LINEBURG


<< . .

 22
( 36)



. . >>

climate change and global warming and their redistributive effects will likely not
disappear over the next half century. Too many different things, currently sub-
stantially against the odds, would all have to break right for global warming to
be halted at the current level. The philosophy of international law will thereby
inevitably be implicated. Relatedly, we also have the conjunction of fairly stable
long-term global demographic trends; global immigration issues; important inter-
national economic markets in labor; the blurring of distinctions among war, crime,
and rebellion; and the vicissitudes, if not the fragmentation, of classical national
sovereignty. The increasing signi¬cance of the philosophy of international law thus
becomes less a matter of interesting prediction and more of mere casual newspaper
reading.
In particular, the philosophy of the law of war, arms control, and armed con¬‚ict
deserves attention, especially if we want recognizable legal philosophers to exist in
a hundred years. Common sense and the rudiments of evolutionary theory suggest
180 R. George Wright

that there are really only two general kinds of stable, and therefore likely, global
civilizations. First are those civilizations simply lacking the capacity to destroy
themselves and their habitat. Second are those civilizations that have through
one means or another made civilization- or species-habitat“destroying con¬‚ict
exceedingly unlikely even over the long term.
As of the present, our global civilization unhappily ¬ts neatly into neither of
these two stable scenarios. We might as well predict that legal philosophy will over
the next century play a role in the global adoption of the only solution practically
open, the preceding second course. If such a course is in fact not adopted, it seems
unlikely that there will long remain a community of legal philosophers to notice
our predictions. The only way for us to embarrass ourselves in the eyes of the actual
future philosophers is by falsely predicting global disaster. The only way for us to
gain any future public credit, however undeservedly, is by correctly predicting the
avoidance of global disaster.
Another likely bet, as introduced brie¬‚y earlier, has to do with legal philosophy
as applied to the phenomenon of the technical enhancement of persons. This broad
problem directly implicates philosophical concerns such as forms of equality, forms
of liberty and consent, the moral limits of markets, solidarity and community,
desert and moral luck, relationships between generations, international equity,
and even the dignity of the person.
Just as important for our predictive purposes, the general problem of the arti¬cial
enhancement of people is apparently unlikely to dissipate. The sheer range and
variety of independent “ if perhaps combinable “ advanced techniques looming
ahead practically ensures the future reality of the problem, in rather the same way
that a well-diversi¬ed investment portfolio practically ensures against winding up
with no ¬nancial assets.
First, though, let us set aside some preliminary objections. It is true that arti¬cial
human enhancement techniques, such as, historically, a set of the Encyclopaedia
Britannica for a child™s private use, have long been available and have been differen-
tially available on the basis of economic class inequalities. Future enhancements,
however, will in some cases likely be crucially different. Internalizing the Ency-
clopaedia Britannica has always also required motivation and sustained effort, and
the payoff has often been rather modest. This will likely not be true of all future
enhancement technologies, and this is only the very start of the differences.
It is also certainly possible to argue that the dividing line between arti¬cially
enhancing persons and engaging in novel forms of therapeutic medicine “ enhance-
ment versus therapy “ is itself arti¬cial, socially constructed, and easily contestable.
We can call orthodontics, human-growth-hormone injections, cosmetic surgery,
germ-line genetic modi¬cation, or the replacement of one™s blood cells by ¬ve hun-
dred trillion nanobots either therapy or enhancement. We should not, however,
deny the reality of their consequences, which may differ substantially.
Doubtless some future technical means to human enhancement will run up
against unanticipated and insuperable obstacles, including cost. Perhaps some
technologies that seem impractical today will bene¬t from breakthroughs tomor-
row. But for all of the apparently powerful techniques of human enhancement, at
various stages of development, to fail to have an impact seems unlikely. No single
Legal Philosophy over the Next Century 181

