Legal Commentary

But how could it be "genocide" to abort what is not a human life? Is this not a category mistake? Under the cruel "logic" of abortion rights rhetoric, the fetus has no racial identity, because the fetus has no human racial identity. There is therefore nothing wrong with abortion targeted at specific races. The pregnant woman may have a racial identity, but the aborted fetus has none.
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Abortion-rights supporters dare not admit that the aborted fetus has a racial identity that can be recognized as such or that he or she has a gender identity that can be recognized as such. For that would give away the game.

(By the way, my understanding is that it may be difficult to tell the racial identity of a person just from their DNA if (1) you can't see them and (2) you don't know who their parents are, but I will put that aside for the moment, because I assume that Mike can stipulate that the racial identity of the biological parents is known).

I don't see why there is any puzzle in acknowledging that some fetuses aborted are female and others male, any more than there is a puzzle in acknowledging that some fertilized ova which never implant are female and others male. Indeed, the same is true of frozen embryos in fertility clinics that are never implanted. People speak of the characteristics of such embryos all the time, but this does not commit them to the view that the frozen embryos are living human beings and that disposing of them is murder. (At the same time, the state can restrict who can dispose of frozen embryos-- for example, it can restrict this right to the biological parents.).

No one I know of who supports abortion rights denies that fertilized ova, blastocysts, embryos, and fetuses all have human DNA that codes for/develops as familiar human characteristics. Recognizing this fact does not, by itself concede that fetuses are identical to born infants or that abortion is murder. Nor is there any logical difficulty in acknowledging that a fetus, if carried to term, will be a boy or a girl, white or black.

Mike's second claim, it seems to me, is far more interesting and important. Suppose that some person or group of persons seeks to fund the abortions of poor women because of the likely race of the fetus (based on knowledge of the race of the biological parents) or because the fetus is developing as a female. So, a very rich white man announces publicly that he will pay for the abortion of any black women who wishes to abort her child because he wants to reduce the number of black babies born. Does the logic of abortion rights mean that the state cannot prohibit the funder from offering this deal on these terms, or, what is a different question, that the funder is doing nothing morally wrong in making the offer?

I don't see why the state cannot ban funders with certain bad intentions from making selective offers to pregnant women based on the identity of the child. Surely the state can make it illegal for a private party to give money to a pregnant women to abort a fetus on the basis of the funder's belief (correct or incorrect) that the fetus has a particular racial, religious or gender identity, or likely sexual orientation.

It does not matter that the woman who aborts has very different reasons for seeking the abortion-- for example, that she is emotionally and financially incapable of becoming a mother at this point in her life. We can condemn the funder's action as immoral-- and make them illegal-- even if we think the mother is making a very different and morally difficult decision and is also exercising a constitutional right.

The flaw in Mike's argument, as I see it, is this: selective funding of a third party's constitutional rights does not automatically receive the same degree of constitutional protection (or enjoy the same moral status) as the third party's exercise of those rights. Suppose that a private party offers to perform free sterilizations/vasectomies on blacks but not whites for the express purpose of limiting the number of black babies born in the future. The state may also prohibit this, even if the women and men who would take the money have perfectly good reasons for wanting to choose sterilization or vasectomy, and even if the right to do so is constitutionally protected. The state could well decide that private parties should not be permitted to engage in racial eugenics based on invidious motivations, even if there is a constitutional right for the individuals they fund to choose not to have children.

Nevertheless, behind Mike's hypotheticals is a deeper question: if we don't think that individual decisions to abort are per se immoral, what is morally wrong with private decisions to fund some people's reproductive choices and not others on a potentially massive scale? The answer is that what is morally wrong are certain forms of eugenics. The issues of when forms of genetic engineering are morally permissible are very difficult. However, we do not have to have a general theory of eugenics in order to conclude that it is wrong to engage in private eugenics for the specific purpose of reducing a particular racial group in the population out of a belief in the inferiority or undesirability of that racial group. The same, I would argue, is true of a concerted campaign to limit the births of men or women, gays or straights, or members of religious or ethnic communities. We can condemn such private eugenic campaigns to induce pregnant women to abort as immoral without concluding that all abortions are per se immoral.

Full post as published by Balkinization on April 25, 2008 (boomark / email).