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I am asking about the the relation of law to morality. Specifically my question centres of the intersection of law and morality on the question of abortion.

My personal position on the subject of abortion is pretty much defined in the article "A Defense of Abortion" by the Judith Jarvis Thomson. I believe you can never tell that abortion is 100% permissible or impermissible in the abstract. Context is a determining factor.

To be more specific, in what circumstances if any should the state - the law - prohibit abortion ?

  • Again, "the legal aspect of the issue" is off-topic here. The moral/ethical aspect would be on-topic, but with "i seek for any thoughts" replaced by something less subjective and more definitive, such as established positions in ethics and philosophy of law. "What do you think" is not a type of questions suitable for SE format. – Conifold Jan 29 '18 at 0:26
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    This question really is not that difficult when people stop pretending that the unborn child is something less than a human being. – user3017 Jan 29 '18 at 1:09
  • When you say "state", do you mean something like Kentucky, or a State properly, such as Germany? In other words, are you thinking under the Constitution of the United States, or just as a matter of general principles of Law? – Luís Henrique Jan 29 '18 at 19:48
  • If the former, it would seem that states cannot forbid abortions in any circumstances. If the latter, few States forbid or allow abortions regardless of circumstance (I suppose even in the United States an abortion is illegal if made against the will of the relevant woman). But the most common provisions seem to be to forbid abortions in general, and then list exceptions. Most common exceptions are 1. when it puts the life of the pregnant woman at risk; 2. when the pregnancy is the result of rape or otherwise illegal sexual activity; and 3. when the fetus is inviable. – Luís Henrique Jan 29 '18 at 19:57
  • @user3017, if you could define the term human being that would solve the issue. Certainly at the moment of conception the organism is not a human being like YOU. Perhaps it will grow INTO a human being. If it has to GROW INTO then it is currently NOT that thing. – Logikal May 10 '18 at 0:26
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Again, the determinant of law in a Common Law culture is precedent, not logic. Law is inherently overdetermined and seeks consistency over time through the analysis of precedents.

In the U.S. the current legal position is based on the prohibition of baseless seizure in our fourth amendment. The law has no right to intervene based on information that it should not have. Pregnancy is not obvious until relatively late in its term. And it is always possible for the woman to end the pregnancy by poisoning herself. The pregnant woman could simply conceal her state until late in the term and take emmenagogues until either she or the fetus died. This has been common in very poor cultures throughout history. For the sake of her health, we want her not to conceal this information or poison or abuse herself. But we want her to be open with us willingly, so we protect whatever options she would have had if she had decided not to divulge the fact.

At the same time, we have decided that conscription is legal, even when there is no war. So controlling someone's body relatively completely, for service to the society, is not a baseless seizure, if there is a good reason. And we have refused to set criteria for what constitutes a good reason. You could at relatively recent points in U.S. history be drafted based on skills, availability, random chance, specific exposure, or any number of other contingencies, including information on which basis the government could not arrest you, because being drafted is not punishment.

So while we cannot criminalize abortion, we can force someone to have the child, if we take full responsibility for her in the interim, and decide that such action is service to the society. Given our history of conscription, deciding otherwise would create more contradictions between precedents rather than fewer.

(That splits your question up in an odd way that makes it impossible to give a real answer. The answer is 'Always, as long as it goes about it the right way -- the way consistent with its past actions')

The overall philosophical logic here follows Kant or Locke. A state can do whatever it is allowed to do -- it is not bound by philosophical morality. Though in every alteration (and likewise in every failure to adapt to changing moral sentiments within its populace) it risks violating the standards of the 'national spirit' (a la Kant) or rendering the 'social contract' (a la Locke) impossible to abide by. If it crosses that line (whichever form of it you think is really the causal factor) it is deserving of replacement by a new contract or a defection of its population to a different national form. Removing internal inconsistencies over time is the best defense against drifting away from the motivating spirit (Kant assumes that the national character is singular and somewhat internally consistent) or driving the contract to become impossible to interpret.

(Sorry if I am coming across as a bit obsessed with the draft. The answer to your other question reminded me of it, and it applies to this case as well.)

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The question of abortion is probably one of the most morally ambiguous ones in our society, and it's not really answerable from a moral standpoint as the validity of believing that life begins and conception is just as valid as saying it doesn't - There will and can never be a logical consensus that states when life begins.

