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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.

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It is indeed the misuse of the word "punish" that makes Keyes's argument terrible. What you find trivial, I find damning.
In which case, you certainly don't mind being held to the same standard on the word 'invasion?' But let's not. Because frankly, if this usage is damning, we may begin by damning Mr. Keyes and proceed across all of our political establishment, right and left. By the time we are done, we may well have damned every elected official in the country: Bill Frist: "My great fear is, if this amendment passes, let's say we put $22 billion in, you have destroyed the accountability, the heart and soul of this bill, the opportunity to give that seventh grader the opportunity to have the diagnosis made of why she is failing. I don't understand the relationship. Why would you punish the child and eliminate the opportunity to diagnose her problems based on funding?" (Bill Frist, 147 Cong Rec S 5907) Or read into the Congressional Record by Democrats debating the Seven Year Balanced Budget Reconciliation Act of 1995 (from 141 Cong Rec H 10781):
IT PUNISHES THE CHILD-UNTIL THE MOTHER IS 18 YEARS OLD-FOR BEING BORN OUT-OF-WEDLOCK TO A YOUNG PARENT-TITLE I. NUMBER OF CHILDREN PUNISHED: 70, 000. IT PUNISHES A CHILD-FOR HIS ENTIRE CHILDHOOD-FOR THE SIN OF BEING BORN TO A FAMILY ON WELFARE, EVEN THOUGH THE CHILD DIDN'T ASK TO BE BORN-TITLE I. NUMBER OF CHILDREN PUNISHED: 2.2 MILLION. IT PUNISHES A CHILD-BY DENYING CASH AID-WHEN A STATE DRAGS ITS FEET ON PATERNITY ESTABLISHMENT-TITLE I. NUMBER OF CHILDREN PUNISHED: 3.3 MILLION. IT LEAVES CHILDREN HOLDING THE BAG IF THE STATE RUNS OUT OF FEDERAL MONEY-TITLE I. NUMBER OF CHILDREN PUNISHED: ? IT DOES NOT ASSURE SAFE CHILD CARE FOR CHILDREN WHEN THEIR PARENTS WORK-TITLE I. NUMBER OF CHILDREN PUNISHED: 401,600.
And I could continue on and on in this vein, with examples more or less appropriate. Lexis provides bountiful examples when I limit myself to the Congressional Record alone: God forbid I were to start scanning news sources, campaign blogs, or others for examples of similar usage of the word 'punish.' Were Keyes speaking to a legal audience, the difference would be relevant. I think the above serves to show that 'punish' long ago perished in its technical sense, and in more often used in the colloquial sense of "to inflict harm upon." Particularly when the connotation is not merely 'punishment' but 'unjust punishment.' In any event, that would hardly make it a terrible argument, merely one which is lexically unsound.
Perhaps I was too hard on Mr. Keyes-- although it still seems to me that his argument is founded on the assertion of a moral premise of dubious merit. But as to Bill Frist, and the congressional record, let us damn them all indeed. Best indict me as well.
Now I feel silly, as ten minutes trawling Lexis would have been much more satisfyingly replaced by half as much time Googling over archive entries at Crescat. Ah well. Crescat doesn't give me points for using it, I suppose, so there's some upside. As to a moral premise of dubious merit: we do not make one person suffer death for the sins--or even the convenience--of another would seem less than 'dubious.'
You don't even have to google-- the MT search function works beautifully. It was surprisingly, hard, though, to find a misuse of the term. I could be wrong, but I've never heard anybody defend abortion-in-the-case-of-rape on the grounds that it's to punish the rapist for his sin. As I understand the argument, it's that having not done anything to make herself a pregnant, a woman is granted greater leeway in doing what she wishes to keep things out of her body. Keyes doesn't seem to tackle that so much as talk around it. And very few people (anybody?) believe that third-party costs should never be imposed.
As I understand the argument, it's that having not done anything to make herself a pregnant, a woman is granted greater leeway in doing what she wishes to keep things out of her body. Keyes doesn't seem to tackle that so much as talk around it. It's certainly not the argument he's making. If you wish to make it, I suppose you may. And whilst few people believe that third-party costs should be imposed, third-party deaths are generally a different matter.
Tony, I'm always happy to point out for those who like to work out their views on abortion in your comments (which I regard as a noble thing, if they are trying to work something out rather than merely to repeat something), that all such discussions must proceed from a clear view of what rights are, and who gets them, and why they get them. Without such a view, no intelligent discussion is possible. The first thing that has to be hashed out is the easy case. Why does Tony Rickey have rights? Why is slavery wrong? Was slavery wrong before it was labeled "wrong"? That is, there are deep issues of moral realism and the objectivity of rights that should be discussed before we wonder whether to apply or deny those rights to: minorities, the comatose, the conceptus, the newborn. If people are not willing to discuss the easiest, and only then to proceed to the "harder" cases, they should not be taken seriously. This means that Mr. Baude, for example, needs to discuss whether the rape case implicates foetal rights, first of all. Secondly, if it does, why the woman's rights after rape trump the foetus's rights. Merely pointing out the obvious, that there are identifiable interests on the part of the victim of rape to not having a child as a result of rape, adds little to the dispute. W
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