Friday, December 17, 2010

Why Roe must go

Recently, William Saletan cobbled together a possible compromise solution to the endless struggle over abortion in America. The interesting thing about his solution is that, while he still doesn’t quite “get” the pro-life position, he makes several key concessions that show he, along with other key pro-choice advocates, is reluctantly learning.

In sum, the principles are:

1.      Admit the value of the fetus. Now, to be honest, Saletan doesn’t quite say what the “value of the fetus” is. The problem for the pro-choice advocate is that, once you concede the unborn child is a living human being, it’s very difficult to regain the moral high ground. On the other hand, pretending that the fetus belongs to some other species, or that Johnny Unborn isn’t alive even though he grows and develops like other living things, isn’t scientifically credible. So for now this may turn out to be the best we can get—an admission that doesn’t really admit anything, but suggests that the truth is busy scratching away at the foundations of their thoughts.
2.      Embrace abortion reduction. Saletan challenges, “Pro-choice leaders often point out that they’re pro-choice, not pro-abortion. Prove it.” This speaks directly to the kind of empty nothing we hear from prominent pro-choice politicians like Hillary Clinton about making abortion “safe, legal and rare”. But, like the first point, this concession suggests another unpalatable truth—if abortion is a good thing, why try to make it rare? On the other hand, if it’s not a good thing—if (dare I say it?) it’s an evil thing—then why maintain it as a legally sheltered option?
3.      Treat contraception as a moral practice. Saletan doesn’t question the basic premises of contraception; I would be shocked and overwhelmed if he did. But he argues that one can’t contracept casually; it must be “not just an option, but … a responsibility.” This almost sounds like a concession that sexual behavior can be (gasp!) disciplined behavior, which may eventually lead him to conclude that people can voluntarily refrain from sex (heresy!).
4.      Reclaim stigma. Saletan argues that women who are sexually active but don’t use contraception diligently even though they can’t handle a pregnancy should be stigmatized simply because bad judgment ought to be condemned. But those pro-choice leaders who are reluctant to stigmatize women who have abortions see precisely what Saletan doesn’t: there’s no point in putting a scarlet A on Hester Prynne if you think adultery is socially acceptable. As Abraham Lincoln once said about slave-owners, “Their thinking [it] right, and our thinking it wrong, is the precise fact upon which depends the whole controversy.” To stigmatize women who abort, regardless of your motivation, is to concede that there’s something wrong with abortion that makes it a despicable last resort.
5.      Target repeaters. Again, what’s wrong with having two abortions that isn’t wrong with having one? Saletan’s obsessive concern with contraception is such that he seemingly doesn’t care how many contradictions he leaves in his wake.
6.      Reconsider the legality of second-trimester abortions. Here is where Ross Douthat, the white sheep of the New York Times family, apparently took up Saletan’s offer:
I’d probably take the deal even without a guaranteed ban on second-trimester abortions, so long as Saletan could ensure that in exchange for more contraceptive funding under Title X (or whatever program he prefers), Americans would merely get the opportunity to vote on whether to restrict abortion before the third trimester. Ending Roe v. Wade, and returning abortion law to the sphere of democratic politics, would be worth almost any concession or compromise on other issues. (And his dig at the Catholic Church notwithstanding, I bet at least some Catholic bishops would agree.) But that’s the rub, of course: For Saletan’s compromise to become plausible, Roe would have to go.
In response to Douthat, Saletan engaged in a legal breakdown of the issue, arguing that the trimester framework used by Roe and its companion case, Doe v. Bolton, was negotiable while the central holding—abortion as a fundamental right—is non-negotiable.

And this is precisely where any attempt to negotiate a compromise must inevitably fall apart. There are plenty of people who, although they’re mostly pro-life, can concede abortion as a legitimate option in limited circumstances; e.g., when the pregnancy presents a direct and immediate threat to the mother’s life and other means of averting the threat are practically unavailable.[1] But they don’t believe that abortion in these cases is a right so much as it is the lesser of two evils. There are others, like Douthat and me, who might accept a compromise as an interim step towards a more universal illegalization. But the problem we would have in accepting a compromise on Saletan’s terms is that abortion isn’t a fundamental right … it’s a fundamental wrong.

You think I’m playing with words? Read on.

The value of a democracy lies in the ability of the people to decide what kinds of behavior they can tolerate and what kinds they can prohibit. Within a democracy, it doesn’t strictly matter whether you believe in moral absolutes or not; it only matters whether you believe a particular behavior should be protected or proscribed by law. More to the point, what matters is that your opinion matters.

Both Roe and Doe predicated a right to abort on a pre-existing right of privacy, the Constitutional basis of which SCOTUS never convincingly developed and which has since been forgotten by all but lawyers and pro-life apologists. Instead, we have a “right to choose” that, like a brick in a surrealist painting, hovers unsuspended and unsupported in mid-air, a right by judicial ukase rather than popular mandate, the textbook definition and template of judicial activism. Bad enough that such a horrendous industry should exist among us; what makes it really intolerable is that it was crammed down our throats with generous doses of bad science and slipshod legal theory. As it stands now, Roe is a judicial thumbed nose at the body politic, an arrogant assertion that, in the end, it doesn’t matter what we think is right and wrong, so long as someone can convince five of the nine lawyers on the high bench otherwise.

In this respect Saletan’s suggestions for compromise strike me as cognitive dissonance in action: he’s coming to recognize the moral evil of abortion, but is still committed to the belief that it ought to remain a legal right. Yet most of us, I suspect, would agree at least subconsciously that a legal right ought to be morally right, at least in ordinary practice. Such a belief doesn’t preclude the possibility of a legal right being misused to commit evil; it merely asks that its ordinary and proper use be good. The contrapositive, however, is that that which is morally wrong ought not to be a legal right.

But again, what point is there in democracy if you can’t legally define and punish evil for fear of offending some individual’s idea of good? Understand, I’m as much for individual rights as the next American. But the conception of individual rights as given common currency disrupts the delicate resolution of the Madisonian dilemma as much as does a concept of majority rule that gives scant weight to individual rights. This is why individual rights must be a matter for common consent, not elite dictation.

If we were to agree in principle that a negotiated resolution were acceptable, Roe would have to be overturned as a first step. For as long as the Court sustains it as an established right, negotiation is impossible. Literally. Not “unacceptable”; not “unthinkable”—impossible. The Court holds the high cards, and can therefore dictate the settlement just as it has over the last thirty-eight years; the first person who can make a federal case in opposition to a legislative agreement can wreck the whole effort. There can be no “Missouri compromise” once a Dred Scott has been issued. As long as the right’s not negotiable, nothing else is.

I don’t say this for the sake of being obstinate. Saletan leads me to believe that the pro-choice movement is collapsing from within; this in turn leads me to believe that time is on the pro-life side. However, time is most definitely not on the children’s side; holding on to an “all or nothing” strategy means more children die unnecessarily. On the other hand, the down side of a negotiated end to the war is that abortion as a limited yet still available option could last for more years than the relatively unrestricted industry now in place; if fifteen million babies are killed over fifteen years or over fifty years, that’s still fifteen million babies killed.

Whether an end to the struggle is negotiable or not, Roe has to go. The sooner, the better.


[1] In Catholic moral theology, abortion is never permissible, except indirectly as an unintended consequence of a medically necessary operation undertaken to save the mother’s life. The classic example is of an ectopic pregnancy, where, to save the life of the mother, the section of fallopian tube in which the unborn child is planted must be removed; at this point in our medical technology, it isn’t yet possible to re-plant the child in the uterus.