Open to debate?
In today’s New York Times, Ross Douthat makes two important points about the abortion debate. Both have been made many times before, by Douthat and others, but they cannot be made too often. The first is that most abortions, including those performed after the first trimester, have nothing to do with rape, incest, or the health of the mother; and yet these are the cases that are mentioned right away anytime someone proposes new legal restrictions on abortion — even if the restrictions would make an explicit exception for such cases. The truth is that most prochoice advocates have no interest in a political compromise that would allow abortion in the hard cases while prohibiting it in others. In fact, their frequent reference to the hard cases does not correspond to any feature of their own position, according to which every case is hard enough; instead, it is intended to stun and confuse the millions of Americans who have mixed feelings about our system of abortion-on-demand, and to preempt the sort of discussion that might lead to a meaningful political compromise. As Douthat writes:
Yes, many pregnancies are terminated in dire medical circumstances. But these represent a tiny fraction of the million-plus abortions that take place in this country every year. (Almost half of that number are repeat abortions; around a quarter are third or fourth procedures.) The same is true of the more than 100,000 abortions that are performed after the first trimester: Very few involve medical complications of any kind. Even the now-outlawed “partial-birth” procedure, which abortion-rights supporters initially argued was only employed in the direst of dire situations, turned out to be used primarily for purely elective abortions.
Douthat’s second point is that the main obstacle to compromise (which is to be distinguished from “common ground”) is not the intransigence of prolife activists but rather Roe v. Wade itself and the subsequent Supreme Court decisions that have reinforced it. If President Obama really believes that the democratic process is strong and flexible enough to confront deep moral conflicts, then he ought to be the first to oppose Roe, for until that ruling is overturned the kind of civil discourse about abortion that the president recommended in his Notre Dame commencement address will remain largely epiphenomenal — you go ahead and talk (nicely!) but the Court’s decided, once and for all. Douthat writes:
If anything, by enshrining a near-absolute right to abortion in the Constitution, the pro-choice side has ensured that the hard cases are more controversial than they otherwise would be. One reason there’s so much fierce argument about the latest of late-term abortions — Should there be a health exemption? A fetal deformity exemption? How broad should those exemptions be? — is that Americans aren’t permitted to debate anything else. Under current law, if you want to restrict abortion, post-viability procedures are the only kind you’re allowed to even regulate.
If abortion were returned to the democratic process, this landscape would change dramatically. Arguments about whether and how to restrict abortions in the second trimester — as many advanced democracies already do — would replace protests over the scope of third-trimester medical exemptions.
You can read the rest of Douthat’s column, titled “Not All Abortions Are Equal,” here.
Funny how these things can be read–I read the piece in the opposite way, in that Douthat’s plea for making distinctions is a real challenge to the pro-life movement, and certainly the Catholic part of that movement. He writes:
But the pro-life movement, and again the Catholic part of it in particular, is about moral philosophy, not law and policy. Aborting a day old embryo is the same in every way as aborting a near-term fetus. Douthat is of course setting up a straw man in a pro-choice movement that wants “unregulated abortion”–that’s silly and not the case. But he needs to do that to write his column. (And the “pro-life” movement already makes distinctions as well, though it doesn’t advertise that.)
But the problem is that when the pro-life movement begins to publicly make the distinctions that Douthat envisions its rationale falls apart, no? Some lives become more valuable than others. Political effort is expended to end “partial-birth” abortions–which does nothing at all to reduce the number of late-term abortions–because it is particularly gruesome. Other efforts to end the vast majority of abortions in the first trimester don’t recieve the same attention. And that reduces the pro-life movement to something like the movement to protect baby harp seals because they’re so cute. And fellows like Scott Roeder go and shoot up George Tiller when he could have targeted an IVF clinic.
