There’s a newly prominent argument on the right that holds that if only we overturned Roe, happy Americans free of insidious judicial activism would ensure that women had reasonable access to abortion, like in Europe. Since this isn’t the case, the poor anti-abortion Americans, barred from the political process, have no choice but to murder doctors (though everyone condemns it, tsk tsk tsk.) Scott Lemieux has an excellent takedown that everyone should read, as does hilzoy. I have but two things to add:
1) It is intellectually dishonest to pretend that anti-abortion groups and pro-choice groups are on the same page, and merely disagree over the method of implementation, legislative or judicial. There are states with trigger laws. This is not a proposal being offered as a compromise, even were it not offered at gunpoint.
2) Once again, I point out that there have been several abortion-related cases since Roe, notably Planned Parenthood vs. Casey. (And to get rid of the underlying problem you’d probably have to go back to Griswold.) Many, many marginal restrictions are permitted, as are some major regulations. To take the claim seriously that anti-abortion activists have been excluded from the political process and therefore must resort to terrorism, you have to ignore in the past 36 years since Roe and the seventeen since Casey, not only have there been a few Republican administrations and Republican-controlled Congresses, but Court appointments, too. The ban on intact D&E was upheld in 2007, thanks to two conservative court appointments made in the 2000s. What’s happened in the past year and a half that has disenfranchised these poor souls?
I think the onus should be on anti-abortion advocates to lay what they want, specifically, in detail, to ban or to permit, that they can’t accomplish now. What is it? No rosy talk of Europe, which contains all the things you want to…emulate.* What is it that you want that you haven’t been able to get? Why do you want it? Specifics. Around 91% of all abortions are already in the first trimester. What is it about remaining 9% that bothers you?
*I can imagine many ways that women’s reproductive freedom could be sufficiently protected even if abortion was outlawed after the first trimester. But I see that as somewhat beside the point. We’re not starting the U.S. from scratch, and any reversal of abortion rights would occur in our current context. Likewise, I know of many nations that do not have a Constitution with anything like our Bill of Rights that supports freedom of speech, but that wouldn’t mean I’d be sanguine if Obama suddenly headed up a campaign to get rid of the first Amendment.
38 comments
June 10, 2009 at 12:44 pm
human
We’re not unreasonable – I mean, no one’s gonna eat your eyes.
June 10, 2009 at 12:47 pm
jcsnotes
Amen. I weighed in a couple of times on Megan M’s page in much the same spirit. I actually find her take, once you read all of the comments she’s made to supplement it, etc… pretty well-reasoned. I still disagree, but I see where she’s coming from.
As far as RD’s op-ed, here’s what really got to me: “[i]f anything, by enshrining a near-absolute right to abortion in the Constitution, the pro-choice side has ensured that the hard cases are more controversial than they otherwise would be.” This is just so wrong from the setup on. It wasn’t “the pro-choice side” which “enshrined” this into the Constitution, it was the U.S. Supreme Court, made up of Justices who were put on the Court the old-fashioned way we’re always told were the “good old days” when there were no litmus tests or full-page NY Times ads on various nominations. To characterize Roe as some great victory orchestrated by the pro-choice “side” is conflating the terms of the debates of the 1980s with the far broader Constitutional deliberations which the Supreme Court struggled with from roughly 1932 until Reagan began to reshape the Court.
I know the pro-life side doesn’t like to accept that Roe is just one of many changes and fundamental rights enshrined in the Constitution by the Warren Court (e.g. the right to interstate travel, the right to marry), and that it needs to be viewed in that context, but it’s the hard truth.
June 10, 2009 at 12:53 pm
dana
I’m not a legal scholar, so I don’t quite know what to make of the arguments that Roe was a bad decision. It wasn’t wholly overturned in 1992. And to describe the current consensus as “near-absolute” just isn’t at all accurate.
June 10, 2009 at 12:59 pm
Vance
McArdle and Douthat are hard to take on this, it’s true. (Hard even to read.) But the forced pregnancy advocates (opprobrium courtesy Lemieux) really are in a position which mutatis mutandi I don’t envy. Legally, rationally, etc., “you lost” is the reasonable response — but given what they take to be at stake, how can we expect them to accept that?
Coulton is indeed entirely apropos.
