Line Item Lies

July 12, 2008 § 32 Comments

Another argument for the position that a legislator may materially cooperate with evil by voting for a bill with the three exceptions, if no better alternative is available, but may not himself author provisions authorizing abortion in the case of rape, incest, or saving the life of the mother:

Laws which authorize and promote abortion and euthanasia are therefore radically opposed not only to the good of the individual but also to the common good; as such they are completely lacking in authentic juridical validity. Disregard for the right to life, precisely because it leads to the killing of the person whom society exists to serve, is what most directly conflicts with the possibility of achieving the common good. Consequently, a civil law authorizing abortion or euthanasia ceases by that very fact to be a true, morally binding civil law.

If this is true of law in general, surely it is true of individual provisions in law. Now the person who writes and proposes an individual provision permitting abortion in the case of incest, for example, is writing in a provision which “ceases by that very fact to be a true, morally binding civil law.” In other words, in proposing that provision in law he is proposing a lie.

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§ 32 Responses to Line Item Lies

  • Lydia McGrew says:

    I have to say that as far as I can tell, if the existence of exceptions in an abortion law really were in some given case “authorizing or promoting” abortion, then I don’t see how people who vote for that law could get off the hook morally. They would be wrong, too, as far as I can see.I just think you and I view the actual force of exceptions in such laws differently. I can certainly see where it would be “authorizing” or “permitting” abortion in a given case if the law was previously protective and the new law _introduced_ the exceptions. Then that law would indeed _cause it to be the case_ that a class of people are now unprotected who previously were protected. But if all unborn children were previously not protected from abortion and the new law protects some but not others, then I don’t agree that it is intrinsically authorizing the abortion of those others. I don’t think such a law is *in itself* saying, “It’s legitimate to kill these children” or “It’s not wrong” or “It shouldn’t be illegal.” If it were, I don’t think anyone should vote for it. So it has to mean something different, and its force as authorizing or not authorizing seems to me to depend in part on how it changes the legal situation. The remaining overall situation–with some children unprotected–would be unjust, but it doesn’t follow that the law that improved that situation part of the way but not entirely was itself unjust. And if it were, I don’t think it should be voted for.A law could, of course, authorize such killings by its actual provisions, if for example it contained specific penalties for abortion clinic protestors. But in that case, I would say pro-life legislators shouldn’t vote for it either.I’m thinking of a rather long analogy that I will probably try to post later on my own site that shows how I view laws prohibiting things.

  • zippy says:

    If there were some way to write a law with the three exceptions without actually putting them in there as deliberate, explicit exceptions, where the author expressly chooses to include them as in itself an individual choice, then I might be sympathetic to the ‘putting in an exception is not a positive act’ position. But I don’t think there is a way to do that.I get the feeling that you would deny that there is any such thing as an explicit omnibus choice, where if we choose a complex and composite thing which we cannot ‘disassemble’ it is possible for us not to <>will<> every element of that composite thing. I think, like Bill mentioned in the other thread, that that basically just eliminates the possibility of licit material cooperation with evil.

  • Lydia McGrew says:

    One could make up wordings, but I think they would be so close to “exception” wordings that it would make little difference. E.g. “All unborn children whose continued life will not cause the death of their mothers are hereby protected in law. The penalty for aborting any such child shall be such-and-such.” I guess one could say that that tacitly involves a “life of the mother exception” that is not expressly included. But I’m not going to lean on that heavily, because it does not seem to me to bear much weight. I mean, what that says is that children whose lives are not threats to their mothers are protected, leaving children whose lives are threats unprotected. That much is clear. And I would oppose anything like that if in the previous situation such children _were_ protected, because then this law, _however_ worded, would be “unprotecting” them.

  • Lydia McGrew says:

    Actually, come to think of it, I should correct that statement. If the unborn children whom someone might want to abort to save the life of the mother were previously protected, I’m not sure that the bill as I just worded it would unprotect them. If I were a judge I would certainly consider it a confusing situation, because whatever penalties had previously been threatened for killing all unborn children, including for the life of the mother, would still be on the books after the passage of this law, and it doesn’t, in fact, say that the “life of the mother” children are in any different state from their previous one. It would create an ambiguous legal situation.Of course, there could be other wordings: “All children whose lives constitute no threat to their mothers lives are hereby protected, etc….” “Section X of the ____ code is hereby repealed” (where section X was the one that had protected all children). Now that _would_ amount to “unprotecting” the children whose lives were a threat to their mothers.