David,
You repeatedly attempt to frame the pro-life issue as a philosophical one. Your saying so doesn’t make it so. Aborting a human being with all the DNA he or she will ever need to be human is the same in every way at day one as it is at any other point in life. That’s a genetic argument not a philosophical one. As someone at MOJ recently argued, abortion isn’t like disrupting the manufacture of an automobile (different parts, separate steps but its just a jumble of parts until it rolls off the line). It is more akin to destroying a developing Polaroid of an important moment (the image is entirely there and its destruction is just as offensive at any point in its development as it is in its actuality).
Further, you continue to assert pro-abortion slogans without substantive proof. Kindly provide concrete examples to back up your claim that pro-abortion activists support any legislation to curtail any abortion. The fact is that NARAL is the NRA of the left. Neither has ever met responsible legislation they couldn’t hate.
But back to Douthat’s point. He’s absolutely right. Simply put, for most people, abortion may be an “agonizing choice” but it is less agonizing than the profound inconvenience of carrying the child to term and facing the choice to either raise or give up the child for adoption. As Obama himself has honestly noted, to most people, abortion feels like less of a “punishment” than does carrying a child to term. Until that reality changes, no amount of “heart changing” effort on the pro-life side will gain any traction. Barring effective restrictions, people will always choose what they perceive to be the least agonizing option available, Because it is a shorter term “answer” that requires less of a personal committment and long-term sacrifice than does carrying a child to term, abortion wiill always be more appealing to the person in crisis. Always.
Greg
It strikes me as perfectly valid to bring up the hardest of hard cases when arguing about abortion with people who claim it is murder and would, if they could, prohibit it in all cases. (See Gregory Popcak’s argument above.) They don’t acknowledge that there are hard cases, because their absolutist demands the same decision in all cases no matter what the circumstances.
I think it’s disingenuous for people like Douthat to lament the (alleged) fact that we can’t debate abortion in the United States because of Roe v Wade. They don’t want a debate. They want to overturn Roe and ban all abortions. Their position is, “Abortion is murder. Which murders do you expect us to compromise on?”
I left out a word: “They don’t acknowledge that there are hard cases, because their absolutist position demands the same decision in all cases no matter what the circumstances.”
I’m just going to plagiarize:
“I think Douthat’s bizarre remark about “where there are exceptions, there cannot be a rule” reflects not so much that he is grappling with any real pro-choice argument, but rather that he is trying to fight off an anti-abortion argument by anti-abortion people who are more extreme than he is. Those more extreme people say, in effect, what are you talking about, Mr. Douthat, how can you say that abortion could ever be allowed, even in the horrible cases you discuss at the start of your column (the rape cases and 10-year-olds and extreme physical problems of fetus and/or pregnant woman) – if a fetus is really a person, none of those considerations can count.
“And that’s just the problem. The extreme anti-abortion position is extremely unappealing from a moral or humane point of view: it really would condemn 10-year-old incest victims to carry pregnancies to term, and so forth. It is horrific and deeply out of step with modern ideas about morality. Ross Douthat can’t swallow that position, and/or he knows Americans won’t. So he has to retreat to different ground. And the retreat involves acknowledging that in a whole array of circumstances, abortion is justified (where murder of a person would not be). Thus, a fetus is not _really_ exactly the same as a person after all. Pull too hard on this thread and much of the anti-abortion position begins to unravel.”
There are lots of practical and moral choices that you could ostensibly remove from the category of “choice” by implementing a program of state interdiction and coercion. We are reasoning and mostly reasonable beings. Saying that the ONLY way to prevent people from opting for the least agonizing outcome is to outlaw abortion is an admission of how deeply unpersuasive people find your moral reasoning when they find themselves in a position of having to apply it to themselves. That they often say one thing and do another is mostly a testament to their failure to fully grasp the issues until they face them personally.
Barbara, where are you “plagiarizing” from? I like it.
Greg, I’m happy to stipulate that abortion is objectionable at all stages because embryos and fetuses are Polaroids, and that it’s not just morality. (BTW, my wife continues to lament the loss of her Polaroid–a real Polaroid, mind you–and prays every day that Kodak will reconsider.) But the sceintific argument you make has the same effect–all abortions bad, all the time. That’s fine. But it doesn’t help on the legal and policy distinctions that Douthat is trying to make.