June 10, 2009 at 1:13 pm
dana
but given what they take to be at stake, how can we expect them to accept that?
Because we’re talking about one lost election? Because they want to be part of polite society? Because we wouldn’t normally accept losing a legitimate election on a serious moral matter to be good grounds for political violence? Pick a reason!
June 10, 2009 at 1:19 pm
dana
Or to put it another way, if we’re meant to believe that abortion is murder, and the rhetoric is heating up because they haven’t been able to influence policy since all of 2007, why on earth would we expect that overturning Roe and putting in something like our current restrictions legislatively would stop the violence? Is it not going to be murder then?
June 10, 2009 at 1:25 pm
Vance
Don’t worry, I’m not trying to justify the argument that defenders of Roe should abandon it. Rather, I’m pessimistic about the possibility of a stable political solution here: the losers are losers, but they include fanatics.
June 10, 2009 at 1:39 pm
JPool
Right, including not a few fanatics who won’t be happy until we have some form of Handmaid’s Taleist fundamentaist state. Those folks aren’t actually interested in democracy in any meaningful sense.
June 10, 2009 at 1:52 pm
Ahistoricality
Reading the posts linked from here, I came to an interesting realization. The proper analogy to the abortion debate may not be slavery: I think it’s Vegetarianism.
June 10, 2009 at 2:01 pm
eric
to get rid of the underlying problem you’d probably have to go back to Griswold
Shhh. You’re going to give them ideas.
June 10, 2009 at 2:17 pm
JPool
Ahist, I had this drafted when you posted that. I’ll just go ahead and pretend that it’s my insight:
I’d like to suggest that in place of the slavery analogy, where everyone agrees that slavery is wrong, let’s try something that there’s still a fair ammount of debate about: the exploitation and murder of animals. Most Americans currently believe that needlessly cruel treatment of animals should be limited, but that if we can come up with a good reason (medical study, safety testing, tastiness) that folks should be allowed to do most anything to non-human animals, subject to a certain ammount of oversight and regulation. A small but growing minority of Americans believe that our treatment of animals ammounts to a massive atrocity and that as a matter of morality and policy it ought to be brought to an end.
Now, animal rights advocates are free to use any of the normal means of persuasion and policy making in a democracy from education and advocacy to offensive and poorly conceived advertising campaigns. But when the ALF takes it to barely the next level and breaks into labs to rescue animals, we don’t get a lot of folks opining that, if you believe as these people do, that what choice do they have, much less arguing that it would be emminently understandable for animal rights advocates to step it up to potentially dangerous sabotage or, the parallel case, murdering factory farm owners or lab employees.
June 10, 2009 at 2:32 pm
North
Rather, I’m pessimistic about the possibility of a stable political solution here: the losers are losers, but they include fanatics.
This is why Douthat’s claim that they will simply pack up their bloody fetus signs and go home if we surrender a couple of minor rights is so disingenuous. It’s classic victim-blaming: if you didn’t provoke him, he wouldn’t hit you. If we didn’t have rights, the pro-lifers wouldn’t harass us for exercising them.
I see how if you really believe that abortion is murder, it’s hard to accept the current legal regime. But really, that points to what’s so different about Europe. Europe doesn’t have large groups of politically radicalized fundamentalist Christians with substantial mainstream support. We do. So European-style abortion laws wouldn’t make us have European-style politics, because the people they regulate are organized differently. And it’s not like the leaders of the pro-life movement are going to encourage their members to go home if they win some minor battles, because guess what? It’d be against their own interests in amassing wealth, fame, and personal power.
I also think hilzoy’s point is important here: that she – and I, and a hell of a lot of other people – have believed that our political leaders were making terrible, bad-faith decisions that would cost the lives of many many people, and we haven’t tried to commit political violence to stop it, because we value the rule of law above its outcomes even when those outcomes have terrible consequences.
Finally, I think most pro-lifers don’t actually believe abortion is murder. They don’t believe women should be jailed for obtaining them, and many nominally pro-life women will in fact seek abortions in unpleasant situations, just like the women they yell at on Saturday mornings. It’s the ugly truth exposed by the “how much time should she do?” question. It’s a position about sex and sexuality far more than it’s a position on the philosophical and theological status of an embryo.
