Kennedy, Anthony - Gonzales v. Carhart

04/27/2007

No. 05-380, April 18, 2007

This is the opinion of the supreme court of the USA, regarding a federal 'partial birth' abortion ban that was legislated and then challenged 'facially' (before anyone was even arrested for violating the statute). The findings of the court was a 5-4 decision that the act was not facially unconstitutional.

Much has been said and already discussed on this opinion, so I shall stick to the outline.

Author first lays out the history of the case and previous rulings related to it, mentioning Stenberg v. Carhart in particular. Author also gives the history of the act and background information on the method of second trimester abortions that are commonly performed, one is D&E (dilation and evacuation) and D&X (dilation and extraction). Of the two, D&X mostly involves delivering most of the fetus, then piercing its skull and shrinking its head to get it out of the birth canal. Though D&X is far less utilized than other practices, it is used by many doctors who consider it a safer (health-wise for the woman) to use it. The act seeks to ban variations of D&X, and gives no health exemptions for the woman. Congress performed a finding of fact, which was mostly mixed and somewhat erroneous, but concluded that there is no medial necessity to perform D&X.

Author first claims that the act is not vague and lists the specific conditions that are punishable and the alternatives that are not. (III A, B) Author then considers whether vague language in the act creates an undue burden on a woman seeking an abortion, since it could cover D&E; he rejects this (III C1). Author also rejects that some abortions that begin as D&E end by accident as D&X and that this would chill other abortion procedures, making an undue burden; author rejects this by affirming that the act calls for it to be an intentional D&X, not an unintentional one.

Author further affirms two claims: 1) that the state has a legitimate interest in preserving the integrity and ethics of physicians, and 2) that partial birth abortions are 'lade with the power to devalue human life'. The decision to have a D&X is so fraught with emotional consequences that some doctors do not disclose the details of the procedure: but how the procedure takes place is precisely the issue abhorrent to the state. Author thinks it might be possible that abortion doctors will develop new, less shocking methods, of aborting late-term fetuses. The state has an interest in preserving a bright line between good medicine and bad: it is tough to tell the difference between a D&X and infanticide.

The next issue is the lack of an exception for the preservation of the health of the mother. (IV B) Author claims there is medical testimony on both sides of the question of whether a D&X is ever medically necessary. According to the testimony of some doctors, a D&E is always just as safe. Author claims that because there is medical uncertainty, there is no reason to presume on the side of caution in a facial challenge. The state is permitted to pass a wide range of legislation where there is medical or scientific uncertainty. Author leaves open that an 'as-applied' challenge can be used here instead of a facial challenge.

Scalia & Thomas concur, also claiming that there is no basis in the US Constitution for Roe v Wade.

Ginsburg delivers the dissent

Author first points out that the claim of medical uncertainty is fallacious since, mostly, Congress ignored the testimony of good abortion doctors and listened to many non-abortion doctors who all claimed that D&X was not medically necessary. There is a strong body of evidence that for a small portion of women, D&X is less dangerous to the health of the mother than any other option.

Author claims Kennedy et al have not drawn the line for abortions at viability/non-viability but instead at a idea of resemblance to infanticide/abortions.

The only saving factor here, author claims, is that as-applied challenges are still possible.

Houser, Marc et al - A Dissociation Between Moral Judgments and Justifications

04/20/2007

Mind & Language, Feb, 2007

Though this is a recent paper, it revisits the same studies that have been going on regarding 'trolley cases' where subjects are asked about the morally permissible action given a range of moral scenarios. There are four basic scenarios:

1) Redirect a trolley (bearing down on 5 people) onto a different track that kills one person instead.
2) Push one person in front of the trolley in order to stop it (successfully)
3) Redirect that same trolley so that it kills one person, but gives everyone else enough time to get out of the way
4) Redirect the trolley so that it is stopped by a heavy weight, but in the process of getting to that heavy weight, kills one person in the way.

There was a large number of respondents, due to the internet as the distribution method. The study done here was to examine a case where moral judgments are made without reference to explicit, conscious, reasoned rules. The contrast was drawn between three theories of moral psychology:

1) Cognitive: moral judgments are made with reference to explicit rules that are consciously considered
2) Emotive: moral judgments are made due to unconscious emotional responses to situations and also consciously using an 'intuitive' standard
3) Rule-following but still intuitive: this is the view of the author. He wants it to be the case that we do follow rules that in principle can be made explicit, but we don't necessarily usually have access to these rules when making moral judgments. This is made easier to understand by analogy to the linguistic case, where rules are followed but not necessarily made explicit in order to be followed.

In this study, the third theory was supported against the first by showing that a significant number of respondents adhered to particular moral principles but were unable to provide and coherent explanation for their judgment upon questioning. Furthermore, these judgments were made across all demographic groups identified. In this case the particular moral principle was the Principle of Double Effect, a principle that posits that contingent foreseen harm to another as a side-effect of some (greater) good is preferable to (the same) harm that is necessary to secure the same good.

Here was how the data broke down in response to the question: is it morally permissible to...
1) Yes 85%
2) Yes 12%
3) Yes 56%
4) Yes 72%

Author claims that this data shows that in the context of these cases of moral judgments, there aren't explicit moral principles that the subjects are consciously reasoning about, even though they may be following principles like the principle of double effect. There are two possible objections to the results of this study: a) the subjects weren't given enough time or b) if the subjects were given a set of principles to choose from, they would pick the relevant one. The replies author gives is that a) the subject had plenty of time and b) that these might just be post-hoc rationalizations, not identifying the principles of their reasoning.