This thread can use the points raised in Grant’s thread below -which won’t allow comments.
DavidG said “Douthat is of course setting up a straw man in a pro-choice movement that wants “unregulated abortion”–that’s silly and not the case.”
DavidG your statement is indefensible. Name one regulation that the pro-choice movement accepts. How about parents being told if their kids get abortions? Nope, must allow it to be secret. How about a 24 hour waiting period and information about fetal development, or the psychological harms of abortion, or the mere opportunity to view an ultrasound? No way. How How about we just don’t force taxpayers to pay for abortions? Not acceptable. We could go on for pages and pages.
Maybe you think that their acceptance of some few regulations with a “health of the mother” exception counts. Except that health of the mother has meant anything, and they insist that the abortion doctor gets to decide what counts as health. So it makes it a non-regulation, even in late term abortion. It means that the abortion doctor gets to decide if a woman’s mental illness necessitates the partial birth abortion procedure. That doesn’t even make any sense. How could mental health require the partial birth abortion procedure? But it’s what pro-choicers insist on, on their better days.
Of course their FOCA is all about imposing a strict standard of review to strike down all these laws. They support doing that. They’re excited about it. And perhaps you haven’t heard, but some Supreme Court justices and nominees have advocated in court that the Fourteenth Amendment already requires strict scrutiny–it already contains FOCA–it already would strike these laws down at least as often as they were struck down before Casey and Carhart.
This discussion the fact that pro-lifers have presented a panoply of compromise measures and the stakes are not anti-Roe or nothing. You seem to be describing the contention as pro-choicers willing to regulate and pro-lifers willing to do nothing but absolutely ban abortion. The exact opposite is true.
Please tell us one piece of evidence to support your claim that it is a straw man to call the pro-choice movement’s view “unregulated abortion”.
For goodness sake the pro-choice movement even opposes laws that would protect doctors from being forced to participate in abortion. “Straw man” indeed.
Hilzoy has another reading of Douthat’s column at Obsidian Wings. I think she’s missing the argument that Douthat is trying to make, but she has identified some genuine problems with the way he’s made it.
William Saletan at Slate also comments on Douthat’s article. I think he somewhat slights Douthat’s argument that Roe v Wade precludes political debate, but overall it’s a very fair reading. I think David Nickol misses the point above, in the comment that pro-lifers don’t want a debate and want to ban all abortions. I doubt that any state post-Roe would ban abortion in every situation. But there is a wide range of legal regulation which would be a matter of public debate and legislative activity at the state level if Roe were overturned. Clearly, Saletan wouldn’t like many of those enactments and pro-lifers would be unsatisfied too, but it would be a matter of democratic politics — which Saletan acknowledges. Very few pro-lifers expect that the law would perfectly mirror Catholic doctrine in this area (or almost any other). If Griswold v Connecticutt were overturned, I don’t think you’d see the bishops pushing for a lgeslative ban on artificial conception.
http://www.slate.com/id/2220211/
Make that “a legislative ban on artificial contraception.”
Artificial conception — the bishops are against that, I think.
Matthew, thank you for bringing this column to our attention.
Roe v Wade must be overturned, and the issue must be returned to the states for resolution. The 1973 decision was bad law according to many constitutional scholars and others. It prevented any ongoing substantive discussion of the complexities involved in arriving at a compromise acceptable to the great majority of Americans “in the middle,” to to speak.
This issue will not go away.
The pragmatic concerns are one way of taking the temperature on this issue but should not be the sole basis for making law. Without some sort of principled underpinning ala the bill of rights, the enforcement dial will be set according to the whims of the polity at any point in time and place.
Maybe James Englert should read the legislative efforts in the Dakotas and Louisiana before he expresses so much certainty.
I would submit that the Roe compromise is indeed acceptable to the great majority of America “in the middle” so to speak.
