The "issue" of abortion and negative eugenics

The issue of abortion like many legal concerns is also an ethical one. The most famous legal case concerning abortion is Roe v. Wade (1973); this may be related to the fact that it is perhaps the most politically polarizing U.S. Supreme Court case in recent history. However, initially after its decision in 1973 public approval was met by a majority of men and woman—Republicans (68 percent) even more so than Democrats (59 percent)—according to a Gallup poll. This convergence of public support with legal ruling was short-lived. By the late 1970s, the abortion issue became entangled with partisan politics and the rise of the religious Right, which has to this day divided our country and especially the Republican Party. In a tactic known as divide and rule, politicians could play these newly created single-issue voters against one another in a largely incoherent, semantic debate between “pro-life” and “pro-choice”. As Ronald Dworkin pointed out:

“[P]eople’s opinions about abortion do not come in only two varieties, conservative and liberal. There are degrees of opinion, ranging from extreme to moderate, on both sides, and there are also differences of opinion that cannot be located on a conservative-liberal spectrum at all.”

For example, whether a later abortion is worse than an earlier one does not appear to be distinctly either liberal or conservative. What constitutes an ethical abortion—if such a thing can be said to exist at all—has been politically linked to the legal question: Does a woman’s right to an abortion fall within the right to privacy protected by the Fourteenth Amendment? The Supreme Court from Roe v. Wade (1973) through Webster v. Reproductive Health Services (1989) has come to answer this question with a nuanced Yes. The decision in Webster may have reaffirmed the constitutional concept of right to privacy, utilized in Roe v. Wade, but it has renewed abortion as a political issue on the state and local levels.

Skinner v. Oklahoma ex rel. Attorney General (1942)

This case concerning the involuntary sterilization of repeat criminal offenders of “moral turpitude” was decided, interestingly enough, when across the Atlantic the Germans were practicing a most infamous process of negative eugenics. A basic definition of justice is treating like cases alike. The court having found stare decisis in Buck v. Bell (1927) may have found the due process protected by the Fifth and Fourteenth Amendment lacking in this case since “the defendant is given no opportunity to be heard on the issue as to whether he is the probable potential parent of socially undesirable offspring”. Ultimately, however, Justice Douglas did not cite the lack of due process or even Skinner’s concerns over the cruel and unusual punishment as material to the court’s decision, but rather found that the statue constituted a denial of equal protection guaranteed under the Fourteenth Amendment since some offenses of equal magnitude and otherwise identical punishments were omitted from the statue (e.g. white-collar crime). Treating embezzlement in a manner that is grossly different from larceny seems to be unjust.

The purpose of the statue under review was to eradicate undesirable genetic propensity for criminal activity of “moral turpitude”. Putting aside the “view of the state of scientific communities”, this preventive theory of crime and punishment—which is commonly utilized in the defense of the death penalty—is arguably immoral. As Oliver Wendell Holmes, Jr., who had wrote for the court in Buck v. Bell, stated that the preventive theory is immoral since it “furnishes no measure of the amount of punishment, except the lawgiver’s subjective opinion in regard to the sufficiency of the amount of preventative suffering… and treats man as a thing, not as a person; as a means, not as an end in himself” (cf. Immanuel Kant’s Grounding for the Metaphysics of Morals).