June 10, 2009 at 2:35 pm
North
And dana, I agree with you. They should have to specify – Douthat himself should have to specify – exactly what restrictions they want. They should have to go through the Kansas stories and explain which women should get abortions, and why. And what we should do with suicidal teen-agers who are pregnant by their rapists. And how much time a woman should do. And why they’re not willing to vote for candidates who will enact the policies that actually reduce abortion rates: contraception, generous social benefits, etc. After all, if abortion is murder, shouldn’t preventing it matter more than low taxes?
June 10, 2009 at 3:56 pm
Charlieford
jcs, Burger, not Warren.
June 10, 2009 at 4:33 pm
Ahistoricality
JPool: you did it better. I’d put money on us not being the first two to make this point, too. (But everyone should listen to the Arrogant Worms anyway!)
It’s a sad thing, but the only public intellectual I can think of who’s addressed both the abortion and animal rights issue directly is Peter Singer. I’m sure there are more, but he’s the famous one.
June 10, 2009 at 4:53 pm
dana
JPool, Ahist, that’s an interesting analogy I hadn’t considered. One I’ve been considering doing a post on is the similarities between our discourse concerning the beginning of life and our discourse concerning the end of life.
June 10, 2009 at 5:01 pm
jcsnotes
Charlieford – Good point about it being the Burger Court, I always get those dates mixed up, which isn’t really excusable. The argument remains similar….this is a Court that, although it recognized the significance of its decision, voted 7-2 to extend the Warren Court’s substantive due process jurisprudence. The discussion today should be less about pro-choice orchestration than about the pro-life movement’s failure to orchestrate Roe’s undoing through litmus tests, etc…
June 10, 2009 at 5:21 pm
Charlieford
jcs, on Roe and the Warren court: “What I think is that it just doesn’t have the stable status of Brown or Miranda because it’s been under internal and external assault pretty much from the beginning. As a constitutional matter, I think Roe was way overreached. I wouldn’t vote to overturn it myself, but that’s because I think it’s good to preserve precedent in general, and the country has sufficiently relied on it that it should not be overruled.” Cass Sunstein, 2005
June 10, 2009 at 6:23 pm
dilbert dogbert
Anyone got a site with data on how the pro-life people come down on the death penalty? Are they just very very late term abortionists?
June 10, 2009 at 6:26 pm
bitchphd
Brava.
given what they take to be at stake, how can we expect them to accept that?
I really have a hard time believing (read: I don’t buy it) that “what they take to be at stake” here is “murdering babies.” Because if that were the issue, then they’d* be ALL OVER supporting Planned Parenthood, which provides birth control to more women than any other organization in the US. They’d be adamant supporters of birth control. They’d be pushing hard for fact-based sex education for all young people. They wouldn’t object to aborting fetuses with zero life expectancy or that are already dead, which was one of the more important things that Tiller died.
But not only do they not do any of those things, they actively oppose them.
*”They” meaning anti-abortion activist organizations. Though I wouldn’t be half-surprised to find that a sizable chunk of anti-abortion individuals, if not most, also opposed PP and comprehensive sex ed, if not birth control per se (thought I’d bet that a sizable minority oppose that too) and aborting stillborn or terminal fetuses (although, to be fair, I suspect that most anti-abortion folks just deny that those cases exist).
June 10, 2009 at 6:38 pm
bitchphd
when the ALF takes it to barely the next level and breaks into labs to rescue animals, we don’t get a lot of folks opining that, if you believe as these people do, that what choice do they have, much less arguing that it would be emminently understandable for animal rights advocates to step it up to potentially dangerous sabotage or, the parallel case, murdering factory farm owners or lab employees.
I’ll bite. I actually am pretty sympathetic to the “rescue lab animals” impulse, although of course it’s a stupid thing to do: what the hell are you going to do with the animals, first, and second, you don’t know what might be wrong with them, what diseases they might have, etc. So I think merely “freeing” them is not doing them any favors, sad to say. But in theory (I’m too lazy and half-assed to make it a practice) I could support, say, blockading research labs so that new animals couldn’t be delivered, stealing animals en route to research labs and finding them safe homes, stealing breeding animals from facilities that supply stock to research labs, etc.
