Douthat on Roe v. Wade
This piece by Ross Douthat in the Week in Review section of last Sunday’s New York Times is the best thing I have seen about the politics of abortion in the aftermath of the election. Douthat puts paid to the idea that prolifers cost the Republicans the election and should now be hushed or banished by the party. Just as it is unreasonable to assume that all the Catholics who voted for Obama were prochoice, it is also unreasonable to assume that McCain would have won if only he had been less prolife.
John McCain probably mentioned earmarks about a thousand times more often than he let the word “abortion” slip his lips. The Republican ticket’s weak attempts to play the culture-war card — a Bill Ayers here, a Joe the Plumber there — had nothing whatsoever to do with Roe v. Wade. And why should abortion opponents, of all conservative factions, take the blame for the financial meltdown, or the bungled occupation of Iraq, or the handling of Hurricane Katrina?
Douthat’s main point, though, is about the continuing importance of Roe v. Wade. Many people, including some prominent prolifers, have lately argued that the prolife movement should get over its opposition to Roe and instead seek legislative compromises that could reduce the number of abortions. Now, the call for compromise is always welcome. Those who believe that any political compromise on this issue is a form of moral impurity or even treachery have a problem not just with the country’s abortion laws but with the essential dynamics of democracy: a movement that is too good for gradualism is too good for the United States. But one problem with Roe, at least as it has been understood by the lower courts and in the Supreme Court’s later rulings, is precisely that it prevents any serious compromise, either at the state or federal level.
So the question isn’t whether the anti-abortion movement can change, adapt and compromise. It’s already done that. The question is whether it can afford to compromise on the national issue that keeps serious pro-lifers in the Republican fold, and requires an abortion litmus test for Republican presidential nominees — namely, the composition of the courts. And here the pro-life movement is essentially trapped — not by its own inflexibility, but by the inflexibility of the Supreme Court’s abortion jurisprudence.In theory, there are many middle grounds imaginable in America’s abortion wars, from bans that make exceptions for rape and fetal deformities to legal systems modeled on the French system, in which abortion is available but discouraged in the first 10 weeks and sharply restricted thereafter.The public is amenable to compromise: majorities support keeping abortion legal in some cases, but polling by CBS News and The Times during the presidential campaign showed that more Americans supported new restrictions on abortion than said it should be available on demand. And while some pro-lifers would reject any bargain, many more would be delighted to strike a deal that extends legal protection to more of the unborn, even if it stopped short of achieving the movement’s ultimate goals.But no such compromise is possible so long as Roe v. Wade and Planned Parenthood v. Casey remain on the books. These decisions are monuments to pro-choice absolutism, and for pro-lifers to accept them means accepting that no serious legal restrictions on abortion will ever be possible — no matter what the polls say, and no matter how many hearts and minds pro-lifers change.
It is not irrational for a prolifer to believe that Roe will never be overturned, and that the prolife movement should therefore concentrate on changing the country’s culture rather than its laws. In fact, it is quite reasonable to assume that if Roe is to be reversed, it won’t be soon. But it is not reasonable to pretend that the only thing keeping the movement from legal and political compromise is its own intransigence.
Was McCain pro-life? Are the Republicans pro-life? How about a reality check here? What have they actually accomplished?
To the best of my knowledge, none of the attempts to get around Roe v Wade by constitutional amendment have been attempts to find a compromise between the pro-choice and the pro-life positions. They have all been attempts either to turn the clock back to before Roe was decided or else attempts to declare abortion impermissible in almost all cases. I am not an expert on constitutional amendments, but it seems quite possible to me (legally speaking, not politically speaking) to amend the constitution so that abortion in the United States would be treated similarly to abortion in France, or one of the other European countries with more restrictive laws than the United States but without total bans.
