A Response to Steve McIntosh’s “A Proposed National Agreement on Abortion”

On July 10 Steve McIntosh published a position paper on the Institute for Cultural Evolution website titled “A Proposed National Agreement on Abortion.”  I’m a fan of the Institute and agree with most of Steve’s ideas.  Not this time.  SM’s proposal for a national compromise on abortion is a noble effort toward resolving a supremely divisive issue that cannot presently be resolved politically, as he himself admits.  However, his approach is seriously flawed in several ways.  Despite this, his claim that a “trimester model” can be the basis for compromise is worth looking at for sharpening our understanding of a number of concepts involved in the abortion rights debate.  Here is what SM's trimester model looks like:

Despite the odds against the project, as an integralist, I support SM’s aim of finding a solution that would be acceptable to all the major stakeholder groups in the battle over abortion rights: traditionalists, modernists, and progressives. However, I have problems with the initial premises of his proposal and with his belief that it actually produces wins that each faction could accept.  For those who don’t like lengthy posts, I have divided my response into four parts

1.  Was the Dobbs ruling legitimate?

Early in the essay, SM writes:

“While I would prefer the preservation of the rights interpreted by Roe, I agree with the court’s majority opinion that the original Roe decision itself was a “raw imposition of judicial power.”

SM’s agreement with Justice Alito’s characterization of Roe as a “raw imposition of judicial power” implies that he accepts the legitimacy of this Court and its ruling in Dobbs v. Jackson’s Women’s Health Organization.  Many, including myself, do not for several reasons.

· First, Merrick Garland should be on the Court.  That he is not is owing to the self-appointment of Mitch McConnell to the position of King of the Senate by which usurped authority he denied even a hearing to Barack Obama’s nominee, Garland, in 2016.  

· The three justices appointed by the Trump administration were confirmed by a corrupt process in the Senate.  Over the next four years, the McConnell-controlled Senate confirmed three of President Trump’s nominees, all of whom had been selected for their commitment to overturning Roe v. Wade.  That’s not how the system is supposed to work. 

· All three of those justices lied in their confirmation hearings when questioned about where they stood on Roe v. Wade.

· The reasoning behind Dobbs, written by Justice Alito, has been shredded by numerous legal authorities.  See, for example, this interview with health law expert Joanne Rosen.

· Justice Sonia Sotomayor, writing for the three liberal justices, correctly chastised the conservative majority for undermining the legitimacy of the Court with their decision in Dobbs to overturn Roe v. Wade, relegating women to the status of second-class citizens and opening the door to elimination of other basic rights.  Let us also note that this is the first time in Court history that a ruling eliminates a right instead of protecting one.  Talk about “raw imposition of judicial power.”

2.  Some logical problems

“As the Dobbs ruling explicitly acknowledges, by placing the issue of abortion beyond the democratic process, Roe has been a contributing cause of America’s bitter culture war for nearly 50 years.”

That’s true, but it’s rather like saying that Brown v. Board of Education has been a contributing cause of the white backlash against it.  The other contributing cause of America’s “bitter culture war,” of course, is the 50 year campaign by the Christian right to overturn Roe v. Wade.

“Any proposed compromise, of course, must answer these questions: Why would the   pro--life side agree to a compromise when they have just won a major legal victory? Because 61% of Americans believe in the right to an abortion.” 

This is odd reasoning.  If the pro-life side had any regard for public opinion on this issue, they would not have worked tirelessly for decades to thwart the majority by eliminating Roe.  Moreover, it is clear from the right wing’s activities since Dobbs (activating trigger laws, seeking restrictions on women’s travel rights, pushing for a federal ban on abortion, etc.), that they are not interested in a compromise of any kind. Most of the anti-choice states won’t even allow exceptions for rape or incest.  To attribute democratic principles to the anti-abortion crowd is wishful thinking.  So why would the “pro-life” side agree to a compromise after winning a major victory?  They won’t.

“Conversely, why would the pro-choice side be willing to compromise on this cornerstone of women’s rights?” 

Pro-choice advocates will point out that Roe v. Wade was the compromise.  It affirmed a woman’s right to an abortion along with the establishment of a viability criterion that protected fetal rights after six months.  That restriction did not please pro-choice advocates who favored no restrictions at all or critics who disagreed with the timeline.  But, with the passing of time, it came to be accepted by a majority of the population.  Perhaps SM’s argument is that a better compromise is available, one that represents a win-win-win for all concerned.  We will see if that is the case.

3.  Protections of fetal rights

“The ethically evident right of a viable 3rd trimester fetus “to be born” is not protected by federal law. In the 6 states (plus Washington D.C.) which have no gestational limit on abortion, the life of such a sentient fetus can be legally terminated at any time before it is physically separated from its mother at birth….The rights of a viable 3rd trimester fetus are, however, well established in secular ethics.

