About Me

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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019); AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021); and HOW WE BECAME POST-LIBERAL: THE RISE AND FALL OF TOLERATION (2024).

Tuesday, October 20, 2009

Despicable abortion law in Oklahoma

The Oklahoma legislature has passed a draconian statute that provides for personal details about women who obtain abortions to be placed on line. Much can be said about this despicable and cruel law, all of it in tones of fitting outrage. However, let me use it to illustrate one important, and often neglected point.

Outright criminalisation of a practice is not the only means that the state can use in its efforts to suppress the practice. There are many ways that political power can be used to attack our liberties. In current social circumstances prevailing in Western societies, the criminal law uses punishments that can include the infliction of a range of harms, such as loss of liberty or property, while also expressing public resentment, indignation, reprobation, and disapproval (Joel Feinberg has written well on this). But much the same infliction of harm and officially-sanctioned stigma could be accomplished by means that do not involve criminalisation of an activity or even the criminal justice system as we know it.

Even in current liberal societies, the difference between criminal law and civil law is always arbitrary to some extent, and may not always be of great substance. Modern statutes frequently create civil offences, often applying to corporations or their officers. Although civil laws do not categorise those who breach them as criminals, they, too, can be used to attach a stigma to actions and to individuals, and even to destroy reputations and careers. Think, too, of how we should categorise a provision that provides for mandatory awards of punitive damages in defined circumstances, or such innovations as triple damages in civil claims relating to breaches of certain statutory obligations (in order to discourage law-breaking).

In fact, the state can select many hostile and repressive means to achieve its aims. These include propaganda campaigns that stigmatise certain categories of people and officially-tolerated discrimination against people of whom it disapproves, such as by denying certain categories of people access to government employment. The state requires good justification before it calls upon the power of the state to suppress any form of conduct by any of these means.

The Oklahoma law is clearly intended to intimidate and stigmatise women who have abortions, in an attempt to deter the practice. It is no more acceptable than outright criminalisation of abortion. This action merits our contempt, and the law concerned should be struck down as unconstitutional.


helensotiriadis said...

aahh... a new version of the scarlet letter... for abortions.

what a bunch of of lunatics.

Janet's Dad said...

Russell, it isn't clear to me how such a reporting requirement is unconstitutional? It seems that the people who perform abortions in OK can be perfectly trusted to maintain the privacy of their patients, and that this is a bedrock of the constitution (if not the entire basis for roe in the first place)

The article doesn't say how this information violates privacy, rather it alludes to the idea that that the information on the forms could be used to finger a small town person? Is that true?

A reporting requirement may be a burden on providers, but any OK abortion provider is under threat of death already ... it isn't like a form is going to push them over the edge, the RTL crowd has already made their life a living hell.

Additionally, it seems like most of these questions are asked by the abortion providers already. I mean these things don't get done behind a curtain. If you want to get an abortion, you need to "disclose" yourself and your medical history, address, billing information etc ... to a Dr. (excepting back alley services that the RR prefers to force women to use).

Lastly, if anything, I don't think the RTL really want the data ... the data don't support their narrative "about what kinds of demographics are using abortion and what the trends are".

Janet's Dad said...

Given that the OK definition of Abortion seems to "include ectopic pregnancy, as well as medical assistance needed after miscarriage"

The law will it seems will only bear out the sad fact that God is a leading cause of abortions.

Russell Blackford said...

It's (apparently) reported publically, individual by individual - at least that's how I read the story. Correct me if I'm wrong about that.

Now, it might be said that the law isn't too intimidatory because individuals are not specifically named, but the data seems to be enough to identify them. (I'd be in no doubt at all that it's intimidatory and unconstitutional if they were named.)

Scott, are you hinting that it's only aggregate data that goes online? I'm happy to be corrected if I've made a factual error. That would mean that the law is still very intrusive, but I agree that it would not be unconstitutional if that were the case.

But if it's done in a way that looks like an effort by the state to suppress abortions by intimidating women into not having them, which is how it looks to me at the moment, then the constitutional argument looks strong to me.