As I understand the position of the Catholic Church (based on Vatican documents), and the position of the America bishops, abortion must be criminalized, not merely as a means to reduce the number of abortions, but as an end in itself. I don’t know how that leaves any room for compromise. I am sure “anti-aborts” feel “pro-aborts” aren’t willing to compromise either, but there certainly could be inducements to compromise. For example, what about limiting abortion as in France, but paying for abortion under a national health insurance plan (as in France)? It seems to me there are all kinds of ways to compromise. But who would want to be the leader who tried to hammer out a compromise?
I thought this was pretty good advice about what the PR message of the pro-life movement should be in the coming years:
Facing a hostile governing majority, pro-lifers can and should talk more about the possibility of compromise: They should explain, more often and more cogently, that if Americans want laws that better reflect their muddled sentiments on abortion, it is pro-choice maximalism, not the pro-life movement, that’s really standing in the way.
That definitely seems more promising than “Obama is the Anti-Christ”.
I’ve often been struck by the polls that show strong majorities of Americans say they support Roe while simultaneously showing strong majorities of Americans want restrictions placed on abortion that are not allowed under Roe. I think a big part of what the pro-life movement needs to do is simply educate people about what cases like Roe, Doe, Casey, and Carhart actually say.
There aren’t two options, only working to reverse Roe, and “concentrat[ing] on changing the country’s culture rather than its laws.” And by that I don’t mean, we can do both persuasion/conversion and anti-Roe at the same time. I mean there are lots of changes to laws that are not mere anti-Roe. That is part of Douthat’s point. Parental notification. Resticting taxpayer funded abortion. Informed consent. On and on. These are the compromise, gradualism, “what do we do since we can’t overturn Roe today,” laws, which obtain on their own merits 70% and 80% numbers of public support. The pro-life movement and the Bishops have not only pursued these in the last 25 years, but they have pursued them with great success, and by them they have reduced abortions by hundred(s) of thousands every year. These remain to be done even more to save even more children. And they serve culture change too, as the partial birth abortion campaign educated and swayed Americans on abortion, and as the Born Alive Infant Protection Act sought to sow fundamental premises about human rights. [And also, I should mention, these still represent a fraction of the pro-life movement's overall work, which tirelessly and simultaneously involves massive pregnancy support and grassroots education and "culture change", also leading to an increase in pro-life views in polls and among young people.]
These laws are, by definition, changes to the law. If this distinction is not made, between merely trying to reverse Roe and making these changes to the law, it is not clear whether you mean that by “”concentrat[ing] on changing the country’s culture rather than its laws,” you mean to stop doing these things. From the pro-life perspective, it seems that the Catholic progressive movement never acknowledges the existince of this third successful strategy between “changing the culture” and “opposing Roe.” During the election, the progressive Catholic political movement (“some prominent prolifers”) proposed that Obama was the pro-life choice. But his agenda was to fund social welfare and explicitly to oppose all these gradualist changes to the law. And the progressives relentlessly characterized pro-lifers as merely anti-Roe, not acknowledging that the choice for Obama also includes, for example, funding abortions by tax dollars, reversing a gradualist measure that will actually increase abortion.
It would be helpful to clarify the view of prominent progressive Catholics on this enormous gradualist component of the pro-life movement. Their political philosophy principles seems to suggest that they should be enthusiasticly for it, but their support of Obama and repeated passing over it in their rhetoric suggests that they suggest it be abandonned and all its advances reversed as part of fatalistic concession of Roe itself (whose fate they themselves sealed by putting Obama in office).
I think the larger point that Douthat missed, perhaps by design, in his piece was that abortion simply does not matter to voters. Not only in this election, but in elections past, abortion does not register with voters, it is not a determining factor.
Both sides, the “pro-Roe” and “anti-Roe” camps, use the issue to rally the troops or divide and conquer. But polls show that Americans pretty much want the status quo. This is a difficult issue, they recongize, and the vast majority are “pro-choice” but not “pro-abortion.” The church leadership hasn’t come to grips with that. But those who want to address (reduce, eliminate, whatever) abortion need to do so.
