Freddie DeBoer has a pair of posts on the Douthat-Kmiec dustup at Slate (on which see more from Ross, Daniel Larison, and – for a pretty hilarious change of pace – Tucker Carlson) on the GOP and abortion policy, and he jumps in particular on Ross’s admission that the pro-life position that defines the Republican Party platform on the issue is one that “does not command majority support in the United States”, which Freddie seems to take to be an act of giving the game away, and a reason to pursue a “compromise position” on the issue. But this seems to me to miss the point in a host of important ways.
First, it misses the point because if the pro-life position on abortion is unpopular, then so is the pro-choice one; or rather, each is unpopular under certain descriptions and popular under others, in ways I’ll make more precise in just a moment. When you look at the polling on the issue, what you see is that while there may be a slightly higher preference for the “Always Legal” position than the “Never Legal” one, both of those positions together only make up somewhere between a quarter and a third of the electorate, the vast majority of which occupies the mushy territory in the middle. But – and this is the crucial observation here – the first of these views just is the view of the Democratic Party, since so long as Roe v. Wade and the body of jurisprudence that follows in its wake remains in place it is necessarily the law of the land that there can be no meaningful abortion restrictions whatsoever. And so to the extent that the GOP is the anti-Roe party while the Democrats represent the pro-Roe constituency, it is the latter position that is in fact the extreme one, while the former position is itself a mild step that is pretty much a prerequisite to the sort of compromise that Freddie suggests pro-lifers should be agitating for. (On which more, again, in just a moment.)
Secondly, however, the above observation is complicated by the way voters respond to questions about abortion rights when they are couched in terms of Roe itself: somewhere between a half and two-thirds of the electorate seems to be committed to the claim that Roe should not be overturned, despite the fact that such a position is directly at odds with many of those voters’ commitment to the need for legal restrictions on abortion rights and the fact that Roe rules such restrictions out of court. The reasons for this inconsistency are manifold and not worth delving into at the moment, but the crucial point at present is just that the Democratic position in support of Roe is one that is popular despite the incompatibility of such a position with the middle-ground stance on abortion that is occupied by the vast majority of American voters. Put slightly differently, and by way of an entirely reasonable bit of speculation about the source of this inconsistency, the point is that the pro-life position on Roe is one that is unpopular only because voters think that overturning Roe would mean eliminating abortion rights altogether, whereas in reality it would make possible exactly the sorts of compromises that most voters claim to want.
Thirdly, and bringing both of these points together, I for one would be happy to see conservatives couch their arguments against Roe (or for a constitutional amendment that would disembowel it, on which topic see my exchange with reader Ed Baird toward the bottom of the comments here) in terms of the sorts of federalist or possibility-of-compromise language that I’ve been using here, but the fact is that I think Ross was right when he recently remarked (somewhere; I can’t find the reference) that such a position would be politically untenable because it would jettison the support of the “extreme” pro-lifers whose dollars and voices presently keep the movement going. But if Freddie and others like him would really like to work toward some sort of compromise, the fact is that the first step will have to come from the Left, not by way of hollow talk of “reducing the need for abortions” (imagine if Civil Rights leaders were told to focus their attention only on the “underlying causes” of racism!), but by working to actualize the sorts of legal frameworks that would make genuine compromise – that is to say, the sorts of late-term-with-exceptions restrictions that Americans overwhelmingly support – possible.
All of which is to say that it’s largely because of the pro-choice movement’s uncanny ability to use Roe as an all-purpose whipping stick that the abortion debate is as paralyzed as it presently is, and it’s only if folks like Freddie are willing to back down from that position that a (small-d) democratic middle ground on this issue can ever be reached. And so as happy as I would be to see a political movement emerge that genuinely represented the majority position on abortion, that’s never going to happen without considerable cooperation from the pro-choice Left. And somehow I don’t anticipate that happening any time soon.
Filed under: abortion, government/law, morality, politics
I just don’t understand what a real compromise position would look like. To me, the question is whether a fetus is a human or not. If yes, abortion is horrific in almost every instance. That’s why I think it’s much more difficult for the pro-life side to compromise. I can certainly understand, and in certain cases would myself advocate, a call for the attempt to reduce the number of abortions, completely absent from defining a fetus as human. Whereas once you say that abortion is murder, I don’t understand any morally sufficient compromise position. And it’s both pro-life boilerplate, and explicitly stated in the Republican party platform, that the GOPs stance is that a fetus is a human. I know some people argue that you can think a fetus is a person and still have a compromise position. I just think that stance, frankly, is kind of loony, when you really consider the consequences of that thinking.
As far as who needs to compromise, to me, it’s merely a function of the GOPs current woes, and the inability of the pro-life lobby to get widespread abortion criminalization passed when they were dominant. Note that I’m not arguing that the GOP should move on abortion out of principle– that depends on your views on the issue, of course– but as simple political pragmatism.
Freddie:
For one thing, I do think it’s possible to make a case for morally significant distinctions between fetuses in various stages of development – I don’t by that case, but it can be made. For another, the fact is that that’s what most people DO: witness the number of Americans who go in for the “ban late term only” or “allow exceptions” approaches. Finally, though, I think it’s entirely reasonable to say that even if all abortions are equally abhorrent, it’s better to have laws against some of them than no laws at all: this is the approach we take with lots of other evils, so why can’t it apply in this one?
I think Ross Douthat has a fair point that Roe by definition puts pro-lifers on an uneven footing in the debate. From a pro-life perspective, arguing for the sanctity of life would be like an anti-war activist agitating in 2003. Events on the ground have shifted the debate so far in the other side’s favor (9-11 in one case, Roe in the other) that the terms of the debate almost force the opposition to concede defeat.
However, the fact remains that Roe is the law of the land, it won’t be changed in the foreseeable future, and that consequently a new political equilibrium pertains – an equilibrium that pro-lifers seem incapable of dealing with.
You yourself conceded that you would need considerable cooperation from the Left to ban abortions and that that cooperation is not forthcoming. Considering that fact, I don’t understand why pro-lifers are devote themselves, as a matter of political strategy, with legal prohibitions on abortion. The pro-life movement wants to use the coercive apparatus of the state to force pregnant women to use their bodies as human incubators for their fetuses.
Which leads me to the following questions to the pro-life movement:
1.If abortion is murder then a woman who has an abortion is guilty of first degree murder. How much jail time should she do?
2.Since most abortions occur in the first trimester and will most likely never be banned even if Roe is overturned, why does the pro-life movement overwhelmingly focus on legal prohibitions instead of persuasion and alternative non-coercive methods to reduce the number of abortions?
I have heard pro-lifers protest (weakly to my mind) that their movement does work on persuasion and offer options to women with unintended pregnancies. If the pro-life movement wasn’t primarily interested in legally banning abortions, then the movement wouldn’t be about Roe.
Joseph,
The analogy to 9/11 is effective, though in reality the situation here is even more extreme, since it’s not just a politically hostile environment (note again that the vast majority of Americans support considerable restrictions on legalized abortion), but a structurally hostile one, too.
Re. question #1, they’d be at most accessories to murder, right? I mean, we treat different sorts of roles in criminal acts in a variety of ways based on the circumstances – I don’t see why an abortion ban couldn’t target only abortionists.
Re. #2, the fact is that the pro-life movement does do a lot of non-coercive work, too – if you think this claim is “weak”, you haven’t been looking. And while I agree that even more of this should be done, it’s simply never going to be enough – especially so long as so many on the left insist on demonizing pro-lifers and treating abortion as a morally indifferent act. But the fact is that even if this strategy deserves more emphasis, Roe will remain a horrible decision, and one that ought to be overturned – perhaps not at the expense of electing awful Republican presidents for decades on end, but it certainly deserves to be in our sights.
It really is amazing to me how much abortion rights defenders sound like conservative opponents of the Civil Rights movement – an observation that would give me pause if there weren’t so much bad faith operative in both cases.
“Which leads me to the following questions to the pro-life movement:
1. If abortion is murder then a woman who has an abortion is guilty of first degree murder. How much jail time should she do?”