Boz said...

“abortion occurs at roughly equal rates in regions where it is broadly legal and in regions where it is highly restricted. The key difference is safety — illegal, clandestine abortions cause significant harm to women, especially in developing countries.”


Janet's Dad said...

"The law",, has a "questionnaire" that it proposes abortion providers fill out - the opponents claim that this information "would be enough to identify a person" but none of the questions report who the person is - the accusation is that taken collectively, the questions are enough to narrow down the possibilities (eg what is the set of married african americas with 4 children and 15 years of education who might have gotten an abortion in Muskogee in January 2012) ... note the question does not ask for name, address, zip code etc ... of the patient - only of where the abortion was performed.

That seems to be the claim - the problem is that Dr's have to report all kinds of stuff like this all the time.

I seems to me that the law is intended to harass the medical profession and it seems onerous and overly invasive on that count, intended to give a free on line resource to operation rescue to find out which doctors perform which procedures - and seems like an issue of Dr. safety in part of the world where the religious bomb clinics for Christ.

If you feel however, that abortion is a moral issue for society, and something that the state should regulate, it seems like statistical reporting makes sense.

I think an element of this is "spin" by the choice side - I feel however that the facts of abortion only undermine the RR narrative, which holds that permiscous teenagers get them so that they can get back to the rave.

There are few women, like Catherine Deveny who will write up their real or imagined public confessions to the cardinal.

The RR is making a mistake by asking for data ... as Col. Jessup said, they can't handle the truth.

Janet's Dad said...

Russell, i'd be interested to hear your opinion of the column that Deveny ran in the AGE over the weekend.

At first I thought this was a story that she made up, just telling what she wishes she did, but I found this blog post that seems to corroborate, and condemn it.

You've been very thoughtful on the issues about where the bounds of discourse are with the faithful - did she cross a line? Or was she demonstrating an important truth - that men like Pell have no moral authority to pass judgement based on their dogmas?

I haven't seen this light up the 'sphere, can't find a video, but would enjoy seeing a post from you on the question.



Janet's Dad said...

More corroborating reports ...

Brian said...

Scott, after reading Deveny's post and then part of the answering post I can only think this: Pell is an aider and abettor of child molesters.

Given this, Nobody should adress him any differently than Mr. unless they're a devotee. Deveny was well within the bounds of good conduct to point this out. The point about unbaptized abortions and women who've had abortions points out the immorality of Pell and fellow misery cultists. If someone piously spouts that you're a goat rogering rock spider who deserves eternal punishment why should you be polite in return?

You'll note I'm not a thoughtfull as Russell....

Russell Blackford said...

I don't actually think that Pell's record in disciplining child molesters has much to do with it. But I would have cheered for Catherine if I'd been there. She did well to attack the church's oppressive views about abortion in the way she did by saying, in effect, you are branding me a sinner. Someone like Pell just has to put up with this kind of passionate dissent if he's going to stand up in public as an advocate for the Church's doctrines.

Janet's Dad said...

Doesn't Deveny really go out of her way to make enemies of the moderates by loudly proclaiming that she had an abortion and baiting the Cardinal in public to pronounce where the baby's soul was?

I mean Pell didn't come to pass judgement, he just came to tell us that the Universe was too finely tuned for it to be random, and that without God we are nothing, and that you and I can't explain the smile of a baby. Sounds more or less what all moderate religious people believe?

What is it, the mitre that makes him a radical? His membership in the catholic church? What?

At least the Cardinal didn't pull a Zwartz and tell her that he had no idea about where the soul was and that no Christians that he knows believe in a soul, etc ... etc ... or tell her that she had made a straw man ;-)

Is Pell not a "genuinely moderate religious person"?

Russell Blackford said...

lol, Pell genuinely moderate?? You've got to be kidding me. He's the at the exact opposite end of the scale. He's practically my paradigm for someone who is NOT moderate. The man is as disgusting Vatican apparatchik.

