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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).

Saturday, December 25, 2010


As I mentioned yesterday, we are now approaching the climax of the case. The first important finding by the European Court of Human Rights was that the notion of "private life" used in Article 8 of the European Convention was a broad concept, encompassing such things as the right to personal autonomy and personal development generally; gender identification, sexuality, and sexual life; a person’s physical and psychological integrity; and decisions both to have or not have children, or as to whether to become genetic parents.

None of that should be especially controversial and it should be enough to show that a law against abortion is interfering in private life, as understood in European human rights law. But that does not mean that Ireland's barbaric, theocratically-tinged anti-abortion law was simply struck down (as it would be under a truly robust human rights regime). Rather, the court reiterated its earlier view that the woman’s right to respect for her private life must be weighed against other competing "rights and freedoms", including those of the unborn child.

This is, of course, nonsense. An "unborn child", by which the court means an embryo or a fetus, is not the kind of thing that can have rights and freedoms. Until far later in pregnacy than we are talking about here, it does not even possess the capacity for pleasurable and painful experiences! It is not a sentient thing at all. Even when it attains sentience, it is not a person - it has no ability to make plans and decisions, to imagine itself as having a future, or to choose between options. Thus, it has no "rights" that it can either exercise or choose to waive and it has no "freedoms" that could be interfered with by the state or anyone else. Talk of the "rights" and "freedoms" of something like an embryo or a fetus is exactly the sort of facile, shallow rhetoric that we should be trying to keep out of these legal and policy matters.

Might the state nonetheless have some compelling interest in ensuring that all embryos and fetuses are brought to term - an interest so powerful as to justify a legal prohibition backed up by a life sentence? If so, it's difficult to imagine what this interest could be. Perhaps, I suppose, in a Battlestar Galactica situation, with the human species near extinction, it might be absolutely essential that as many babies be born as possible, in the interest of survival of the species itself. That, however, is hardly the situation in today's overpopulated world, and it's hardly surprising that no argument along those lines was put to the court!

Instead, the arguments were about enforcing the popular morality. But that's exactly one of the things that human rights should be protecting us from: from governments that attempt to enforce a popular morality against people, perhaps a minority, who don't accept it, and in the absence of some better reason relating to the secular welfare of its citizens, or perhaps of other sentient creatures, or to social survival, or some such thing. Something should be identified that could be accepted by people with a wide range of worldviews - religious, anti-religious, etc. - as being of compelling interest to the state and its officials. But of course, nothing like that was ever identified.

In the event, the court found against applicants A and B on the basis that the degree of interference with their private lives was provided for by law and was based on the Irish majority's, ahem, "profound moral values concerning the nature of life". But this is, again, nonsense. No government should simply be imposing the moral values of the majority, whether "profound" or shallow and superficial (as was obviously the case here). Governments in Western democracies should, on the contrary, be ensuring that both the majority and the minorities are able to live in accordance with their respective moral values. The government is not there to decide the correct moral values, all things considered, and impose them on those who disagree. It has more narrowly worldly, more mundane, tasks such as trying to maintain internal peace; defending against external aggressors; establishing a system of property, ownership, and commerce; providing an adequate economic safety net; and taking over such other secular functions as are entrusted to it democratically (for which it will need to raise taxes).

I must pay my taxes and comply with other elements of the secular law such as described in the previous paragraph, but that's all. The state should not be interfering with such private moral decisions as whether or not I, or my spouse or lover, will have an abortion. That is not the state's business. The most it should do is regulate abortion providers, much like other operations, to ensure that adequate standards of safety and competence are met.

Obviously this is not how it's seen in Ireland, where the government and the electorate apparently think it's okay to impose the majority's supposedly "profound" moral viewpoint, even to the extent of imposing a life sentence behind bars on those with the temerity to disagree. That is tyranny of the majority, not liberal democracy in action. Ireland is, to an extent atypical of countries that purport to be liberal democracies, heavily biased towards a theocratic approach that obviously has much popular backing.

Moreover, there's not much that European human rights law can do about it. To a large extent - not totally, but to a large extent - European human rights law is a toothless tiger, and this case demonstrates the point.

The one thing that can be said in favour of the European Convention and the European Court is that the latter gave an indication that it might not have been prepared to accept the Irish law if not for the safety valve that Ireland allows women to travel to other countries to obtain abortions. Ireland does not attempt to prohibit its citizens from having abortions in foreign jurisdictions where they are otherwise legal.