I never like this question, but let me reframe it this way: what happens when a woman carries her child to term, goes into labor inside her house, births the child, then dumps the baby in the garbage in a trashbag? In our society, she is charged with a crime ranging from manslaugther to murder.
The argument against late-term abortion (and by that I mean specifically 3rd-term) is aligned with this scenario. Just because a woman decides to terminate the life of the child during term does not make the offense any less egregious.
What John is describing is a rationale approach to the topic. We do have graduated penalties for a wide variety of infringements in our legal system, and we could certainly apply these rules to abortion, but Roe pretty much prevents that. In my scenario above, 3rd-term abortions would carry a penalty (in lieu of life-or-death medical emergency to the mother) similar to the penalties of killing a newborn baby. What is stopping this from happening? Roe.
“2. Since most abortions occur in the first trimester and will most likely never be banned even if Roe is overturned, why does the pro-life movement overwhelmingly focus on legal prohibitions instead of persuasion and alternative non-coercive methods to reduce the number of abortions?”
As John so concisely detailed, this is a civil right issue, not a social science problem. If you feel, as many people do, that the termination of the lives of countless unborn children is an act of genocide, there is a serious civil rights (and therefore legal) issue in play. That’s Freddie’s point. How can you compromise on this issue? Philoshopically, it’s impossible.
That’s why I think many people are coming to the realization that, philoshopically, they are at a dead end. As such, it would be prudent policy to get the issue of legalized abortion out of the hands of the Feds, and into the hands of the smallest, most local form of government possible. There is a much better chance of everyone in a small village somewhere seeing eye-to-eye philosophically than there is in a nation as large as the U.S.
Thanks, Matt. I like the way you roll.
I don’t know what Roe decision you’re reading. The one I’m familiar with permits states to restrict abortion in the second trimester and ban it in the third.
More to the point, Casey scraps the trimester framework in favor of an “undue burden” analysis, and in that setting found virtually every restriction Pennsylvania could dream up to be OK. (The only exception was spousal notification.) Parental notification, waiting periods, required scripts–the Supreme Court has upheld them all.
So, John, when you say “Roe rules such restrictions out of court,” I don’t know what restrictions you mean. The Roe/Casey regime allows for all kinds of restrictions. Perhaps the general public realizes this and understands that overturning Roe would allow for *more* draconian restrictions (like bans except for life of mother and rape/incest), and feels that such restrictions would be excessive? Put another way: what, exactly, are the restrictions short of those measures that you think are reasonable compromises but that courts have struck down under Roe/Casey?
Also, your parallel between the pro-choice movement’s statements about “reducing the need for abortions” and a hypothetical statement that the civil rights movement should focus on the “underlying causes” of racism is faulty. When pro-choicers talk about reducing abortions, it’s usually in one specific context: contraception, namely better education and access. That’s a hell of a lot more concrete, and is likely to have a much more significant effect, than a vague invocation of “underlying causes” of racism.
As someone who generally tows the pro-choice position (though I admit to not giving the issue as much thought as I should), I have always been puzzled by pro-lifers who apparently lack the courage of their convictions. I frequently hear the position that life begins at conception and thus killing a fetus is morally indistinguishable from killing a one year old. If one actually believes this,
1. I see no basis for exceptions based on rape or incest — killing a one year old conceived in such a fashion is no different than killing a child resulting from a loving consensual union.
2. I fail to see why violence against abortion clinics is not morally permissible, or even required. If there were a house down the street in which one year olds were being killed from down to dusk, who in their right mind would opposed the use of violence to stop it?
3. I do not understand the reluctance to advocate that women who procure abortions should be charged criminally the same way as women who hire a hit men to kill their one year olds.
It is hard to take seriously a position — abortion is murder — when even those who espouse it seem not really believe it.
I think your civil rights analogy is almost right on the money. In fact, I’m surprised as a pro-choicer to be almost persuaded that you’re right that compromise should come primarily from the left. Now for those “almosts.” The civil rights movement had as its underlying premise that “all men are created equal” and that “separate but equal” would never actually be equal. This is a philosophical and moral question, and as such there can be no 100% definitive answer–giving opponents of civil rights just enough wiggle room to operate. For abortion the question, as Freddie points out, is whether a fetus is human, another philosophical and moral question to which there can be no definitive answer. For me at least, and perhaps the answer to your question as to why abortion rights defenders sound like conservative opponents of the Civil Rights movement, is that the difference between the two situations is that the philosophical wiggle room in the Civil Rights instance is just orders of magnitude smaller (as if such things could be measured, but anyway). I mean, “all men are created equal” is in the freaking Decalration of Independence! Whether a fetus is human or not just doesn’t have any of the same sense of moral certaintly. Maybe you’re right and one day all of us on the left will be like those leftover racists from an eariler time, but I just don’t think so.
I any case, I think the take home from this has always been that partisans on both sides of this issue to need come to terms with the unanswerable nature of the problem and realize that as a result, without this moral certainty, there can only be practical considerations to focus on. This is what politics is (or should be) all about, the art of the practical, not the moral.
Now dealing in practicality, I feel like compromise has already happened from many on the left–the “always legal” position, even if Roe makes it politically difficult to legislate restrictions. I think most on the left, as you point out, would agree to restrictions, as long as the primary question of not making all of them illegal is not compromised–for the practical reasons of women’s health (I’m sorry but pregnancy is ALWAYS ALWAYS a health concernc even in this age of modern medicine). What makes them afraid of any such compromise is that the right doesn’t have a compromise position if they hold onto their philosophical position, as Freddie argues. So the left feels as though any compromise on their part is an inevitable drag to full criminalization and the back-alley days. The right needs to figure out a way to a compromise position and get into the practical game, because there are those on the left (including Obama) willing to work on the (dreaded) “underlying causes” that bring about so many unwanted pregnancies in the first place.
They’d only be mere accessories if people who hire hit men are accessories. In other words, no. Yes, an abortion ban could target only the doctors (though then you get the problem of women who induce their own abortions), but it would be morally incoherent.
Okay, lots here.
Thrax: You’re right, of course, in the distinctions you make. I was lumping Roe and the post-Roe jurisprudence that expands the abortion license under a single heading, but you’re of course right that compromise positions might be reached that would e.g. overturn Casey while leaving Roe in place. As to “underlying causes”, I think lots of other people have things like poverty reduction programs in mind – but there, as well as in the case of sex ed programs (which very often aren’t effective), it seems to me that what is being proposed are at best token measures that are insufficient to the seriousness of the issue.
Keith: I fail to see how these sorts of compromises aren’t ones that we’re all forced to make in our everyday life. For example, I think that much of what our military does is cruel and deeply unjust, but I don’t go off and engage in acts of sabotage to stop them. As for exceptions for rape and incest, I think that in an ideal system there wouldn’t be any such exceptions – but that’s an unpopular view, and as I said above it seems to me that pro-lifers should be willing to take what they can get.
Kurt: Regarding the Declaration of Independence, what about women? It seems to me uncontroversial that the fetus is human (what else could it be?); the relevant question is whether it is a person, or perhaps whether it is the sort of human that deserves legal protections. As I’ve said, I agree that conservatives should be willing to work on compromise positions here – I just think that it’s foolish to suggest that pro-lifers should give up altogether on the need for at least some legal restrictions.
I don’t think Casey can simply be deemed an “expansion,” since it allowed restrictions that had previously been struck down. Yes, it also scrapped the trimester framework that allowed for bans on late-term abortions. The effect was mixed, in short. But you had found a tension between the public’s view that Roe should not be overturned and its view that restrictions on abortion are OK. I’m suggesting that there’s no tension at all, because the public realizes that the Roe/Casey regime permits a whole host of restrictions–and that eliminating Roe/Casey would permit outright bans. In other words, I’m hard-pressed to come up with any abortion restriction (other than spousal notification), short of full-blown bans with narrow exceptions, that isn’t currently okay. I submit to you that the public can’t come up with any either, and for that reason feels no pressing need to change anything.
On contraception, I don’t follow you. If an abortion is a grave moral ill, reducing abortions is a good; dt say that they don’t achieve the end comprehensively doesn’t mean they’re not commensurate to the seriousness of the issue. If current contraception proposals are mere “tokens,” the pro-life movement should propose something more far-reaching. Not once have I ever heard a pro-life representative reject proposals to expand contraceptive education because they don’t go far enough; generally, the reaction has been a simple “no thanks.”