crucial vulnerability seems, as far as we can tell, to be shared across the board by
all the potential technologies.
This current uncertainty does not mean, however, that legal philosophers should
not think and write about such issues until the effects of the techniques have been
demonstrated. If legal philosophers wait, they will often wind up either ratifying
whatever the markets, legal or illegal, decree, or engaging in mere rationalizing
or hand-wringing. If legal philosophers do or do not want to see the unimpeded
development of such techniques, perhaps as subsidized or taxed in various ways,
there is no reason not to begin saying so now.
Finally, consider in particular not only future generations of pharmaceuticals
and upgradable connective brain implants but also the long-term prospect of
various sorts of inheritable genetic enhancements, perhaps in connection with
other techniques we have not even collectively envisioned. Again, the unanticipated
problems and limitations associated with genetic or any other technologies may be
even greater than those we already know of. Genetic reductionism is bad science
and ineffective technology. Relatively rarely does any single gene by itself control
one™s future in a positive way. Tinkering with even a single gene, though, may have
unpleasant and unpredicted side effects. The ¬rst safe and practical version of any
such technique to hit the consumer market, like any other innovation, may come
to seem clunky, crude, and limited, and it may even impair crucial future updates.
Genetic enhancements, particularly those associated with the brain or with
general health, disease avoidance, and disease appearance are nonetheless likely
to call for legal philosophers™ attention over the coming decades. Alone or in
combination with other enhancement techniques, they could, depending on prices
and other cultural considerations, generate an increasing absolute and relative gap
between groups of people. Advantages in more than one respect might reinforce
one another and cumulate in unprecedented ways. Such a gap might turn, over
time, into a gulf or even into an unbridgeable chasm. Almost every important
dimension of applied legal philosophy would at some point be pressed into service.
It is comforting to imagine that, like the unit cost of computing power, the unit
cost of all sorts of technical enhancements may start out unaffordably high except
to the rich, but that the costs will drop so sharply that, perhaps with government
subsidies, the most crucial enhancements in the most sophisticated versions will
become realistically available to the poor “ of the nation and of the world “ before
the rich can speed permanently ahead of the curve, consigning rough equality of
human capacity to the dustbin of history.
This optimistic scenario is certainly a real possibility. In a spirit of humility
and open inquiry, we can hardly rule it out. Let us consider as well, however, the
possibility that even small advantages and small lag times between early and late
adopters may in some cases translate into dramatic and increasing differences in
capacities. Let us bear in mind as well that in a competitive employment market,
any signi¬cant differences between two classes of applicants may lead to dramatic
hiring and employment disparities, and in our cases, perhaps eventually to nearly
zero class mobility. In the absence of an enlightened social and legal response,
something like a permanent caste system could eventually result, with or without
the occasional suppressed or bought-off rebellion.
182 R. George Wright