  • Lydia McGrew says:

    My new post on this is now on the top of the page at my personal blog.

  • Paul says:

    Zippy said: “the person who writes and proposes an individual provision permitting abortion in the case of incest, for example, is writing in a provision which “ceases by that very fact to be a true, morally binding civil law.” In other words, in proposing that provision in law he is proposing a <>lie<>.”If the provision were to say something like: “The state will not intervene to prevent abortions in the case of incest”, then it is proposing a behavior — which is not something that can be true or false. If the provision were to, however, to add in something like: “The passers of this legislation proclaim that it is true that the state should never intervene to prevent abortions in the case of incest”, <>then<> it would be a lie.Additionally, in some of the recent blog entries, it has sometimes not been clear what Zippy has meant by <><>“the”<><> author of legislation. Any legislation that has a compromise in it necessarily has more than one author. Because, in effect, one person says “I would like to pass a bill with clause A”, and an opponent replies “I will only vote for that clause if you add in clause B.” I.e. making a compromise means there is always more than one author. Some parts of a piece of legislation may have one author, and other parts may have a different author.Yet more: it is not true that someone proposing legislation is necessarily proclaiming agreement with the rightness of every part of that legislation.

  • zippy says:

    <>If the provision were to say something like: “The state will not intervene to prevent abortions in the case of incest”, then it is proposing a behavior — which is not something that can be true or false.<>My suggestion is to read more carefully what Evangelium Vitae says about positive law which attempts to assert the permissability of A&E. To assert ‘it is legal to perform an abortion under X circumstances’ is in fact false. Most modern pro-lifers don’t grokk this because they are legal positivists; indeed, legal positivism is central to their political strategy.<>… it has sometimes not been clear what Zippy has meant by “the” author of legislation.<>What I mean is the author(s)/initiator(s) of the specific provision which states that abortion is legally permissable under X circumstances.

  • zippy says:

    That should read “the legal permissablity”.And I understand that if one is very, very careful with wording one might attempt to sneak around the requirements of EV on a technicality. I don’t think such ‘sneakiness’ though meets the requirement of moral liceity. It is unacceptable to write and propose a specific provision in law permitting abortion and euthanasia, in my understanding.

  • Lydia McGrew says:

    But suppose we agree with your ideas here about the law, which appear to be this: If a law says, “Abortions are prohibited, except in ____ case,” then what that law is saying is “it is legal to abort children in ____ case” and since “legal positivism” is false, this statement is false.You take it that “it is legal” means not just “you won’t get in trouble with the temporal government” but rather “it is permitted according to the True Law” or something of that sort.Now, if we accept all of this, then we have to accept that the law as written contains a lie, namely, “It is legal according to True Law to abort children conceived by incest” (or “to save the life of the mother,” or whatever). But in that case, how can it be licit to vote for it? A person voting for it is voting to enact a lie.

  • zippy says:

    Well, it may appear circular I suppose, but I think voting for an imperfect composite law – a law containing many provisions in it, some of which are truths and some lies – is material cooperation with evil. The persons who <>insert<> individual lies into the composite law are doing evil; the persons who vote for the composite law, not <>necessarily<>.I suppose at bottom is the issue of what kind of act it is to vote for a composite bundle of juridical norms. In the case of composing (e.g.) the explicit rape exception itself, the person who composes it necessarily asserts it in the composing. In the case of a person voting for a composite law, it is not a necessity built into his act that he asserts the rape exception: he may merely be tolerating it, especially if he goes on record saying “I am merely tolerating this, but I continue to object to its presence in the law”.