But in any event, applicants A and B failed. As the court put it:

Accordingly, having regard to the right to lawfully travel abroad for an abortion with access to appropriate information and medical care in Ireland, the Court does not consider that the prohibition in Ireland of abortion for health and well-being reasons, based as it is on the profound moral views of the Irish people as to the nature of life (paragraphs 222-227 above) and as to the consequent protection to be accorded to the right to life of the unborn, exceeds the margin of appreciation accorded in that respect to the Irish State. In such circumstances, the Court finds that the impugned prohibition in Ireland struck a fair balance between the right of the first and second applicants to respect for their private lives and the rights invoked on behalf of the unborn. (para 241)

On the other hand, applicant C succeeded in her case against Ireland. We'll get to that next time.


Anonymous said...

"This is, of course, nonsense. An "unborn child", by which the court means an embryo or a fetus, is not the kind of thing that can have rights and freedoms. Until far later in pregnacy than we are talking about here, it does not even possess the capacity for pleasurable and painful experiences! It is not a sentient thing at all. Even when it attains sentience, it is not a person - it has no ability to make plans and decisions, to imagine itself as having a future, or to choose between options. Thus, it has no "rights" that it can either exercise or choose to waive and it has no "freedoms" that could be interfered with by the state or anyone else. Talk of the "rights" and "freedoms" of something like an embryo or a fetus is exactly the sort of facile, shallow rhetoric that we should be trying to keep out of these legal and policy matters."

You keep trying to harp on the point that it's just ridiculous to even think that at some point in a pregnancy that the foetus might have rights, and that it's only shallow reasoning or rhetoric, but it's hard for me to see your justifications for the position that a foetus is not a person as being any better.

Take this latest one. You argue that it doesn't feel pain or pleasure until later in the pregnancy, but if that was the measure for personhood the issue would still come into play at some point in the pregnancy, so you should have a different opinion on late-term abortions. And when you accept that it's sentient at some point in pregnancy, you still try to ensure that it's never considered a person by then turning to arguments about how well it can plan, or choose options. But the problem there is that an infant doesn't seem to have that any better, nor do some developmentally challenged individuals, and yet we certainly consider them people and deserving of rights and deserving to have their rights -- including the right to life -- protected.

And the big issue here is that your argument really seems predicated on that argument: that the foetus in no way should be considered a person and so Ireland's laws are completely ridiculous and an imposition on the rights of the woman. But they disagree, and I don't see it being as clear as you do that the foetus should not be considered a person. If it is to be considered a person, all of its rights need to be considered as well. They think that true, you think it false, and I think it unclear who's right, and I think your own argument here reveals why it's actually complicated.

You could take another tack and argue that even if the foetus is a person, the rights of the mother to her bodily integrity trump its right to life. This would resolve all your problems, but that you seem unwilling to do that suggests that you don't think that true.

And finally, note this point:

"The state should not be interfering with such private moral decisions as whether or not I, or my spouse or lover, will have an abortion."

In most jurisdictions, and by the argument you give, you have no say in whether an abortion occurs or not; the choice is entirely the woman's. By your arguments, this is right, but it weakens this comment about state interference, and you'd also have to note that the state has an obligation to protect the woman from any attempt of yours to impose your choice on her.

Russell Blackford said...

There's nothing even that complicated about it. Once you think about it at all, you realise that the fetus is not sentient until late in the process so it's not even an appropriate object of sympathy, let alone a person. And it is never a person, at any stage of the gestational process; it's as simple as that. That is simply an empirical fact.

And your last comment makes no sense at all.

You sure know how to take up a lot of space with utter drivel. I guess you like being verbose, given the name you hide behind, but ... sheesh.

Anonymous said...

My, aren't we full of the Christmas spirit?

Anyway, there problems with your arguments for why the embryo/foetus doesn't have rights to protect.

For the first, as I already said your first argument about sentience -- which you did repeat in your reply -- means that in the late-term the rights of the foetus would have to be considered, and it would have rights, if you mean that to be definitive. You don't seem to think that that should apply, so you added in your second argument.

Your second argument -- which you didn't mention -- is about it not being able to plan, imagine a future, or choose. The problem here, as I stated, is that this would apply to infants and developmentally challenged people as well. Now, most people grant them rights, and I'm pretty sure that you don't support parents being able to choose infanticide, so that doesn't seem to work as a definition either.

So, are your arguments that much more profound than the ones you criticize? It doesn't seem likely.

Let me toss this at you to consider:

I argue that what should define a person is being in a stage of a legitimate and natural development cycle of something that is a person. Thus, for humans, that would be from conception to the grave, no matter what happens to them in the meantime. The reason I would argue this is because the definition of person -- as you already know -- is unclear and slippery; even if we could define clearly what's required, what do we do about deficits? Partial rights? No rights? Or what? If we don't do this, we run the risk of not protecting the rights of something that really should have them. So, we just take it all the way.