Along the way, there are also crucial issues of voluntariness and freedom of
choice, and of meaningful consent and proxy consent for one™s family and descen-
dents into the future. Issues of various sorts of luck, desert, effort, unenforceability,
responsibility, and reward, and the moral and legal limits to all of these elements
may be starkly presented as well.
Presumably, we want to respect the decisions of those who can afford important
enhancements but who nevertheless choose not to adopt them. Would it make any
difference whether the decision not to enhance were made on the basis of some
intelligible principle, some distinctive religious tenet, a reasonable fear, or on sheer
superstition and demonstrable misunderstanding? What if parents must choose
today for their minor offspring in some way that is practically irrevocable? Should
parents be allowed to, in effect, rule out anything but a permanent Huxleyan Delta
status for their minor children, and indirectly for all succeeding generations of their
progeny? May we instead try to authoritatively envision what the minor children,
under some speci¬ed circumstances, would reasonably prefer?
Consider as well the position of parents who can afford crucial enhancements
for their children and who opt in favor of those enhancements, but only from a
sense of defensive necessity. The parents might even consider the enhancements
to be literally dehumanizing. They may fear an unbridgeable chasm between the
enhanced and the unenhanced, to the moral prejudice of all. Yet the parents opt
for the enhancements, lest their children™s futures be starkly limited.
Many parents could ¬nd themselves in this position. Dramatic prisoner™s dilem-
ma problems could thus arise. Issues of freedom and constraint in general would
abound. By way of a very minimal parallel, some contemporary parents would
prefer to inculcate what they see as strong moral virtues in their children but fear
that the children would pay too high a price in personal exploitation. How, if at all,
and on what philosophical basis should governments specially intervene in our far
more extreme circumstances?
We often distinguish between a bad outcome that resulted, fairly, from a gen-
uinely free but risky choice, and a bad outcome that resulted from brute bad
luck. We sometimes claim as well to distinguish between outcomes that resulted
merely from our natural or native endowments and outcomes that also re¬‚ect some
otherwise unaccounted-for distinctive effort or painstakingly developed talent on
our part. Some of us may distinguish between those with healthy ambition and
those who seem merely to lack ambition, despite their talent. We may distinguish
between the person and the person™s circumstances. Perhaps even more awkwardly,
we may try, however naively, to distinguish between the natural and the social, with
the latter including law, economics, and politics. In other contexts, we may try to
distinguish between the personal and the political. The very constituents of our
bodies are, we often think, not merely our property or exchangeable components
but aspects of who we are.
Whatever the integrity and usefulness of these distinctions, they all tend to
unravel in the enhancement context under discussion. Legal philosophy over the
next century cannot ignore these substantive issues. Will there be much difference
in our advanced enhancement context between, on the one hand, fair equality of
opportunity and, on the other hand, more substantive or outcome-based measures
Legal Philosophy over the Next Century 183

of equality? What, in any of our future enhancement cases, does the equal protec-
tion of the laws require? What would be the proper rate of intergenerational savings
and investment, with the likelihood that the next generation may be dramatically
more capable and productive than its predecessor?
What, in addition, will become of the idea of the community and of the common
well-being? Or even of broad empathy and universal identi¬cation? What would
our current ideas of a social discount rate suggest? Do those who cannot afford to
or who choose not to keep up in the enhancement arms race still have a digni¬ed
place? Can they also be called genuinely free? Analogies to voluntarily separate
Amish-type communities might be comforting, but they are entirely inapt.
Even if we can come to terms with our own local unenhanced persons, however,
we still face the problem of almost entire nations and cultures unable to keep pace
with their richer and now acceleratingly enhanced international peers. Legally
requiring that no one be enhanced until all can, with or without subsidy, would
be hopelessly unenforceable. Is it then the obligation of the enhanced to make
life as pleasant and as digni¬ed as possible for those across the globe who cannot
afford enhancement? Is that also the end of their obligations in this regard? Would
that also be the demise of the age-old human dream of universal solidarity, and
of universal egalitarian brotherhood and sisterhood? Would the idea of human
progress and of the human itself fracture and disintegrate?
Or, returning to our earlier metaethical concerns, should any of this really matter,
independent of our adopted interests, attitudes, and preferences? Suppose that all
relevant policy makers over the next century became thoroughly imbued with
the weight-reduction programs, such that every trace of any aspiration to moral
objectivity disappeared. Would that make any practical difference in how those
policy makers then addressed any of the issues raised by the dramatic technical
enhancement of some people™s basic capabilities?
22 Atmospherics: Abortion Law and Philosophy
anita l. allen




Respect for human life ¬nds an ultimate expression in the bond of love the mother
has for her child.
(Gonzales 2007: 1634)

From the positivists the realists take the insistence on concrete data. . . . The pro-
fession at large still shows, at times, the in¬‚uence of the natural law.
(Llewellyn 1934: 212)

While we ¬nd no reliable data to measure the phenomenon, it seems unexcep-
tionable to conclude some women come to regret their choice to abort the infant
life they once created and sustained. . . . Severe depression and loss of esteem can
follow.
(Gonzales 2007: 1634)

