Justice for Fornicators

The extended discussion of Matt’s last post has got me thinking about abortion. I freely admitt that this is not a subject that I have actually spent a lot of time on, so I can’t claim that what follows is informed by either deep reading or deep thinking. What I have tried to do is put together an argument that makes sense out of the Church’s somewhat modified pro-life position, i.e. no abortion with limited exceptions of for rape, threats to life, etc. Warning, what follows contains a fair amount of pseudo-philosophical rambling.

Suppose that we are trying to figure out what a just legal regime would look like for fornicators. By fornicators I mean those who engage in mutually voluntary sexual intercourse who are not married and do no desire to become parents.

First imagine a society in which because of the inadequacies of legal rules men cannot be made to accept any costs that might exists because of pregnancy, from medical costs to personal discomfort. However, imagine that we have in this society an infinite demand for adoptable children, regardless of race or condition. Once a child is born there is no reason that the biological parents need to be parents.

Is this system of rules just? It is clear that opportunities for fornication are not equally distributed according to gender. Men can engage in virtually costless sexual dalliance, while women cannot. From the outset let’s assume that unless we can articulate a good reason, gender is a morally irrelevant characteristic, that is no significant social costs or benefits should be borne solely because of gender. Thus, for example, arguments based on implicit notions of male sexual privilege are out. We can’t say that sex is fine but boys will be boys and it is up to the girls to play goalie.

However, despite rejecting these sorts of arguments, there are two plausible reasons to suppose that this society is not unjust. First, there is the sinful nature of fornication. People ought not to engage in premarital sex and to the extent that the discomfort and cost of pregnancy result that is just fine, especially since women know that there is a risk of pregnancy. On reflection, however, it doesn’t seem that the sinfulness of fornication can do this much work. For example, suppose that we were to punish all murderers. It would not follow that different levels of punishment on the basis of morally irrelevant factors would be just fine. I take it as uncontroversial that it would be unjust to punish black murderers more severely than white murderers, or vice-versa. Nor do I think that we can cure this injustice by announcing the rule ahead of time, and then telling the black or white murderer that their disproportionate punishment was not unexpected.

The second plausible defense of this set of rules would be based on the idea of consent. Here the objection is not that fornication is substantively sinful, but rather than no woman will have to bear the costs of pregnancy except through her own voluntary actions. Her consent vitiates any claim that she might have to the injustice of the situation. This seems to me a much more powerful defense than the one based on the sinfulness of fornication. However, in the end I am not quite persuaded. I take it that for consensual transactions to have the moral status ascribed to them by this argument they must take place in a fair bargaining situation. For example, I don’t think that anyone would say that consent obtained by fraud or threats to personal safety has moral significance. I would contend that the inability of the woman to effectively bargain out of her risk vitiates the fairness of the bargaining situation, especially since the inalienability of the risk is a result of the legal regime. As I said, though, I think this is a tougher case.

So I take that we have established that the system of legal rules that I have outlined is unjust. What should our response be? Well there are two choices. We can use medical technology (abortion) to reduce the costs borne by the woman, or we can use legal technology (payments) to force men to share these costs. Leaving aside for now the moral status of the fetus, how would we decide? If we have the notion that fornication is a right, a social good to be justly distributed, then medical technology seems preferable to legal technology. The reason is that the legal solution would attach needless costs to the exercise of the right.

As should be clear, I don’t think this is a good response because I do not regard fornication as a right. Indeed, I might go so far as to say that fornication ought to be affirmatively sanctioned by society. On this basis I might opt for the legal solution, but I need not do so. I could allow abortion and simply insist on a fine or some other punishment. However, opting for pregnancy followed by transfer payment from father to mother would massively decrease my enforcement costs. Pregnancy is a nice, big, public signal of private, difficult to monitor behavior.

We thus have an argument against abortion based solely on the idea of fornication. We don’t invoke the moral status of the fetus. We also are not using the fornicators as means to some social end, e.g. drafting them into the business of baby production for the infinitely demanding adoption market. Of course, this argument is not perfect. It doesn’t have a way of effectively dealing with the problem of a judgment proof father. Of course, one could get around this problem by simply punishing poor, male fornicators with some sanction that is of equal unpleasantness with unwanted pregnancy. We beat them with a few stripes. How many may be a difficult question, but is not theoretically insurmountable.

