Norman Finkelstein's Reservations About Abortion
I'm a big fan of Norm Finkelstein, and his discussion of abortion rights in his book "I'll Burn That Bridge When I Get To It!" made me think--but it didn't sway me. Let's break it down.
I’m a fan of Norman Finkelstein. I don’t always agree with him. The first time he was on my show, for example, we had an hour-long debate on Ukraine. But I not only like but deeply respect him. He’s a fanatically scrupulous researcher who takes his own integrity very seriously and is genuinely offended when he doesn’t see it mirrored in others. His takedown of professional fraud and ethnic cleansing apologist Alan Dershowitz was a beautiful thing to behold. He sacrificed his academic career to take a stand for Palestinian human rights back when far fewer Americans cared about that cause. I also find myself nodding along with many of his critiques of contemporary progressives’ tendencies toward censoriousness and identity politics. I absolutely think the left would be better off if we paid more attention to critics like Norm.
Beyond these particulars, though, what I admire most about the man is his willingness to form his own judgments and say exactly what he thinks is true without worrying about how anyone else will respond. This virtue is on full display in his book I’ll Burn That Bridge When I Get To It!. Even the arguments I was the least persuaded by made me think harder about some of these topics than I would have otherwise.
One of the most striking examples is the section where he discusses abortion rights. He brings it up in order to make a larger point I actually agree with about free speech. He thinks that what will eventually come to look like “progress” isn’t always obvious at the time, and that this is one of many reasons we should be less comfortable calling for “regressive” views to be silenced.
It’s a fascinating few pages, covering everything from Plato’s discussion of the advisability of killing “defective” babies in the Republic to his own mother’s experiences in the Warsaw Ghetto (where she almost certainly had an abortion). He asks himself an uncomfortable question about a position that’s taken as a given by pretty much everyone on our side of the political fence. How sure are we that future generations will regard the liberalization of abortion laws as historical progress?
He starts by considering an awkward precedent—the debate over forced sterilization laws in the early twentieth century:
A veritable Who’s Who of progressive thinkers—Theodore Roosevelt, Margaret Sanger, and Helen Keller in the U.S.; Bertrand Russell, Bernard Shaw, and H. G. Wells in the U.K.—embraced the eugenical improvement of the human race via scientific breeding. States in the Union that had “enlightened” governments such as Wisconsin passed mandatory sterilization laws to weed out “defectives”… Such legislation met resistance, however, in the “backward” God-fearing Protestant Bible-Belt states of the Deep South that consecrated our common humanity—salvation being within reach of all God’s children. Eventually, however, the Deep South, too, fell into line as these states succumbed before the juggernaut of “progress.” …It was not until the Nazis carried this progressive idea to its logical conclusion that it fell into disfavor.
He uses this case to ground what looks to me like an inductive argument at least vaguely similar to the “pessimistic meta-induction” in the philosophy of science. The latter starts from the premise that all past scientific frameworks have eventually been superseded and proceeds to the conclusion that our best current science will probably be overthrown in due course. Norm worries that the “verdict of History” will be as unkind to secular scientifically-minded progressives who dismiss concerns about the sanctity of human life in the case of abortion as it was to their predecessors in the case of sterilization and that the Catholic Church, for example, will be vindicated on the former just as it was on the latter.
The right to sterilize was about government interference in the reproductive process; the right to abort is about barring government interference in it. But at bottom the moral stake is arguably the same: the sanctity of human life. The devout opposed sterilization then and oppose abortion now, whereas progressives supported sterilization then and support abortion now. Feminist firebrand Katha Pollitt deems a woman’s right to abortion the litmus test of feminism: to support abortion is to support the march of progress. But is it that simple? The long arc of civilization would seem to bend toward an ever more inclusive notion of human life.
He goes on to criticize the legal reasoning the Supreme Court used to uphold a right to abortion in Roe v. Wade, which he says merely “pretended” to “avoid the enigma of when life begins.”
[T]he Court was being disingenuous. First, except by artifice, it seems impossible to decide the legality of abortion without engaging this irreducible question. Second, even if only by indirection, the Court did stake out a position on when life begins. The problem, alas, was that its position was wholly unpersuasive and wholly political. The Court dismissed the “pro-life” position that life begins at conception as “rigid” but didn’t explain why it was rigid. If life did in fact begin at conception—the Court claimed to be agnostic—what would be “rigid” about principled adherence to this belief by opposing all abortions?
One response to the pessimistic meta-induction is to simply insist that our beliefs can only be justified right now by the best evidence available to us right now. Similarly, even if Norm is right that “for all anyone knows, the so-called rigid pro-life position might be vindicated by History,” we might think the high likelihood of this outcome isn’t a good enough reason to oppose abortion rights now. If you’re going to restrict pregnant women’s freedom now, you better have a really good argument for fetal personhood now, not just a strong suspicion that future generations will one day arrive at one.