But most of the compromises we make everyday do not involve what is supposedly mass murder on the scale of the holocaust.
But even if compromises have to made for political reasons, how about a little honesty about it? Something like, “of course I would prefer that women who procure abortions be treated as criminals and prosecuted, but I know I can never get that passed into law”? Instead, when pro-lifers are asked about this they treat the question as ridiculous and/or lace their response with condecension (the women here are really victims, too). Why not an admission of the severe moral concession they are making to the realities of politics.
All of this just gives me the impression that most of those who assert that abortion is “murder,” that killing a fetus is the same as killing a child, simply do not really believe it in their gut.
A fetus is demonstrably, irrefutably human. It is human because it is not a cat or a sea turtle or a pencil eraser. Humans are humans because they have the DNA of humans and all the hand waving semantics in the world can’t change that. Yes, an abortion kills a human.
Therefore what? Not to be callous but we kill people all the time, and those of us who don’t kill are aware of it and complicit in it. We kill criminals, we kill soldiers in wars, we kill sick people in euthanasia. Arguably we kill witholding medical care from people who can’t afford it.
We kill people all the time and we find it acceptable, if sometimes distasteful.
Abortion is like that. It is like Terry Schaivo. Who decides that? Jeb Bush and his ilk are the very last people who should decide it, but that’s what a legislative solution is.
It appears to me that the only rights that are at least usually considered when abortion is discussed are those of the mother and of the potential child. Even many of those who oppose abortion in cases of rape and incest allow abortion to protect the life of the mother. On such views, the mother’s right to life can outweigh the potential child’s right to life, but the potential child’s right to life outweighs any other of the mother’s rights.
What changes if the principle of equal rights for men and women is added as a potentially relevant factor? There is then an argument supporting the conclusion that that principle is inconsistent with the prohibition of abortion.
Consider first the case of rape. Both men and women can be raped, and many of the possible consequences are fully comparable (pain, shame, degradation, disease). But one consequence is not: the raped woman can become pregnant. If the raped woman who does become pregnant is not allowed the option of abortion (broadly considered, here including use of the morning-after pill for the woman who will not know whether fertilization has occurred or would have occurred), then she must either break the law or endure the pregnancy and, barring miscarriage, the birth. The victim of the same crime that victimizes the male rape victim, she must suffer incomparably direr consequences.
Consider next the case of consensual sex between men and women, with or without birth control. The man and the woman are equally responsible for the act, but there is the same enormous difference in consequences when pregnancy ensues (in the latter case, because birth-control means are not failsafe): whereas the man cannot possibly be faced with the choice between breaking the law and enduring pregnancy and childbirth, if abortion is illegal then women can and will be faced with that choice.
Consider finally the case of repeated consensual sex acts, including of course such acts within marriages, using birth-control means that can be sabotaged by men (condoms are the most obvious such means). If the man is virile and the woman fertile, then the man can make the attempt, which in some cases will succeed, of forcing the woman either to break the law or to bear his child. Here again, there is an enormous asymmetry between the situation of the woman and that of the man.
In legal terms, the consequence can be put as follows: treating the potential child, throughout the period of gestation, as a full-fledged citizen entails treating every fertile woman as a less-than-full-fledged citizen, because every fertile woman is then vulnerable in a way that no man is vulnerable, and hence has less than equal rights.
Of course, when abortion is legal it remains the case that women can face a choice that no man can face (at least not in the same way): the choice, in cases of unwanted pregnances, of whether or not to abort. This is beyond the scope of the law, although it may not remain beyond the scope of technology.
A different way to classify what I’ve been calling “the potential child” is as a specifically dependent potential person. According to this classification, zygotes/fetuses/embryos share with newborns and infants (up to some only problematically specifiable point) the status of being potential persons, but as long as a potential person remains inside a womb, it is specifically dependent on the woman whose womb it is in. Its capacity to thrive outside the womb is therefore a significant point in its development. So, one argument is that the principle of equal rights outweighs the right to life of the specifically dependent potential person–as long as that potential person is specifically dependent, it has not actualized enough of its potential to qualify for equal rights.
Finally, to tie to some preceding posts: if the potential child, throughout the period of gestation, qualifies as a full-fledged citizen, then consistency indeed appears to require laws holding both women who have abortions and doctors who perform abortions to be subject to the same penalties as those who commit infanticide.
There is also the old Murray Rothbard libertarianesque defense of abortion rights. Even if the fetus is a human being entitled to rights, one of those is not the right to reside in someone else’s body again their will. It has been a long time since I read Rothbard on this, but I know his argument involved treating the fetus as a parasite (in a stricly biological sense). Make of it what you will.
Augustine seemed to think that personhood or ensoulment did not attach to the fetus until quickening. Arguments against this position (e.g., that Augustine’s understanding of gestation was primitive and that, knowing what we know today, he’d likely change his mind) are weak at best. I think any realistic hope of compromise lies in revisiting the theological support for the abortion-is-always-murder view, especially since many who hold this view have never paid the first visit to the biblical sources which supposedly support this position. Personhood is not a scientific inquiry, it’s a statement of faith, and it’s much less clear than many seem to think.
Thrax is correct. It IS morally incoherent to argue that although abortion is always a capital crime, a premeditated killing of innocent life, the punishment for abortion should not fit the crime. The mother is not an accessory; she is the one who pays someone to murder her baby. It’s telling to me that those who scream about the slaughter of innocent life are unwilling or unable to address the logical extension of their argument. If my 22 year old daughter were raped, for example, the rapist cannot be put to death but my daughter could be executed for aborting the zygote created with the rapist’s sperm. Most pro-lifers will not talk about it, but it’s where you have to go to be morally coherent.
Thrax: On the relationship Roe, Casey, etc., my understanding is that the way the “health exception” has been interpreted by the courts is one that makes any meaningful restrictions on access to abortion effectively impossible. Only by way of an amendment or court decision that would overturn some of that jurisprudence would such laws be possible. On contraception and sex-ed, the sources of resistance in this department are severalfold, but in particular: (1) many people don’t think our (public) schools should be in the business of teaching kids how to have sex; and (2) there isn’t any clear evidence that this sort of education actually works to reduce the number of abortions. But the reason I called these “token” measures is that they’re the sort of thing that just doesn’t address the seriousness of the issue: no matter how frequently contraception is used, there will still be people getting abortions. And of course pro-lifers do do a lot of things to try to curb abortion rates beyond agitating for legal restrictions, but the fact is that anything short of changes in our laws isn’t going to do more than make a tiny dent.
Keith: But obviously a crucial point here is that women don’t kill their unborn children; doctors do that for them. And it’s also relevant that many of these women are under serious emotional duress and – perhaps most importantly – don’t think of themselves as killing their children. I think abortions are a grave evil, and I also think that jailing women who procure them would be unnecessary and draconian.
Alan: Sorry, but I simply don’t see how having laws that make some people more vulnerable than others (what about parents’ legal duties to their children once they’ve been born?) thereby makes the former class of people less human. The particular vulnerabilities of women are a fact of biology, and it’s not the business of the law to make them go away. And as to your point about viability, the fact is that fetuses in late states of development can of course survive outside of their mothers – and it’s restrictions on abortions in exactly these sorts of stages of development that would be at the heart of the “compromise” position for which I was arguing.
Popeye:
I take it that the Catholic position on the morality of abortion is supposed to be independent of question of personhood or ensoulment – hence even if Augustine’s position on those things were right it wouldn’t follow that early-term abortion wasn’t gravely sinful. (I can find references on this if you’d like.) It might, though, be possible to argue that the law should treat those different cases differently, which once again is exactly the sort of compromise view I was arguing for. I’d find such a compromise less than ideal but nevertheless better than what we’ve got.
On incoherence, I once again don’t get it – and I have to say that I find it somewhat amusing to find people insisting that they know my mind better than I do. Our moral convictions are necessarily wrought with tension and colored by plenty of shades of gray – but the present case doesn’t even seem to fall in that category, since believing that it is deeply wrong to pay a doctor to kill one’s unborn child doesn’t entail anything at all about what the consequences of such an action should be.