Police of¬cers with cadaver-snif¬ng dogs, shovels and a backhoe dug in the
backyard of a home Monday where the bodies of four infants have been found
since last week. The police say the infants belong to Christy L. Freeman, 37, a taxi
company owner and mother of four. Ms. Freeman has been charged with murder
in the death of one of the infants, a male fetus in the 26th week of gestation found
in a vanity under a bathroom sink.
(“Bodies” 2007: A15)


In 1934, Karl N. Llewellyn published a lively essay trumpeting the dawn of legal
realism, “On Philosophy in American Law.” The charm of his defective little piece
is its style and audacity. A philosopher might be seduced into reading Llewellyn™s
essay by its title; but one soon learns that by philosophy Llewellyn only meant
atmosphere. His concerns were the “general approaches” taken by practitioners,
who may not even be aware of having general approaches. Llewellyn paired an
anemic concept of philosophy with a pumped-up conception of law. Llewellyn™s
law included anything that re¬‚ects the “ways of the law guild at large” “ the ways
of judges, legislators, regulators, and enforcers (Llewellyn 1934: 206).
Whether atmospherics conform to coherent sets of theoretical ideas of the sort
a Richard Posner or Ronald Dworkin might defend was not Llewellyn™s question.
| 184 |
Atmospherics: Abortion Law and Philosophy 185

Yet he credited intellectual judges and scholars, especially Oliver Wendell Holmes,
Roscoe Pound, and Benjamin Cardozo, with roles in making the embrace of realism
headier than a law guild™s unconscious groping for solutions (Llewellyn 1934: 210“
12). A story could be told (but not here) about academic philosophy™s contributions
to American law. Contemporary philosophers have modestly contributed logical
and conceptual clarity; economists and statisticians may have contributed more.
Llewellyn argued that the legal philosophies implicit in American legal prac-
tice had been natural law, positivism, and realism, each adopted in response to felt
needs of a time. We must reckon with many other implicit “philosophies” to under-
stand the workings of the law guild, not the least of which has been racism. Oth-
ers, maternalism and paternalism, my foci here, persist in American law, despite
women™s progress toward equality. Both maternalism and paternalism were strik-
ingly present in a recent decision of the U.S. Supreme Court, Gonzales v. Carhart
(2007), which upheld the federal Partial-Birth Abortion Ban Act.

PHILOSOPHIES OF LAW
Natural law, Llewellyn said, was adopted in response to the needs of a new nation
lacking precedents of its own and short on hospitality for the tradition of British
law. Unashamed reliance upon “right reason” was an expression of the found-
ing generation™s self-con¬dence and rebellion against British rule (Llewellyn 1934:
206“7). Like natural law, racism and maternalism and paternalism were conceptual
needs of a newly independent federation of slaveholding patriots intent on domi-
nating the swatches of North America grabbed from the Native Americans. White
women, slaves, and indigenous Americans did not immediately bene¬t from the
atmospherics of divinely inspired natural law. The original constitution de¬ned
nonwhites out of full citizenship and overlooked women altogether.1
Positivism bloomed in the late nineteenth century, Llewellyn argued. Capitalist
industrialism called for pragmatic law making, especially within private law. Posi-
tivism legitimates rules put into place by the sovereign. Stressing allegiance to rules
and precedent, positivism fostered stability more than justice. Natural law had been
unkind to the powerless and positivism was, too. Complemented by racism, raw
“buccaneer” self-interest, as Llewellyn called it, spelled major trouble. For exam-
ple, West Coast towns and cities passed laws to eliminate the competition from
their Chinese immigrant communities “ laws prohibiting laundries built of wood
and carrying things on poles. The Chinese were rounded up and their property
con¬scated or burned. In principle, legal positivism is a two-way street. Indeed,
some Chinese immigrants who sued for restitution under positive law theories of
tort and contract won (Pfaelzer 2008). Although the letter of law strictly applied
sometimes helps the little guys, power will manipulate law to serve the interests
of power. Positivism in the air may help explain Plessy v. Ferguson. The Supreme