Thanks Antonio. I try to think of something that might comparably affect men: Maybe if there was a consensus that overpopulation was truly an issue of compelling national interest and a decision was made to require all men with two living children to undergo a vasectomy. What would make that impermissible?
But the reality is, all the men commenting on the issue of abortion know that no one will ever seriously try to impose comparable restrictions on their own reproductive freedom.
“I would submit that the Roe compromise is indeed acceptable to the great majority of America “in the middle” so to speak.”
Inasmuch as it’s the only “compromise” we’ve had, it’s difficult to get much of a perspective on this. I’d think that that there is a broad set of other “compromises” that would be equally acceptable to America in the middle, and also acceptable to some Americans that are not in the middle.
The way to test your hypothesis would be to vacate Roe (somehow) and let the states have at it. If you’re right, then within a year or two we’ll end up with 51 mini-Roes.
But I doubt that an equivalent of the status quo would be the outcome.
The status quo would be the outcome in around 25-30 states. In about 10-15, abortion would be made completely illegal, and in the remaining states it’s hard to say what would happen.
It’s not that complicated.
“I try to think of something that might comparably affect men: Maybe if there was a consensus that overpopulation was truly an issue of compelling national interest and a decision was made to require all men with two living children to undergo a vasectomy. What would make that impermissible?”
Divorced and unwed fathers are legally compelled to pay child support, even though a good number of them would rather not. What an unconscionable imposition on their reproductive freedom that is!
“The status quo would be the outcome in around 25-30 states. In about 10-15, abortion would be made completely illegal, and in the remaining states it’s hard to say what would happen.
It’s not that complicated.”
Sure, could be. And then ten years later, it would have changed somewhat. Take another snapshot ten years later, and again it would be different.
That’s what Douthat is calling for. Makes sense to me.
Barbara, I did check South Dakota, and think it confirms that a post-Roe total ban on abortion is unlikely. (Haven’t checked Louisiana.) In ’06 the legislature passed a law banning all abortion except to protect the life fo the motherr. It was repealed by voter initiative in the same year. In July ’08 the legislature enacted a demanding informed consent law, which is still in place. In November ’08, there was a proposed amendment to the state consitution which would have banned all abortions except in the case of incest, rape and a mother’s health exception. The electorate voted it down.
So, two very restrictive abortion bans were voted down, and one informed consent measure is law. We don’t know what the various states would do if Roe didn’t undemocratically impose a uniform abortion provision in every state. There’s a lot of ground between a total ban and the present Roe scheme.
Right Jim, I understand, now answer me on the vasectomy question: what stops the state from having an interest in the reproductive potential of your penis?
A wartime draft, while not exclusive to the penis, has the state exercising control over the entire male person.
Mr. Englert:
We don’t know what the various states would do if Roe didn’t undemocratically impose a uniform abortion provision in every state. There’s a lot of ground between a total ban and the present Roe scheme.
Here’s Jack Balkin’s take. Some of his concerns are a bit dated, but I agree with the substance.
[T]he conventional wisdom that overruling Roe will simply return abortion to the states underestimates the strategy, the devotion, and the ambitions of the pro-life movement. If abortion is murder in Alabama, it is equally murder in New York. The pro-life movement will almost certainly push for a national solution to the abortion problem, which means that we may get more restrictive federal abortion legislation that will preempt liberal laws like those in New York. No doubt a nationwide ban on abortion is not politically feasible in the short run; what is feasible, however, even with the changed political climate that we both imagine, are significant restrictions on abortion at the federal level…Moreover, if Republicans control the White House, they can do enormous mischief to abortion rights nationwide through administrative regulations that have the force of law and preempt more liberal state laws to the contrary.
You can read the whole thing at:
http://legalaffairs.org/webexclusive/debateclub_ayotte1205.msp
I try to think of something that might comparably affect men:
But there isn’t: pregnancy (the nurturing of another life within one’s own body) is completely sui generis. There aren’t any good analogies.