Now lets start relaxing some of the assumptions that I made. First, obviously the moral status of the fetus matters a great deal. I don’t think that one can defensibly treat a fetus as nothing more than a bit of invasive tissue or a foreign parasite. However, figuring out the precise status of the fetus is difficult. For example, we have no useful church guidance on this point. What we do know is that an unborn fetus is an entity entitled to some level of moral respect. It may be entitled to be viewed as a “full”; human being, and my sense is that late in the pregnancy this is obviously the case. I am agnostic earlier in the pregnancy, but my agnosticism comes from real ignorance. A blastocyst may be a “full” person for all I know!

Against this background of ambiguity, the equality argument for abortion that I sketched above becomes even weaker. Indeed, even if I thought that fornication was a right, I could plausibly argue for a prohibition on abortion. Using medical technology to equalize the costs rather than legal technology involves foisting all of the costs of the fornication on to the fetus, who is the non-consensual party in the transaction. Alternatively, I could argue that the risk of injustice in this case – murdering the innocent – is grave enough that it justifies burdening the right to fornication. Once one abandons the notion that there is a right to fornication, it seems that the argument against abortion becomes even stronger. Risking the murder of innocents to reduce the costs of a sinful activity seems indefensible to me.

Now lets relax my other big assumption: the infinite demand for adoptions. In a world in which adoption may not be an option, we have three alternatives. First, we could make parental duties inalienable. Second, we could make parental duties alienable but provide no support for abandoned children. Third, we could make parental duties alienable but provide support for abandoned children.

The first solution has some big problems. Assuming that we want to distribute the burdens equally between father and mother, we will face major problems with our legal technology. Forcing transfers from father to mother during pregnancy is relatively easy. It requires little monitoring and probably no more than a few legal transactions. Forcing transfers from father to mother over the course of the twenty or so years of a child’s childhood will be a hugely difficult job. The problem is that if the father wants to run, tracking him down, forcing him to pay, gathering his assets, etc. will be very difficult. In contrast, initial monitoring of the woman will be comparatively easy. Of course one might try to adjust this inequality by reducing the monitoring of women so that they can run as easily as men. However this starts looking a lot like the second solution, allowing parents to alienate (ie abandon) their parental duties and leaving the children to fend for themselves.

The problem with this solution is that in its extreme form it varies very little from the abortion solution. Abandoning a child without any support is tantamount to killing the child, particularly if the child is a newborn. In this case there is not even a fig leaf of moral ambiguity to hide behind. We are simply authorizing infanticide.

This brings us to the third solution. In some ways this has some of the same problems as abortion, it essentially externalizes the costs of fornication on to those who did not consent to the sexual transaction. In the case of abortion it is the unborn fetus, in this case it is society. Of course, to the extent that society has intervened to insure that the child has not by this point been aborted, society has already borne the costs of sustaining a legal regime to prevent that from happening. Perhaps we can view society as also being obligated to bear extra costs to prevent the injustice of the second solution.

At this point there are some interesting questions. If we actually try to seriously implement the first solution (that is we keep it from simply sliding into the second solution), I think it is fair to say that given the current state of our legal technology that female fornicators will bear more of the costs of child-raising than will male fornicators. This is unjust. On the other hand, there is a sense in which it is unjust to require society to bear the costs for both, as in the third solution. My sense is that on this narrow issue, the consent argument starts having a bit more bite. As between two parties, let the cost lie with the party that voluntarily entered the transaction. I suppose that reasonable people could come out the other way, but I would want to see the arguments. This of course does not consider what would be best for the child. Here I don’t know. A life living with coerced parents or a life lived in a state orphanage. I would want the orphanage to be nice. Of course in the third solution we could limit the alienability of parental duties. For example, allow parents to give up the duty to provide care and shelter but continue to require that they provide financial support. One advantage of this approach is that it is likely to equalize the inefficiencies of the legal technology between the sexes.

Another issue is whether the absence of a viable version of the third solution would allow the injustice of the first solution to justify easing prohibitions on abortion. I don’t think so. As I stated above, it is not clear to me that these injustices would justify requiring society in the aggregate to bear the costs of fornication to which it did not consent. I certainly don’t think that the injustice of the legal machinery would justify concentrating all of the costs on to the fetus.