Re: Ms.Steinfel’s question “What have (Republicans) actually accomplished?:
The Hyde Amendment, Mexico City Policy, the Federal ban on partial birth abortion, the appointment of Supreme Court justices who upheld the ban on partial birth abortion. Even the unfortunate Casey decision, which – though it was a missed opportunity, to overturn Roe, “thanks” to Justice Kennedy – at least has permitted passage of more far more substantial restrictions on abortion by states than had been possible under Roe (and its usually unmentioned companion case Doe) However, Justice Kennedy did at least write the opinion upholding the ban on partial birth abortion – demonstrating the importance of Supreme Court appointments, even if how justices will vote on cases is not entirely predictable.
(Republicans also deserve credit for the Born Alice Infant Protection Act. Democrats did vote for it en masse – but that was a tactical judgment to avoid debate on a bill that was sure to pass. Opposition to the bill would not have looked good and a debated would have stirred “moderates” to question the pro-choice ideology. Had not the Act been passed under President Bush, would it now even be permitted to come to a vote by Democratic committee chairs in the present Democratic controlled congress? No way.)
The fact is, but for Republican presidents, Justices Scalia, Thomas, Roberts and Alito – and scores of non pro-choice lower court judges – would not be on the bench. Of course there have been clinkers – the Republican appointees who voted for Roe and Doe, and Stevens and Souter, and semi-clinkers – O’Connor and Kennedy. But unlike the latter two justices, the justices who voted for Roe were not appointed with a view toward how they might vote on abortion rights. (Only Souter seems to have been a justice appointed by a Republican with the undisclosed expectation that he would be pro-choice.)
The partial birth abortion decision (Gonzalez v. Carhart) is especially important as an accomplishment of Republicans. Just read Stevens and Ginsburg’s dissent – taking the position that partial birth abortion is no more tortuous to the unborn than ordinary mid and late term abortions – so what’s the big deal? It is true that besides the injustice of all abortions, the procedures used to accomplish the 4% of “ordinary” abortions occurring after the 16th month, and the 1% occurring after the 20th month – (48,000/yr and 12,000/yr, respectively) are just as tortuous to the unborn as the procedure for partial birth abortions. But of course we all want to save as many individuals as possible from torture so the Republicans deserve credit for at least accomplishing the prohibition on partial birth abortion that could not be accomplished under a Democratic president – Clinton – and would not have been upheld if Democratic appointed justices had their way.
See generally: “Defending Life 2008″ at http://www.ul.org and What Reduces Abortions? by Richard M. Doerflinger
Re: Matthew Boudway’s comment “It is not irrational for a pro-lifer to believe that Roe will never be overturned … (and) it is reasonable to assume that if Roe is ever reversed, it won’t be soon.”
It’s true it won’t happen soon, but I am somewhat confident Roe eventually will be overturned. To believe otherwise is to believe a majority of justices will forever allow the history of Supreme Court jurisprudence to be stained with a blatantly dishonest, incompetent opinion (written, unfortunately, by second rate justice who was appointed by third rate Republican president.)
As Ross Douthat’s article suggests, overturning Roe is essential to the possibility of substantial progress in defending the life unborn humans. I believe President Bush’s outstanding appointments of Roberts and Alito were big steps in the right direction. They are likely to join with Thomas and Scalia to vote to overturn Roe if presented with the opportunity, especially since they seem immune to Washington Post/New York Times editorial schmoozing/condemnation. But obviously, since Democrats presidents worship at the altar of abortion rights we need in the near future another president who will appoint a justice who is likely to vote with Scalia, Thomas, Alito and Robert to overturn Roe, (and Casey in so far as it upholds the central holding of Roe albeit with a somewhat different rationale). It is hoped Obama will be able to replace only one or two pro-Roe justices (Stevens and Ginsburg) and no anti-Roe justices so election of a true pro-life president after Obama will permit a pro-life president to replace one of the four anti-Roe justices with a new anti-Roe justice if necessary and to appoint a fifth such justice.