It’s not clear, though, why this matters. Most polls show that women are slightly more likely to be pro-life than men anyway. Indeed, male support for abortion is precisely what one would expect given that abortion has quite a bit to do with the man’s reproductive freedom (i.e., the freedom to sleep around without becoming a father).
And the female person: it’s women, mostly, who think the all male draft is unfair. I certainly do.
The point I am trying to make is one that David Nickols sometimes makes, and that is, there are a whole host of fundamental “rights” associated with family and reproduction that are taken for granted as being inherent in a free society, and integral to the notion of it being a FREE society. When challenged to defend these rights — let’s say, the right of Mr. Pauwels to send his children to Catholic instead of public schools (one of the first family rights cases turned on this issue) — I am usually met with virtual silence as to why that should be classified as a “right” but control over whether one remains pregnant, which is about as intimate and intrusive a state as you can possibly imagine, belongs to the province of the state. “Becaues the Catholic Church says so” is not an argument.
And as for the notion of democratic compromise, let me lay it out for you:
Courts are democratic. They are anti-electoral in the sense since they clearly provide a check on unfiltered electoral impulses — but if you look around and see what happens in countries, let’s say, Yugoslavia, when the government or the polity is left totally unchecked to trample the rights of the unpopular, minorities, etc., you understand how courts are the “long-term” insurance plan for any truly democratic state that is less than ethnically, culturally, or religiously homogenous. It’s the “former” Yugoslavia mostly for that reason.
The role of courts, or the role of the United States Supreme Court in traversing many issues, whether it’s abortion or police searches, is usually a search for the appropriate compromise between the rights of individuals and the rights of the polity. To say that you need a bigger majority to overturn certain types of fundamentally personal and political rights is not asking all that much. The people of the United States could overturn the First Amendment if they really wanted to, or scrap the entire Constitution, or outlaw abortion. That it’s hard is a feature, not a bug, of democracy: in a truly free and democratic society it SHOULD be hard to take away rights.
And the fundamental divide in discerning this compromise, so ironic when you think about how the parties often see it, is between whether the benefit of the doubt goes to the state (has the power unless some document specifically says it doesn’t) or the individual (has the right unless something specifically gives the state the right to curtail it). This was the fundamental objection that James Madison had to the Bill of Rights — that it would create the former kind of framework when his “plan” at least, was to have a LIMITED government. If you saw the interview of Joe Biden by Katie Couric, you will have noticed that he clearly understands that debate.
Mr. Manetti,
Thank you for the link to the very interesting discussion by professors Levenson and Balkin. I had not really thought about the possibility of a reverse-FOCA (regulating/restricting abortion on a federal level and pre-empting conflicting state abortion law) in a post-
Roe world. Interesting that Balkin, looking at the issue in 2005, thought that it would be politically prudent, given the possibility of Roe being overturned, to pass a federal scheme codifying Roe. ( I never understood why commenters on this blog dismissed fears about FOCA.) I do think that the four years since their 2005 discussion sheds some light on the politics of a comprehensive federal regulation of abortion pre-empting state legislation. I think Obama backed off FOCA because he saw and didn’t want a fierce battle over that issue. I think a hypothetical pro-life post-Roe president or congress would face the same kind of battle over a reverse-FOCA. Just as the Republican party doesn’t really want Roe overturned because of the political headaches, it wouldn’t want to take on the project of federalizing anti-abortion law. And it’s possible too that many pro-lifers would simply work at the state level.
Many other intriguing issues raised in that discussion. Thanks again.
Thanks, all, for your comments.
David Gibson:
The prolife movement is, and has to be, about both law and moral philosophy. The middle term between these, in our society, is democratic deliberation, which almost always entails compromise. An all-or-nothing politics would quickly lead the prolife movement to despair and disengagement. It already has led a large part of the movement to willful impotence. Your suggestion that democratic compromise — or taking what you can get now instead of holding out for everything — would cause the rationale of the prolife cause to unravel involves two mistakes: first, about the purposes of the prolife movement, second about the possibilities and limits of democratic politics. The prolife movement is not reducible to the prolife position about when human life begins. As a movement, its principal aim is to save the lives of unborn children. Refusing to save some of these lives because you cannot save all of them is proof not of theoretical consistency but of political irresponsibility.
