In the pragmatic economic game of law and politics, of academic "ethics" there is seldom if ever a call for a generous extending of a benefit of doubt

IT IS INEVITABLE in doing this kind of commentary on a half-hour or longer lecture that, for reasons of length,  some of the breaks taken in the text work better than others.  Ideally Hauerwas's discussion of "meta-ethics" would have all been presented together but I decided to break it where I did.  Having done that I'll make use of it.  He continued:

My other worry about rights language is the moral psychology that is often presumed by those who use that language.  It was not by accident that I came to terms with some of the problems of rights language was in testimony before a congressional committee on experimentation with children.  

In a theory of justice John Rawls had admirably acknowledged that at least in relationship to  animals his account of justice did not require those lacking a capacity for a sense of justice were owed strict justice.  Rawls was clearly making a point about his understanding of justice but many draw a similar conclusion about the capacity which must be present in order to claim rights. The congressional committee therefore had trouble explaining why we should protect children against experimentation because children did not have the moral psychological capacity to claim rights.

Questions of the moral psychology necessary to claim rights are particularly important for how one thinks about the morality of abortion.  If the fetus lacks the characteristics necessary to be a person and is therefore not capable of being a rights bearer does that mean that abortion does not need to be justified.  Or even more radical, if the fetus lacks the capacity to claim rights do we need the language of abortion at all? "Termination of pregnancy" is a description that seems perfectly adequate if the fetus has no rights.  Of course, "termination of pregnancy" suggests that this is purely a medical procedure that raises no moral questions at all.

Perhaps like Hauerwas, I would be extremely skeptical about any philosophical position that rests on claims of any kind of psychology, whether a general demotion of the thinking of even very young children based on something allegedly like real science, which psychology is not and never has been, or on the assumptions of philosophers who have a really bad track record of evaluating the minds of children and animals to the highest significance in ways that are most congenial to their colleagues who want to do things like experiment on them or to fit with their own ideological preferences.  Pretending to use an alleged science, psychology, to do so only serves to cover up the real motives behind it.  The history of the use of science to commit crimes is full of that practice.

I do not recall those congressional hearings - and I was quite a junkie for that kind of thing in the past - but I would wonder exactly when a Congressional Committee based their deliberations on the musings of someone like John Rawls. I would ask just how that position on who is NOT due justice on the basis of their alleged incapacity to sense something like justice really works.  Certainly you cannot talk about "justice" as if its existence was an either-or thing, it is far more complex than that.  The benighted sense of "justice" mentioned yesterday that Robert Taft expressed and John Kennedy praised was such that it would have allowed letting off some of the worst crimes against humanity ever committed because the criminals had legalized them in the Nazi regime but I doubt John Rawls would have ever questioned the intellectual capacity or "sense of justice" of either Senators Taft or Kennedy.   Certainly not in the way I would, though I would never claim that either of them were rightly held to not have a right to have justice done to them, as I would not claim that the worst of the Nazi war criminals whose "sense of justice" is demonstrably lacking were not due a judicial hearing.  I would have not executed them being morally opposed to the execution of those not a present and serious danger to the lives or safety of others as those held in confinement are not.  Though I will confess that them being executed leaves me without any feeling of pity or, really, any negative feelings.  Their executions may be said to leave me with a sense of justice, though under my moral sensibility, I  shouldn't feel that.  To introduce another complication into the question of such vague, fugitive and elusive senses as a basis for who is due justice and who can safely be removed from that protection, who can be held to have rights and who cannot.  In the pragmatic economic game of law and politics, of academic "ethics" there is seldom if ever a call for a generous extending of a benefit of doubt.  Any talk of a "moral sensibility," especially in terms of justice which doesn't start with a sense of it for others, especially the least among us, strikes me as abortive and incomplete and bound to come out in the worst possible places.

If such philosophical musings led to members of Congress puzzling over whether or not children should be the raw material of researchers I'd think they'd do better to consider other areas of thought.  Though exactly what researchers wanted to do to them would make different kinds of research  have quite different characters as to moral or legal problems that arise from the general idea that would be what a law or regulation would be.  The terrible use of children and even older people in some pretty stupid and absurd psychological and other research which had no actual use that might justify risking that abuse should always put the burden of proof that no harm will be done on those who want to profit from doing the research.  And researchers ALWAYS plan on profiting from their research.  The supposed benefit against risk of harm to the child is certainly more likely to come out with a right choice with others than either the ill founded nonsense of psychologists, psychiatrists or their allies in branches of gross speculation prefixed with neuro- or cog- or the ideological program of a philosophy professor whose discernment is lax enough to consult those, deciding that.  I wonder what someone like Jonathan Kozol would say about that in a long discussion of the issues, perhaps as a middle position.  

Me, I'd trust the professionally or academically uninfluenced moral sensibility of twenty randomly selected people with no financial, professional or ideological motives who liked children and had some experience of them more than an entire board of high-status psychologists and philosophers to make such decisions.  Having read a number of current high-status ethicists, there is no branch of the philosophical trade I'm more skeptical of.