Russell Blackford said...

To elaborate, there is nothing in the slightest theologically or politically liberal about Pell. He's the kind of person who really is our enemy and should be exposed as the antithesis of the moral leader he claims to be. Kudos to Catherine Deveny for doing some of that.

Janet's Dad said...

well blog it up man, top line, above the fold ... story is languishing, aging ... great story.

What you waiting for??!!


Poor woman has to write about her own escapades? Water the poppies ...

Siamang said...

"I mean Pell didn't come to pass judgement, he just came to tell us that the Universe was too finely tuned for it to be random, and that without God we are nothing, and that you and I can't explain the smile of a baby. Sounds more or less what all moderate religious people believe?"

Yet, Scott, those claims are incredibly judgmental. Pell represents, personifies judgment. That's his entire reason for being.

And what kind of a non-judgmental person walks around telling you that unless you subscribe to his social club, you are nothing, you cannot explain or understand your own life, and you cannot even grasp the smile of your own child.

What HORRIBLE things to say. How dare he claim exclusive rights to joy, understanding and meaning?

He SHOULD be confronted on that. He should very well be confronted by the opposite view. Why should he get a free pass that I'm certain nobody in the religious attendents gave to Hitchens.

Also, I agree that folks who aren't in the faith shouldn't call people by their religious honorific.

I'm not in the military. I don't call military people "Sir".

Ophelia Benson said...

What is it, the mitre that makes him a radical? His membership in the catholic church? What?

Good grief - yes, of course - except not his membership in the catholic church so much as his place in the hierarchy of the catholic church. (Mere membership can be just a matter of birth and circumstances and doesn't necessarily entail agreement with the doctrine and the rules; converts - like Tony Blair - are much more to blame than some of the people who simply haven't cut the ties.)

The catholic church is a very radical institution. There seems to be a background assumption (very useful to 'mainstream' religions) that any established religion with a long enough history and a dignified enough presentation of self cannot be radical or extreme. That's just an error.

Luke Vogel said...


It's quite possible you've discussed and explained this before, so I apologize and perhaps just links would suffice. However, I've seen "moderate" mentioned a couple times this week so...

Would you please define and describe what you mean by; "genuinely moderate religious people?"

Brian said...

I don't actually think that Pell's record in disciplining child molesters has much to do with it.

I put that in to be a bit snarky. But thinking about it a little (and probably only a little), one could see this as a legitimate ad-hominem. Pell presents himself as the arbiter of all that is good and moral. His role in helping shift child-molesters along to fresh parishes and covering up their crimes certainly goes to show that Pell isn't such a good moral character. Doesn't it?

There seems to be a background assumption (very useful to 'mainstream' religions) that any established religion with a long enough history and a dignified enough presentation of self cannot be radical or extreme.

Q. What's the difference between a fringe cult and a mainstream religion?

A. About 1000 years.

Janet's Dad said...

Is the TV comedy show by John Safran that Deveny's was referencing widely known about, has everyone seen it but me?

This guy makes ali G seem like a poser ...

This claims to be footage of him being crucified in the Philippines.

This is his "Jew Town" send up of Christan Rock - which is hillarious

His exorcism piece one of three

Seems like Australia may have finally done its part to atone for Ken Ham.

Brian said...

Scot, I've seen the exorcism one from "John Safran v God". He can be pretty funny at times. Years back he starred in the first series of the Aussie version of "Race around the world" and was kicking a footy naked near the wailing wall in Jerusalem or something like that.

Russell Blackford said...

When I talk about genuinely moderate religious people I am making the point that merely accepting evolution does not make your religious views moderate.

Consider that the Catholic Church considers all the following to be sins and has recently fought campaigns against them in any place or time where it could do so with any prospect of success:

* The use of all forms of contraception, including the contraceptive pill and condoms.

* All homosexual conduct.

* Abortion.

* Stem cell research and research on therapeutic cloning.

* IVF.

* Divorce.