The reference to an “ethically evident right….” is problematic.  One reason “the right of a viable 3rd trimester fetus to be born is not protected by federal law” might be that it is not “ethically evident.”  Indeed, there is no philosophical consensus on the question, because whether the fetal baby is a person and therefore entitled to rights is hotly debated in the literature.  McIntosh would rather not deal with the ‘personhood’ issue, but it seems impossible to avoid it.  Until the issue is settled, there will be a considerable number of modernists and progressives who will reasonably disagree with SM’s “compromise” solution.  The Wikipedia page he cites in support of his claim that “The rights of a viable 3rd trimester fetus are, however, well established in secular ethics” contains no mention of a  philosophical consensus on the issue.  Quite the opposite, in fact.  There is even debate among secular ethicists about whether even newborn infants have a right to life. 

4.  Protections of States’ Rights

“As mentioned in the introduction to this paper, when it comes to the issue of abortion rights, the tension between majority and minority interests exists at multiple levels. At the highest collective level, this majority-minority tension is seen in the fact that a clear majority of Americans favor the abortion rights provided by Roe. Yet in a minority of states, most voters continue to oppose abortion rights.  At the next level down, within these pro-life states, the numerous women who will now be denied the right to an abortion represent a valid minority interest which the overturning of Roe extinguishes. And at the individual level, based on the “right to be born” argument set out above, a viable fetus has a similar yet countervailing “valid minority interest” with respect to the mother’s ‘majority rights’ to life and health.^”

In this section SM’s proposal to include the (mostly southern) anti-abortion states in the category of minorities whose interests need to be “balanced” with those of women and fetuses is shockingly misguided.  “States rights” was the clarion call of slaveholding states who battled mightily—eventually in a civil war—to have their “right” to own slaves protected in the Constitution.  The 13th and 14th Amendments to the Constitution established that the question of slavery in the US is not a matter for decision by majority vote.  Personal freedom from enslavement for all Americans is a fundamental, not a negotiable right subject to balancing against other interests.  I assume that, if today a majority of a state’s citizens favored reinstatement of slavery as a right, SM would be opposed to any attempt to change the Constitution in the direction of some kind of slavery/freedom balance.

This way of framing the debate is mistaken.  Abortion rights is not a majority/minority issue.  It is about fundamental rights and those accrue to individuals, not to groups.  Women are not a minority interest group, nor are human fetuses.  Each is an individual whose individual rights are at stake.  Roe v. Wade ruled that a woman’s right to an abortion is, like personal freedom from enslavement,  fundamental—yes, subject to certain restrictions, but those are to be established by Congress or SCOTUS, not by the states.  That certain states have a majority that oppose abortions is irrelevant to the issue.  The stakes are not merely theoretical.  Already we have seen what misogynistic state legislatures, thanks to Dobbs, intend to do with their newly awarded “states’ abortion rights.”

Because health and life are universal values, there is no philosophical case for “states’ rights” in the matter of abortion law.  In integral terms, states are subholons to the national holon in all matters specified by the Constitution and federal law.  The subholon must not be allowed to subvert the purpose of the higher level holon by undermining or usurping its legislative authority.  That’s the principle behind Article VI of the US Constitution, the “Supremacy Clause.” The protection of women’s rights to healthcare and bodily autonomy is a national purpose.  Similarly, because life is a universal value, the interest in protecting fetal life is also an item of national purpose, not any individual state’s.  Therefore, states’ rights should have no place in any new national legislation on abortion rights. 

 Conclusion

The Supreme Court’s ruling in Dobbs was a terrible decision, and McIntosh should have said so, a judgment that would have enhanced the appeal of his ideas.   Apart from that, SM’s proposal for a national agreement on abortion rights is on solid ground only with the first term of his trimester model—the “civil right” of a woman to an abortion during the first 15 weeks of pregnancy.  The rest of the model is severely flawed: constitutionally, because it presupposes the legitimacy of the Dobbs ruling; and logically, because it commits the category mistake of linking women’s rights and fetal rights with states’ rights.   Politically it has no future, because neither traditionalists, modernists, nor progressives could ever accept the proposed compromise as a win.  Much as we might wish otherwise, a win-win compromise on the basic issue—does a woman have a right to an abortion—has never been possible.  Integral philosophy tells us that there will always be a significant segment of the population who become stuck at an absolutist stage of moral development.  That’s the religious right-wing.  They will always be with us, and they will never compromise.

Any new national legislation on abortion rights will probably look something like Roe v. Wade.  Better yet would be the Canadian solution: no restrictions whatsoever on a woman’s right to an abortion.  Either would be a win for modernists and progressives, and it would be the responsibility of traditionalists as citizens of a democracy to find a way to accept it.  Given our history, that doesn’t seem very likely, so the culture war over abortion, sadly, will grind on into the indefinite future.