Let’s say I believe that a human life is as human at its earliest moment as it is in its maturity — and so should be protected by law at every stage of its development. Let’s say you find that absurd (“How could an organism without a brain be as human as I am?”). Let’s say you believe that a human life becomes gradually more human until birth, at which point it suddenly becomes as human as it will ever be. Let’s say you believe, for this reason, that while abortion should be legal, killing a two-month-old child is at least as grave as killing a twenty-year-old woman, even though the two-year-old still lacks many of the faculties we associate with full humanity. And let’s say I find that absurd.
Now, because as fellow citizens we must live under the same law, you and I set about creating a law that will be responsive to both my beliefs and yours. Maybe we decide to outlaw abortion after the first trimester and to restrict it in the first trimester. Does this mean I have suddenly changed my mind about who is fully human and who deserves protection under the law? Or does it mean I’m a hypocrite, because I’m willing to settle (now) for a law that protects some unborn human lives but not others? No and no. Nor does it mean that you have been convinced that the fetus (but not the embryo) is fully human. It does mean that neither of us is willing to dissolve our political community or abandon the democratic process in order to get perfect justice right away. There are prolifers who would abandon democracy to save as many unborn children as possible as soon as possible — but here is not the place to address their position. There are also prochoicers who have been willing to sacrifice democracy to advance their position (hence the support for Roe — as Barbara says, some things are just too important to be entrusted to majorities). My point here is that something is always lost in the translation from principle to policy, especially in a democracy. This fact has always bothered critics of democracy; it should bother democrats too, but it shouldn’t discourage them. I think you have read right past the most important sentences in the passage you quoted from Douthat’s article: “But the law is a not a philosophy seminar. It’s the place where morality meets custom, and compromise, and common sense. And it can take account of tragic situations without universalizing their lessons.” This doesn’t mean that the law should have nothing to do with moral philosophy. It means that real laws are always about more than theoretical consistency; they are also about historical contingency, irreconcilable sympathies, and, yes, compromise.
Barbara:
The controversy is not only about who gets to protect or take away rights — democratic majorities or courts. It’s also about what counts as a fundamental right, how you decide between competing rights, and, above all, whose rights count. You know this, of course, but your argument about the wisdom of letting the Supreme Court determine abortion law tends to sweep all these other questions aside. Who, in this case, is the minority whose rights must be protected from an indifferent majority? I don’t think the Constitution tells us.
When you show me a society in which a fetus is treated as a “person” I’ll bite. The radical position in the abortion debate isn’t the logical extension of fundamental autonomy to women over their pregnant person, it’s the effort to deem a “fetus” to be a person almost purely for the purpose of denying women those rights, and for no other legal purpose (inheritance, etc.).
Inheritance? I quote from a scholarly article, which repeats what I remember learning for the bar exam: “English common law has for centuries recognized the right of an unborn child to
inherit property.”
When specifically designated, yes, but not automatically so simply by using the term “person.”
An unborn Child by any other name is still a Human Individual, a.k.a., a Human Being, a.k.a., a Human Person.
I thought this was too good to wait a day or so until the next abortion thread starts up:
http://www.salon.com/comics/tomo/2009/06/09/tomo/index.html
David N,
You always want to equate an uncompromising moral position with an inablity to participate in political compromise. Particularly in a democratic system, I am willing to to compromise to acheive something necessary to acheive my goals but not suffcient to do so without compromising my principles. If I am pro-life, my agreement to a ban on late term abortions does not mean I think other abortions are OK. I agree with the ban because I know, as anyone does, if we are going to stop abortion on demand we have to stop late-term abortion on demand – it is necessary but not sufficient to acheive the goal.