In regard to the illegitimacy of Roe see, for example, Supreme Confusion by Michael Uhlmann (reviewing Joseph A Dellapenna’s “Dispelling the Myths of Abortion History”, Frances and Kate – 35 Years Later by Robert Araujo, SJ,
On Blackmun, see Unbecoming Blackmun by William Saleton., The Brains Behind Blackmun .
I think it can be said that abortion is often not the most important issue for the decisive number of voters in many presidential elections. This year the economy was more important and pendulum of party transition, in 2006 it was the war. McCain intentionally didn’t talk about abortion because he was courting independents–and he lost.
But these one or two examples are a far cry from saying abortion does not matter to voters. There are a solid core for whom it always matters. At the national level, George Bush would never have won if it didn’t matter, and Democrats would not have switched in increasing numbers to support the Partial Birth Abortion Ban acts, or the Born Alive Infants Protection Act. There would be no fighting chance for pro-lifers to enact and defend incremental federal legislation. In Senate, House, and state races, abortion often matters tremendously.
And perhaps most importantly, how much abortion matters to voters is not static. Bishops and priests and Catholic laity have the ability to persuade Catholics to make it matter. Percentages of Mass-going Catholics who prioritize ending the abortion holocaust can go up and have gone up by concerted efforts of pro-life Catholics. And it can and does go down by concerted efforts by Catholics who argue it is not as important as other issues. The same Catholic progressives who argue that abortion law just doesn’t matter to voters so give up acting as if it did, are those who also say to be pragmatic, and who say to stop changing the law, even though pragmatic pro-life laws are precisely the abortion-reducing strategy that the pro-life movement has successfully used after Republican Supreme Court appointees let them use it in Webster and Casey.
It would be helpful for progressive Catholic commentators to clarify whether Catholic pro-lifers should stop clinging to restrictions on taxpayer funding of abortion, parental notification, informed consent, and other broad consensus measures Michael mentions, or whether their proposal of pragmatism embraces these strategies. Thusfar many such commentators repeatedly describe the pro-life movement as opposing Roe and “anti-Roe”, and say pro-lifers should “concentrate on changing the country’s culture rather than its laws,” and supported Obama over McCain when Obama threatens not only anti-Roe but also the gradualist pragmatic pro-life measures. In this context the “anti-Roe” moniker is minimalistic–merely anti-Roe, and the only abortion-reducing thing at stake between Obama and McCain is Roe, which is only true if things like taxpayer funding restrictions are off the radar.
If the progressive Catholic movement stands by increasing these pragmatic pro-life measures, and if it defines its commitment to life as including a commitment to those measures, it will get a lot more pro-life support. If it is saying to let those go with Roe, and if its ideal of a Catholic politician includes people who stand with the abortion movement in opposing and weakening those measures, it needs to reconcile that with its call for political pragmatism and consensus policy-making and abortion reduction, not to mention its claim to be pro-life.
But a good start would be to just say whether those measures are on or off, included or optional, in the progressive Catholic agenda. Even if the answer is that the agenda is a big tent and includes both support for and opposition to those measures, that is an answer, because at least we know that support for those measures is optional and opposition to those measures is included. Right now the point has never been addressed head on.
Matt,
I think you’re pushing against an open door here. My point was not that prolifers should not — or have not — supported “incremental federal legislation.” My point was the same as Douthat’s: that the prolife movement has supported the only compromises it can in a system falsely constrained by Roe v. Wade. Until Roe is overturned, prolifers don’t have much room for political maneuver. That doesn’t mean we should ignore the little room we have.
Michael,
When I wrote that it is not irrational to believe that Roe will never be overturned, I did not mean that it is irrational to believe otherwise. This post was not intended as a counsel of despair.
Matthew–thank you. I think that’s an important clarification. From the pro-life perspective, I think it is a necessary thing to clarify.