He acknowledges this much. But even there, he worries about the counterargument:
Indeed, if the jury is still out, and it’s human life that’s at stake, then isn’t the categorical imperative to err on the side of caution: if it might be life, then act as if it is life?
Despite it all, he doesn’t (quite) find his way to the “pro-life” position.1 That’s why this essay is called “Norman Finkelstein’s Reservations About Abortion” not “Norman Finkelstein’s Call to Ban Abortion.”
And, honestly, I respect the reservations. They’re a symptom of intellectual honesty and a deep willingness to be proven wrong. Ultimately, though, on this particular topic, I strongly suspect that History will side with Katha Pollitt.
To see why, let’s start where he does—with sterilization. It’s true that there’s a consistent thread tying together the position taken by e.g. the Catholic Church in that debate and in current controversies about abortion. They view any interference with the reproductive process, whether by the state or by the parents themselves, as a violation of natural law. They’re indeed likely to use phrases like “the sanctity of life” when explaining this position. But is that what the rest of us regard as the retrospective moral horror of forced sterilization? After all, the Church’s “sanctity of life” position also forbids voluntary sterilization—e.g. a father of five deciding he’s had enough kids and deciding of his own free will to get a vasectomy. It also condemns condoms and birth control. It doesn’t seem to me that History has vindicated any of that.
Why not say that “at bottom” the “moral stake” tying together debates on forced sterilization a century ago and voluntary abortion now is that would-be parents are human beings with a right to control their own reproductive destiny not farm animals who will breed, or be prevented from breeding, as others decide? Why not say the long arc of civilization bends toward a more expansive notion of freedom?
In Plato’s time, no one debated slavery as a moral issue. It was just the way the world had always worked. In the early twentieth century, few enough people believed that the “defective” should get to make their own decisions about whether to have children that opposition to forced sterilization was more likely to be based on religious objections than belief in the medical autonomy of “defective” would-be parents. Today, we find the indifference of past generations toward these freedoms shocking. Of course slavery is wrong. Of course sterilization was a horrifying thing to do to people without their consent—and that word “consent” would probably rise to the lips of even many conservative Republicans contemplating the sterilization debate from the vantage point of 2024.
Norm’s discussion of the Court’s reasoning in Roe v. Wade suggests that he takes it as obvious that if “life begins at conception,” then the fetus’s right to life would outweigh the mother’s right to control her own body. I disagree.
To start to see why, let’s start by taking a closer look at that word “life.” Taken literally, of course life begins at conception—but that’s not the issue in dispute when people argue about “when life begins.” An hours-old zygote is a (very simple) living being. The controversial question is whether this literally mindless clump of cells—living human cells, to be sure—is a person with the same moral claim to life as me or Norm or Katha Pollitt.
A simple way of testing your intuitions on this point—not original to me—is to imagine a case, a la the ethics of lifeboats and trolleys, where you had a choice between saving five hundred frozen embryos or a single toddler. I know I wouldn’t hesitate. Honestly, I doubt that even the justices who brought us Dobbs would hesitate to rescue the toddler from the fire rather than saving five hundred “children” if they were faced with that situation—although the irony might strike them when they thought back to it later.
Even so, I’ll acknowledge that (at best) this shows that most of us, regardless of our official position on the matter, don’t quite believe that personhood begins at conception. It doesn’t necessarily show that we’re right not to believe it.
There’s a whole layer cake of conceptual headaches here about exactly what we mean by “person” and what it is about a person that gives them a right to life in the first place before we even get to the empirical issues about the stage of pregnancy at which a fetus fulfills whatever definition we land on. The idea that you can be “person” without having a mind—even the kind of mind that non-human animals have—seems awfully implausible. While we’re at it, there’s another non-trivial question looming here about what sort of right to life at least some nonhuman animals might have and how future generations might end up feeling about our treatment of cows and pigs and chickens. Assuming the bar for personhood is going to be set at a place where those creatures won’t qualify, though, where exactly is that? Does it have to do with rational capacities? I’m not so sure. I have a nephew who’s not quite a year old. That branch of the family lives a few minutes away from me and I see my nephew all the time and I think I might literally die for that kid if the situation ever came up but I don’t know that whatever rational capacities a ten-month-old can claim have much to do with it.
Happily, I actually agree with the Court (pre-Dobbs) that we don’t have to chew our way through the layer cake and arrive at “fetuses definitely aren’t people” in order to strongly support a right to abortion. Even if fetuses are persons with exactly the same right to life as the rest of us from the moment of conception onward, that’s not enough to get you to the “pro-life” conclusion. Because fetuses can only exercise any right to life they might have by continuing to live in their mother’s wombs.