1
See art. 1, sec. 2: “Representatives and direct taxes shall be apportioned among the several states
which may be included within this union, according to their respective numbers, which shall be
determined by adding to the whole number of free persons, including those bound to service for a
term of years, and excluding Indians not taxed, three ¬fths of all other Persons.”
186 Anita L. Allen

Court read the law of equal protection ungenerously, so as virtually to reenslave
southern African Americans through demeaning segregation.
According to Llewellyn, realism evolved in response to the needs of the twentieth
century. The little guys organized and ¬‚exed muscle. Popular movements “ labor,
farmworkers, and small business among them “ demanded policies of protection
and reform. The gospel of realism teaches that law is an instrument of power
that can be educated with hard fact and marshaled through politics for social
improvement and a more complete democracy. From its cynical (Holmes) and
ethical (Pound) variants, and its sociological roots, realism emerged (with the
help of Cardozo) to enable the legal system to solicit “more exact knowledge” for
policy making (Llewellyn 1934: 212). Realism suits us as a nation of pragmatists
compelled to govern the powerful and the powerless alike, Llewellyn contended. In
1934 realism had found “yet little echo among judges”; nonetheless, it came into
its own as Llewellyn (1934: 212) predicted because it was “much closer than any
others to the actual behavior of the better bar.” The realist atmospheric survives
in progressive legal theory and mainstream legal practice. But positivism is a vital
sibling and natural law is good for an occasional cameo.

NEGLECTED PHILOSOPHIES: BEYOND THE BIG THREE
The big three philosophies “ natural law, positivism, and realism “ have never
exhausted the atmospherics of American law. It is implausible to reduce to only
three all of the philosophies immanent in the ways of the law guild. Moralism, for
example, was evident in Anthony Comstock™s legal innovations targeting porno-
graphy, contraception, and abortion. Llewellyn neglected the challenge to moralis-
tic paternalism embodied both by Margaret Sanger™s battle against Comstock-era
laws and the successful reform movement for women™s suffrage. Outside the shad-
ows, there are no women in Llewellyn™s story of American legal philosophy, not
even when he describes the push for democratizing reforms in the early twentieth
century. Maternalism and paternalism are major atmospherics, especially note-
worthy for the injustice they have done, and continue to do. Women are dragged
down by the law™s implicit paternalism (its tendency to control the lives of individ-
uals, nominally for their own good) and maternalism (its assumption that bearing
children and caring for others is the natural and optimal role of women).
In Gonzales v. Carhart the U.S. Supreme Court upheld a federal abortion pro-
hibition. Congress enacted the Partial-Birth Abortion Ban Act, signed into law by
President George W. Bush in 2003. Under the ban, physicians can be punished for
knowingly performing an abortion using techniques labeled partial-birth abortion.
Congress was attempting to bring an end to a class of procedures that second- and
third-trimester abortion providers sometimes term D&X (short for “dilation and
extraction”) or intact D&E (short for “intact dilation and evacuation”).2 Writ-
ten by Justice Anthony Kennedy, the majority opinion in Gonzales is mired in
the atmospherics of maternalism and paternalism. Justice Kennedy™s maternalism
and paternalism do not countenance the possibility that a sane and ethical woman

2
See generally. http://www.guttmacher.org/statecenter/spibs/spib BPBA.pdf.
Atmospherics: Abortion Law and Philosophy 187