Murdering people is obviously idiotic, inasmuch as it wouldn’t do a goddamn thing to help research animals, quite apart from the moral and legal issues. If, though, there were (say) three researchers in the country who still did dog experiments (leaving aside the terminal or dead fetus issue I talk about above), then murdering one of them would, obviously, make a difference, at least to the number of dogs being used for research on U.S. soil. (Though presumably that research would just end up being outsourced.) That said, it would still be a heinous thing to do. I could understand the emotion that might make people want to support or even act on something like that; I’d want to “kill” anyone who, say, ran over my cat, probably. But obviously one doesn’t *do* that sort of thing or write op-ed pieces saying that really, the person who murdered the man who ran over their cat kind of had a point. You say “wow, I can understand that that person was very upset about their cat dying; but still.”
June 10, 2009 at 6:39 pm
bitchphd
in theory (I’m too lazy and half-assed to make it a practice) I could support, say
s/b/ “might be sympathetic to.”
June 10, 2009 at 6:44 pm
jcsnotes
Charlieford – Sunstein certainly has a right to his opinion. All I was trying to point out was that this wasn’t results-driven jurisprudence in the way that the Douthat op-ed lazily put it when he painted Roe and its progeny with a broad brush. People tend to look at Roe through an 80′s & 90′s lens when the Justices who made the decision were not products of the Court Wars we saw from Bork on forward. Sunstein may be right – Roe may have been a bridge too far from Miranda, etc… (I would say Griswold but that’s 6 of one/half dozen of the other) but that’s a far different thing from arguing that it represents the political byproduct of one side’s efforts.
June 10, 2009 at 7:03 pm
Charlieford
Griswold is fantastic–I’ve even called it intellectually exciting–and it should be read by every American at some point in their education, but I don’t think it entails Roe.
June 10, 2009 at 7:47 pm
todd.
I actually am pretty sympathetic to the “rescue lab animals” impulse …
Then it’s a good thing we’ve already derived all of the important medical advances we’ll ever need!
June 10, 2009 at 8:49 pm
jcsnotes
CF- As I said, we can disagree on whether the linkage is well-supported, but it’s there and I think at the very least, Justice Stewart would have agreed with me on that.
June 10, 2009 at 9:01 pm
joe fischer
I think the parallel to animal rights is fair, in both highlighting how irreconcilable the two sides are, and also how animal rights advocates generally function in a society which widely believes humans may kill animals for our own pleasure.
I think it is wrong to kill animals, yet all my meat-eating family and friends (which would be all but, oh, three of them) think my view is just insane. All the rational arguments I could muster would never convince any of them to give up eating meat. We’re entrenched in place where we see no legitimacy to the other side–we may understand each other and why we believe what we believe, but we see no legitimacy to each others’ view.
And yet I don’t consider these meat-eaters on the level of “murderers.” Most vegetarians/vegans share friendships (and meals) with meat-eaters. We may strive to change things, but we function relatively well in civil society.
I’d be interested in engaging with abortion opponents on the issue of animal rights (is “sanctity of life” strictly “sanctity of human life”?). Unfortunately, I suspect for many it is faith propping up both opposition to abortion (an act of faith to define conception as the beginning of human life) and acceptance of killing animals (religious belief that God gave humans dominion over the earth and created animals to be eaten), so I’m not sure how useful the discussion would be.
June 10, 2009 at 10:05 pm
Vance
I really have a hard time believing (read: I don’t buy it) that “what they take to be at stake” here is “murdering babies.”
I agree that, as you detail, the actions of these anti-abortion groups don’t look like actions a liberal would take to minimize the numbers of abortions. But that doesn’t get us very far. Obviously this sort of ventriloquism is doomed; but I think that the consciousness of these activists must be focused a little differently — for example, on these specific pregnancies now under way and under threat of termination rather than on a more statistical, abstract mass of painful life decisions.
We see a similar mismatch of ways of seeing the problem in other intractable political disputes, say those in (circumspect circumlocution) the former British Mandate.
June 11, 2009 at 7:12 am
Chris
Most vegetarians/vegans share friendships (and meals) with meat-eaters.