A concluding thought: My intuition about these things changes when we are no longer talking about fornication, but rape. At this point the absence of consent does more work for me, and I am willing to entertain the possibility of permitting early abortions (but not late term abortions). However, this suggests that there are limits to the moral force that I am willing to assign to the ambiguity of moral status of the fetus. Perhaps this shows that my indifference to arguments for abortion based on imperfections in the legal machinery is misplaced. But I don’t think so.

24 comments for “Justice for Fornicators

  1. Nate, I think you’ve elided some difficulties at the front end. Without some notion of sinfulness, it’s hard to justify prohibitions or sanctions of fornication, and particularly hard to justify imposing consequences for fornication on men. How could you argue for any of the sanctions you propose on purely rational moral grounds without appeal to the concept of sin? Consensual fornication does look a lot like a right in most ethical systems.

    Also, I think a binary concept of consent–rape or not–is overly simple. You can’t assume that, say, a not terribly well-educated 14- or 15-year-old girl can meaningfully consent to the risks of pregnancy, etc., when she has sex with her 19-year-old boyfriend, even if she is not raped. There are more inequities there than just his biological ability to escape the consequences. I don’t see how her “consent” can do the work you need it to, nor can I imagine a rubric for properly balancing the capacity to consent with the consequences each party should bear.

  2. Nate: very interesting argument. I assume that in paragraph 8, you didn’t mean that society should sanction (“v. encourage or tolerate by indicating approval”) fornication, but that society should impose some sanction (“n. penalty, coercive measure”) to discourage fornication.

    I don’t think it’s possible to argue against abortion without invoking the moral status of the fetus. Assume that the fetus is morally equivalent to any other mass of tissue, like a cyst or tumor. Sexual promiscuity has been linked to an increased likelihood of cervical cancer, a risk borne solely by women. Now walk through the rest of your argument–it’s unjust to view cervical cancer as a punishment for female fornicators, when there is no corresponding punishment for male fornicators. So if we allow treatment for cervical cancer we are somehow condoning fornication? Seems like a non sequitur.

  3. Kristine: Good points. Here are a couple of thoughts.

    First, I agree that resting the argument against abortion on the basis of sanctioning fornication is problematic. Fornication might be a right. (We’ll need some argument there; but the best bet is something Millian looking. I happen to like classical liberalism a great deal, so I may be persuaded by the Millian argument.) Even if we want to sanction fornication, banning abortion and forcing transfers is woefully underinclusive. Lots of fornicators don’t get pregnant.

    On consent there are a couple things that we could do. First, we have different legal regimes based on age, on the not unreasonable assumption that it is a good, visibile, easily administerable proxy for increased ability to give meaningful consent.

    There are ways of understanding meaningful consent. We could take a rights approach. If we could specify a set of rights whose violation vitiated consent then we could simply look at the situation and say consent is meaningful or not by looking for rights violations. So what rights of the 14 year old girl are violated exactly?

    Alternatively, we could adopt some sort of a distributive concept of consent. Anthony Kronman did some interesting work on this way back when in the philosophy of contract law. He argued that discovering whether or not there was “real” consent was impossible. He then went on to say that we will judge the moral status of voluntary action based on whether or not giving moral status to such action would on the whole give greater benefits than costs to members of the class giving the consent. He called this approach Paretianism. The advantage of doing this is that it allows us to avoid difficult issues of subjective freedom and lets us focus instead on publically observable and objective consequences. So here is how it would work:

    Suppose that I think that fornication is a right. I would then ask, if allowing 14 years to consent to fornication would on the whole lead to greater benefits for 14 year olds than not allowing such consent. If fornication is some great good, and the risk of pregnancy is limited and its costs are therefore steeply discounted, then the consent can be counted as morally meaningful. Note, this would provide us with a criteria for judging between cases and it is a criteria that allows us to avoid the epistemic quagmire of diminished capacity, false consciousness, the social construction of gender, and the rest of the intellectual play things of feminist critics of liberalism.

