Towards a Democratic Consensus on the Start of Life

As I showed in the previous article, Roe v. Wade does not rule out taking into account the life of the unborn child when determining the legality of abortion at various life stages. The rights of the unborn can trump the privacy rights of the mother. What the Court actually ruled was that there is great uncertainty as to when these rights of the unborn should begin, because there is great uncertainty as to when a zygote/embryo/fetus becomes a human. The Court admitted that it could not derive the start of life from first principles – and then proceeded to do so, setting the definitive start of life at viability outside the womb. The other test for government interest was the health of the mother, and since that test applies much earlier in pregnancy, the rights of the unborn have effectively been legally irrelevant.

The Court contradicted itself when it couldn’t derive a time for the start of human status and then set such a time. Pro-life forces can work with this.

But pro-life forces must also deal with the uncertainties that the Court correctly revealed. Opinions differ – starkly. To set a legal time for the start of life earlier than a sizeable fraction of the population believes, is to violate their rights. While many of you reading this may believe this fraction of the population does not deserve these particular rights, any more than the racist majority of old deserved the right to own Negro servants, there remains a practical matter: we live in a democratic republic. Laws built on a weak consensus will not be enforced, especially where the issue is controversial. Keep in mind that it takes a unanimous jury to convict.

Though I stand on the side of defending unborn human life, I fear the Court was correct in demanding more than a mere legislative majority to decide this controversial issue. It is long past time for us to provide a true democratic measurement on the issue. In many, if not most, states the law is biased against the General Will. Millions of people are forced to stand aside for what they believe is murder, or resort to private violence.

Where the Courts cannot derive, The People should decide. The real question is how to truly determine the Will of The People. It is harder than you might think.

How not to Vote on the Start of Human Life

Abortion is an issue too contentious to be delegated to legislatures alone. On this, the Court is correct. Votes by legislatures do not necessarily reflect democratic consensus on any particular piece of legislation. The pro-life conservative may hold his seat more from his positions on taxes and gun rights than from his stance on abortion. Likewise, the pro-choice liberal may hold her seat more from her positions on school funding and environmental protection than from her positions on abortion.

Representative republics forgo significant democratic consensus in order to achieve sound deliberation. The latter is incredibly important for producing refined legislation and dealing with technical matters of limited concern to the median voter. As the size of a voting body grows, the odds of any one vote making a difference declines. Direct democracy thus fails over technical matters because the cost of making the effort to understand the issue far outstrips the impact of voting correctly. By shrinking the voting body down to a manageable legislature (either by elected representatives or Athenian style randomly selected representatives) we get conscientious voting.

For contentious issues of interest to most of the populace, direct democracy is a good solution. Where there is general contention, there is general deliberation. Abortion is just such an issue.

The job of government professionals is to craft a proper ballot, to accurately measure the Will of The People. To demonstrate the non-trivial nature of this task, let us first consider a badly designed ballot:

Clearly, this ballot overlooks a wide range of other possibilities. If life begins at fertilization, then taking birth control pills (which prevent implantation) constitutes murder. While this does reflect Roman Catholic teaching, there are many on the pro-life side who do believe that such birth control pills should be legal. How should they vote on such a ballot? And what of those who believe that life begins a some other time between fertilization and birth?

We could opt for a higher precision ballot:

(Yes, many societies have set the date of humanhood at a time after natural birth. Read the Wikipedia entry on infanticide for more information if you have a strong stomach. In the interest of measuring all opinions, I have included a few barbaric options for completeness. It might be educational to measure how many devout Objectivists, Darwinists, etc. have sacrificed human sympathy for ideology.)

Now the question arises as to how to count the ballots. We could determine the consensus opinion on the subject by taking the average time from fertilization as the legal start of human life – if the voters were to answer honestly. But if we declared that was how the ballots would be tallied, people would not vote honestly. Pro-life voters would vote “at conception” even those who believe legal life should be begin later in order to offset pro-choice voters. Many pro-choice voters would vote for the barbarous options in order to weight the average number towards where they think it should be.

We could inspire honest voting by taking the median value instead of the average. Those who believe that humanity begins with a heartbeat or quickening would have no incentive to vote for fertilization. Those who believe in viability outside the womb have no incentive to vote for a later stage – or one of the barbarous options.