IMX, most vegetarians aren’t the moralizing kind of vegetarian anyway; they personally prefer not to eat meat (or in some cases, not to eat certain kinds of meat; there are plenty of seafood-eating vegetarians), but don’t impose their preferences on others, or convert everyone else to vegetarianism. Those people are a small minority even among vegetarians. (AFAIK – I have no actual survey data on this.)
Obviously, there is an analogy for those people in the abortion debate – people who would never have an abortion themselves but don’t interfere in others’ decisions on the subject – but they’re not normally counted on the anti-abortion side because the abortion debate is focused on *government* action, which that kind of person would be ambivalent or opposed to.
Presumably, if there were an actual movement to *outlaw* animal-eating, those personal preference vegetarians would stick up for the freedom of others to make a different choice. At least, I hope they would. (Certainly the fish-eaters would, because they would be affected by the hypothetical ban too.)
is “sanctity of life” strictly “sanctity of human life”?
IMO, no, it should be sentient life. “Human” is occasionally overinclusive (embryos, Schiavo and other terminal coma patients, HeLa cultures) and theoretically underinclusive (sentient aliens, AIs, genetically engineered animals – no nonhuman sentients are *currently* known to exist, but they might be discovered or created in the future). (Since nonsentient animals prey on each other all the time, I see no compelling reason why sentients shouldn’t also prey on them, even though we have more complex ways of doing so than, say, wolves.)
June 11, 2009 at 8:45 am
JPool
Chris:
Obviously, there is an analogy for those people in the abortion debate – people who would never have an abortion themselves but don’t interfere in others’ decisions on the subject – but they’re not normally counted on the anti-abortion side because the abortion debate is focused on *government* action, which that kind of person would be ambivalent or opposed to.
Right, but if you read the posts that dana, B and others have been responding to, most of them have been framed as “I’m personally pro-choice, but also personally uncomfortable with late abortion, and when you put you put yourself in the shoes of sincerely pro-life people you can see how they would feel perfectly justified in murdering doctors who perform abortion.” There are a number of problems with this line of thinking, as folks have pointed out here and elsewhere, mostly having to do with the fact that it seems … odd to justify vigilante murder in a situation where you’ve already rejected the justifying premises, much less contorting to blame “activist judges” for anti-abortion activists’ vigilante murder impulses. The parallel with the vegetarianism/animal rights example you cite above would be to argue: “I’m vegetarian for personal, ethical reasons, and some forms of animal treatment make me uncomfortable, but you have to recognize that if you sincerely believe that animals are no different from humans, then the next logical step would be to blow up a slaughter house.” The acknowledgment of some amount of moral sympathy is taken as license to declare violent terrorism to be perfectly understandable.
I’m not interested in debating animal rights here, but you’re right: people are vegetarian for lots of reasons (health, ethics, religious commitment, personal preference) and use that term to describe a variety of consumptive practices (ie, strict vegetarians, who none the less where leather), so the analogy is with those concerned with animal rights or welfare rather than vegetarians as such. (For the record, I’m a vegetarian for ethical reason, though I haven’t been a vegan for years. While I don’t try to convince other people that they ought to be vegetarian too, if there were a majority of people in this country who believed that we should collectively stop meat-eating or mutilating animals for research, then I’d be down with that.)
My point is, yes, it sucks to be in a position where you see something going on as an atrocity and be surrounded by a majority (or a powerful minority, real or imagined) who would either defend that situation or simply allow it to continue. Humans have done enough crappy things that it isn’t hard to come up with an issue where we would hope that we would be in the courageous minority, standing up for what’s right. But let’s not pretend that this is a simple of casual thing, or one where
June 11, 2009 at 8:51 am
JPool
OK, I didn’t mean to post that yet. Finishing:
But let’s not pretend that this is a simple or casual thing. As Hilzoy points out, to take on these sort of terrorist actions is not to engage in civil disobedience, it is to reject democracy. Just because we can come up with situations where we too might reject democracy doesn’t mean we should give it a pass.
June 11, 2009 at 5:34 pm
Jason B.
Chris: or in some cases, not to eat certain kinds of meat; there are plenty of seafood-eating vegetarians
No, there aren’t. There are, though, plenty of people who call themselves “vegetarians” who also eat seafood.
See, fish and shrimp and lobster and crab, no matter how delicious, are not vegetables. And the people who eat them are not vegetarians.
