Tuesday, March 22, 2011

women: making choices or making babies (it's not a binary)

I've been following the debate about abortion on the Standard plus various other blogs with interest (for starters, try the Hand Mirror's excellent series on abortion in New Zealand).

It's a difficult subject to talk about. It's fraught with a whole lot of ethics (women's right to autonomous decision-making regarding her own body; the status of a foetus; whether any other person should be involved in a woman's decision-making process) and a whole lot of politics (is there room on a left-leaning Order Paper for a bill about abortion rights and access? Can we convince the punters?). It's also deeply personal for me, a person who could become pregnant (and probably will never choose to do so).

The thing is: I think at least some of the criticisms laid against the firmly pro-choice position from other pro-choice positions are a little disingenous. Here's why:

As I understand it, the firmly pro-choice position boils down to—
1. the person most qualified to make a decision about her bodily integrity and her ability/willingness to carry a foetus to term is the woman whose body it is.
2. that woman should be able to make a decision about whether to continue carrying a foetus to term at any point during the pregnancy.

The effect of this position is abortion on demand, including late-term abortions.

Now, let's take the position I was at until this weekend, which was:
1. without reservation, a woman should be able to decide to terminate a non-viable foetus. This includes all early-stage pregnancies as well as pregnancies which are later discovered to not be viable.
2. I have difficulty in accepting that a woman who is healthy herself and whose pregnancy is at a sufficiently late stage for the foetus to be viable (without significant disabilities such would greatly reduce the child's quality or length of life once he or she has been born) should be able to choose to terminate the pregnancy. This is one of those ethical gut-reactions that I can't suppress or adequately justify.

I still have difficulty accepting 2. above. But I don't think it matters.

The firmly pro-choice position would extend the right to seek an abortion to the greatest number of women who might choose to have one, namely all of them. This would necessarily include a woman who chooses at 38 weeks to terminate her pregnancy despite being in the picture of perfect health herself and knowing that the foetus is also healthy.

I don't know that that woman actually exists. If she does, I haven't heard of her. Women who choose to terminate a pregnancy at a very late stage do so almost exclusively for medical reasons, either their own or those of the foetus. The literature I have read (which is far from exhaustive) seems to suggest that there are women who would like to abort past the current limits in NZ law, but often this is a result of having been unable to access abortion services within the current limits in NZ law.

So why I think my earlier position was somewhat disingeneous is:
1. the firmly pro-choice position extends abortion rights as widely as possible.
2. there may be hypothetical women who would exercise that right in a way that I find morally repugnant.
3. however, if the firmly pro-choice position is restricted (for example, by term limits), it would almost certainly restrict the choices of women who I accept without reservation should be able to access an abortion.

That is to say, by focussing on a hypothetical set of women I am ignoring the needs of actual women. This is not good policy-making.

The other argument I find slightly disingenous is the argument that runs:

"But what about the views of the man/boyfriend/partner/husband/parents/family/wider society? DO OUR VOICES NOT COUNT?"

The firmly pro-choice position is mainly framed as a simple "no." It may in fact be "no"; I haven't done a straw poll, nor is everybody's opinion identical (obviously).

But. Women don't exercise choice in a vacuum. That's probably one of the main points of feminism and feminist theory: that our choices are profoundly influenced by the positions we find ourselves in, and that the positions we find ourselves in may be (and often are) outside our control.

As a corollary of that, women don't make decisions in a vacuum. There's nothing about the firmly pro-choice position which excludes women who are deciding whether or not to seek an abortion from soliciting the opinions of people whose opinion they think are important, and from then considering those opinions in their decision-making process. For some women, the opinion of her partner may well be determinative.1 The point is that other people's opinions should not be determinative (or influential) if the woman exercising her right to choose does not want them to be.

So where's the problem? Most women will want to know what the feelings of their partner are, if they're in a relationship (you expect that, I think, in relationships). Many women will talk to their family, or to close friends, or to whoever they want to. Your voices will be heard! Many women will have regard to how you feel! It may take the form of consultation, where there's no requirement to actually follow what the consulted people ask for, but it will be there in many, if not most, cases.