* Voluntary euthanasia, no matter how hopeless an individual's circumstances and no matter how much pain she is suffering.

That's before you get to more controversial innovations (e.g. reproductive cloning) that even more secular people might be worried about. The Catholic Church condemns them all out of hand.

The point isn't even so much that the Church considers these things to be sins and offers that advice to its members. That's enough to show that it is driven by strong ideas of "sin" and what it is prepared to condemn. But the stronger point is that it has a record of attempting to get these things banned through secular power. I.e., it wants its view of the good imposed by force (the threat of imprisonment, etc.).

Obviously, it has given up in many places with many of these things. It doesn't pursue totally hopeless causes. But it fights bitterly wherever it has a chance of winning. E.g., RU-486 was legalised in Italy only this year, and only after a bitter fight against it by the Vatican. Thanks to the Vatican, Italy enacted extremely restrictive laws on reproductive technologies just a few years ago.

Pell himself attempted to get "Piss Christ" banned when it was shown in Melbourne not that many years ago. Much more recently still, he threatened those Catholic policians who voted to allow limited opportunities for research on therapeutic cloning in Australia with excommunication. Last year, he was among the voices arguing for censorship of Bill Henson's artwork at the height of that debate.

Pell is a leading figure within the international hierarchy of the Catholic Church, which rejects secularism in the sense of a strict separation of Church and State, and condemns every rival intellectual movement as sinful in one way or another.

None of this is what I consider "moderate" religiosity. It is moralistic, aggressive, politicised religiosity that wants to control our lives - and Cardinal George Pell is up to his neck in it.

Luke Vogel said...


>> "When I talk about genuinely moderate religious people I am making the point that merely accepting evolution does not make your religious views moderate." <<

Thank you, though I'm not sure you are replying to my question.

I'm not sure how else to ask it. You have now said what "genuinely moderate religious people" are not with this one example example - perhaps you will now say what they are, such as some kind of definition and description?

You stated: >> "Let this underline one of my occasional themes: genuinely moderate religious people are not our enemies." <<

Thanks again.

Eamon Knight said...

Re "genuinely moderate religious", perhaps if I may immodestly offer the example of (cough) myself about 15 years back? A moderate might:

- accept science as the arbiter of physical reality, including natural history.

- opposition (if any) to mucking with biology is founded on real risks, not on some obsolete metaphysics.

- have this belief system that gives them considerable comfort and structure -- but if some other system is what floats your personal boat, then it's no skin off my teeth.

- if there's an after-life, then there is purgatory and heaven -- but no permanent hell

- think abortion is a matter of personal conscience, and no matter what I may think of its morality, it should not be illegal.

- other people's sex lives are none of my business, as long as all involved are consenting adults.

- ditto for aforementioned consenting adults' use of contraception. May even use non-Catholic-approved (read: actually works) methods oneself.

- support human rights and alleviation of real, material, human suffering (instead of condoning it with mumbo-jumbo about "the mystery of suffering", which is pretty much what you might expect from an institution whose symbol is a representation of its own founder being slowly tortured to death).

Russell Blackford said...

I'm never happy about short definitions of concepts - I'm always mindful of Wittgenstein's discussion of the difficulty of defining even something as simple as the word "game" (or the concept of a game). A lot of these things are cluster concepts, depending more on something like family resemblance than an easily-stated set of necessary and sufficient conditions.

But Eamon Knight's comment gives a pretty good idea of the sort of person that I have in mind.

And, yeah Luke, I was responding to you. Sorry not to be clear.

ausduck said...

I just have to wonder how the proposed OK state law fits in with the HIPAA Laws & Regs over there in the US?
Given that there is sometimes rabid responses against the medical/nursing bloguers who post experiences and anectdotal stories of their work days, all citing possible HIPAA violation, one wonders how an online list of women who have undergone 'abortion' as defined by the proposed law meets the HIPAA requirements.
I'm just curious, is all.
Plus I have to disclose that I have a bias towards freedom of choice :)

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