  • Lydia McGrew says:

    I would think that if he can do that, then the person who writes it should be allowed to clarify that by saying “except in the case where it is necessary to save the life of the mother” he does not mean to assert the licitness of the act or its legality in some sense stronger than what we might call the “positivist” sense of legality. In other words, he ought to be able to make it clear that he is making no normative claim about such acts, that he thinks they should in fact be punished, and that the insertion of the exception means only that *in fact* they will not, for now, be punished by the human authority of that jurisdiction. In other words, he ought to be able to say enough other stuff–perhaps some of it in a preamble to the law, perhaps some of it to reporters, on the Internet, etc.–to make it the case that he _isn’t_ lying by inserting the exceptions.If you like, I’ll be happy to coin a different term for this “positivist legality.” Call it ‘shmegal’. Now, it’s undoubtedly true that abortion is ‘shmegal’ throughout the U.S. right now, and that’s a very bad state of affairs. Can’t the author of a law make it clear that he is merely leaving the exception cases shmegal while–if the law passes–rendering the other cases non-shmegal, which means that (thank goodness) at least they will now be punished?

  • zippy says:

    Well, as usual you’ve managed to whittle it down to the heart of the matter, Lydia. But I’m not convinced that simply <>saying<> that abortion in X cases should not be shmegal, while at the same time asserting the very provision which makes it shmegal, is any better than saying “I don’t intend to kill the child” while crushing her tiny body in a salpingotomy. The intention to make it shmegal is built into the act of asserting the very provision which makes it so; and it is this assertion of the shmegality of abortion (whether scoped by circumstances or not) which is the evil act at issue.

  • zippy says:

    Try this: Assume for the sake of argument that nobody ever actually has an abortion under the three exceptions: maybe we are dealing with a very small community or something.Now if it isn’t immoral to assert the shmegality of abortion (however narrowly scoped), then why would voting for such a law be material cooperation with evil <>at all?<> What evil act is there to materially cooperate with?

  • Lydia McGrew says:

    Well, actually, I was thinking of making this point on the other thread. The reason I keep bringing up the causality issue is partly because I’m not convinced that you _are_ cooperating with evil, either materially or formally, in the cases I’m envisaging. And that is precisely because abortion is already shmegal (I’m imagining) all across the board previously and you are _leaving_ it shmegal in the exception cases, not rendering it or making it shmegal. I mean, it would continue to be shmegal if you did nothing. But if you did nothing, all the other abortions would continue to be shmegal, too.Now, if you were repealing a law that made them all non-shmegal and replacing it with one that included the exceptions, _that_ would be making those exception cases shmegal. I mean, that’s why causality and the direction the law is moving is so important here.In a way I think you can see that because you wouldn’t (I assume) say it would be okay even to _vote_ for a law with the exceptions where that law expressly _replaced_ a law without them. In other words, precisely because, causally, that would be moving the shmegality situation in the wrong direction, I assume you would agree with me that an author-voter distinction and the material/formal distinction can’t save the voter from doing wrong.It seems to me that it is possible to word the exceptions in such a way as to make it clear that this is not making them shmegal but just leaving their shmegality situation where it was before (unfortunately, shmegal), and that this is true even if you expressly mention those exceptions. See my weird little example of the father and his son in the post on my blog. And in fact, I think people do understand this and would understand this, and that this is why the whole “changing the law in the right direction” argument can be made.

  • zippy says:

    Well, I’m still struggling with what to say at your place. I’m not sure it is the same sort of situation unless the acts we are talking about are acts of murder or something similarly grave, which kind of ‘bends’ the analogy. (Also I’ve tried to stick to abortion and euthanasia precisely because of the Magisterial guidance on the question — one reason this is a ‘here’ series of posts rather than a W4 series of posts).Suppose we were talking about airliners again. (HT to a reader in email for the suggestion).Suppose there is a plan underway right now which involves shooting down ten airliners. Suppose that a new plan is being composed.We are morally certain that the new plan will not be approved unless we approve of shooting down three airliners, but it will stop the shooting down of seven.Is it morally licit to compose and propose the very provision of the new plan which involves shooting down the three airliners, as a means to the end of getting the new plan approved?Is it morally licit to vote approval of the new plan as a composite plan, given that there are no other options?

  • zippy says:

    I meant to write this:<>Is it morally licit to compose and propose the very provision of the new plan which involves shooting down the three airliners, <>including choosing the very three to be shot down<>, as a means to the end of getting the new plan approved?<>

  • William Luse says:

    But the proposal to shoot down three rather than ten is a <>new<> proposal, an original one, whereas the three exceptions in Lydia’s scenario were not.