 

 

 

 

 

 

 

 

 America’s Immoral Proxy War in Ukraine

“Proxy wars are conflicts in which a third party intervenes indirectly in a pre-existing war in order to influence the strategic outcome in favour of its preferred faction. Proxy wars are the product of a relationship between a benefactor who is a state or non-state actor external to the dynamic of the existing conflict (for example, a civil war) and the chosen proxies who are the conduit for the benefactor’s weapons, training, and funding. In short, proxy wars are the replacement for states and non-state actors seeking to further their own strategic goals yet at the same time avoid engaging in direct, costly, and bloody warfare.” (A Concise Oxford Dictionary of Politics and International Relations, 4th ed. 2018)

It seems to be generally acknowledged that the US is fighting a proxy war against Russia by assisting the Ukrainian military with weaponry, intelligence, etc.  Defense Secretary Austin admitted as much in his public comments on April 25.  I argue here that, while not all proxy wars are immoral, the current one fought by the US against Russia in Ukraine is immoral. The argument is based on Kant’s categorical imperative, which he held can be stated in two versions:

1)  Always act according to that maxim that you can, without contradiction, will to be a universal law.

2)  Always treat people as ends, never as means.

There has been much debate about these formulations, but something like both of them are part of a wide consensus on how actions are to be morally assessed.For example, arguments against slavery in Britain and America were based on something like Version 2. That principle also implies that proxy wars are immoral when they involve a nation A adopting as policy the use of citizens of country B to fight a war against an enemy of country A for country A's own ends.On that basis, the US is fighting an immoral war against Russia. Its strategic aim is to weakento the point where it is no longer a serious competitor for world, or at least Western hegemony., of course, not by actually taking direct part in the fighting. In the words of former ambassador Charles Freeman,USpolicy, "We will fight to the last Ukrainian for Ukrainian independence."

AARON MATÉ:  And why does this view of Ukraine as essentially cannon fodder against Russia, why is it so prevalent in Washington?

CHAS FREEMAN:  This is essentially cost-free from the United States as long as we don’t cross some Russian red line that leads to escalation against us.  We are engaged, as Professor Cohen said, in a proxy war, and we’re selling a lot of weapons.  That makes arms manufacturers happy.  We’re supporting a valiant resistance, which gives politicians something to crow about.  We’re going against an officially designated enemy, Russia, which makes us feel vindicated.  So, from the point of view of those with these self-interested views of the issue, this is a freebie The Gray Zone.                                                  

The US has justified its assistance to Ukraine with weapons and other resources by claiming Russia’s invasion was an unprovoked aggression.  (Never mind that the US has itself carried out several unprovoked aggressions since WWII.)  In itself there is nothing wrong with assistance of that sort as long as it accords with international law.  In other words, assisting another nation at war is not necessarily a proxy war.  It becomes one when the assisting nation has a hidden or not so hidden agenda that furthers its own national interest when that aim may not align with the goals of the attacked country.  In the present crisis, Ukrainians may not care whether Russia’s military remains strong or weak after the war ends.  They just want the Russians out of their country and their captured territories restored to Ukrainian governance.

Indirect participation in a war against an aggressor can be justified only if (1) the war itself is just and (2) the aims of the assisting nation align with the aims of the nation being attacked, as was the case with the American lend-lease program for aiding its European allies during World War II prior to its own entry into the war.  In the current crisis, the Biden administration can credibly claim that it wants the same outcome as the Ukrainians—restoration of Ukraine’s independence and territorial integrity — but the additional strategic aim of weakening Russia is not so easily defended.  Pursuing that goal may incline the US to prolong the war to the disadvantage of the Ukrainian people.

There is evidence that that is exactly what is happening.  From the beginning, the Biden administration has been supplying Ukraine with just enough weaponry to put up some kind of fight against the Russians on the ground— rifles, ammunition, grenades, anti-tank and anti-aircraft weapons, etc.—but not the full array of weaponry Zelensky was constantly pleading for that would enable Ukraine to win the war.  Not only did the US refuse to establish a no-fly zone over Ukraine, as requested, but they also refused to supply fighter planes and even prevented Poland from sending some of its fleet of jet fighters.  [Interestingly, Russia has not been able to defeat the aging Ukrainian air force with its 10-times more units of modern jet fighter bombers Forbes.]  Only in the last couple of weeks has the US agreed to supply Ukraine the state-of-the art rocket systems, but only on condition that Ukraine not shoot them at targets in Russia.  Hard to see how Ukraine can prevail without attacking Russian bases and supply depots.