This is the reason why we can't really have a debate about abortion - We don't know the "rules". If you have two parties with different definitions which ave an equal degree of correctness.

If a state wants to be on the moral "safe side" they would outlaw abortion

If a state values individual rights of citizens over being on the moral "safe side" they will allow abortion.

It boils down to personal belief - a personal belief that is highly polarized. Therefore, if a state seeks to emulate the beliefs of its constituents... Well it won't be able to in this situation.

  • I like your answer but do you have any references to people who think similarly to how you do? This would lend support to your answer so it is not just an opinion. – Frank Hubeny May 10 '18 at 0:49
  • This answer does not need so much effort to support it: By just watching the live streaming of the debate in Argentina one can easily prove this answer is mostly right. – Luis Masuelli May 10 '18 at 2:25
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    However, this one is wrong: There will and can never be a logical consensus that states when life begins. Physical life is a matter of biology, and the consensus is that life starts with the first signs of metabolism, which is present in embryos (since organs differentiation/development is the main characteristic of the embryo stage). For such reasons, one does not use to see doctors talking about when does life begin, in the debates of abortion: Instead, [pro-choice] doctors go for the right of the women who abort in clandestinity instead. – Luis Masuelli May 10 '18 at 2:35
  • Pretty much any time I discuss this with other people, they view those who are pro-abortion or anti-abortion as "evil". The truth is they just have different definitions and don't often understand each other's motivation and assume it is nefarious. Pro-abortionists view pro-lifers as somehow sexist and misogynistic. Pro-lifers view pro-abortionists as well... murderers. Since there is no moral consensus, it's impossible to have a debate about. – An Individual May 10 '18 at 2:38
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    @Acccumulation Can you explain how "Life begins at conception" is a "dishonest equivocation"? – An Individual May 10 '18 at 3:57
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There is no should here, without anyone here imposing their ethics over what you ask.

Despite most of us expecting and wanting our laws be based on science or another intersubjective (take this one as the first keyword before asking, again, anything regarding society) behaviour or tradition, that does not occur. Quite frequently, the king, ruler, dictator or major/winning political party imposes their agenda.

Democracy is not about should, but about people electing you for your charge, and your charge giving you the right and duty to define new laws. Usually, these laws can be constrained by international treaties, but in the case of abortion, no international treaty strictly enforces yes or no to abortion.

So, just for start, once you're in charge you should do what you believe is right (beware! more on this later). It is widely accepted that we should obey what the people outside claims for, but that doesn't mean you are compelled anyhow to do that.

Now, getting deep into abortion, you have two boundaries (and their middle/gray positions):

  • Pro-choice: The pregnant being has the right to choose whether to continue, or not, the pregnancy. This is not strictly right, since a right is granted by the current state of your legal system, but just intended as somehow a divine or natural right to do that.
  • Pro-life: We should respect human life above everything. Then, it comes choice. This means: ensure your baby's birth - you can bring them in adoption later if you don't want to raise it.

This is just a matter of axiology here, and before saying yes, no, or context, you should understand what do you consider as your core set of values. This is a far from complete set of questions you must ask about yourself or the state you are asking about:

  • Would you consider the embryo as a human being? (a matter of science/biology)
  • Would you consider the embryo as a person? (a matter of rights/laws)
  • Should every person born/being in your country be protected regardless any distinction? [age, race, kinship, height, any physical trait, development] (a matter of pure ethics here)

These questions are part of this hot topic of debate in Argentina, right now, so you (or your state in question) would like to start from these ones to define the axiology beforehand. Remember: the answers to these three questions are choices, and not an absolute fact which is true or false here.

Once you define your axiology, avoiding cognitive dissonances will imply you will take, now, a "should" (this implies that doing the right thing should also consider this matter of cognitive dissonances) like the one you are asking for. Avoiding cognitive dissonances is quite important in laws, since most of the trials and definitions or laws are based on precedents. A precedent reflects the need of people like you and I (and even more in the case of a desperate person who wants to abort) to receive a predictable response from our laws system (specially the criminal code) regarding our actions: should I / will I be punished for this, or not?. Avoiding cognitive dissonances will move you (or your state) towards equal treat of different cases (under similar circumstances) along time, and perhaps you'd like to have this feature.

In particular, if you are pro-choice, at least one of those questions will be answered as no. Don't worry, since more questions will arrive later.