could knowingly approve the destruction of her living fetus once it has been coaxed
halfway through her cervix.
The Partial-Birth Abortion Ban Act criminalizes abortions in which a living
viable or living nonviable fetus is killed after its head or abdomen passes from the
womb through the cervix. The Act includes an exception for abortions necessary
to save the lives of pregnant women, but there is no exception for women™s health.
Abortion rights advocacy groups went to court to oppose the partial-birth ban.3
They feared the act would set the nation on a slippery slope toward the recrim-
inalization of most abortions. They also feared that authorities could interpret
the act to prohibit medically safe best practices. The act™s opponents maintained
before the Supreme Court that the act was unconstitutionally vague, like the
Nebraska law the Court had struck down a few years earlier in Stenberg v. Carhart.
Opponents further argued that by proscribing medically safe and popular D&E
abortions of nonviable fetuses and by not including a maternal health exception,
the act imposed an “undue burden” on the woman™s right to choose, in violation
of Planned Parenthood v. Casey (1992: 839).
Since Roe v. Wade, women in the United States have enjoyed a right against cate-
gorical criminalization of medically safe abortions. At least one million women in
the United States obtain surgical or medical abortions each year from professional
health-care providers. Typical abortions are $300 surgical abortions obtained in
the ¬rst trimester of pregnancy. Most surgical abortions involve inserting a device
through the woman™s cervix and suctioning the contents of the uterus. In a med-
ical abortion a woman who is one to two months pregnant ingests prescribed
drugs (usually methotrexate and mifepristone) that cause her fetus to be expelled
from her body over a period of days in a manner akin to a natural spontaneous
miscarriage.
The essential holding of Roe v. Wade was af¬rmed in 1992 in Planned Parenthood
v. Casey. But Casey also held that government can establish abortion restrictions,
including waiting periods, that do not “unduly burden” the right to elect abortion.
Even before Casey, the Court had concluded that states and the federal government
can express through their laws and policies a preference for childbearing over
abortion (see Webster and Rust). States may assert an interest in protecting the
life from the moment of conception and may regulate abortion in the interest of
women™s health. Abortion privacy is being replaced by abortion paternalism.
The Gonzales Court held 5“4 that the Partial-Birth Abortion Ban Act is constitu-
tionally valid. Justice Kennedy reasoned ¬rst that the act is not unconstitutionally
vague because “[d]octors performing D&E will know that if they do not deliver
a living fetus to an anatomical landmark they will not face criminal liability”
(Gonzales: 1628). Second, the act is not unduly burdensome because it does not
prohibit most or all abortions and cannot be read to do so. The act proscribes
only those D&E abortions performed both intentionally (not accidentally) and by
killing an intact fetus whose head (or abdomen) has been delivered past the cervix.
Justice Kennedy acknowledged that Casey upheld Roe. Yet under the holding of

3
Gonzales v. Carhart and Gonzales v. Planned Parenthood were joined as Gonzales v. Carhart. See
Gonzales v. Carhart, 127 S. Ct. 1610 (2007).
188 Anita L. Allen

Casey (878), “[r]egulations which do no more than create a structural mechanism
by which the State, or the parent or guardian of a minor, may express profound
respect for the life of the unborn are permitted, if they are not a substantial obstacle
to the woman™s exercise of the right to choose.” Justice Kennedy further argued
that the act does not require a health exception because there are alternatives to
the banned procedure. The Court noted that the act bans neither an injection to
induce vaginal expulsion of a nonviable living fetus nor surgery to remove the
nonviable fetus.

PATERNALISM AND MATERNALISM
Kennedy™s opinion is striking for the extent of its paternalism and maternalism.
According to the justice, “Respect for human life ¬nds an ultimate expression in
the bond of love the mother has for her child” (Gonzales: 1634). Might respect
for human life ¬nd another ultimate expression in deference governments show
toward the morally autonomous decisions adult women and their partners make
about their own lives and families? Kennedy takes the ascribed bond of love to
explain why women must surely go a little crazy after an abortion, and especially
a partial-birth abortion.
Kennedy had no hard data to support his maternalist assumptions. But in a
super¬cially realist spirit of adjudication guided by data, Kennedy provided two
medical professionals™ descriptions of partial-birth abortion. The ¬rst was a clinical
account of the abortionist™s technique:

The doctor, often guided by ultrasound, inserts grasping forceps through the
woman™s cervix and into the uterus to grab the fetus. The doctor grips a fetal part

<< . .

 22
( 36)



. . >>

Copyright Design by: Sunlight webdesign