Abortion on the ballot

 And in other news, we're in new territory for the American experiment.  This will surely have effects on controversial markets (among other things).  An interesting feature of yesterday's vote was that many states preserved or restored abortion rights. 

CNN has the still-unfolding story: 

7 states vote to protect abortion rights, while efforts to expand access in Florida and South Dakota fail by By Amy O’Kruk, Annette Choi, Lauren Mascarenhas, Kaanita Iyer and Piper Hudspeth Blackburn, CNN, Updated 8:22 AM EST, Wed November 6, 2024

"More than two years after the US Supreme Court overturned Roe v. Wade and ended the federal constitutional right to an abortion, voters in 10 states cast ballots on whether to cement reproductive rights in their state constitutions.

"Measures to protect abortion access in Arizona, Colorado, New York, Maryland, Missouri, Montana and Nevada will pass, CNN projects. In New York, Colorado and Maryland, where abortion is legal at least up to the point of viability, the measures will maintain current abortion access. In Missouri, the amendment will remarkably expand access to abortion, which is currently banned with no exceptions for rape or incest. Similarly in Arizona, the amendment is expected to overturn the state’s ban on abortions 15 weeks into pregnancy.

"But a Florida amendment to protect the right to an abortion up to the point of viability will fail, CNN projects, with the amendment falling short of the 60% voter threshold for passage. The state’s six-week ban will remain in place.

"And South Dakota’s ban on abortions with an exception to save the life of the mother will hold as a majority of voters cast a ballot against an initiative to legalize abortion – with regulations – during the first and second trimesters of pregnancy.

"Voters in Nebraska also weighed in on the issue as they faced dueling measures on the ballot: One that would invalidate the state’s 12-week abortion ban, which makes exceptions for sexual assault, incest and medical emergencies, and the other to uphold the restriction."

Pregnancy in Poland, a database and anti-abortion laws

 The Lancet recently reported on new pregnancy data being collected in Poland, and controversy on whether and how it might be used in enforcing Poland's very stringent anti-abortion laws.

Poland to introduce controversial pregnancy register, by Ed Holt, Lancet,  VOLUME 399, ISSUE 10343, P2256, JUNE 18, 2022  DOI:https://doi.org/10.1016/S0140-6736(22)01097-2

"A new legal provision in Poland requiring doctors to collect records on all pregnancies has been condemned by critics who fear it could create a pregnancy register to monitor whether women give birth, or track those who go abroad for abortions.

Poland has some of Europe's strictest abortion laws, with terminations allowed in only two instances—if the woman's health or life is at risk and if the pregnancy is the result of either rape or incest. Until last year, abortions had also been allowed when the fetus had congenital defects. Most legal terminations in Poland were carried out under this exemption. But this provision was removed by a constitutional court ruling following a challenge by members of the ruling right-wing Law and Justice party, which some rights activists accuse of systematic suppression of women's rights.

Rights groups and opposition Members of Parliament (MPs) say that, in light of the tightened abortion legislation, they worry that the collected pregnancy data could be used by police and prosecutors in an unprecedented state surveillance campaign against women. “A pregnancy register in a country with an almost complete ban on abortion is terrifying”, Agnieszka Dziemianowicz-BĄk, an MP for the New Left party, said. 

***********

Here's a recent NY Times story on the implementation of Polish anti-abortion law:

Poland Shows the Risks for Women When Abortion Is Banned. Poland’s abortion ban has had many unintended consequences. One is that doctors are sometimes afraid to remove fetuses or administer cancer treatment to save women’s lives.  By Katrin Bennhold and Monika Pronczuk, Updated June 16, 2022

"Today, Poland and Malta, both staunchly Catholic, are the only European Union countries where abortions are effectively outlawed.

"The consequences in Poland have been far-reaching: Abortion-rights activists have been threatened with prison for handing out abortion pills. The number of Polish women traveling abroad to get abortions, already in the thousands, has swelled further. A black market of abortion pills — some fake and many overpriced — is thriving.

"Technically, the law still allows abortions if there is a serious risk to a woman’s health and life. But critics say it fails to provide necessary clarity, paralyzing doctors."

Lawsuits to overturn bans on repugnant transactions: kidney sales and incest

 What to do if a transaction you would like to engage in is banned?  You could sue to overturn the ban.  Here are two recent news stories, both from the NY Post:

NJ man suing federal government for rights to sell his own organs  By Priscilla DeGregory

"John Bellocchio, 37, of Oakland filed the suit against United States Attorney General Merrick Garland in Manhattan federal court Thursday.