Remember there are many flavors of being pro-life or pro-choice. Those flavors are given by the context you ask for, and so more questions appear.

Let's assume you are pro-choice. People will ask you many questions (specially pro-life people) like these:

  1. Could I -as a healtcare specialist- invoke objection of conscience and not attend you if you want to abort?
  2. Should your mate also have the right to decide whether your... content (which you refuse to call a person deserving right to live beyond your choice) should be aborted or he/she will take care of it just born?
  3. Should the state allow it? Or should the state also guarantee it?
  4. Should we consider situations where abortion should be allowed (malformations, your pregnancy existing from a rape, your life is at risk if the abortion is not performed, economical factors, ...).

Now let's assume you're pro-life. People will cast you many questions (in particular, pro-choice people will):

  1. To what extent does the pregnant one have any right to decide over their body?
  2. Should the state guarantee and improve alternative means which are [allegedly] proven as a failure? (here you enumerate: sex-ed, adoption, access to resources,...).
  3. Should we punish people who aborts? Should we only punish doctors who aid and actually execute the abortion procedure?
  4. How should you consider handling the same contextual situations described in the pro-choice side?

So, with regards to what you ask for:

  • Right now, almost no anti-abortion law is 100% against abortion, except in few countries of South america. Most of those laws consider the context on which an abortion is performed (pretty much like most of those laws consider the context on which you kill someone, like in self-defense).
  • On the other hand, most of the countries allowing abortion also consider a timelapse (i.e. your right to abort ends when the embryo evolves into a fetus, or the fetus reaches 5 months, ...), so they are not strictly 100% in favor (I don't know if there is any exception to this rule).
  • There is no should before you ask which values is your state (or you) defending. Ask the proper questions beforehand. But if your state (or its people in-charge) claims to be pro-life, they will likely prohibit abortion, except when the life of the pregnant is in risk if the pregnancy continues.
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    Good breakdown of various complications. It also seems to me that whether embryo is a "human being" or a "person" are pseudo-questions in this context because people first decide sentimentally up to what age abortion "feels right" and then add an "explanation" that it should be so "because" it is human being or person. One does not usually see substantive analysis of personhood in pro/contra abortion literature. – Conifold May 10 '18 at 0:25
  • Yes, and No. Yes: The person who aborts does not care about human/person. No: Indeed discussing whether it is human and person is quite frequent! One example is the active debate in Argentina these days. – Luis Masuelli May 10 '18 at 2:16
  • Furthermore, questions like human/person are nontrivial. Remember that not considering certain groups by race or religion as humans/people brought slavery and holocaust, so discussing this right now goes for the matter of: "Am I discriminating against development and dependency when I decide to terminate their life?" – Luis Masuelli May 10 '18 at 2:18
  • If fetuses are equal human beings like you are then what is the issue of abortion when all human beings have termination dates. That is we will all die one day. Some die in shorter periods of time than others. My father did not make 55 years old for instance while some fathers die in their 90s. The human being you suggest had a early termination time. – Logikal Sep 27 '18 at 16:25
  • I don't think this question is the place the actually debate abortion. I just provided means and key points to discuss it. – Luis Masuelli Sep 27 '18 at 21:45
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Regarding your "100%" one way or the other (and disregarding your particular issue of abortion), I'd think the first thing you'd have to decide is whether to formulate your law either as (a) "it's always legal except for the following exceptions when it isn't...", or conversely as (b) "it's never legal except for the following exceptions when it is...".

There's kind of a law-of-the-excluded-middle exception here, though I'm not sure what it's formally called or how it's discussed, whereby the universe of all possible situations is too large and too fuzzy (both informally and in a Zadeh-like sense) to unambiguously decompose universe=is_legal U not_legal situations. Or in other words, formulations (a) and (b) aren't orthocomplements. If they were, then your question (be it about abortion or about any issue where the preceding discussion applies) would be much more straightforward.

As it stands, first consider one formulation and then consider the other, as follows. For (a), can you clearly define the exceptions where it's not legal? And then for (b), can you clearly define the exceptions where it is legal? After considering both, choose the formulation with the more clearly defined exceptions.

So that's just an elaboration of your "100%". And I'd bet there are formal textbook treatments of this kind of thing (i.e., pretty much anything you think up has already been thought up and fully developed), but I'm not familiar with the precise topic to google.

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