    A final note: the only place that consent does any work at all in my argument is when were are judging between social payment for child rearing and the injustice that will result from our the gender asymentries in our legal technology’s imperfections. Furthermore, as I noted, if we unbundle parental duties and make some of them alienable and some of them not, then I think that the gender asymetries get dramatically reduced, so it may be that I don’t need the consent argument at all.

    Finally, I am not against social insurance per se. I actually am in favor of lots of kinds of social insurance. I am simply skeptical of our ability to justify them using gender equity arguments tied to the availability of abortion.

  4. Dan: if we stipulate that sanctions for fornication are just (controversial to be sure), then I don’t see that there is a big difference. The point is that we use legal technology to make sure that BOTH men and women bear equal costs.

    Of course there are problems with this argument (see my comment above), but I am not sure that they are the ones that you lay out.

  5. Nate,

    To what extent do your anti-fornication abortion arguments apply to married people who wish to get an abortion? If you justify abortion restrictions on the grounds that fornication is not a right, are you creating a two-tiered system whereby married persons may receive abortions while unmarried ones may not?

    Is such a system desirable? (Basic bad-man theory of law suggests that it would result in a lot of quickie marriages for the sole purpose of getting an abortion — how would that affect marriage?) Is such a system constitutional?

  6. Apologies to Kristine…

    Two persons, A and B, engage in sinful act X. X creates costs C borne by A but not B. A has two options for bearing the costs, C1 and C2. C1 is easier than C2 for A to bear, so we (society) outlaw C1 as a means of discouraging X, forcing A into C2. We then try to get B to share the costs of C2.

    In order for this regime to make sense, the cost to society of X has to be greater than the difference between C2 and C1. Otherwise we would let A opt for C1 and try to get B to share the costs of C1. In the case of cervical cancer, it’s hard to argue that fornication (X) imposes costs on society greater than the difference between the cost to A of death (C2) and hopefully minor surgery (C1).

    As for pregnancy, the difference in cost to A between parenthood (C2) and abortion (C1) is debatable. But surely it would be easier to get B to pay for half of an abortion than half of a childhood. As you point out, the transaction costs inherent in the child support regime are staggering.

  7. The very approach of considering things in terms of “equal costs” seems dubious or even dangerous to me. I certainly understand the incentive towards it. But it seems to confuse equality of opportunity versus equality of results or consequences. The latter will never happen. It simply won’t. I’m not convinced trying to bring it about even is a good thing.

    Yes women bear more cost for sexuality. Not just in pregnancy, but also numerous other biological functions and then danger of catching sexually transmitted diseases. Women bear the burder.

    I’m certainly in favor of having technology to alieviate a lot of that. I’d love to see birth control that doesn’t have the hormonal and personality effects it has on so many. New Scientist just had an article on upcoming approaches that should avoid this. Modern health care has dramatically improved giving women more choices to overcome various biological issues. All of that is good. But to justify it from a moral imparitive of society towards eliminating these imbalances seems off.

  8. Kaimi: I don’t think that no-abortion-as-fornication-sanction is a good argument for abortion restrictions. Frankly, I think that you only employ that argument if you are completely indifferent to the status of the fetus (which I am not). I think that within marriage, the equality argument for abortion becomes weaker because men are internalizing more of the costs of sex. Also, since marriage will massively reduce the inefficiency of our legal technology, the equality arguments based on imperfections of legal technology become weaker.

    You will notice that the ONLY set arguments that my original post is directed towards are those for abortion based on gender inequality. (I happen to find these more interesting than the autonomy arguments.)

  9. Dan: You could be right. It seems like an emperical question to me. Incidentally, your statement overlooks a couple of important issues. First, not everyone gets pregnant (or gets cervical cancer) as a result of fornication. Thus the costs must be discounted by the probability, and this discounted cost (not death) must be weighed. Also, you assume that the purpose of punishment is deterrence, but it could be retributive, in which case the costs to society could be irrelevent. However, if we take the retributive position there is a deeper problem with the sin-sanctioning argument and that is that punishment is meted out on the basis of a morally insignificant fact (did you happen to get pregnant/cervical cancer this time). As should be clear, I don’t really buy the sanctioning argument. I was just trying to see to what extent the fact that I think that fornication is sinful does any work in my analysis of abortion. Ultimately my conclusion is that it does very little at all.