With a median vote instead of an average vote, we could replace the week by week ballot above with something more voter friendly: a stage of life ballot:

Readers are encouraged to suggest additional options in the comments.

We have a better ballot, yet we are still inside the section entitled “How not to Vote on the Start of Human Life.” Why?

The answer is: what could you do with the answer? Should we declare it murder to kill a fetus which only half the population believes is a human? How would we get a jury to convict? For a truly randomly selected jury, the odds of selecting a unanimous jury is 0.5¹²; i.e., .02 percent.

Obtaining a death penalty conviction for Timothy McVeigh was challenging enough—even though the overwhelming majority of people believe that blowing up federal buildings with people in them is a hideous crime. Convicting an abortionist would be rather more difficult. With random jury selection, just getting a unanimous jury which believes that abortion is a crime would require a rather large number of trials. With a 99.98% chance of getting a hung jury for any particular incident, we would still have a mere 18% chance of getting unanimity after 1000 trials. This would be expensive.

We would do better by taking a percentile cut somewhere above 50%. Suppose we were to take the count of the above ballot and ask at which stage of life 80% of the voters agree the fetus is human. Then our chance of getting a unanimous jury becomes .8¹²= 6.87%. While this is still low, it does mean a 51% chance of getting a conviction after merely 10 trials. (((.0687-1)¹⁰)-1)*100%). Expensive, but doable.

Of course, some jurors can be swayed by what the law is, vs. what the law should be. So the odds are not quite as bad as what the math implies above. But don’t kid yourself: pro-choice forces will make use of jury nullification.

Then again, the odds could be even worse. The question: “When does human life begin?” is not the same as “At what stage of human development does abortion constitute capital murder.” To really measure the Will of The People, we need to accept fuzzy answers.

A Fuzzy Abortion Ballot

“Abortion is murder” is fine sounding rhetoric from the pulpit or on the sidewalk. It breaks down rather quickly in practice. As I have asked before: if abortion is murder, why haven’t you pro-lifers gone out any lynched any abortionists this week? Seriously. Would you tolerate human sacrifice of toddlers in your neighborhood? Do you truly place obedience to authorities over human life? Do you always obey speed limits? How about this question: would you condemn a woman to the electric chair for hiring an abortionist?

As for you on the pro-choice camp, why call for making abortion “safe, legal and rare?” Why rare?

While ideologues are loath to admit it, revealed preference proves that most people have some error bars in their estimates of when life begins. The law should reflect this uncertainty, and so should the ballot we use to determine the law.

We could take our last ballot above and replace the multiple choice over when human life begins with a multiple choice for each stage asking how much has human life begun? That is:

We could average these numbers and present them to the courts to use in judging whether any particular abortion legislation reflects the Will of the People—except for a couple of problems:

1. If we take an average, people will be incented to cheat, exaggerating their numbers to one extreme or the other.
2. Even if people were to vote honestly, the meaning of these percent figures is too abstract. Just what should the penalty be for killing 73% of a human?

We can deal with the first problem as before: taking a median or higher percentile. Once we dispense with averages, we can use an ordinal vote instead of the cardinal vote above. (Austrian economists rejoice!)

Instead of abstract numbers, we could ask for the appropriate punishment for abortion at each stage of development. Questions like:

And so forth.

We could ask the question for both punishing abortion providers and the women who hire such providers. For abortion providers, we could include loss of medical license as an option. (This might necessitate yet a third question for unlicensed providers…)

If we take the median punishment, or better yet, the minimum punishment acceptable for a larger fractions of the voters for each stage of life, the legislatures and courts will have a clear signal as to where The People believe life begins.

I suggest legislation which 80% of the population considers appropriate or too lenient. The courts would have a hard time overruling such, and juries would be likely to convict. This may be a higher standard of persuasion than many of you would like to hear, but such is the reality of a democratic government. Deal with it or resort to terrorism or dictatorship.

I have written a couple of chapters on underutilized arguments/persuasion techniques (here and here). I have a few more on the way. The beauty of advanced persuasion is that we can reduce abortions before the courts and legislatures act. If each abortion constitutes a murder, this is significant.