Clearly the US does not want Ukraine to win but rather to fight a long-drawn-out war of attrition to weaken the Russian military to a level deemed sufficient for US strategic needs.  That is to use Ukraine’s army as a means to an end set by the US, not by Ukraine, and that means the US is fighting an immoral proxy war against Russia.  This, of course, goes unremarked in the media, because appeals to modern norms of morality in regard to international affairs has long been considered quaint.  

Joe Biden and the Doctrine of Mutual Assured Destruction

A few nights ago, MSNBC's Chris Hayes "dusted off" the old doctrine of mutual assured destruction to explain the US/NATO's adamant refusal to engage Russia militarily in defense of Ukraine.  Here's the doctrine in its simple form, commonly assumed to govern superpowers' policies and actions during the Cold War and afterwards:

 Mutual assured destruction (MAD) is a doctrine of military strategy and national security policy in which a full-scale use of nuclear weapons by two or more opposing sides would cause the complete annihilation of both the attacker and the defender.  (Wikipedia)

President Biden, as early as December 8, said he would not directly intervene in Ukraine.  Fear of provoking a wider war by sending troops was the stated reason.  By "wider war," of course, he meant a nuclear war with Russia.  Looks like good reasoning at first; no one wants a nuclear war as per MAD.  Let's not poke the bear. But let's look more closely.  There are two possible interpretations of the doctrine of mutually assured destruction.

 The weak interpretation says that a nuclear attack - even a limited one - by a nuclear power against another would trigger an all-out nuclear Armageddon.  The strong interpretation says that even a non-nuclear direct attack by one nuclear superpower on another would be answered by a nuclear counter-strike, resulting in the MAD scenario.  The former is regarded by most analysts as true, even self-evident.  But what about the latter interpretation?  Not so obvious.

 Suppose Russia deliberately destroyed a US submarine cruising just off the Russian coast in the Baltic Sea.  Would the US immediately launch an all-out nuclear attack on Russia.  Not likely.  Conversely, if the US deliberately destroyed a Russian submarine cruising in American waters in the Atlantic Ocean, the Russians would not likely launch a nuclear strike.  Why not?  Because of MAD, of course.  Leaders of the superpowers are not suicidal, not even Putin.

President Biden seems to be operating on the basis of the strong interpretation of MAD.  If he sends US fighter jets to enforce a no-fly zone over Ukraine, Putin might respond with a nuclear attack on US bases in Europe or on the US itself.  But why would he?  There is no reason to believe he is insane or suicidal.  If the US entered the war, Putin could easily take a few punches to the gut and then sue for peace on some sort of face-saving basis, thus avoiding destruction of his beloved Mother Russia.

Ok, so maybe Biden just thinks, better to be safe than sorry.  But here is the flaw in that logic.  He says, no US troops in Ukraine, but on March 1 in his State of the Union address, he said, " “The United States and our allies will defend every inch of … NATO territory with the full force of our collective power—every single inch.” That means presumably, in the event of Russian aggression against, say, Slovakia, the US will defend that country with its conventional military even at the risk of nuclear war.  Would he really?  Sure, the US is obligated to defend any member of NATO, but it has a record of breaking all kinds of "obligations" when it perceives its national interests are threatened.  But If Biden believes in the strong version of MAD, he should not rally to the defense of Slovakia, despite the NATO commitment, for the same reason he gives for refusing to directly engage Russia in Ukraine - the danger of provoking a nuclear war.  

Do I think Biden would not move to defend Slovakia or any other member of NATO if attacked by Russia?  No, he would do it, not because it's a "sacred obligation," but because his stated fear of a "wider [nuclear] war" is bullshit.  He doesn't really believe the strong version of MAD.  He has simply decided Ukraine is expendable (green light for Putin), because direct involvement would have negative political consequences for him and the Democratic Party at home, e.g. soaring gas prices, hyperinflation, bad pr in an election year.  Biden has drawn his red line around the NATO countries bordering on Russia and is willing to let the chips fall where they may in Ukraine in the hope that non-direct assistance by NATO countries will be good enough to save Ukraine and achieve US policy goals.*

My point is, if Biden is willing to risk nuclear war (hardly likely as I argue above) in defense of a NATO country, why not risk** it in the case of Ukraine, which is a NATO country in all but name?  Imagine the suffering that might have been prevented if he had been so willing.

Putin continues to surprise.  There is fear now that he will order the use of chemical weapons in Ukraine, as he did in Syria.  Will Biden continue to stand by and let that happen or will he redraw his red lines?  Hey, we're talking about people "with fair hair and blue eyes" here. (Go ahead, call me cynical.)

____________

* For a discussion of what those goals are, see my post titled "America's Proxy War in Ukraine."

** Very low risk.  If Biden had acted during the full year of the Russian build-up of forces to mobilize NATO forces on the southern and western borders of Ukraine and dared Putin to invade, this war would never have happened.