As to the question of the status of the psychology of the fetus in discussing the moral nature of abortion, that is, of course, unknowable.  Unlike children we have little to no evidence they do have psychological states.

The moral status of abortion in the abstract, as ironically Hauerwas must discuss it in a lecture like this, does what he warned about, abstracting morals or rights from "the practices they depend upon for their intelligibility from real life," and there is hardly any such issue, set in the very bodies of Women who make very different choices for themselves, in which such a removal from that most basic fact is typical of at least one side of those discussing it. Trying to use the typical tools of modern intellectual discourse which seeks a generalized truth is one thing, the question of what to do about it when it is very real and particular in its setting IN THE BODIES OF REAL WOMEN who make different choices in their use of their own bodies makes the legality of abortion quite another thing.  

If someone is opposed to abortion the only ways to prevent all of them - short of internment of all pregnant women in prisons or concentration camps -  whether legal or illegal, is to:

a. convince a pregnant woman who is willing to be convinced to maintain a pregnancy that she can carry to term, not an especially effective means of preventing most abortions and more likely to invade her privacy so the attempt will lead to to resentment and controversy that overshadows the intent.  And hard experience shows it will lead to violence against those who choose abortion and those who provide medically sound, safe abortions.  As Sheldon Whitehouse has pointed out that organized harassment of Women at health centers is related to the history of attacks on those inside those health centers.  

I will point out that the very same people who oppose abortions being safe and legal are very often those who so notably want to provide no financial support or services to Women and children and, for that matter, fathers who are the result of their legal policy.  Services which might serve to lessen the choice to have an abortion, another enormous lapse in the integrity of the anti-abortion side of things.  I guarantee you that I can accurately predict where the six Republican-fascists on the Supreme Court would come down on most if not all proposed spending bills to provide that assistance and it would not be on the side of children, women and their families.  We know where the anti-abortion side in the Congress, state legislatures, governorship and the presidency have been on that and they are the ones who slashed such funding and opposed raising it, not generally those who favor Women being the ones who make the choice of whether or not THEY will bear a child.

or

b. preventing as many unwanted or unwise pregnancies as possible, to promote a nation-wide, ubiquitous and effective media and public health campaign of effective contraceptive use which will greatly diminish the number of unplanned, unwanted pregnancies such as some of those in countries that do a far better job of that than the United States does, many of them also having legal abortion.  There was never any bar on those opposed to abortion taking this route for any of the years Roe was the law when they claimed they wanted to prevent legal abortions, there isn't now when illegal abortion and crisis ones are what will replace it. Such a reduction in the need or demand for abortion is the best  you're going to get, not an effective prohibition on abortions.  To demand what you can't get when you could try to get the other discredits the intentions of those who oppose legal abortion.

The moral status of an opposition to such a program of reducing the desire for or need for abortions is certainly far more worth discussing than the psychological status of fetuses or to pretend that a ban on abortion does, in fact, eliminate abortion.  Anyone who opposes abortion as immoral who does not favor such a program being up, in place and tweaked for maximum effectiveness is a hypocrite who deserves to have their motives and their sincerity questioned at every turn, whether as a philosopher, a theologian or any other identity.  

The moral questions being asked in this lecture on the matter of abortion are the wrong ones but, then, that has been characteristic of the arguments about abortion for the entire period it has been under discussion, not a little of that wrongheadedness due to the fact that men have been the ones conducting most of the discussion.  I think it was unfortunate that Stanley Hauerwas introduced it so heavily into this discussion because of all of the reasons above and for the ones I went into yesterday.  I think it distracts from some of the very important questions he brought up about the problems of "rights language" though if he feels the way about abortion he seems to, it is probably to be expected for him to see it as he does.

Those who oppose the legality of abortion and wish to see it made illegal should never be allowed to pretend or forget that even when abortion was nearly universally illegal and almost no LEGAL abortions were performed in the United States there were enormous numbers of illegal abortions performed and many Women were killed or maimed, tortured, traumatized and otherwise harmed in it.  Banning abortion has never meant there would be no abortions, it meant that abortions were performed and many of those were unsafe at the least and deadly at the worst.   

The very same people who opposed abortion being legal in that time and many today are exactly the same people who prevent an effective promotion of the use and availability of contraception which is the only way to prevent most abortions though not all of them.  Even the most unacceptably punitive bans on abortion will not stop all of them or even many of them.

A large number of abortions are medically necessary even when the pregnancy was welcomed or planned.  A number of them are necessary when Children and Women are raped and become pregnant, as we have already seen within weeks of the Roberts Court allowing Republican-fascist run states to ban abortions.  

The weeks since then have already started the horror stories of what happens when doctors and hospitals and others have to wait till a woman's life is in danger enough to keep a prosecutor on the make from using even life-saving abortions as a stepping stone in their career in a Republican-fascist state or district.  The morality of such opportunistic prosecutions of women, some of them having had quite involuntary miscarriages or having been through a hellish medical disaster is far more urgent a topic for discussion than some of the questions asked in the passage above.