"He says in the suit that he struggled financially and looked into offloading some of his organs — perhaps a kidney — only to find out it’s illegal to make a buck on your body parts.

"Bellocchio, a career academic who now owns a business that helps connect people with service dogs, argues that the law contravenes his constitutional right to freedom of contract in determining what can be done with his own personal property — or, more specifically, his own body.

"There “is a broad misunderstanding among so many people that a well-regulated government-managed market for organs is something out of a bad Dickens novel, like Sweeney Todd-type stuff and it’s just not the case,” Bellocchio told The Post."

**********

New York parent seeks OK to marry their own adult child  By Kathianne Boniello

"A New Yorker who wants to marry their own adult offspring is suing to overturn laws barring the incestuous practice, calling it a matter of “individual autonomy.”

"The pining parent seeks to remain anonymous because their request is “an action that a large segment of society views as morally, socially and biologically repugnant,” according to court papers.

...

"Legal papers give only the barest picture of the would-be newlyweds, failing to identify their gender, ages, hometowns or the nature of their relationship.

“The proposed spouses are adults,” the filing says. “The proposed spouses are biological parent and child. The proposed spouses are unable to procreate together.”

"Incest is a third-degree felony under New York law, punishable by up to four years behind bars, and incestuous marriages are considered void, with the spouses facing a fine and up to six months in jail.

...

"In 2014, a state appeals court unanimously approved a case involving a woman married to her mother’s half-brother, noting the genetic relationship was the equivalent of first cousins. But even that ruling cited “the almost universal horror” with which a parent-child marriage is viewed."

HT: Kim Krawiec

Making repugnance great again

In an article about President Trump's possible nominations to the Supreme Court, the NY Times discusses Judge William H. Pryor Jr. of the federal appeals court in Atlanta, who "is a former Alabama attorney general, a graduate of Tulane’s law school and an outspoken opponent of abortion and gay rights."
...
"Representing Alabama, Mr. Pryor in 2003 filed a supporting brief urging the Supreme Court to uphold a Texas law that made gay sex a crime. The position of the gay men challenging the law, Mr. Pryor wrote, “must logically extend to activities like prostitution, adultery, necrophilia, bestiality, possession of child pornography, and even incest and pedophilia.”

“The states should not be required to accept, as a matter of constitutional doctrine, that homosexual activity is harmless and does not expose both the individual and the public to deleterious spiritual and physical consequences,” Mr. Pryor wrote in the brief.

At his 2003 confirmation hearing, he stood by an earlier statement that Roe v. Wade, the 1973 Supreme Court decision that established a constitutional right to abortion, was “the worst abomination of constitutional law in our history.”

“I believe that not only is the case unsupported by the text and structure of the Constitution, but it had led to a morally wrong result,” Mr. Pryor told the Senate Judiciary Committee. “It has led to the slaughter of millions of innocent unborn children.”

Sperm banks

What rules should govern sperm banks? Donors may desire anonymity, but children conceived with donated sperm may seek to learn about their biological fathers, and both the children and society in general has an interest in preventing unintentional marriage of half siblings.

Haaretz reports Health Ministry preparing new regulations for Israeli sperm banks

"The regulations will require more detailed family histories from donors and those seeking a donation; limit the number of possible children from each donor; restrict donors to using just one sperm bank; and ban the practice of sperm mixing (in which more than one person's sperm is used).
...
""Israel has had 15 sperm banks, 13 of them public and two private, but only seven are still active. Sperm samples are not included among the standard healthcare services and the prices of imported sperm samples can cost hundreds of dollars (up to five times more expensive than sperm frozen in the country ). Despite the price gap sperm imports have been on the rise, especially for religious women, who have been advised by their rabbis to get a donation from abroad to avoid the slightest risk of unintentional incest."

Marriage, evolving

The New York Times has an unusually interesting discussion of marriage, motivated by NY State's recent legalization of same-sex marriage.

Two discussants speculate on what this might come to mean for incest and polygamy.

Ralph Richard Banks: "What now of the two remaining criminal prohibitions of intimate relationships: incest and polygamy? Even as same sex and interracial relationships are accepted, Americans are now imprisoned for incest or polygamy.

The cases against polygamy and incest are not nearly as strong as most people imagine. Yet they will not become legal anytime soon. To see why, it helps to understand the evolution of moral assessments of interracial and same-sex marriage.

"Courts and legislatures began to invalidate laws against interracial marriage after Hitler gave racism a bad name...