If future technology made it very easy to transfer a fetus at any stage of the pregnancy from a human womb to an artificial one, then we really might have to start chewing through that cake—now expanded with a fun new layer of medical ethics issues about how to prioritize expensive life-saving technology—in order to decide whether we thought they had a right to be kept alive. As things stand, though, the moral issue is very different. As Judith Jarvis Thomson argued in her seminal 1971 paper “A Defense of Abortion,” we can grant for the sake of argument the premise that “fetuses have a right to life” and that only gets us to a clash between two rights—the fetus’s right to life and the mother’s right to control her own body. In order to determine whether abortion is (even generally) morally wrong, never mind so egregiously wrong the state should step in to stop it, we have to decide which of these competing rights takes precedence.
The right to bodily autonomy is extremely important. To see the point, take G.A. Cohen’s “eyeball lottery” example. In the future, we get really good at curing blindness by transplanting working eyeballs to the eye sockets of the blind. Not enough people volunteer to give up an eyeball so the government sets up something like the Vietnam-era draft lottery. The unlucky winners have to report to the eyeball board for surgery. There’s an obvious fairness-based argument for this—everyone ends up with at least one working eyeball, and everyone born with two has an equal chance of ending up with depth-perception problems. Nevertheless, most of us would oppose it, even if we enthusiastically support economic redistribution, because we think our right to control our bodies is a lot more important than the right to control every dollar in our bank accounts. But is it more important than the right to life? Surely, if anything justifies violations of bodily autonomy, it’s that!
Thomson writes:
It sounds plausible. But now let me ask you to imagine this. You wake up in the morning and find yourself back to back in bed with an unconscious violinist. A famous unconscious violinist. He has been found to have a fatal kidney ailment, and the Society of Music Lovers has canvassed all the available medical records and found that you alone have the right blood type to help. They have therefore kidnapped you, and last night the violinist’s circulatory system was plugged into yours, so that your kidneys can be used to extract poisons from his blood as well as your own. The director of the hospital now tells you, “Look, we’re sorry the Society of Music Lovers did this to you — we would never have permitted it if we had known. But still, they did it, and the violinist is now plugged into you. To unplug you would be to kill him. But never mind, it’s only for nine months. By then he will have recovered from his ailment, and can safely be unplugged from you.” Is it morally incumbent on you to accede to this situation?
You can, if you like, try to hold the line at saying that this is completely different because—at least if the pregnancy didn’t result from rape—the pregnant woman consented to pregnancy. But do we really think someone who agreed to hook himself up to the violinist wouldn’t have a right to change his mind? And does consent to sex (with the father) really amount to consenting to gestate (the fetus)? Consent doesn’t usually bounce around between parties like that. And come to think of it, if the only reason the eyeball lottery is wrong is that eyesight isn’t as important as life, why not institute a kidney lottery?
One final point about all this:
Even if you’re willing to countenance some violations of the right to bodily autonomy for the sake of saving lives—perhaps you’d be OK with coercing people into getting a shot to vaccinate them against a deadly disease they might otherwise transmit to others—it’s worth dwelling on the fact that forced pregnancy is a particularly deep violation of this right. As Margaret Olivia Little points out in her paper “Abortion, Intimacy, and the Duty to Gestate,” even if we assume for the sake of argument that an early-stage fetus is already a “person,” we’d still be talking about “a person whose blood is being oxygenated by another’s lungs, a person whose hormonal activity in turn affects that other’s brain and metabolism, a person whose growing size enlarges another’s physical boundaries.” Violations of that other’s right to decide what goes on inside her body don’t get much more profound than legally mandating this “extraordinary physical enmeshment.”
I actually feel slightly odd defending a standard-issue liberal piety against the concerns of a far-left friend of mine who I believe is right about a great many other subjects. But if we’re lodging our best guesses about the judgments of History, “women are people” and “people should have more rather than less freedom to determine their own fate” are both considerations that strike me as highly likely to factor into how future generations measure progress.
Or at least I really hope so.
He ends up slicing things very finely:
“Even though a woman’s right to have an abortion must be preserved as specific circumstances might extenuate it; and even though a woman’s legal right in the here and now can’t be held hostage to the contingency of History’s moral verdict; and even though there’s no rational point in the pregnancy when a woman’s right to an abortion might be legally debarred; still, there’s every good reason to attach a severe social stigma to abortion. In effect, such a stigma would mimic the overriding commandment that thou shalt not kill, which allows, however, for a right to self-defense. To set up a woman’s right to an abortion as the litmus test of progress without simultaneously acknowledging it’s a fraught decision betrays moral callousness as it verges on trivializing life.”