(There'll be women who choose not to involve anybody else in their decision. And I fail to see the problem with that: they're autonomous human beings too, kid.)

1. You know, [stuff about power imbalances goes here], but I think a woman could legitimately choose to have a baby or not to have a baby because her partner wants one/doesn't want one, and I think it's absolutely that woman's right to decide for herself what factors are and are not important in her decision-making process. That's kind of what this whole thing is about, for me.

Monday, March 21, 2011

a defence of your right to be a doucheknob

1. People should know what the rights they're talking about are BEFORE they claim to have them and try to apply them to situations.
2. Law school ruins lives.
3. ???
4. Profit.

One of the things that really, really annoys me when I'm lurking in discussions is the freedom-of-expression card.

It annoys me for a lot of reasons, namely—
1. as far as I can tell, people using it are usually (in a New Zealand context) assuming a number of things about rights jurisprudence that aren't actually true. I think people get confused with the way the Supreme Court in the US seems to uphold their constitution all the time. We don't have a written constitution in the same way; specific to human rights, the rights are different, the court's definition of who can breach a right is different, and the court's ability to respond to breaches is different.

2. Freedom of expression in the New Zealand context (as per section 14 of the New Zealand Bill of Rights Act 1990 (BORA)) is stated simply as "Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form." This is a really broad right; case law on the subject says things like "as wide a right as human thought and expression."

3. But there's more to BORA than just what the rights are. BORA only applies to acts done—
"(a) By the legislative, executive, or judicial branches of the government of New Zealand; or
(b) By any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law."
(See section 3 of BORA at the link above if you don't believe me.)

That means that the right is only actionable against things done by the state. You can't enforce your section 14 freedom of expression rights against an individual you're debating with on the internet, because that individual isn't a branch of government or a person exercising public functions, duties, or powers.*

Which. Someday I'm going to actually engage in that argument with someone, saying things like "section 3 of BORA states that the Act only applies to acts done by the legislature, executive, or judiciary (or various other public sector bodies). I do not fall within that category. Therefore you have no rights under BORA as against anything I might do or say to you. I think you're thinking of the Human Rights Act, but that doesn't protect freedom of speech per se. There are protected grounds of discrimination, but your personality isn't one of them."

4. I don't think that freedom of expression, at least in the broad sense of A Thing That Is Good And Should Be Protected, stops existing because it can't be actioned or enforced in some situations. People being able to state their views openly IS a good thing, even if those views are subjectively (or objectively!) wrong.

As Voltaire said (and this gets quoted on the interwebs a LOT): "I disapprove of what you say, but I will defend to the death your right to say it."

But—if you're going to accept that (and I think we should), then you have to go back to that niggly little first word of section 14 of BORA, "Everyone", and think about that
(a) a defence of your right to say something is not a defence of the statement itself; and
(b) if the right applies to everyone (and it must necessarily do so to be meaningful), then that must include the right to disagree; and
(c) if you are going to make public statements about something, then surely disagreement is part of the discourse; and
(d) sometimes disagreement is painful and offensive, but then sometimes the initial statements are as well.

I'm totally unconvinced by the suggestion that public disagreement with a postion taken on an issue somehow constitutes a stifling of the original statement, or an effort to shut it down, or an infringement of the original speaker's right to free speech. If anything I think that public disagreement upholds the right by validating the original speaker's right to take a position, even if it is objectionable to the respondant.

5. But I don't think that the above is necessarily what people mean when they cite their rights under BORA. Often the subtext is that you're a PC Nora-No-Friends who can't take a joke, and you want to shut them down so that we can all live in an idyllic world of sunshine and rainbows (but not the gay kind).

In which case I think the correct answer is probably to ask them why they find disagreement so hurtful and dangerous.

(There is in that last point a really interesting debate about intent, but I think at the point you're citing BORA to back up whatever you've said, you (a) are now aware that people have found it offensive, and (b) might well have known that people would find it offensive before you said it. Also I'm not willing to talk about intent and how I think it plays into debate until I've thought about it a lot, lot more.)

*Though it'd be really interesting to see what would happen if you were having a debate with, say, a Minister of the Crown online, and they tried to shut you down.