"The categorical prohibitions of incest and polygamy persist in part because people who commit either act are commonly reduced to that act (which is viewed as morally reprehensible) and, in turn, are not viewed as worthy of respect as people. More than a century ago, when the Supreme Court upheld the prohibition of polygamy the court reasoned that it was inimical to American values and identity, in part, the court stated, because polygamy was “almost exclusively a feature of the life of Asiatic and African people.” Historically, both polygamy and incest have been more widely practiced, and accepted, than the Supreme Court, and most Americans, seem to believe.

Over time, our moral assessments of these practices will shift, just as they have with interracial marriage and same sex marriage. We will begin to take seriously questions that now seem beyond the pale: Should a state be permitted to imprison two cousins because they have sex or attempt to marry? Should a man and two wives be permitted to live together as a family when they assert that their religious convictions lead them to do so?"

John Corvino: "Let’s not get ahead of ourselves. Yes, New York’s decision to grant same-sex couples the freedom to marry was a big deal. So was Washington’s before it and New Hampshire’s and Vermont’s and Iowa’s and Connecticut’s and Massachusetts’s. And let’s not forget Maine and California, which had marriage equality and then lost it (for now)....

"Meanwhile, opponents continue to predict a slippery slope to polygamy, polyamory and other “untested, experimental” family forms.

"The grain of truth in their prediction is this: recent progress reminds us that marriage is an evolving institution and that not everyone fits in the neat boxes that existing tradition offers.

"But let’s not confuse issues. Whether it’s a good idea to allow people to marry one partner of the same sex is a separate question from whether it’s a good idea to allow anyone to marry multiple partners — or their siblings, pets, iPhones or whatever else doomsayers toss in. It’s worth remembering that polygamy is quite “traditional,” even biblical. It is no more logically connected to one side of this debate than the other.

"The truth is that New York granted same-sex couples marriage rights not because of a radical idea, but because of an old-fashioned one: when two individuals commit to a lifetime of mutual love and care, it’s good to support them — or at least get out of their way."

******

Several discussants note that long-lasting marriage is increasingly common in the U.S. among the prosperous and well educated, and decreasingly common otherwise. 

Judith Stacey: "Marriage never has been or will be an equal-opportunity institution. As the legal scholars June Carbone and Naomi Kahn document in Red Families v. Blue Families, the marriage gap between rich and poor family regimes has been widening dangerously in recent decades. Marriage rates are higher and divorce rates lower in liberal Massachusetts than in conservative Mississippi. "...

"As the United States gradually makes the membership rules to marriage gender-inclusive, it risks deepening our sharp class and race disparities in marriage and family life. If we wish to avoid this fate, we should not be celebrating the benefits of marriage. Instead we need to develop family policies that give greater recognition and resources to the growing array of families formed, as Nancy Polikoff titled her book, “Beyond (Straight and Gay) Marriage.”

W. Bradford Wilcox: "In the nation’s affluent and educated precincts — from the Upper East Side to Bethesda, Md., to Southlake, Texas — the future of marriage is bright. After succumbing temporarily to the marital tumult of the 1970s, college-educated Americans have been getting their marital act together in recent years. For this demographic, divorce is down, infidelity is down, nonmarital childbearing still remains an exotic activity (only 2 percent of children born to white, college-educated women today are born outside of marriage) and the vast majority of children are fortunate to grow up with both their mother and their father.

"But in poor and working-class communities — from the South Bronx to Blytheville, Ark., to Youngstown, Ohio — the future of marriage is bleak. If anything, the aftershocks of the 1970s are growing, with all too many Middle American communities coming to resemble the inner city when it comes to family life. For the majority of Americans who do not hold college degrees, divorce rates remain high, infidelity is up, nonmarital childbearing is way up (more than one-third of births to white, high-school-educated women are now outside of marriage) and about half of their children will see their parents split before they reach adulthood."
********


Speaking of polygamy, Malaysia to Reward Polygamous Husbands (ht Stephanie Hurder)

Swiss parliament proposes to decriminalize incest

Switzerland considers repealing incest laws
"The upper house of the Swiss parliament has drafted a law decriminalising sex between consenting family members which must now be considered by the government.

"There have been only three cases of incest since 1984.

"...children within families will continue to be protected by laws governing abuse and paedophilia.

"Daniel Vischer, a Green party MP, said he saw nothing wrong with two consenting adults having sex, even if they were related.
"Incest is a difficult moral question, but not one that is answered by penal law," he said.

"Barbara Schmid Federer of The Christian People's Party of Switzerland said the proposal from the upper house was "completely repugnant."
"I for one could not countenance painting out such a law from the statute books."
The Protestant People's Party is also opposed to decriminalising the offence which at present carries a maximum three year jail term.
A spokesman for the party said: "Murder is also quite rare in Switzerland but no one suggests that we remove that as an office from the statutes."