  • zippy says:

    It seems to me that if all abortions are schmegal now, a proposal that only <>these three kinds<> of abortion be schmegal is a new proposal in the same sense.

  • William Luse says:

    I think she ought to answer that objection, but she must be at church.Something about your airplane scenario is putting me off. I certainly couldn’t propose such an amendment to the plan, and I don’t think I could vote for it either. There seems (if I’ve not misunderstood the scenario) a level of certainty involved in the shooting down of the planes that doesn’t appear in the other case, which maybe we can talk about later.

  • Lydia McGrew says:

    Here’s my problem with the airliner analogy: Nobody gets shot down at all of the pilot of the fighter doesn’t receive express authorization to shoot somebody down. In the “world out there,” the prima facie case is that pilots, including military pilots, have no right to shoot down airliners. This is pretty obvious. They have to get some sort of message either ordering them to do so or else authorizing them to do so under such-and-such circs.–e.g., if the plane doesn’t respond appropriately to radio calls or orders to turn around or something.Fighter pilots aren’t private people going around out there in a shmegal vacuum shooting down whomever they please, and the “plan to shoot down airliners”–whichever one is chosen in the end–is not a promise to punish such private airline shooters for some shoot-downs but not others, whereas before they wouldn’t get punished for any. Rather, it’s a plan actually to tell them that they may do something that, if they get no such plan, they aren’t authorized to do at all and, in fact, won’t do. It doesn’t even matter that the worse plan is in some sense “underway”–presumably, under discussion, or the orders already drafted, or whatever. The fact is that _either_ message constitutes an authorization for shoot-downs which the pilots do not and would not undertake without authorization.Whichever plan is followed, what you’re assenting to is that a military pilot be sent such an authorizing message.Now, given that this is the case, I picture the “voting” situation as best I can as involving some sort of cabinet or security group or something sitting around, where their joint decision–indicated and determined by vote–puts into effect one or the other plan for thus authorizing shoot-downs. And in that case, it doesn’t really matter who “writes” the plan. The “writing” might be something as informal as Joe saying, “Here’s an idea. What do you guys think?” Or whatever. Or it might simply be (as I think is well indicated in my example on my site) that _after_ the group makes its decision someone has the job of putting the message they’ve agreed to into words to send to the pilot. But the choice itself is a decision made _by the group_. The vote-writing distinction is trivial. It’s the group’s decision that enacts the plan.So I think it would be wrong to endorse either plan in the scenario envisaged, because that involves a true authorization of shoot-downs.I think part of the problem with the bit you quote in the main post is that very often laws don’t authorize things but rather prohibit them. (Remember that constitutionally we have no bills of attainder, so the legislature can never vote to have someone’s head cut off.) Now, I can think of various ways in which a law could authorize some private action. The most obvious would be by funding it. Another one that our ever-inventive wicked fellow citizens have thought of is the meta-legal category in which one branch or level of jurisdiction tells another branch or level of jurisdiction that it is prohibited from having laws against some action–most notably, abortion. Roe v. Wade falls into this category, as apparently would the Freedom of Choice Act which, it is reported, would strike down even such modest state restrictions on abortion as parental consent requirements. These obviously do authorize and promote abortion. And of course any law that says that you may do some evil act to your fellow innocent human being where that act was previously prohibited authorizes and endorses it.I would say that in all of these cases you must not vote for the bill either. (Just to be confusing, and also because this is a long enough comment, I think I will say more in response to your comment at my place about the nature of legislative voting rather than saying it here.)So I can think of examples that would fit the description. What I question is whether in and of itself exceptions to new laws prohibiting such an act are laws that “authorize or endorse” the evil act that continues to be permitted in the exception cases. What I think are probably the best kind of challenges to the position I’m presently inclined to take are scenarios in which the exceptions are sort of unusual and shocking. We’ve probably gotten too used to hearing the standard “three exceptions,” and there are of course men of good will who are genuinely confused on the life of the mother exception. What I consider a bigger challenge to my present position is a question like, “What if the law said that all abortions are prohibited except for black babies?” Or (more plausibly still) “except for Down’s Syndrome babies?”And here we get into the teaching nature of law. There’s no getting around it: Law teaches. And there’s no getting around the fact that exceptions like these, even if (as I think I’m right in maintaining) they do not actually, formally, authorize or endorse the abortion of such people or the proposition that the people involved in the exception are unworthy of protection, do have the potential to _give that impression_ and to _teach people_ to regard such lives as less worthy. This is an effect that such exceptions can have as a rhetorical matter and *aside from* their effects qua law.And that, I think, is the strongest consideration against the position that it is licit to write laws with exceptions.But I ask honestly: Would you vote for a law that prohibited all abortions except those of black babies or Down’s Syndrome babies? I doubt that I would. That is, I still cannot see the vote-writing distinction as crucial at all.

