(Image source: Don’t Screen Us Out)
A few weeks ago, the UK Appeals Court ruled against Heidi Crowter in her challenge to the UK’s laws regulating abortion on the grounds of disability. Ben covered the ruling in a previous post, arguing that it is quite simply incoherent. It is staggering to see how the Court managed to maintain that abortion of a foetus with a serious disability does not imply anything about the value of the lives of those with disabilities.
Ben argues that this judgement amounts to gaslighting, and that the Court has made indefensible claims. However, it may be possible to see a way that the position maintained by the Court (that abortion in the explicit case of disability implies nothing about people with disabilities) could be coherent – but only if someone who maintains this position is also willing to bite some rather nasty bullets.
We’ve blogged before about the concept of steelmanning – this is where you try to make the strongest possible version of an opponent’s argument. Steelmanning is good practice in debating generally, and is sadly lacking in the public sphere lately. One way of steelmanning the Court’s judgement – in fact, the only way I can see of steelmanning the judgement – is to consider abortion as akin to pre-conception genetic selection.
Consider an analogy. Let’s say that a new type of condom was invented that, instead of blocking all sperm, simply filtered out sperm in such a way that any baby conceived would not have any disabilities (such as Down Syndrome).* The existence of different laws (in particular, later term limits) regulating abortion for babies with disabilities is analogous to the existence of such a condom, or at least it is analogous if we assume the foetus has no inherent moral status. In fact, in order for someone who thinks foetuses have no moral status to favour outlawing later term limits for babies with disabilities, consistency would demand that they also outlaw the hypothetical new condom.
Reading the Court’s judgement, I think it’s actually likely that the members of the Court would maintain that the existence of such a hypothetical condom does not perpetuate negative stereotypes about people with disabilities, or discriminate against them. So there’s the steel man: assuming you think the unborn have no moral status, if it’s ok to maintain that the condom should be legal, then it’s coherent to maintain that disability-selective abortion should be legal at a later stage than other abortions.
The problem with this steel man, though, is that it doesn’t seem to map to other protected characteristics, such as race or sex. To see what I mean, let’s imagine that the UK had a later term limit for aborting female foetuses than male foetuses. In order for the Court to be consistent, they would have to hold that a later term for aborting female foetuses implies nothing about the value of born women’s lives. It’s hard to see how any reasonable person would think it likely that the UK Court of Appeals, in 2022, would arrive at such a position. Similarly, can you imagine the Court maintaining that a later cutoff for abortion of foetuses of a particular race said nothing about born people of that race? Again, this is simply not credible.
These comparisons underline how utterly incoherent the ruling ultimately was. The Court could have acknowledged that a later term limit for babies with disabilities did indeed imply that society placed a lower value on the lives of born people with disabilities, while still maintaining that a later term limit is justified, for some other reason. But to maintain that a later limit says absolutely nothing about born people with disabilities reduces to sheer nonsense when you compare it to a later term limit on race or sex grounds.
If you think, as I do, that the general public, not to mention the UK Court of Appeals, would not support later term limits for abortion based on sex or race, then it looks like people treat disabilities differently to other protected characteristics (such as sex or race). This is a hard and uncomfortable truth. This is why we struggled to steelman the Court’s position, because it seems to leave us with one of two possible conclusions. Either the judgement is fundamentally incoherent, or the Court would similarly deny that later term limits on the grounds of sex or race amounts to discrimination on the grounds of sex or race. The first possible conclusion is deeply concerning. The second is horrifying.
Heidi Crowter has indicated that she will appeal the case to the UK Supreme Court. We hope she is successful.
*We are aware that this is not possible and that disabilities do not arise solely from chromosomal abnormalities in sperm. We’re not making any scientific claims here; it’s a thought experiment.