See also Wen schützt das Inzestverbot? ("Who is protected by the prohibition against incest?")

HT: Sven Seuken

My previous posts on incest as a repugnant transaction are here, including this one which concerned a similar repeal in Romania: ''Not everything that is immoral has to be illegal'
.

Incest is still a repugnant transaction

Professor charged with incest with his daughter
"Political science professor xxx, 46, was charged Thursday with having a sexual relationship with his daughter, 24.

"He was arrested Wednesday morning and charged with one count of incest in the third degree at an arraignment hearing on Thursday. According to police, the relationship appears to have been consensual."

According to NY State Law:
"255.25 Incest.
A person is guilty of incest when he or she marries or engages in sexual intercourse or deviate sexual intercourse with a person whom he or she knows to be related to him or her, either legitimately or out of wedlock, as an ancestor, descendant, brother or sister of either the whole or the half blood, uncle, aunt, nephew or niece. Incest is a class E felony."

Over at Slate, there's an argument by William Saletan that even if incest is of a sort that can't lead to children (e.g. "deviate sexual intercourse"), it is repugnant because of its destruction of family relationship. His article has a particularly chilling quote:
"Read... what Woody Allen's son says about his dad: "He's my father married to my sister. That makes me his son and his brother-in-law. That is such a moral transgression. I cannot see him. I cannot have a relationship with my father …"

Cousin marriage

The NY Times writes about marriage between first cousins, which is illegal in exactly half of the 50 States of the U.S.: Shaking Off the Shame.

"But even in the United States — one of the few countries in the world where such unions are illegal — marriage between first cousins may be slowly emerging from the shadows.

Although it is still a long way from being widely accepted, in recent years cousin marriage has been drawing increased attention, as researchers study the potential health risks to children of cousins. And the couples themselves have begun to connect online, largely through a Web site called Cousincouples.com, which bills itself as “the world’s primary resource for romantic relationships among cousins,” and is trying to build support for overturning laws prohibiting cousin marriage.
For the most part, scientists studying the phenomenon worldwide are finding evidence that the risk of birth defects and mortality is less significant than previously thought. A widely disseminated study published in The Journal of Genetic Counseling in 2002 said that the risk of serious genetic defects like spina bifida and cystic fibrosis in the children of first cousins indeed exists but that it is rather small, 1.7 to 2.8 percentage points higher than for children of unrelated parents, who face a 3 to 4 percent risk — or about the equivalent of that in children of women giving birth in their early 40s. The study also said the risk of mortality for children of first cousins was 4.4 percentage points higher."
...
"“It’s never as simple as people make it out to be,” said Dr. Bittles, noting that very early studies did not account for factors like access to prenatal health care, and did not distinguish between couples like Ms. Spring-Winters and her husband, the first cousins in a family to marry, and those who are part of groups in which the practice is common over generations and has led to high rates of genetic disorders. "
...
"Dr. Bittles, who is working on an update of the 2002 study, and other researchers argue that laws against marriage between cousins were rooted in myth and moral objections, and that they amounted to genetic discrimination akin to eugenics or forced sterilization. People with severe disorders like Huntington’s disease, who have a 50 percent chance of passing it on to their offspring, are not barred from marrying because of the risk of genetic defects, he said, so cousins should not be, either.
Historically, marriage between cousins has been seen as desirable in many parts of the world, and even today, slightly more than 10 percent of marriages worldwide are between people who are second cousins or closer, Dr. Bittles said. In the United States, the percentage is thought to be much smaller, although it is difficult to estimate, since such marriages have long been an underground phenomenon, because of laws forbidding them and because of the lingering incest-related stigma. "
...
"Martin Ottenheimer, who wrote “Forbidden Relatives: The American Myth of Cousin Marriage,” a 1996 book that was the first detailed examination of the issue in the United States, compared marriage between cousins to same-sex marriage. “People say, ‘If we permit this, what are we permitting? We’re down the slippery slope toward chaos. Then we’ll permit people to marry dogs,...’ ”
...
"Despite the efforts of some in Minnesota and New Hampshire to overturn state laws against cousin marriage after the 2002 study was published, it remains illegal there. And as of 2005, it is against the law in Texas as well.
The Texas ban was part of a law targeting polygamy, and the state representative who proposed it, Harvey Hilderbran, a Republican, said he would not have introduced a bill simply to prohibit marriage between cousins. Still, he said in an interview: “Cousins don’t get married just like siblings don’t get married. And when it happens you have a bad result. It’s just not the accepted normal thing.” "

Same sex marriage in Canaan

I've posted several times about recent developments in the U.S. on the legalization of gay marriage, most recently here: Same sex marriage in Iowa, and New England . These developments involve the legality of a contract between two willing adults that third parties may find repugnant. This repugnance is of ancient origin, as I was reminded by the Torah portion read yesterday, which includes Chapter 18 verse 22 of Leviticus, which forbids (a male) lying with a male. This comes immediately after the prohibition against handing over your children "to Moloch" (which is often read as a ban on human sacrifice), and after the prohibitions against any kind of incest.