  • Lydia McGrew says:

    Yeah, I was at church all morning and then with Youngest Daughter earlier in the afternoon.And of course I didn’t think about this discussion *at all* during church. (Er…)I really should post on W4 telling people about these threads. We probably have readers there who would be interested.

  • zippy says:

    <>Nobody gets shot down at all of the pilot of the fighter doesn’t receive express authorization to shoot somebody down.<>We can tweak the analogy though. Suppose a standing order is out to shoot down all airliners, and we can get that order rescinded by the central committee if and only if we authorize the shooting down of <>those three<> airliners. We have to “sell” the shooting down of those three to the central committee, and argue that it will be sufficient, in order to get the standing order rescinded.Now you might say that a committee member who would vote in favor of rescinding the blanket order, even after vigorously objecting to the ‘attachment’ of continued targeting of those three airliners to the measure, was still doing evil. I’m not so sure. In his case he really is just enacting a ‘state change’ within the constraints he faces, imposed by others. He is not intending the killing of the people in those three airliners <>in order<> to save the rest. But the guys who lobbied the committee on shooting down the three <>do<> necessarily intend the killing of those people.<>I think part of the problem with the bit you quote in the main post is that very often laws don’t authorize things but rather prohibit them.<>In the case of murder, though, the law of any just society always prohibits it; if there are exemptions, people it is legal to murder, those exemptions are explicit. It would be one thing if the law simply prohibited all murder, and yet abortions were performed and nobody ever prosecuted them as murder. In that case it is law enforcement which is not carrying out justice. But once you have explicit exceptions from the prohibition of murder, you have explicit exceptions.

  • decker2003 says:

    What if we could identify every situation in which abortion occurs, and then wrote a law which said “Abortion shall be prohibited in all of the following situations . . .” and then listed every situation, except for the “three exceptions”? By failing to include those three, the law would leaving existing law regarding those three situations intact, which is to say that abortion would be permitted in those three situations. However, the law as drafted does not permit abortion in those three situations, it simply fails to address them, which — by default — leaves the status quo intact. Could one author such a law without intending to allow abortion in those three situations? Could authoring such a law be licit?

  • zippy says:

    <>What if we could identify every situation in which abortion occurs, and then wrote a law which said “Abortion shall be prohibited in all of the following situations . . .” and then listed every situation, except for the “three exceptions”?<>If we do that, deliberately in that way, we are <>intending that the three exceptions exist in law<> as a means to (whatever) end: that is, we are <>formally cooperating<> with a deliberate unjust omission in law. If we accidentally left them out, that is, leaving them out did not serve any purpose of ours and we simply didn’t think of including protection of those persons from murder expressly in the law, and we would have included protection of them if we’d thought of it, then we don’t <>intend<> the exceptions.