“But obviously a crucial point here is that women don’t kill their unborn children; doctors do that for them. And it’s also relevant that many of these women are under serious emotional duress and – perhaps most importantly – don’t think of themselves as killing their children.”
It is relevant that do not directly kill their children — the situation is more like someone paying a hitman to kill one’s child.
Some are under mental duress, just as some murderers and people who hire hitmen may be. But I know plenty of women who had abortions after careful and rational consideration. Why assume from the outset that the actions of adults were the result of duress? For all other crimes this is a mitigating factor to be detemined in court, not an a priori excuse to refrain from prosecution in the first place. The same goes for the person’s subjective belief regarding whether ot not they are killing someone.
Keith, see my response to Popeye just above your comment. Even if you’re right that the distinction I made in response to you isn’t sufficient, the fact is that jailing or otherwise harshly punishing women who procure abortions would be (1) unrealistic, (2) not a necessary consequence of the judgment that what they’re doing is gravely wrong, and (3) intuitively draconian, at least by my lights. For all these reasons, the average pro-lifer’s view on this question is that enforcement of abortion laws should focus on those who perform abortions rather than those who procure them. I simply don’t see how this should be seen as a damning inconsistency as opposed to a straightforward instance of the kinds of internal tensions that are an inescapable part of finite minds in a tragic world.
John: if children, once born, can be given up for adoption, then their parents can avoid the duties your refer to. Also, I didn’t classify zygotes/fetuses/embryos as non-human (or less human), I classified them as non-persons (albeit potential persons). I meant thereby to be suggesting a basis for a compromise position of the sort I take you to favor; that’s also why I identified viability as a relevant factor — as soon as the potential person can thrive outside the womb, it ceases to be specifically dependent so (assuming the safeness of the procedure) should be delivered and not aborted. As to vulnerabilities, we’re all vulnerable to being murdered, robbed, etc., and the law can’t make those vulnerabilities go away but it does attempt to prevent our suffering because of them.
They can avoid some of those duties, Alan, but clearly not all of them. (E.g., they can’t just leave their kids outside to starve in the col.) And of course the same goes for the role of the law in “preventing our suffering”: it can’t prevent all of it, and it certainly shouldn’t allow the alleviation of one person’s suffering no matter the cost. I’d be happy to see women who carry unwanted children to term given free medical care and an easy path to adoption, for example.
John–
If the wrongness of the woman’s act doesn’t dictate any consequences for her, then I don’t see why the (presumed) wrongness of the doctor’s act should dictate any consequences for him/her. There’s simply no moral difference. That “many” women are “under emotional duress” might justify prosecutorial discretion in pressing charges but does not justify exempting women categorically from punishment. (Also, did you just say that those who don’t believe that the fetus is a person shouldn’t be prosecuted for killing it? The moral implications of that are pretty ugly.)
Your “understanding” is wrong. As I’ve said, as far as I know, every meaningful restriction post-Casey has ultimately been upheld, short of simple bans. Those include waiting periods, forcing the doctor to recite various pro-life scripts, parental notification requirements, and bans on types of abortions that can be performed. Please point me to court decisions striking down abortion restrictions (not bans) based on an expansive view of a “health exception.”
We live in a society where we throw people into prison for possession of marijuana. I do not think it “draconian” to impose criminal penalties on women who pay someone to kill their unborn children (if that is what you think they are doing). It is only draconian if you really not think abortion is the moral equivalent of murder.
I understand why such a position is politically deadly for pro-lifers, but I find it morally and philosophically incoherent.
Thrax: By “meaningful restrictions” I meant bans at e.g. later stages of development – and until this past April’s ruling even partial-birth abortions couldn’t be made illegal by the states. You’re right that measures like parental notification requirements have been upheld, but that’s not what I had in mind. As to women and doctors, there obviously IS a “moral difference”, given that there are different sorts of acts (procuring an abortion vs. performing one) that are going on. The questions at stake are whether they should be treated differently under the law, and if so, then how. And as I’ve said, even if I thought that women who procured illegal abortions should be punished, it wouldn’t for all that be unreasonable to back down on this conviction for the sake of compromise.
Keith: Well, I also think it’s draconian to imprison people for drug possession, so that solves that. And once again, given that the topic here is compromise I don’t see how your complaint of incoherence gets us very far. It would simply be impossible to impose criminal sanctions on women who procure abortions, and as a consequence it’s not the sort of thing you’ll find many pro-lifers arguing for.
If you want an outright ban on post-viability abortions, no health exception permitted, then that’s fine. But the public doesn’t agree with you:
http://abcnews.go.com/sections/living/GoodMorningAmerica/poll030724_abortion.html
…and since your argument in the first place was that the public longs for abortion restrictions that courts do not currently allow, and the only such restriction you can identify is a ban on late-term abortions without a health exception, I don’t think your point holds.
Come on, Thrax – if you know abortion law, then you know that the way the courts interpret “serious threat to the woman’s health” is much more expansive than the way the average person does …
I do? How do I know that?
Perhaps you’re thinking of interpretations of “health exception” that include mental health. In that case, you’ll be glad to know that, according to a Fox News poll, 62% of respondents favor permitting abortions to protect mental health:
http://www.theatlantic.com/doc/200606/roe/2
(Couldn’t find the original poll, but that story summarizes.) Please point me to examples of courts expanding “health” in other ways that aren’t supported by the public.
On incoherence, I once again don’t get it – and I have to say that I find it somewhat amusing to find people insisting that they know my mind better than I do. Our moral convictions are necessarily wrought with tension and colored by plenty of shades of gray – but the present case doesn’t even seem to fall in that category, since believing that it is deeply wrong to pay a doctor to kill one’s unborn child doesn’t entail anything at all about what the consequences of such an action should be.
John:
I have no acquaintance with your mind so would not know what goes on it but what you care to reveal! That said, we just have to disagree about the moral incoherence. Pro-lifers want the state to say that abortion is murder and murder, by definition is an unlawful killing with malice aforethought in most formulations. It is not merely “gravely wrong” or “deeply wrong” as you describe it. If the major premise is that abortion is murder, and the minor premise is “I aborted my fetus,” then the punishment must fit the crime. Most of the 50 states require execution or life without parole.
Given the wide publicity of the abortion issue over the past 35 years, it may be that young women may seek abortion under duress, but it’s pretty unlikely they aren’t aware that a large and vocal minority of Americans think that terminating the life of the fetus is murder. Perhaps, as keith says, the state of mind of the mother is a mitigating circumstance to be considered in the penalty phase of a murder trial but it’s not where you start. If you want to say that abortion is a “grave wrong” and not murder, well, then, maybe we can talk but most pro-lifers would never start there.
The fact that Catholic and Protestant views of ensoulment differ may provide a further reason for reevaluting the hardline abortion-is-always-murder trope.
BTW, I’d be grateful for the references.
That’s exactly what I’m thinking of. I’d obviously have to see more of the details of that Fox poll, though, to know whether it contradicts what I’ve been saying. But of the two polls listed here that discuss “mental health”, neither of them makes any distinction between early- and late-term abortions, which of course could be relevant to people’s judgment here. Moreover, it once again seems likely that the language that the polls use concerning mental health – “endangering” it, putting it “at risk” – is going to be interpreted more restrictively by the average person than it has been by the courts.
And finally: of the several polls in that above link that ask about a health exception in general, many of them find that about 40% of respondents think that abortion should be legal ONLY when a woman’s health is at risk – again, a much more restrictive view than the one adopted by the courts.