Now, the answer to some of the issues here is that rights are not absolute, but must be balanced against other rights. So in some cases we will accept that the rights of anything in one of these stages might be suspended or put aside to protect other rights that take precedence in those circumstances.

Directly relating this to abortion, then, if you take the option that I already suggested and argue that the woman's right to control over her own body would always trump a foetus' right to life, you'd have abortion protected regardless of the status of the foetus and what rights it has.

As for my last point, the first purpose of that was to tweak you a little bit over the fact that you, as a man, don't actually have a protected choice in the matter, but it became more useful and meaningful when I could point out that you were decrying state interference while in most jurisdictions the state must protect the woman from you imposing your choice on her, even if that's just by being too coercive in the matter. Because it's a rights issue, the state must get involved, and so if there's a rights issue for the foetus -- which you disagree with, I know -- then it would have to intervene as well. And if it isn't a rights issue, then it really doesn't matter at all.

(And as for the name, you could find out my real name with, oh, two clicks and some reading. If I'm hiding, it's not very well [grin]).

Russell Blackford said...

Then why hide at all? When someone spends as much time as you do hanging around arguing the toss at a blog where you are fundamentally out of sympathy with the views of the blogger, it looks obsessed and creepy. When you do so while hiding behind a pseudonym it looks even creepier.

Look, Article 8 gives political rights/freedom to people who are capable of exercising them. You can't exercise that sort of right, which is what we're talking, about if you do not possess a certain level of cognitive capacity which includes and goes beyond what people like me and Singer mean when we talk about "personhood" (using a conception of personhood that goes back at least to Locke). For a court to talk about balancing the rights of a woman (in this sense of "rights) with the "rights" of a fetus is comparing two different things and equivocating about what we mean by "rights".

I freely agree that very young children and very cognitively damaged adults can't possess rights in this sense, either. That's hardly a surprising conclusion.

Of course there may still be reasons (even very strong reasons) why very young children and cognitively damaged adults should be protected from being killed, having pain inflicted on them, etc., and why we should treat them kindly. But that's different thing.

There are obviously reasons for laws that forbid damage to or destruction of certain things that are not even sentient and cannot possibly exercise rights. I have no problem with laws that forbid the destruction of other people's property or of the environment or of treasures such as the Mona Lisa or the Tule Tree. But that is nothing to do with those things being the sorts of things that are capable of exercising political rights and freedoms.

So, yes, I don't rule out that there may be reasons to prevent the destruction of an embryo or fetus in some specific circumstances, or to ensure that the destruction of a sentient fetus is carried out quickly to minimise any suffering, or to prevent us using some kind of science-fictional device to torture a sentient fetus in the womb.

But that is not what we're talking about or what Ireland has done. It has banned all abortions, unless the woman's life is in danger, with a life sentence attached. And it has offered no good secular reason to do so. It's not enough to say that the embryo or fetus has a "right to life" to be balanced against the right to personal privacy of the woman. You have to say, instead, why the political right accorded by superior law to the woman to make such highly personal decisions for herself should be infringed by some compelling interest that the state has to protect all embryos and fetuses from destruction and/or ensure that all pregnancies are brought to term. No argument remotely like that was put in the case.

Russell Blackford said...

I understand Judith Jarvis Thomson's argument and have long been familiar with it. Of course I could argue something like that as a back-up, but frankly I think Thomson concedes far too much for the sake of argument. We don't need to get anywhere near the issues she discusses (except, of course, if we're teaching the range of arguments to undergraduates). An embryo or a fetus is nothing like an adult violin player.

I'm still confused about your last point. I don't see it as a rights issue (in the sense of "rights" that we're talking about here) at all. If I try to impose my will on a woman by, say, assaulting her, threatening her, or imprisoning her, I can be charged with assault or battery or false imprisonment or some similar crime. I'm doing something that the law prohibits for very powerful reasons that have nothing to do with the woman's political rights and freedoms. You don't even need to mention the word "rights" to give a rough but essentially correct explanation as to why we would want laws that protect us against assault and battery and the like.

Most rights talk is nonsense on stilts. It does make sense to assign certain kinds of legal rights under various circumstances. Those may be, say, contractual rights against other commercial parties, or they may be the sort of political rights and freedoms that we're discussing here. But much rights talk just creates confusion and leaves the deeper issues untouched. It distorts and obscures what is really at stake.

Anonymous said...

