Empathy and tone deafness

[Lynne Henderson]

I apologize for not  modifying  "conservatives" with something like "those
conservatives who. . ."
But the assumption of exceptions is  somewhat oerstted, Eugene.  For
example,,,  in many years, the so-called "Hyde Amdendment" denying
asisstance to poor women for abortions had no "rape or incest" exceptions.
(and as a criminal law scholar I am aware of how difficult it is to be
believed when one actually is raped or an incest victim;  it is also true
that "Roe" herself falsely claimed to have been raped thinking there was an
exception)
Interestingly, while Rehnquist for example has stated in his *Roe* dissent,
etc., that a law that did not provide an exception for saving the life of
the woman would be unconstitutional, he's never said why.  And there are
those who would argue that wouldn't be justified, either (although the
doctrine of double effect might rescue many,  there is a history of saying
not even then--as one Justice asked during arguments of *Roe*, "Which would
you save, the innocent one . . .?")
In *Roe* itself,  Texas had no exception for rape and incest, although
counsel for Texas said he understood in cases of rape that victims at the
hospital were given something (or words to that effect)  On the view that
life begins at conception, that would be an abortifacient and illegal of
course.

I think many authoritarians *are* tone deaf, and  by definition a liberal is
not an authoritarian.  Obviously many conservatives are not authoritarians,
and to the extent  that I was "overbroad" I apologize.  (Of course, whatever
"conservative" and "liberal" mean anymore is difficult to state with
precision but I mean  liberal in the "small l" way)
Lynne

hendersl at ix.netcom.com
on 12/15/00 9:37 AM, Volokh, Eugene at VOLOKH at mail.law.ucla.edu wrote:


       Hmm; doesn't the argument below draw a rather unwarranted inference?
To say that group X wins in a particular situation to the detriment of group
Y doesn't mean that one is "denying [empathy] to" group Y.  Rather, it
simply means that one thinks group X's claim -- which one might have
discovered through empathizing with group X -- is *stronger* than group Y's,
with which one might still have a great deal of empathy.

       Thus, if a liberal supports race-based affirmative action programs in
admissions, I doubt that we can infer that he is "denying [empathy] to" poor
Asians or whites who are disadvantaged by the program., or is "tone deaf to
moral issues."  Rather, he may well empathize with both groups, but conclude
that the blacks or Hispanics who are preferred have a strong enough claim to
the benefit that it justifies the regrettable burden.

       Likewise with conversatives and abortion; it seems to me that one can
easily empathize with the grave burden imposed on women who have unwanted or
disastrous pregnancies (though note of course that most abortion bans do
have exceptions for at least the most disastrous of pregnancies), but
conclude that the burden on the unborn children -- death -- is so grave that
we have to take steps to prohibit the killing of the children, even though
such steps place a somewhat less grave burden on others.  No denial of
empathy or moral tone-deafness there, it seems to me.  I personally oppose
abortion bans, because I don't think that the fetus is a person; but it
seems to me that the contrary position is eminently respectable (and, who
knows, might even be correct, even though I do not think so).  Am I missing
something here?

       Eugene

Lynne Henderson writes:
FOr conservatives to claim fetuses deserve empathy while denying it to women
with unwanted/disastrous pregnancies (see *Legality and Empahty* and my
comment on Finnis in Symposium on Natural Law, Cleveland_Marshall L. Rev. )
shows just the kind of selective empathy problem we face, if not tone
deafness to the moral issues.



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