At the blog PaleoJudaica.com there's a discussion of some of the rabbinic discussion about this verse, and one of the comments points to a midrash claiming that the ancient Canaanites, who preceded Israel in the land, used to practice same sex marriage:
"The reference is to the Sifra 8:8, on Leviticus 18:2ומה היו עושים? האיש נושא לאיש והאשה לאשה, האיש נושא אשה ובתה, והאשה ניסת לשנים. לכך אמר ובחוקותיהם לא תלכוThe Hebrew can be translated as, "And what did they used to do? A man married a man and a woman a woman, a man married a woman and her daughter, and a woman married two men. Therefore it says, By their rules you shall not walk." "

So, some transactions have a very long history indeed of being regarded as repugnant. And still, views can change.

''Not everything that is immoral has to be illegal'

The quotation in the title of this post is from Romanian Justice Ministry legal expert Valerian Cioclei, and it comes from the NY Times story Romania Weighs Decriminalizing Consensual Incest .

"Three European Union nations -- France, Spain and Portugal -- do not prosecute consenting adults for incest, and Romania is considering following suit.
...
"Incest is defined as sexual intercourse between people too closely related to marry legally. In the United States, all 50 states and the District of Columbia prohibit even consensual incest, although a few states impose no criminal penalties for it..."

Incest is surely one of the prototypical repugnant transactions, namely one that people don't like to have others engage in. Such repugnance is often reflected in law, but by no means always. (E.g. there is no law against going to the front of a long line at the supermarket checkout counter and asking a person near the front to sell you their spot, i.e. to move to the back of the line and let you into their place in return for a cash payment. But here's a story of an economist , Oz Brownlee, who, after trying to do that, decided that the best course of action was to leave the store without buying anything.)

A famous article by Jonathan Haidt (Haidt, J. (2001). The emotional dog and its rational tail: A social intuitionist approach to moral judgment. Psychological Review. 108, 814-834 ) begins with an example of consensual incest.
"Julie and Mark are brother and sister. They are traveling together in France on summer vacation from college. One night they are staying alone in a cabin near the beach. They decide that it would be interesting and fun if they tried making love. At very least it would be a new experience for each of them. Julie was already taking birth control pills, but Mark uses a condom too, just to be safe. They both enjoy making love, but they decide not to do it again. They keep that night as a special secret, which makes
them feel even closer to each other.
What do you think about that, was it OK for them to make love?

"Most people who hear the above story immediately say that it was wrong for the siblings to make love, and they then set about searching for reasons (Haidt, Bjorklund, & Murphy, 2000). They point out the dangers of inbreeding, only to remember that Julie and Mark used two forms of birth control. They argue that Julie and Mark will be hurt, perhaps emotionally, even though the story makes it clear that no harm befell them. Eventually,
many people say something like “I don’t know, I can’t explain it, I just know it’s wrong.” But what model of moral judgment allows a person to know that something was wrong, without knowing why?"

Haidt (and colleagues, particularly Paul Rozin) have studied the emotion of disgust, and think that a lot of moral judgements may be mediated by the disgust reaction (whose initial evolutionary significance is presumably to prevent us from eating spoiled food, etc.). This makes a lot of sense for incest (because evolution should help us avoid inbreeding, with the excessive concentration of recessive genes in offspring).

I suspect that many of the more clearly economic transactions that are or have been regarded as repugnant are less closely tied to hard-wired disgust. That is not to say that, as people who are culturally acclimated to find some kind of transaction repugnant (e.g. charging interest on loans was repugnant for centuries in Europe), we may not be able to recruit our disgust reaction to make sense of things we disapprove of. Just as not every repugnant transaction is against the law, they may not all originate with (or even activate in a secondary manner) feelings of disgust. (See my other posts on repugnant transactions for a variety of examples...)

Update: see an article on disgust and moral judgement in the March 2009 issue of The Jury Expert (a very task oriented journal focused on picking and persuading jurors): Grime and Punishment: How Disgust Influences Moral, Social and Legal judgments