Man, maybe I’m still reeling from John McCain’s sarcastic and incredibly reckless use of finger quotes when referring to the “health” of the mother during the last presidential debate, but the same thing seems to be creeping into your tone in reference to the way courts interpret a “serious threat to the woman’s health.” Working in the medical profession and closely with some women’s health professionals makes you understand that these situations in which the health of the mother is compromised are not mere abstractions, but absolute and dire realities for these women and their families. Of course medicine can be an ugly game of chance, and in some situations the probabality that a situation could endanger the mother’s health may be low, but is non-zero. And how do doctors and epidemiologists know that it is non-zero? Because it has happened to an actual person. This is what the courts are looking out for–they are looking out for every person who may be in one of these horrible situations with no easy choices. Maybe the mother would have to decide whether she should give up the baby in order to save her own life so that she can care for the children she already has. There are an unlimited number of possible situations that can arise, all of them real, with real consequences. That is why the courts need to take an expansive view of the “health of the mother.” And there is no reason that these cannot be taken into account as part of late-term restrictions.
As for your response to my earlier point, of course the question is whether the fetus has “personhood” not whether it is human (I was taking from Freddie’s response). I still think that the key difference is that civil rights was dealing with the “personhood” of minorites and, yes, women, while abortion is dealing with the question of whether a fetus is a “person.” The philosophical position is just infinitely stronger in the former case than the latter. That was my point.
Popeye:
I don’t see why so much should hinge on the use of “murder”, since it would be entirely possible for abortion to be criminalized but put in a different category than that. Perhaps you’re right that that particular way of speaking is unhelpful – it’s killing, in any case, and if categorizing it as murder under the law would mean jailing women then I suspect that most pro-lifers actually wouldn’t want to go that route. Again, compromise.
On Augustine and abortion, you might see this post of Joseph Komonchak’s.
And Kurt: I just don’t think that “non-zero” should be the relevant standard, and as I’ve said above I’m pretty confident that I’m in the majority on that. But a health exemption that was defined and applied sufficiently narrowly would be fine by me, and indeed would be an essential part of any real compromise.
The position that procuring an abortion is a “grave wrong” for which criminal prosecution is “draconian” is a position that I still cannot get my mind around apart of the purely political calculus advocacy of prosecution is electoral suicide.
Are there other examples of “grave wrongs” on a moral par with abortion that should be exempt from legal sanction?
Keith:
Well, there are lots of things I think are gravely wrong (i.e., gravely sinful) that I don’t think should be criminalized at all: the challenge in the case of abortion, of course, is that it’s a gravely wrong thing that involves taking the life of another human being. But I suppose I think – and see my recent post at The American Scene on Veteran’s Day for a sketch of my thinking here – that the actions of soldiers fighting in an unjust war fall into this category, too: I think that such actions are terribly wrong, but except in certain very specific circumstances I don’t think it’s reasonable to prosecute those who are carrying them out – and not just because they’re “following orders”, since these are cases where I think that the decision to follow orders is itself wrong.
Does that comparison help?
[...] Comments John on Abortion, Democracy, and …Keith on Abortion, Democracy, and …John on Abortion, Democracy, and …Kurt on [...]
That comparison helps. But there is a critical difference. Soldiers are usually acting on the orders of government authorities, so their moral and legal culpability is open to question (though it is not completely eliminated). But women who procure abortions generally do not do so on the orders of government authorities.
I guess the question is this: are there other instances in which people of their own volition engage in behaviors that cause other individuals grave harm but should still not be subject to legal sanction?
Well I certainly don’t think that such soldiers’ moral culpability is open to question, and I’d be perfectly happy to have laws against doing what they’re doing. Nor do I think it’s right to say that they’re not doing the things they do “out of their own volition” – they can, of course, disobey orders, and I think they’d be doing the right thing if they did. But just as I think the laws of war should treat superiors differently from soldiers, I’d want restrictions on abortion to treat abortionists different from the women who procure the abortions – the differences between the roles that are played should make for corresponding differences in how the actions are treated. I’m not denying that it’s hard to spell out what these differences are, but once again my point is that they do seem intuitively to be there.
[...] John Schwenkler: [...]
[...] John Schwenkler: [...]
I am perfectly fine with treating those who procure abortions differently than those who perform them, just as we treat hitmen differently than those who pay them. But I have read you thus far as opposing (for either moral or political reasons) any criminal sanction for women who procure abortions. Am I reading you incorrectly?
Murder is essential because we’re talking not merely about a zygote but about a person. Once you’re convinced that a person exists at the moment of conception, it’s not merely an unlawful killing. It’s a murder of a human being. Hard to quantify but it’s probably safe to say that most pro-lifers use that language and other words like “slaughter” and “holocaust” to describe these murders.
So “grave wrong” doesn’t fit the killing of a person. If I strangle my newborn baby, I have not committed a grave wrong. I’ve murdered my baby. At least this is the logic as I understand it from my pro-life friends.
Since I’m in Augustine’s camp on personhood (the proposition that a person exists at the moment of conception is a statement of faith, and I simply lack the unshakeable certainty many of my friends have that people exist at conception), I wouldn’t criminalize anything in the first trimester. And I think that’s a theologically defensible position.
. . . if categorizing it as murder under the law would mean jailing women then I suspect that most pro-lifers actually wouldn’t want to go that route.
Funny thing is most pro-lifers DO want to imprison women. Some even talk about capital punishment. Just go read some fundamentalist evangelical blogs to get the full flavor of the bloodlust out there. Pretty frightening.
Link to Komonchak didn’t work, btw.
John: you say: “I don’t see why so much should hinge on the use of “murder”, since it would be entirely possible for abortion to be criminalized but put in a different category than that.”
If you believe that an embryo/fetus is a full human being, and killing it is wrong on those grounds, then yes, it’s murder to kill it. It’s only if you think it’s NOT a full human being that abortion isn’t murder.
I think everyone’s point here is that it is disingenuous to say that abortion is murder, and then back away from prosecuting the “murderers.” If you really, truly believed it was murder, you wouldn’t back down. If you don’t believe it’s murder, then why can’t a woman choose it?
Additionally, it seems that you are advocating prosecuting the DOCTOR for murder, but not the woman. The distinction you are placing between the dr and the woman are not supported by law. The woman is directly participating in the abortion, even paying for it, and laying down so it can be performed. She would be considered to be just as guilty of the murder as the doctor. “Duress” under the law is very very narrow and long story short, this would not qualify (unless the woman’s life were at stake).
regarding your argument on third-tri abortion: third-tri abortion is simply not available as an elective procedure. Please point me to a single provider who does elective third-trimester abortions. (You won’t be able to find any)
This CDC investigation may be useful to you in determining why the very, very few third-trimester “abortions” (app. 100 per year, according to statistics) are performed (almost exclusively gross abnormality):
http://articles.latimes.com/2007/sep/17/nation/na-tiller17
http://www.cdc.gov/mmwr/preview/mmwrhtml/00000078.htm
Keith: Well I would certainly oppose such sanctions on political grounds, since it seems clear to me that demanding them would be vastly unpopular, and would kill the case for criminalizing abortion on the spot. And yes, on moral grounds, I also count myself as the kind of person who is pretty uncomfortable with the idea of criminal penalties for women who procure abortions – a position that I am, as I’ve said, pretty confident is actually the majority one. So you’ve got my view right.
I fully understand the political rationale for opposing legal sanctions. I suppose it is the moral argument I do not understand.
What is the moral argument for opposing legal sanctions against a woman who calmly and rationally decides to pay someone to abort her fetus?
Popeye: Here’s that link to Komonchak again. On the language of “killing” vs. “murder” (and “slaughter”, “holocaust”, etc.), obviously there’s a need here to make an attempt to separate the rhetoric from what’s actually being proposed – and if we were to take a sufficiently careful poll I imagine that the majority position would be one that wanted to criminalize abortion at certain stages of development without categorizing women who procure them as accessories to murder. And the rhetoric you read on fundamentalist blogs is not, of course, the majority view – it’s just an especially loudly shouted one.
Eyelid: Again, something can be wrong without being murder, and even if it is murder that doesn’t mean the only way to criminalize it is to treat it as such. On third trimester abortions, you’re right that they’re rare, though once again the broad interpretation of the health exception means that they’re effectively legal nationwide. Moreover, at least if this polling is to be believed, more than two-thirds of Americans think abortions should be illegal in the second trimester, too.