People may think FOCA is a “phantom,” but consider just taxpayer funding of abortion, which is independent and is certainly in danger by the Democratic margins in Congress. Both sides of the Catholic “abortion reduction” aisle agree that taxpayer funding increases abortion.
http://www.thepublicdiscourse.com/viewarticle.php?selectedarticle=2008.10.30_New_Michael%20J._Does%20Increased%20Welfare%20Spending%20or%20Pro-Life%20Legislation%20Reduce%20Abortion%253F_.xml
But in the election when progressive Catholics called the choice for Obama over McCain the pro-life choice to reduce abortions as opposed to anti-Roe-ism, that gradualist change and others were improperly omitted from the discussion and from the reduction calculus. The impression left was either that those measures don’t matter or that they should be put aside along with opposition to Roe. No other logical accounting was given. In this context, it is ambiguous if progressive Catholics now tell prolifers that they need to start being pragmatists, and if they continue to identify them as anti-Roe-ers, and suggest that they stop insisting on changing the laws, without making the clarification that you have made.
The absence of a clarification raises the question arises whether the gradualist measures are to be abandonned with anti-Roe-ism, or whether progressive Catholics strongly support the gradualist measures, or whether they are considered to be too insignificant to matter. There is a lack of clarity whether, for example, progressive Catholic leaders and model politicians like Tom Perriello are going to vote to strengthen or weaken all those pro-life gradualist measures.
Someting very timely should also be mentioned. Consider this first-100-days agenda posted on Obama’s transition team website. It’s at change.gov and it is called “Advancing Reproductive Rights and Health in a New Administration”
It includes:
Massively Expanding Coverage of Medicaid-Funded Abortion
Strike All Bans on public funding for abortion, including
language restricting abortion funding
for (i) Medicaid-eligible women and
Medicare beneficiaries (Hyde amendment);
(ii) federal employees and their dependents
(FEHB program); (iii) residents of the District
of Columbia; (iv) Peace Corps volunteers;
(v) Native-American women; and (vi)
women in federal prisons
and
Pumping literally billions of more dollars into Planned Parenthood itself (which aborts 25% of the babies in the US) and the rest of the abortion industry
Reverse the HHS Federal Conscience Protection Rule.
Rescind the Mexico City Policy restriction international abortion funding
Restore Funding to the United Nations Population Fund (which assists abortion and coercive abortion in China)
De-Fund Abstinence-Only Programs
Require “Access” to Emergency Contraception
Select Only Pro-Abortion Judges and Executive Officials
That’s just the first hundred days. I can’t list everything else–it would take too much space.
All these measures are examples of what the pragmatic pro-life movement has achieved, and what is imperiled by the administration that progressive Catholics supported putting into power, and these measures were not mentioned when the progressives told Catholics that Obama was the pro-life abortion-reducing option.
So I appreciate your clarity on whether supporting such measures are part of the Catholic agenda, instead of being things that will be thrown out with opposition to Roe. That accounts for you, and I hope your view is widely held within the progressive Catholic movement.
clarification: Planned Parenthood performs 25% of the abortions in the US, so I should have said it aborts 25% of the aborted babies in the US.
Matt,
I have found the document, but it’s 55 pages long. Can you tell me on what basis you say part of the agenda is “pumping literally billions of more dollars into Planned Parenthood itself”? I’m not saying it’s not in there, but I can’t find it.
Matt,
I found a reference to the Planned Parenthood annual budget of 2006, and it was $880 million dollars. So a billion dollars would fund it at a 2006 level for over 10 years.
One of the common problems of moving forward today politically and church-wise is intransigence.
The intransigence of some (say in dealing with main St. bailouts, allowing discussion about mandatory celibacy/ role of women/ and even pro-life presentation) hurts rather helps the message.
I hope Douthat is right about the flexibility of the pro-life movement at this time; I think it will require lots more than that to salvage the conservative impact in the issues of today’s world, both politically and ecclesially.
DavidN–if you go through the first few pages of text you will find requests for $ here and $ there, including one request for $1 billion, and several for hundreds of millions. This includes domestic and international, and it includes PP and other abortion organizations.