    As you point out, if you don’t assign any moral status to the fetus the equality argument in favor of abortion becomes more powerful. (Assuming of course that you buy into the way that I problematized the consent issue by arguing that you have an imperfect bargaining situation.)

  10. Clark: I don’t see what work the distinction between equality of result and equality of opprotunity is doing. Equality of opprotunity to get pregnant is not available either.

    Perhaps you are correct that certain biologically determined asymetries are impossible to completely over come. Does this justify not doing anything? Does it justify not thinking about these issues in terms of justice? Certainly, we can use the concept of justice to analyze legal regimes that might exacerbate or ameliorate such asymetries.

  11. The issue isn’t whether we do anything but why we do things. If I wish to overcome something that’s fine. But to decide policy or worse yet morality in terms of equal results seem egregious to me. As I said, I’m fully in favor of the technological advances we’ve made and are making. However what has been argued goes well beyond that.

  12. Surely as soon as you invoke the term “justice” one is going beyond technology one likes. Justice implies that the good *requires* some actions.

    I also think that the very notion of justice can be problematic in times and that it is different conceptions of justice that underlie a lot of this debate. i.e. does justice imply equality of opportunity or equality of results. I brought up a similar point way back on the consecration thread.

  13. Clark: I still don’t get what you are saying. Surely how we use technology can be governed by norms of justice. There ethical philosophers who spend their entire careers puzzling over the distribution of kidney dialysis machines (OK, not anymore but there used to be) and the like.

    The opprotunities/results distinction doesn’t do anything unless we specify what we are talking about.

    Clearly the opprotunities to become pregnant are not equally distributed. This is a natural fact that requires us to answer an ethical question. How is that any different from some other natural fact that requires us to answer an ethical question. Certain resources are, as a matter of natural fact, scarce. How ought we to distribute them? Some people are, as a matter of natural fact, severly disabled. What special consideration, if any, are they entitled to by society? The fact that some social distinction arises out of biology hardly seems like a sufficient reason to take it off the table for discussions of justice.

  14. That wasn’t really my point. More that these discussions often take as a presupposition the idea that equality of results is entailed by justice. i.e. that there are large assumptions regarding what justice entails.

  15. Nate: the gender equality thing doesn’t work no matter what you do.

    The reason to have social insurance is the same as the reason to prohibit divorce: to mitigate the costs for the nonconsenting party–the fetus or the child. If a society helps to care for the child, it has the additional consequence of ameliorating the mother’s plight, but the reason for society to do it is the child’s welfare, not the mother’s.

  16. Kristine: I am confused. Are you claiming that there is now way of making an equality argument in favor of abortion, or are you claiming that there is now way of reducing the inequality occasioned by biology?

  17. Nate: I think I’m just agreeing with you in a particularly stupid and inept way.

    I don’t think there’s a sound equality argument in favor of abortion, precisely because of the inequality occasioned by biology. There is no solution a state can offer to a woman that puts her on equal footing with a man in terms of her ability to indulge in costless sexual activity. Even if you grant abortion on demand, the woman will necessarily bear the non-trivial physical and emotional costs associated with abortion. I don’t see how it’s possible to distribute those costs either to the father or to the society at large. However, as you’ve pointed out, it is possible (albeit expensive and complex) to reduce the inequity in the costs of childrearing, so that it seems that a desire to maximize equality between the sexes would argue for prohibiting abortion.

    Alternatively, you could recognize the biological equality and try to compensate for it by allowing a woman to choose either the solution in which she bears the costs of abortion or the theoretically more equalizing solution of bearing the child and receiving compensation from the father or from “society.”

    I think the only arguments that make sense are the ones that privilege the fetus and then the child, not just over and against the mother, but also against the right of society not to care or pay. Society, like the father, has no natural obligation to assume care of the child, but we’re talking about freely chosen ethical duties, right?

    P.S.–I think your view of the equalizing function of marriage (in your response to Kaimi) is overly rosy. Have you seen Ann Crittenden’s stuff on the price of motherhood?