John–
For, let’s see, the fourth time: please point out examples of courts striking down abortion restrictions based on an expansive view of a health exception. Note that, to whatever extent health exceptions were ever viewed broadly, they’re not now, not after the (horribly misguided, IMO) S.Ct. decision in Gonzales v. Carhart, which rejected facial attacks on the absence of a health exception and held that challenges could only be made through as-applied attacks: “discrete and well-defined instances a particular condition has or is likely to occur in which the procedure prohibited by the Act must be used.” What are the post-Gonzales decisions that apply a health exception broadly?
Wow, I read every single post and am impressed by the civil tone and incredibly coherent arguments put forth. I’m in the pro-choice left camp, but favor restrictions in 2nd and 3rd trimester pregnancies (with exceptions for rape, incest, and mother’s health).
I would like to add a personal experience to this. My mother-in-law, Anita, was violently raped and impregnated at the age of 17 in Victoria, BC approximately 60 years ago. The rapist was given a laughable sentence (and later raped another woman and was put away for many years) and she was never able to recover – sexually or emotionally (even through many therapy sessions later in her life). At that time, and due to her residing in a very rural area, there was no access to abortion and she was forced to carry the child to term. She ran away from home (being in a conservative Asian family, she had supposedly brought shame on their good name) and gave it up for adoption immediately after giving birth.
Fast forward to 2002 and we received a phone call from a Canadian adoption service on behalf of an adult male seeking information to track down my wife’s mother. We politely rejected this request and never told Mom of the inquiry.
I bring up this story to illustrate first, that situations discussed in these posts are very real and can have great impact on people’s lives. My mother in law suffered greatly – as did her child – due to her inability to abort the result of a heinous crime. I believe one of the reasons most people vote for the pro-choice “all cases” scenario is that even the slim chance that a choice of such magnitude (such as faced by my mother in law) would be dictated by our government is simply out of the question. Because the pro-life side takes the stand that human life begins at conception, it’s simply disingenuous to classify abortion as anything BUT murder – in ALL cases. Thus, as has been pointed out in previous posts more eloquent than mine, aborting a human child MUST carry consequences commensurate with some level of murder – period. It’s this draconian end result (or the risk thereof) that keeps even parental notification laws off the books in California, for example. Can the pro-life side not see that the moral dilemma of prosecuting a teen rape victim for murder is inescapable if one holds the view that life begins at conception?
In the end, everything discussed here takes a back seat to the majority’s view that freedom over one’s decision to bring a life into the world must remain in the hands of those individuals faced with such a choice. Though my mother in law can never erase the scars of her victimization those many years ago, to think forcing women to make the choice she couldn’t is not only impractical, but reprehensible.
Aaaaaaaaaaaaaaahhh so many things to respond to.
Thrax: I think I made it clear – or at least I meant to – that the Gonzalez decision marks a shift back to the sort of jurisprudence that I think is better than the kind that preceded it. But that only dealt with a tiny class of abortions, right? Are there instances of other – and not just partial-birth – bans that have been passed since then that had narrow health exceptions and were deemed to survive constitutional muster? Isn’t it still an open question whether SCOTUS would uphold e.g. a ban on all second- and third-trimester abortions, perhaps with exceptions for rape and incest, that treated the health exemption in the way Gonzalez did?
Keith: Okay. For one thing I don’t think that it’s always fair to demand an “argument” in the way that you are here. Lots of our moral convictions are just that – convictions – and they can’t always be reached or argued for “from the outside”, as it were: in the case of a view like this one, which I think we’d agree is widely held, it seems to me that the right thing to do is to give the benefit of the doubt.
If I were to try to give an argument, though, it might look like this: any woman who procures an illegal abortion is obviously under a huge amount of duress, and the realities of either having to carry that child to term (if she was caught before it was aborted) or simply being caught and put on the spot for the wrongness and illegality of what she’d done would be enough of a consequence. To be clear, I don’t think that’s anything close to a knock-down argument, but I do think it helps.
Ian: Thanks very much for your story. Concerning the penultimate point you make, I’ll just reiterate that thinking that (1) something is murder in the moral sense and (2) it should therefore be outlawed doesn’t require thinking that (3) the law should treat it as it treats murder of any other sort. And so the dilemma you describe simply isn’t inescapable, either as a matter of logic (I think) or human psychology (obviously, since many people’s thinking about abortion just doesn’t go down the route you describe).
John–
Nothing about the Gonzales discussion of facial challenges limits its reasoning to partial-birth, so a lower court considering a post-Gonzales facial challenge on grounds that some other type of restriction would endanger health would most likely have to follow that approach.
No, no court has considered an outright ban on second- and third-trimester abortions post-Gonzales. If one did, it seems inescapable to me that it would strike it down in part for the absence of a health exception, though Gonzales strongly suggests that it would be a limited overturning: the court would effectively read the health exception into the statute (in instances where there’s a specific showing of danger to health, per Gonzales) rather than hold that the whole thing has to fall.
My point is that there’s no reason to think that courts’ view of “health” is particularly expansive, or any more so than the general public’s, and I still haven’t seen any examples of decisions, pre- or post-Gonzales, that, say, read “mental health” into a statute that simply said “health,” even assuming (which I don’t think, and the public doesn’t appear to think), that that’s an outrageous view.
Thrax: Is there anything in this article that you think is false or misleading? For example, it says this:
Isn’t that an example of the kind of ruling we’re talking about here? I suppose it’s an open question whether this sort of health exemption really is the sort that the public would support – we’d obviously need to see some much more careful polling data, though I have no doubt that a majority of voters would support it in some states – but it’s exactly the sort of conflict I meant to have in mind.
There are in fact some misleading things. The Casey decision did not hold that mental health must be considered; the quote is taken out of context (the Court was upholding a pro-life script for the doctor that warned of grave consequences if the woman has an abortion, and the Court said that was OK). The quote from Doe is misleading for similar reasons.
It’s also not true that the (extremely restrictive) Kansas standard has been struck down. At least, as of a few months ago, it was still in place:
http://www.medicalnewstoday.com/articles/114187.php
The Kansas Supreme Court does appear to have read that language as encompassing mental health, without striking it down altogether. Given the polling data, that doesn’t strike me as radical.
John:
As a matter of logic:
First degree (i.e. premeditated) murder is a capital offense.
Abortion is first degree murder.
Therefore, abortion is a capital offense.
Where’s the flaw in this syllogism? It’s got to be in the minor premise but most pro-lifers say precisely what the minor premise says.
Also, you keep talking about “duress” but never answered Keith’s question. He posited an abortion without duress. Your answer stuck it right back in: “any woman who procures an illegal abortion is obviously under a huge amount of duress…” This is not obvious and, in any event, it’s non-responsive.
To criminalize abortion based on the belief that it’s murder (not just a grave wrong) but relieve the murderer of punishment based on a moral conviction that cannot be rationally defended is pretty weak tea.
Thrax: Thanks for the clarifications; I’ll try to say more about them later.
Popeye: That syllogism only works if “murder” is used in the same sense throughout, while one distinction I’ve been trying to make is between the moral sense and the legal one: you can think it’s murder in the first sense without thinking it should be treated by the law as murder in the second. And my point about duress seems pretty reasonable if it’s specifically illegal abortions we’re talking about.
The idea that personhood is conferred at conception suggests what makes a free-living being human is human DNA. That is, a living being with human DNA is entitled to human rights.
This definition would make give human rights to a cancer tumor because it has human DNA and can live independently outside of its host. Nobody thinks of a tumor as a person, however, so there is a problem with this definition.
A possible away around this problem would be to note that a tumor can never become the sort of being with whom we normally interact and naturally consider to be human. That is, a tumor cell can never become a *person*. In contrast, an embryo is a single cell organism like a cancer tumor, but it has the potential to become a person.
This idea is not satisfactory because infants with ancephaly or hydroencephaly do not have the potential to become persons yet are still considered as beings with human rights.
These observations lead me to the following working definition of what it is to be a human being (in the sense of rights). All autonomous persons are human beings. Also, any being with human DNA for whom an autonomous person is willing to provide the support that this being cannot provide for itself is also a human being.