I'd like to split the two replies you made into three replies of mine to focus things better. So the first is on the pseuodonym.

Why do I use it? Well, when I first started blogging I wasn't sure I wanted people to be able to find my name -- for various reasons -- but then found that a lot of people didn't like someone posting comments without a name handy, so I added the name. I like the handle, though, and don't want to change the blog name. I guess I could use the name with the blog link, but that may not work so well with the automatic Wordpress linking, which I find very convenient.

As for why I spend so much time on a blog where I disagree so much ... well, blogs that agree with me are boring, and I don't learn anything from them. I enjoy discussions in the comments -- even on mine -- and never post "Good point!" posts because I find them trite and useless.

By your standard of "creepiness", I should find Kirth Gersen creepy since he only posts to disagree with me. But I welcome that; I'd rather people disagree with me productively than agree with me.

But, you make a comment about how much time I'm spending, but until the 25th my previous comment was on Tom Clark's views of free will, and more disagreed with him than with you. That was on December 8. The one before that was December 2, with the Tom Wagg stuff. I can't think of when I commented before that, but you have three threads in a month, buried across at least three pages of your posts. That's not that much really, is it?

Anonymous said...

Now, onto the rights thing.

This one might be short: I don't think that saying that something only gets their rights protected if they are cognitively able to exercise them is a good idea, especially with rights like right to life that you don't actually have to exercise. I find the whole idea of arguing for the compelling reason to protect infants and the developmentally challenged both disturbing and likely to be reading in rights; we look for reasons to protect them because we think they are protected, but the definition of rights that people are using to do things like support abortion would preclude it. It strikes me as a retreat position, and while you'd have kudos for biting the bullet, that biting doesn't address the real underlying issues.

One issue from your previous comments is that Ireland seems to be claiming that they grant rights to the embryo/foetus because most of their society thinks it should, morally. For simple legal rights, that's sufficient; a democratic government can indeed say that they give it rights because their populace thinks it has them. That rights can then be balanced should protect the woman's rights as well. And the reason is even secular, since even though the reason most people think the embryo/foetus has rights is not secular, settling it by appeal to the populace is secular.

It's just probably not a very good way to do it [grin].

And with some room left, let me just the whole thing off:

I pretty much agree with you on rights; I think rights-based approaches bad and problematic. I only replied because your argument did rely on the embryo/foetus not having any, and at that point it needs to be clear what rights-based advocates are actually claiming/committed to.

Thus, the comment about coercion: rights-based advocates have argued that any unreasonable restriction on a right cannot be allowed. So government funding here has been "justified" by that sort of argument (privately, not publicly). My interpretation of some of those arguments is that it might be considered an unacceptable infringement on her right to choose if, say, her parents were funding her education and say that they'll stop doing that if she gets an abortion. I don't agree, but there have been some arguments on that score.

So, it's less than just illegal threats or violence, but any form of strong coercion. Which, I agree, adds to the muddle that is rights-based arguing.

Finally, I kinda invented the "developmental argument" while out for a walk, and wasn't aware that she'd argued that. But it's possible that I'd read it somewhere and this just made it bubble up to the surface.

Russell Blackford said...

Okay, okay. Look, I do find it a bit creepy. However, I may have misread the tone of your first comment so (conditional on that being the case) I apologise for that much.

BUT, you seem to me to engage in an uncharitable reading of the original post, and you often seem to do that - you feed back arguments (and supposedly refute them) that you say I've made but which I don't recognise as my own, and you put things in a way that seems to impute bad faith on my part, e.g. by telling me what "I try to ensure". I assure you that I don't come here to put arguments in bad faith.

The combination of these and other aspects of how you comment often makes you look like you're here to stalk and heckle.

However ... if you say that you genuinely frequent blogs where you disagree with the "line" as a way of learning, I think I should at least try to accept that explanation. I'm requesting that you assume good faith, so I should do so as well.

At least until next time.

Russell Blackford said...

To be honest, verbosestoic, I often struggle to understand what you think the argumemts are. I'm really struggling with what you're trying to say in the first para of your latest comment. E.g., you say there is something "disturbing" about asking what our reasons are for protecting infants and the "developmentally challenged", but asking "disturbing" questions like that is what we do in moral philosophy. One reason (not the only one) might be as simple as that infants and the "developmentally challenged" arouse our sympathies. I'm enough of a Humean to think that that alone is a perfectly good reason to provide protections - as opposed to giving rights. "Rights" have nothing to do with it, once you look at the situation closely.