Priest, Graham - Truth And Contradiction

04/13/2007

The Philosophical Quaterly, Vol 50 Num 200 July 2000

Author begins by announcing that he is a dialethiest and believes that some contradictions can be true [or at least that not all contradictions are false?]. This is a claim about how to put together logic-- or what 'kind' of logic to endorse. [Logic is supposed to be a system of inferences that, if applied, are truth-preserving.] He doesn't argue directly for the appropriateness of dialetheism, instead is intent to show that the 6 front-running theories of truth (what makes something true if it is true) don't rule out dialethiesm. If none of the theories of truth particularly exclude dialetheism, then those who oppose such a logic will have to find some other resource to use to combat dialetheism. There are three traditional theories of truth, and three more modern ones. Author doesn't enumerate all the fine points of any of these theories, or even compare or contrast them; he simply gives minimal information about each and tries to show how it doesn't rule out dialetheism.

One caveat the author lays out is that there is a problem of what we're applying logic to: sentences, propositions, beliefs, statements, worldviews... what? Author says that nothing he talks about hinges on a specific restriction-- whatever the 'truth-bearers' are, that is what he will use-- he will use the Alpha symbol for this category.

(1) Deflationism
Deflationism says that was is true is the same thing as saying what is. This theory, author claims, has a tendency toward dialetheism, since certain paradoxes (the liar paradox) can lead to affirm a contradiction.

(2) Semantic Theory of Truth
This theory might have a problem in general if it uses a logic that allows anything to follow from a contradiction. For this, author suggests a paraconsistent logic that does not allow explosion. Once this happens, author claims this theory is consistent with dialetheism.

(3) Teleological Theory
We normally say 'x is true' to prove a point-- we aim at something when we say it. Author claims this is neutral when it comes to dialetheism.

(4) Pragmatist Theory
This theory says that something is true if it 'works', meaning perhaps it is verified in practice. This pragmatism can allow for inconsistent theories-- in fact ones that contain contradictions! Thus dialetheism is acceptable according to this theory as well.

(5) Coherence Theory
This one appears the most difficult, since 'consistency' in a model of truth seems to be immediately valuable. But here the author argues that there might be some virtues of a theory that are greater than consistency, and if so, the coherent theory must allow for an inconsistent but otherwise virtuous theory to be the true one.

(6) Correspondence Theory
Considered the most traditional theory, it says that something is true if it corresponds to reality. How exactly it can 'correspond' is the trouble here. Author sketches 'situational semantics', which is a system of logic that allows for context-specific truth values that might be ultimately contradictory if placed into a larger context, but avoid the difficulty by being contextual. The idea the author wants to avoid is the idea that the correspondence theory has to deal with a world or other maximally consistent set of objects to correspond to, not a smaller subset of things. The problem with this 'situational semantics' is that it allows for 'negative facts', or facts about what is not the case. This flies in the face of traditional correspondence theories like Wittgenstein's or Russell, since correspondence theories intuitively correspond to what is, not what isn't. But author argues that this is an arbitrary distinction.

Koenigs, Michael et al - Damage to the Prefrontal Cortex Increases Utilitarian Moral Judgments

04/06/2007

Nature, 03/27/2007

This is a short study done by moral psychologists who studied subjects with Ventromedial Prefrontal Cortex, a part of the brain that is considered important for executing emotional responses and also encoding the emotional value of sensory stimuli. There has been previous work done that connects emotions to moral judgments, but it is unclear whether this is cause, effect, or correlational. This study tries to show that the emotive value of certain situations exerts influence on the moral judgments most non-VMPC damaged subjects.

In this study three groups were examined: VMPC subjects, other brain damaged subjects whose damage isn't considered to be relevant to emotion generation or moral judgments, and non-brain damaged subjects. Each group was given a number of circumstances with questions at the end of them with yes/no answers attached. Some of the scenarios were non-moral in nature, and two sets were moral. Of the moral, some were judged (by an independent group of non-damaged subjects) to be more or less 'emotionally salient', corresponding to 'personal' and 'impersonal' divisions.

The hypothesis is: If emotions have a role in influencing moral judgments, those who have difficulty generating emotions (VMPC) will not have their moral judgments influenced.

In the testing, the VMPC subjects were more apt to judge the personal and impersonal moral scenarios equally, or at least far more equally, than the other groups. Thus there is an absence of a 'personal/impersonal' distinction in VMPC subjects. The ability to apply explicit rules of max/min in moral scenarios is still retained by VMPC subjects (pg 3, top right side), suggesting that these judgments are 'utilitarian'.


Wade, Nicholas - Scientists Finds the Beginnings of Morality in Primate Behavior, New York Times, 03/20/2007

This is a popular article that talks about primatologists, biologists and so on finding elementary 'morality' in other animals. The big conflict is between Dr. de Waal, who has recently taken a few tough positions. The one most grand is that human moral decisions derive 'above all' from 'fast, automated, emotional judgments'. De Waal also is in favor of the claim that this is a group-level adaptation, primarily to deal with in-group and out-group situations (e.g. warfare).

The evidence points to the ability of other primates to learn social rules, reciprocity, peacemaking, and their capacity for empathy. The next step is to claim this is the bedrock of moral judgments [see article above this one].

The debate is poorly framed between rationalists and scientists.