Thus, infants and children are human beings because they are beings with human DNA who are supported by their parents. If their parents do not wish to provide support there exist adoptive parents who are willing to provide this support and failing that the state stands ready to provide a foster home for any unwanted child or infant. Thus, all infants and children in our society are human beings and are considered as such. The same goes for the severely disabled who are provided for by their families, charitable institutions or even the state if necessary.
Pregnant women, by the very act of providing nutrients to the fetuses they carry confer human status on that fetus. This is why you can see homicide charges brought for actions that cause the death of a fetus in utero.
A fetus is critically different from an infant in one key feature. It’s life is dependent on its mother. If its mother does not want to support it, nobody can step in for the mother.
This makes birth a key dividing line. A fetus minutes before birth is not a human being while the exact same fetus ten minutes later is a human. The fetus itself has not changed in any essential way.
Many people are going to have a problem with this. It can be argued that if a woman with a late stage pregnancy decides she wishes to withhold her support of the fetus, the doctor should induce labor and an adoptive parent take the child. Since the woman had ample opportunity to withdraw support earlier, it does not seem an undue burden to have her wait a month or two until the child is full term and induce labor then.
An induced labor before the age of viability would result in the death of the fetus, and so this would be an abortion. This line of thinking makes fetal viability outside the womb a marker for when human status is achieved.
Finally, the state could decide to “conscript” pregnant women to carry their fetuses to term, just as the state conscripts men to serve in the armed forces during wartime. Of course the infants produced from such conscripts would be given up for adoption if the birth mom decides she doesn’t want to raise them. If the state decides to do this, then human status would exist from conception.
Pro-lifers are those who argue for this most expansive definition of human rights. Their rationale is typically religious: what makes an animal with human DNA a human beings is the possession of a soul. From the point of “ensoulment” the fetus is fully human. When that occurs is determined theologically.
Extreme pro-choice advocates want the state completely out of the picture. An unwanted (by its mother) fetus is not human until the moment someone other than the mother can provide for its support, that is at birth.
Most people fall in between. They don’t see an embryo or zygote as a human being because it doesn’t look like a baby. But as the fetus matures it looks more and more like a baby and they get more and more squeamish about abortion. Their views are informed by emotions, not logic.
Ian: Thanks very much for your story. Concerning the penultimate point you make, I’ll just reiterate that thinking that (1) something is murder in the moral sense and (2) it should therefore be outlawed doesn’t require thinking that (3) the law should treat it as it treats murder of any other sort. And so the dilemma you describe simply isn’t inescapable, either as a matter of logic (I think) or human psychology (obviously, since many people’s thinking about abortion just doesn’t go down the route you describe).
I don’t agree. If, as is purported in this thread, we’re trying to find compromise and common ground between the two extremes who control the debate, then the right – being the side who ironically doesn’t seem willing to take the hard stand of the left (it’s murder, but with exceptions vs. legal in all cases) must either soften their language or specifically define their platform to reflect a more specific stand. Murder, though you can certainly argue different punitive actions, is still defined as the unjust taking of human life and therefore must carry some sort of punishment. And once you go down this path you will not gain the majority of voters/minds to your cause. I’m not judging the rightness or wrongness of this basic behavior; however, most of us squirm at the thought of the state taking this sort of invasive journey into our lives. That the majority of the right couples their crusade against abortion with their religion only makes matters worse, since it seems to define the abortion battle as some sort of god-inspired mission overriding individual freedom, while ignoring other killing (as mentioned in another post) and even justifying it, i.e. the war on terror. If killing a fetus is murder, how can one support actions in which thousands of innocent lives have been lost in the middle east through our military actions?
One of my best friends, oddly enough, is an evangelical Christian who believes the earth is 6000 years old, the Grand Canyon is the result of Noah’s flood, evolution is bunk (not a theory, mind you, but outright false), and that the rapture is just around the corner. For her, and MANY like her, abortion is the worst act of human degradation present in our time. Trying to reason with her or get her to compromise, whether or not I move toward her on late term abortions or not, is futile. She won’t EVER budge until abortion is made illegal, doctors who perform them (and women who get them) are punished into compliance, and the act is terminated once and for all. In a perverse way, I respect her conviction, despite severe disagreement. Fortunately for me, her position seems to have been repudiated at the ballot box (at least here in California) and as long as the right continues to kill (or call for or tolerate violence against) abortion doctors, picket clinics, refer to doctors who perform abortions – despite practicing other medical procedures – as “abortionists,” and argue from a primarily religious foundation, they will continue to lose the practical debate.
Point taken, so I will stop asking for an argument. But I must express my reservations about the duress argument for precluding criminal sanctions. All sorts of crimes are committed under “duress.” The duress of poverty may lead some to steal. The duress of heavy debt might lead some to embezzle. The duress of emotional abuse may lead someone to kill a spouse. And on and on. But in these cases duress does not automatically preclude criminal punishment. Such concerns are dealt with on a case by case basis as a mitigating factor.
I wonder if people sometimes try to find a moral argument for a priori criminal absolution simply because they do not want to admit to themselves or others that their position is based on a purely political calculus. Since the act of procuring an abortion is so grave, a purely political rationale for ruling out legal sanctions would seem very crass indeed.
And I would note that duress argument could also be applied to anyone who killed their one year old. After all, can;t we assume that anyone who kills their own child must be under some extreme form of duress? Yet, we have no problem prosecuting people who do so.
Keith, Ian, Mike Alexander, et al:
I want to respond to all these comments. I really, really do. But as is perhaps evident from the current goings-on on this blog, I’m about to ship off for three weeks’ living out of a suitcase with a one-year-old, and at present I’m occupied by preparations. I’ll try to get in one more round of responses before the end of the night …
Mmmm, not really. When I was 17, I got my 16 year old girlfriend pregnant. Our “duress” had more to do with her father’s (potential) reaction more than terminating the pregnancy. At that age, few people have the capacity to think beyond themselves nor understand the ramifications of human life – period. Why do you think we recruit young people to fight in the military (in many wars, the most effective fighters are those under 17)? Life simply has less value. In our view at the time, it was simply not possible to carry a baby to term given the enormous impact it would’e had on our educational situations and families, never mind the fact she was sexually active unbeknown st to her family in the first place. Selfish, certainly, but what teen isn’t self-absorbed? Having the choice available literally changed the course of both our lives – we think for the better. Would having abortion illegal back then have changed our minds against seeking an alternative way of terminating our pregnancy? Probably not. I’m not saying it’s morally right, but reality can intrude on ideals.
Since sex itself was/is so taboo in our society, many accidental pregnancies can be attributed to poor judgment, lack of proper sexual education (and I don’t restrict it just to contraception) or contradictory stands against birth control in-general, such as the Catholic church’s opposition to it. That said, I’ve yet to see a pastor or church official come out with a comprehensive plan to meet anywhere near half way.
Oh, and no worries, John, I think everyone here is fantastically well-informed and that the debate will do just fine if you can’t chime in. Thanks for the platform.
I just wanted to add that, being an atheist/agnostic, I approach this discussion from a mostly scientific and logical bent. I truly do want to find ways to end abortion, but realize we can no sooner reach that goal in absolution than we can solve hunger, prevent disease, or end poverty. That the right and left should find ways to achieve as close to this goal as possible is a matter of pragmatism over rhetoric. Sometimes I wonder if the two sides really DO want to reach agreement as the issue bleeds into so many other areas and serves each camp’s purpose in gaining and holding political power.
I think this is a really good discussion. Pro-choicers and pro-lifers need have just such frank talk if there is to be progress on this issue, both within the GOP and in the nation.
The question for me is what can the vehicle for that debate be? As John argues, Roe distorts the polical process and needs to be overturned for these debates to have any practical value. It seems clear that pro-lifers’ use of presidential politics (i.e. seeking to overturn Roe through judicial nominations) has been a failure and is moot now in any event. Also, I think Kmiec is right that it distorts the judicial selection process.
That leaves us with the amendment process. As John and I discussed in the comments to the earlier post, seeking an amendment through Congress is probably a non-starter, but the Constitution also allows 2/3 of the states to call a convention for an amendment.