That kind of shit complicates things when actual vegetarians try to communicate with people. Because others are misusing our shit.
June 12, 2009 at 8:04 am
EKR
Not being any kind of vegetarian (or “vegetarian”) I don’t have a dog in the “who’s a vegetarian” fight, but ISTM that this sort of “do you eat anything other than vegetables” test proves too much: for instance, Diet Coke isn’t a vegetable. Are you going to argue that people who drink it aren’t vegetarians? How about orange juice (arguably fruit, not vegetable). Moreover, it seems like the distinction between vegetarian and vegan hinges in part on whether one consumes any animal-based products, which clearly aren’t vegetables.
I’m not saying that people who consume seafood are vegetarians, but I think you’re going to need a better test to make that distinction.
June 12, 2009 at 8:42 am
Jason B.
You’re right, obviously. The distinction isn’t really between vegetable and not-vegetable, but things with brains are certainly excluded if the label’s going to mean anything at all.
People who are mostly vegetarians but who also eat seafood are usually called “pescetarians.”
June 12, 2009 at 8:55 am
TF Smith
Anyone know if McArdle and/or Douthat have children – ie, have they EVER been up close and personal with the realities and risks of a pregnancy?
Perhaps some knowledge of what is at stake when a woman becomes pregnant might serve to better inform their opinions.
Also mind-boggling in its hypocrisy is the reality that these are the same sorts who would (rhetorically) man the barricades immediately if “guvmint” were to require mandatory donations of blood, much less organ donations, much less conscription…much less the income tax rates of the Eisenhower Administration.
“Callow” does not begin to describe Mr. Douthat and Ms. McArdle.
Someone far sharper than I once wrote that one can always find old wealthy people to pay young greedy people to write things to the benefit of the old wealthy people…
June 12, 2009 at 11:48 am
Barry
Dana: “I’m not a legal scholar, so I don’t quite know what to make of the arguments that Roe was a bad decision. It wasn’t wholly overturned in 1992. And to describe the current consensus as “near-absolute” just isn’t at all accurate.”
The usual way I judge the sincerity of that appeal (RvW being bad law, or the SCOTUS is not democratic, etc.) is to see what other decisions the speaker has gotten hot and bothered about. Both to see if there are any, and on what side of the political spectrum.
For example, I don’t recall anybody who got down on RvW for the usual reasons also getting down on the decision(s) which granted corporate personhood.
And in Megan’s case, IIRC she had noooooo problem with Bush v. Gore, and gleefully speculated on the possibility of some NYC residents busting antiwar protesters’ skulls in ’04.
Not to mention that we’ve gone through several years where most people on the leftmost 1/3-1/2 of the American people have basically been told ‘f*ck off commies/traitors, you lost’, and people like Megan didn’t seem to think that that justified left-wing violence.
Possibly because she was too busy shouting ‘f*ck off commies/traitors, you lost’, right up until it was obvious that the Bush II administration had trashed the country.
In short, in my book *anybody* who gets hot and bothered with R v. W simply dislikes the results.
June 12, 2009 at 11:50 am
Barry
Adding on:
“For example, I don’t recall anybody who got down on RvW for the usual reasons also getting down on the decision(s) which granted corporate personhood. ”
I’d bet that disliking RvW is *highly* correlated with approval of the Rhenquist/Scalia/Roberts SCOTUS actions, which has always been willing and eager to utilize its non-democratic power.
June 12, 2009 at 12:19 pm
Chris
I suppose I should have known I was going to provoke a round of No True Vegetarian:
The distinction isn’t really between vegetable and not-vegetable, but things with brains are certainly excluded if the label’s going to mean anything at all.
Hmm. Yet we hardly ever actually eat the brain; maybe you mean “the body parts of things which formerly had brains”? (Eggs might have brains in the future, although in practice most eggs produced for food are unfertilized.)
You’re setting the bar for “brain” pretty low if a clam gets over it. (Although, in fact, you only mentioned arthropods by name, so maybe I’m assuming.)
The importance of brains is obvious to both debates, but how much brain is enough to be morally significant is not. Nevertheless, it’s still a good point that you don’t see many vegetarians (by any definition) openly expressing understanding for the assassination of ranchers, butchers, or chefs.