  • Lydia McGrew says:

    I still say the airliner thing doesn’t work because you really are authorizing the three shoot-downs. I just can’t get around that. It doesn’t to me matter what the state-change is. I think a big part of our disagreement turns around the fact that you take it to be obvious that laws that leave out something that would normally be included under the law’s scope are “authorizing” the acts they leave out, whereas I regard “authorizing” as a different sort of thing altogether, a specific and positive sort of thing, which is present when we’re talking about pilots who understand that they are government actors and have to have authorization to shoot things down. Abortionists aren’t government actors, don’t consider themselves to need “authorization” to murder children, and in practice, it isn’t true that they require such authorization. That is, unless abortionists are expressly prohibited from murdering children and a punishment threatened, they are, in practice permitted to do that for whomever.In one important sense, I consider a prohibitive law to be in essence a threat of temporal punishment for something, from the maxim that without penaly there is no law. So if you have no threat of punishment for something before–_not_ because it was expressly authorized already for some state actor but rather because it was just one of the zillions of private acts that haven’t been prohibited by the government–then by passing a law against it you are simply instituting a threat of punishment for somthing for which no (human, governmental) punishment was previously threatened.

  • decker2003 says:

    Your reply seems to suggest that it would never be licit anything less than a total ban on abortion, because anytime you consciously and deliberately leave something out, you are intending that abortion remain legal in that situation. So, one can vote for the partial birth abortion act, but cannot author it. Is that your position? If not, please explain how you avoid this conclusion.

  • Lydia McGrew says:

    This can be checked, and I won’t bet the farm on it, but as I recall, both the federal and the state PBA bans have included life of the mother exceptions. I think that was the only exception included.

  • JohnMcG says:

    I think what decker was referring to was that with or without exceptions, a PBA ban may be morally problematic, in that it privileges late-term fetuses over earlier ones.One way to avoid this is to say that PBA banned a particular <>procedure<> rather than a class of victims, but I don’t think that would be quite honest.

  • Lydia McGrew says:

    I know that was what Decker was getting at, but I assume that Zippy would respond that if it contained no class-of-victims exceptions, a PBA ban need not include any reference to exceptions in its language at all, and therefore would not bother him. He already mentioned that he would be less bothered if some law didn’t have to include explicit exceptions, and he has dismissed as irrelevant laws on other subjects that don’t also ban abortion.What, as I understand it, troubles him about laws with exceptions is that it really would normally be assumed that if you say, “Abortion shall be illegal with such-and-such a punishment,” you are including abortion of any children, regardless of how they were conceived (for example). Hence the only way to include an exception of the sort that is usually included is to put it in deliberately.That’s why I brought up the fact that the PBA bans do (I believe) contain life of the mother exceptions.It’s perhaps a relevant point (and perhaps not) that, if I am not mistaken, historically murder laws were not taken to apply in and of themselves to the unborn, nor were they so intended. Abortion law was generally a separate category. Should we take it then that, as intended and understood, all murder laws are objectionable and were wrong to write in that they contain a well-understood exception for the unborn, who have to be protected separately? Or should we rather argue that all written murder laws, regardless of history, intent, understanding by audience, etc., really _do_ ban abortion, and therefore that all anti-abortion laws are redundant even in a positivist sense? Hence, to use the terminology Zippy and I adopted earlier, is abortion non-shmegal whenever a state has a murder law on the books, and does the fault for not so prosecuting it rest entirely with the executive arm?I have to say that both of these options seem to me highly questionable. And if neither is right, then apparently it was morally allowable for the state legislators to write laws against murder that weren’t intended to include the unborn in the first place, where the unborn would be covered by a different set of laws that mentioned abortion specifically.

  • zippy says:

    <>Is that your position?<>Yes.

  • zippy says:

    <>Abortion law was generally a separate category.<>A different interpretation might I suppose be that rather than being hermetically distinct categories, restriction of abortion was implicit in existing murder law and indeed in the natural law, but that because people abused this it had to be made explicit. That this explicitness is now ‘reversed’ to treat abortion as a different kind of crime from murder is (not imputing anything to you Lydia, but to this ironic historical tendency toward ‘reversal’) typical of Satanic action in history. Man abuses and disobeys the natural law, positive law is written to clarify the matter, and that positive law is invoked as evidence that abortion wasn’t wrong in the first place until that positive law appeared as a distinct category.That’s it for me for now I’m afraid. Feel free to carry on without me :-).

  • Lydia McGrew says:

    Of course I agree that the prohibition of abortion is part of the natural law!As a purely historical matter, and subject to correction from real historians of the subject, I rather doubt that abortion was generally (say, in the colonies or in the early United States) regarded as prosecutable simply under written murder laws.

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