But if you disagree about the sympathies point, then you had better ask yourself whether we should treat them kindly after all. Maybe it'll turn out that you actually don't have a reason to treat them kindly, even though other people do (and are horrified by the relevant acts of unkindness). I suppose you might find that a disturbing conclusion, but philosophers should be open to reaching conclusions that they find disturbing.

But sympathy is not such a good reason where abortions are concerned, partly because most abortions (including the ones in the case we're discussing) involve embryos at a stage of development where sympathy would be inappropriate, as the embryo is not yet sentient. Another reason is that we simply don't have the same kind of sympathetic response to a fetus as we do to a fully-formed baby or to a cognitively impaired adult human being. A legal response based on human sympathies would only be appropriate, if at all, at a very late stage of pregnancy.

And in framing the law you need to factor in that very few women want very late abortions without some truly compelling reasons related to their own health. Is there really a mischief to be addressed by the law here?

However, we both seem to agree that treating the question of how we should act towards embryos as a matter of rights is a misleading approach. At least I think that's what you're saying.

I'm puzzled by your claim that having the support of the populace for action A is a secular reason for the government to carry out action A. I'm sorry - I'm trying to avoid snark here, really - but if you think that your understanding of liberal theory is so wanting that I hardly know where to start. Liberal theory is about limiting what the government can do even if it is backed by an electoral majority. It has to justify its laws, especially laws that coerce how people live, as opposed to just creaming off some taxes from them, by giving some additional reason above and beyond, "This is what the majority want."

Surely you can see the problems with accepting "This is what the majority want" as a good secular reason? For one thing (but not the only thing), the majority may well be motivated by a religion. In that case, allowing such a populist reason immediately allows the majority to impose its religious views on an unwilling minority. But this is exactly what we've been trying to get away from for the past 350 years.

But you really need to go and read or re-read Locke, Mill, Hart, Raz, Rawls, (Ronald) Dworkin, and so on. I can't write a book about it here.

Anonymous said...

Well, I'd made a long post yesterday but it looks like Blogger ate it, and I'm too lazy to type it all out again, so here's the short version:

1) I'm more disturbed by an answer to discussions about protections that says that you and I have an innate protection but that we have to justify such protections and give different reasons for infants and developmentally challenged people. It might be right, but I need a lot of arguments to accept that which strongly violates the moral intuitions of most people.

2) Being Stoic and Kantian leaning, I'm not convinced by sympathy arguments nor by appeals to liberal theory.

3) I agree that democracies must protect the minority, but democracies are based on doing the will of the people as determined by the majority. One must be careful when one tosses out majority opinion if one wants to maintain a democracy.

4) I agree that personhood is not an issue of majority vote only because I think it's a more fundamental moral/legal determination, and so can't be made at that level. I don't see any reason to consider issue with interactions with those that are already considered to be people when considering what is or isn't a person; the normal way of settling "rights clashes" will apply if the protections granted to the new group given protections clashes with those of others.

Russell Blackford said...

I can't find any other post by you in my spam folder.

Okay, I'm going to be as nice about this as I can. Rather than saying what I really think of people who are motivated by abstract, supposedly "moral" principles (Kantian, Stoic, or whatever) rather than by a mix of sympathy or compassion for others and a love of individual liberty, I'll just observe that your starting point, as you've just semi-explained it, is so remote from mine that I doubt we have much to talk about.

From my viewpoint, some of the things you say in your latest comment seem bizarre. E.g., I have no idea what an "innate protection" is or what it has to do with anything. I never claimed anything about "innate protections".

Really, your point 1. just makes no sense in my world, and I'm totally unimpressed by (what you take to be) the moral intuitions of most people. I'm interested in getting people to doubt and interrogate their moral intuitions - to go deeper and ask themselves whether their intuitions are rationally justifiable - not in trying to rationalise them, let alone in using them as some kind of foundation for further thinking.

Your point 2. just states that we have absolutely nothing in common in our starting points.

Your point 3. couldn't be more wrong. Exactly the opposite is true: in a liberal democracy we must be very wary of imposing restrictions on people's freedoms merely because they are desired by a majority of voters. Majoritarian tyranny is the danger that we need to guard against constantly once we have a democratic system.

But look, your comments always seem bizarre to me. You invariably seem to be making all sorts of background assumptions that I don't make and which you never try to identify, let alone justify. I accept, of course, that no one's fundamental assumptions can be justified all the way down to even more fundamental premises that will be accepted by all comers. But it would be good if you took the same lesson to heart and thought through its implications for your philosophical project.

I'll accept that your various comments probably make some kind of sense within your own system of thought, as my posts do in mine. And I'll pretty much leave it at that.