I think this discussion sheds some light on whether this second option might be viable. Presumably all pro-lifers would support this approach, and so would pro-choicers like me who object to Roe on legal grounds or might support an amendment as an attempt to seek GOP party unity(though I doubt there are that many in either the second or third category). The question is how to get to a majority for an amendment. I think that turns on the discussion between John and Thrax. Is there a significant class of abortions that moderates would condemn and that cannot now be eliminated under Roe/Casey? If so, an anti-Roe majority can probably be fashioned.
But even without this majority, I wonder if pro-lifers could get 2/3 of the states to call for a convention on the issue. A little Westlaw research revealed that there was an effort at this in the late 70s, and 19 states passed resolutions calling for a convention on abortion. I don’t know why it ended; perhaps because Reagan was elected and the judicial nomination route seemed more promising. I’ll continue to look into it.
Okay, so I’ve only got a minute here b/c I have an early flight and need to get to bed. But let me try to make a few things clearer:
1. Thinking that abortion is the premeditated and non-defensive killing of an individual with full human rights (that is to say, that it is murder in the moral sense) may entail thinking that it should be criminalized, but it does not entail thinking that the law should regard it as murder. As I’ve said above, there are at least some other examples – e.g. the actions of soldiers in unjust wars – where we make this sort of distinction, and the fact that it may be based “on emotion”, to borrow Mike Alexander’s words, only shows that it’s in perfectly good company with the vast majority of other other moral (and many of our non-moral) judgments.
2. Thrax: I suppose what would help me would be an example of a case where a woman wanted to get a (non-partial-birth) abortion, the law said she couldn’t, and she wasn’t treated as an exception under the health clause established in Doe. If there aren’t quite a lot of these sorts of cases, then it seems clear to me that the upshot of the nation’s abortion laws doesn’t reflect the popular consensus.
That’s all I can articulate right now. (I’m pretty tired.) Let me reiterate, with Ed Baird, that this has been a really great discussion, and I’ll be happy to see you continue it amongst yourselves and with my guest-bloggers in my absence. Keep coming back, y’all.
I agree with John on point #1, but doubt the pro life side would want abortion criminalized without penalties commensurate with murder (in some degree). Why call abortion “murder” and make it illegal if there are no severe consequences? Even in the case of rape, incest, or health of the mother, you’re taking an innocent life, no? If not, I want to see the Republican platform modified to reflect this important distinction.
At this point, as a pro-choice (with reservations) voter, I happen to be sitting in the driver’s seat. Obama will get to appoint at least one judge in his first term (Stevens’ replacement) and possibly 2-3 more if he wins a second, meaning Roe will be safe and in place for decades. As much as this cold hard fact has yet to sink in on the right, it now becomes THEIR burden to find compromise in reducing abortions, not the left’s.
One way the right could compete without compromise would be a market based approach, whereby the right could organize and open alternative clinics (we have one or two here in Southern California) that offer alternatives to termination, working through churches, adoption agencies, and marketing campaigns to win over pregnant women and get them to carry their babies to term. As long as they didn’t spread false information and attempt intimidation, I doubt anyone on the choice side would be opposed to such alternatives. Another nice concession might be to drop the harsher language they use to define the choice folks. As I alluded to in my last post, “murderer, abortionist, baby killer,” and calling our president elect “Obamanation” isn’t winning any friends. Just sayin’.
[...] primarily, but not wholly, from my Catholic perspective, a post inspired greatly by John’s essay down-blog. It’s certainly not of the same calibre as John’s, but it offers some [...]
So long as Roe v. Wade and the body of jurisprudence that follows in its wake remains in place it is necessarily the law of the land that there can be no meaningful abortion restrictions whatsoever.
You must have a very different understanding of “meaningful” than I do.
To someone living in (say) Massachusetts who found out (say) that her 25-week-old fetus had Trisomy 18, the fact that she cannot have an abortion would most certainly be “meaningful”. According to this report, 36 states prohibit some abortions after a certain point in pregnancy; I suspect many residents of those states would also find the relevant restrictions “meaningful”.
It’s *highly* misleading to suggest that contentment with the current legal situation vis-a-vis abortion provides is equivalent to thinking that it should be “Always Legal”.
While I’m obviously coming to this debate late, I wanted to direct those interested (and especially John, if he hasn’t already read the book) to read Mary Ann Glendon’s book “Abortion and Divorce in Western Law” (you can read up on her work here: http://www.glendonbooks.com/glendonhome.html).
In a nutshell, she compares Western European laws on abortion with American laws and notes that such laws are all more restrictive in theory than American laws on abortion. And yet in PRACTICE, Europeans allow most women who want an abortion to get one. What is fascinating is that this view of the law as moral teacher, which is sort of what her analysis leads you to understand about European law, leads to lower abortion rates throughout most of Western Europe, again, despite the fact that these governments essentially look the other way as to what their laws require when women actually need an abortion.
So perhaps these European models can teach us all something about the way forward with respect to the compromises we seem to want to make when it comes to abortion law and practical consequences of such laws.
This may be a bit off topic, but many on the pro-life side of the ledger state that religion plays a primary role in their belief. Yet, the bible says nothing about abortion – it is not mentioned at all.
Is abortion taking a life? That is the crux of all discussions about the issue. Is a mass of cells that *may* become a person, or may *not* become a person, human life?
If a woman has a miscarriage, should we charge her with murder?
If we force a woman to carry her child full term, and she dies giving birth, who is responsible for her death? God? The state? “Christians”?
If we force a woman to carry her child full term, and she gives birth to a special needs child, who will care for that child? The mother? The state?
Who is responsible for ensuring these mothers will visit their doctor as scheduled, take their prenatal vitamins, avoid drugs and alcohol, eat healthy, etc?
What if the woman is an atheist? Can we force a religious based decision upon her?
Do you or I have the God given right to tell a women what she can do with her body?
While nobody is “pro-abortion”, I see no way logistically that we could do away with abortion rights for women. There are way too many unresolvable issues, not the least of which is the implicit assumption that the rights of the fetus trump the rights of the mother.
@ The Doc:
First, let me say that I am in the mushy middle on the abortion issue, so I don’t fit on either “side.” But while many pro-lifers phrase their opposition in terms of their faith, this does not result in the conclusion that abortion can be opposed only as a matter of faith. What matters, ultimately, is when you believe life begins. To be sure, religion can – and often does – play a significant role in informing the answer to that question – but it need not be purely a function of one’s religion.
Frankly, whether or not a fetus is a person is entirely a moral/philosophical question – science cannot attempt to make moral judgments as to when legal personhood. To be sure, science is useful in providing us information about the physical and mental characteristics of a fetus, which can inform the moral/philosophical debate; but it cannot – and does not really attempt to – provide a clear cut answer as to where legal personhood should begin.
Thus, to the extent that a determination comes down to a moral/philosophical judgment, it is absolutely impossible to imagine a debate on that judgment that did not somehow implicate religious values. Mind you – defining personhood is also a necessary function of any government in order for it to determine over whom it has jurisdiction. So you have a legitimate and necessary function of government that must of necessity be informed by moral/philosophical values, which makes the abortion issue extraordinarily unique and not particularly susceptible to ordinary church/state concerns.
[...] Federalism and the L…Cascadian on Politics, Federalism and the L…publiusendures on Abortion, Democracy, and …The Doc on Abortion, Democracy, and …Mark on Politics, Federalism and the [...]
The Left, pro-choice or otherwise, has learned that the right defines “cooperation” as “surrender totally to our views.” The right has made a virtue of intransigence.
“The Left, pro-choice or otherwise, has learned that the right defines “cooperation” as “surrender totally to our views.” The right has made a virtue of intransigence.”
Arguments like this are a core problem in our national discourse. There are few things more frustrating than arguments that portray the “Left” or the “Right” as essentially monolithic. Doing so reduces American political debate to simply two sides on all issues, even though few people adhere to a view of the world in which they agree with the nominal “Right” on every issue or with the nominal “Left” on every issue.
Umm, you realize that Roe itself is not the “always legal” position, right? That Roe allows lots of limits on abortion. I mean, Roe is interpreted in lots of cases, including Casey, that put limits on the right to abortion.
So, basically, you’re saying about 1/3 wants to ban abortion always, and 2/3 either want to keep Roe in place, or have stronger abortion rights.