  18. Kristine: I haven’t seen Critterden’s stuff. However, I only made two claims. My first is that in marriage men bear MORE costs than they bear outside of marriage. I am not comparing men with women, but married men with unmarried men. My second claim was that marriage reduced the costs of legal technology. We are more likely to know where husbands and their assets are than we are to know where former and now long gone lovers and their assets are. Obviously this is not always true, but we are talking about averages here.

    BTW, it is not clear to me that abortion provides LESS equality that non-alienable duties.

    Suppose that abortion imposes two kinds of costs — those that can be easily transfered (T1) and those that cannot (I1). Suppose that given the fact that men can run before the child is born, have other comparative advantages in avoiding parental costs, etc. childrearing will also have easily transfered costs (T2) and costs that cannot be effectively transfered for women (I2). Suppose we then use our legal technology to perfectly equalize the transferable costs. How then do we compare the levels of inequality? We could compare the absolute size of I1 with I2. Alternatively, we could compare the ratios of the transferable and non-transferable costs in each situation, i.e. compare T1/I2 with T2/I2. I think that I2 is likely to be larger than I1. I am not so sure about the ratios, but my sense is that T2/I2 will be also be greater than T1/I2.

    Don’t you just love alpha-numeric variables? ;->

  19. Yeah, I love alpha-numeric variables. And you were kind enough to add in ratios, as well (I had about 10 nervous breakdowns in 4th grade math class, because I just couldn’t get fractions. I’m mostly over it now :) ).

    Anyway, yes, of course I1 is lower than I2, and the ratios likely are too. But I don’t see how *reducing* inequity can be a strong enough rationale for justifying abortion. If you could really eliminate it, and make a strong claim that the society was just because male and female persons were equal, then maybe. But if equality is unachievable from the start, then you have to start into the murky territory of balancing and compensatory privileges, then there’s a strong case for trying to assign some privileges to the fetus, even if you can’t make the case that the fetus is entitled to some sort of “equal” status under the law.

    (Would it help if I said again how really, really sorry I am that I am so bad at linear argument? Sheesh)

  20. I’ll write more on the justification for the rape exception in a full post, especially on Lawrence Tribe’s argument that the only explanation is a desire to punish women for having sex. For now I just wanted to make two points:

    (1) I don’t see how overcoming biological inequalities can be a moral imperative. By biology women are shorter than men, but I can’t see that there’s a moral imperative to make women taller or men shorter. Is making the life expectancies of men and women equal a moral goal? If we can only find technologies that prolong life regardless of gender, we’re missing the mark?

    (2) No one has yet addressed the current system’s gender inequality against *men*. Right now, legal abortion allows a woman to reject her new baby and her parental duties. The man, on the other hand, isn’t allowed to reject his baby and his parental duties. If the woman decides she wants to keep her baby, the law imposes parental duties on the man simply for having sex.

    A small “Choice 4 Men” movement is advocating “legal abortions” for men — the opportunity to reject the new baby and any claims she might have on him. Karen DeCrow, a former president of NOW, supports the idea: “If a woman makes a unilateral decision to bring a pregnancy to term, and the biological father does not, and cannot, share in this decision, he should not be liable for 21 years of support … autonomous women making independent decisions about their lives should not expect men to finance their choice.”


    But Karen DeCrow presumably thinks it’s fine for women to expect society, who had even less input than the man, to finance their choice.

  21. Matt said much more clearly what I was trying to get at. So I’ll leave his comments for mine.

    I’d say, of course, that there *is* a way in which the inequity of “free sex” is equalized by society. That is in our social norms. In traditional society we provide moral norms where men are rewarded for chastity and punished for unchastity. Of course those norms have broken down somewhat the last couple of decades. But they are still there.

    The problem is that I think some want equity treated outside of these social norms. (I was just reading _The Blank Slate_ where he discussed the possible evolutionary reasons for these norms in society — although the book overall is problematic on several counts)

  22. Clark: If social norms are going to be your mechanism for enforcing some notion of equity, name any decade in American history when normative disapproval for fornication/adultery fell as heavily on men as on women. (hint: there was only one person wearing the scarlet letter in Hawthorne’s novel!)

  23. That’s a good point Kristine. And Plinker makes those points. My point isn’t that existing social norms are correct (and clearly for Mormons they aren’t, given the difference between our norms and society’s in general’s) Rather the point is that reward/punishment can be achieved via social norms.

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