wronged person to her "whole" state. Now if Mr. Keyes means that innocent people (if indeed a fetus is one) should never ever have costs, especially very large costs, imposed upon them by anybody else in the interests of justice, that is an interesting position (though it probably has to be asserted rather than argued).
To which IrishLaw responded to the rather obvious logical weaknesses in that little rebuttal. Who cares if abortion is not designed to punish an aborted fetus? So long as it actually does inflict harm upon the fetus, and one considers the fetus to be a living individual as Keyes does, the intention with which it is done is irrelevant. And of course, while the idea that we should inflict death upon an innocent in order to avoid harm to a third party... well, perhaps it has to be asserted rather than argued, but it's certainly not foreign to our justice system. While one can attack the assumption upon which Keyes' logic rests--that a fetus is a person--the conclusions which follow that assumption are not a terrible argument. [1]
Of more interest is Baude's response to IrishLaw, clarifying his view on whether he would support an abortion even if he believed such a fetus were alive:
Actually: As a consequence of Michael Green's Ethics course last spring, I have decided that I tentatively would support abortion, in the case of rape...even if a fetus is to be treated as a human being. That's because I take a very broad view about what measures of self-defense one should be allowed to use to protect oneself against unwanted invaders.
Now here we have an echo of that "fetal invasion" riff that rising Columbia 1Ls will get introduced to if they have my former Prof. Perspectives. And I hope they will find it the same unsatisfying confusion of the metaphorical and the literal that I did.
It's difficult to tell exactly what Baude is saying here because he puts so little detail into it, but it seems that a man who has shown no fondness for the idea of original sin is nevertheless enamored of an idea of original volition. Remember that we are granting Keyes the idea that the fetus is an individual and a person. Mr. Baude is now considering that fetus to be not only a person but an invader. And yet how does something without volition invade? How does something which never existed outside the womb somehow force its way into it?
What is actually happening here is that a right to self-defense is being invoked because it's more sympathetic than a right to 'bodily autonomy,' particularly if that right is called upon to justify the elimination of another individual existence. But a fetus is not an attacker: it does not in the general course of things consciously seek to destroy or even harm its mother. It is not an invader, not even in a case of rape: it is merely the result of an invasion. If one posits--as Baude must to state that IrishLaw 'got it wrong'--that the embryo or fetus is human being, then Baude is stating that it is just to punish an innocent being with death not even as a preventative for further psychological or mental harm to the mother, but to "to restore a wronged person to her "whole" state." Such is the restorative justice of the sacrificial lamb, and is not so clear in ethics as Mr. Baude would try to make it.
[1]: One might, I suppose, accuse Keyes of lexical inaccuracy: "I've often asked people: So we are supposed to punish an innocent child because his parents have committed an offense like incest, or his father an offense like rape? Would you want to be punished for the deeds of your parents?" The word "punish," in all but its more colloquial terms, implies the infliction of harm for the sake of an offense. To the extent that Baude is making that distinction, it seems rather trivial. "So are we supposed to make suffer an innocent child because his parents have committed an offense?" loses none of the moral authority Keyes is summoning, even if his original is technically inaccurate from the viewpoint of a penologist.
Comments
Posted by: Will Baude | August 14, 2004 1:45 PM
Posted by: A. Rickey | August 14, 2004 2:18 PM
Posted by: Will Baude | August 15, 2004 2:30 AM
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Posted by: Will Baude | August 15, 2004 10:00 PM
Posted by: A. Rickey | August 16, 2004 12:11 AM
Posted by: Fr. Bill | August 16, 2004 4:46 AM
Posted by: Bairon Bancks | October 19, 2004 7:31 PM
Posted by: Bairon Bancks | October 20, 2004 7:44 PM