Avdat

A foolish consistency

Barton Hinkle wrote an op-ed for yesterday's Times-Dispatch observing that liberals who argued against the state's tough new laws regulating abortion clinics sound like laissez-faire capitalists. Hinkle seems to think that this is a significant observation, but I'm not sure why. Are Virginia liberals guilty of inconsistency on this issue? Hypocrisy, even? So what? As Emerson said, "A foolish consistency is the hobgoblin of little minds."

Liberals don't wake up in the morning thanking God for government regulations. If you asked a liberal what he or she thought about regulations--and if Hinkle hasn't done this, he really should--they'd likely say, "It depends." The answer "It depends" is not a sign of inconsistency, but of a lack of ideological rigidity that frees people to find pragmatic solutions to problems.

Who teaches this talking point to all the so-called opponents of big gubmunt? I can't tell you how often I've gotten into an argument with a conservative who wanted to make the issue all about the hypocrisy of the left when I wanted to make the issue all about... the issue.

In this case, the issue really is, Do you think that safe and legal abortions should be available in Virginia, or not? For non-Virginians, the legislation would require first trimester abortions to be performed in hospital-grade facilities, not doctor's office-grade facilities, as is the current practice for abortions and similarly risky procedures such as colonoscopies. The practical consequence will be the closure of most of the state's abortion clinics.

The bill's sponsors claim that this is all about the health and safety of women, but creating a situation in which the only abortions available in Virginia are in the proverbial back alleys is a strange way of protecting women's health.

In an ideal world there would be no abortions. In this less-than-ideal world, I think a sound policy is something like Bill Clinton's "safe, legal and rare," the rare part ensured not by the chicanery we saw in Richmond last week, but by implementing much of the 95-10 proposal that Democrats for Life has long supported.

Is that inconsistent? Who cares? Is it the better policy? That's the real question.

Health care reform and abortion

I've always been a bit wobbly on abortion rights, so it should come as no surprise that I'm not terribly bothered by either the Stupak amendment or the Nelson amendment, both of which would limit federal funding for abortion in the new health care regime. In 2005 the average cost of an outpatient abortion was $413. Honestly, this is not a lot of money, even for poor women. You'd be amazed at the money even very poor people can come up with if they are sufficiently motivated.

Of course taxpayer dollars go to a whole range of programs that I think are either practically unwise or morally dubious, but I pay my taxes anyway. On balance, the bureaucracy is a net benefit to human flourishing. If these restrictions didn't make it into the final bill then that won't change my support for it; I'm so over the politics of purity (see below). At the same time, if you're really into "justice," then aren't there bigger hills to die on than getting in and out of an abortion clinic for a copay and some change?

Domestic terrorism

Why do doctors who perform abortions tend to get murdered when Democrats occupy the White House? There seems to be a lack of patience in some corners of the pro-life movement, an unwillingness to live with the ebb and flow of the political process. As soon as an election goes against them, some of them appoint themselves judge, jury and executioner. You could call them sore losers, except that expression cheapens the seriousness of gunning someone down in the vestibule.

But it's worse than that: 

• Oklahoma City.
• The murder of ob/gyns.
• Think tanks funding specious lawsuits to the tune of millions with the sole purpose of getting the President of the United States to testify under oath about his sex life in the hopes that a fib might make the legal grounds for overturning an election.
• Torture.
• Illegal wiretapping.
• Bush v. Gore.
• A post election run on ammunition.

There is a contempt for the democratic process and the rule of law on the right side of the political spectrum that gets expressed in a variety of ways. The sane people remaining on the political right really need to stand up and take back their movement from the terrorists, conspiracy theorists and media mouthpieces that fan the flames of violence and extremism.

Which is why all the hysteria about Barack Obama's associations with William Ayers was so completely whacked. The right owns the domestic terror market, lock, stock and barrel. Thou art the man, dittohead.

Pro-choice pacifists

Michael Westmoreland-White explains why he is a pro-choice pacifist.

MWW's journey to this conclusion is different than mine, but we are pretty much in the same place. The key for me is this paragraph:

But I have concluded that the pro-lifers do not have enough of a category for moral tragedy in which there are no good outcomes or choices–only “as good as possible.” They also leave out the category of moral heroism.  A woman who is raped and chooses to bear the child (and either raise the child or give it up for adoption) is morally heroic, trying bravely to redeem a horrible crime.  But those who would FORCE her to do this or say she is morally OBLIGATED are like Jesus’ characterization of the scribes:  giving others’ heavy burdens they do not share.  A woman who has a terminal pregnancy like the ones I described, who chooses to risk her life in order to show some love to a doomed baby is heroic.  But saying she MUST do that is deny her own value as a human person and moral agent. Moral heroes go beyond what is morally obligatory.  The pro-lifers do not seem to recognize this.

Put differently, it's important to remember the distinction between law and gospel. The law cannot command disinterested love, only the gospel can make that possible. "For your hardness of heart," (Mark 10: 5) some abortions ought to be legally permissible. At the same time, the Church's task is to offer people the means of grace (Word and Sacrament) to soften the heart, so that for the Christian, abortion becomes a viable option only in extraordinarily tragic situations, like those MWW notes in his post.

There's a lot of back and forth in the comment thread about reducing the number of abortions. Certainly there's much we can do as a society to make carrying children to term more viable (universal health care, a living wage, better adoption procedures). But perhaps we ought to legally limit abortions to just those hard cases Michael cites? Even if that were advisable, we can't, because of Roe vs. Wade. Many nations in supposedly godless Europe regulate abortion much more closely than the U.S.A.

Roe vs. Wade displays dubious legal logic, and I would be open to an argument for overturning it both for that reason and in order to allow "common sense" regulation of abortion that is simply impermissible in the U.S. today. But at the same time, no law can cover every eventuality. Some states would maintain the anything goes status quo, while others would ban the procedure outright. That, I think, would be disastrous.

But I'm open to being persuaded otherwise, and from all sides. So have at it.

"Imagining a pro-life America"

Ross Douthat:  being pro-life means, in the short term, being pro-big government.  In the long term, the disincentives to fornicate that would abound in a pro-life society will shrink the need for government programs.

I'm not so sure, but it's worth reading.  A bonus!  The comment thread is mostly not stark raving mad.

Icky

The link at the bottom of my earlier post on abortion illustrates an ongoing fight among pro-choicers about to what extent, if any, should the pro-choice movement acknowledge any moral ambiguity in the decision to get an abortion.  Lemieux's post is typical of much blogospheric mockery of "soft pro-choicers" for letting abortion's "ick factor" muddle their thinking about the legal and public policy implications of abandoning Roe. 

For some of them it seems to be the case that there is no ick factor associated with abortion.  It's a medical procedure like an appendectomy, the removal of unwanted and potentially dangerous tissue from the body. 

For others, it may be the fear that acknowledging the ick factor makes it more likely that abortion will once again be criminalized.  The only ick factor pro-choicers ought to acknowledge, they say, is the ickiness of back-alley abortions performed by quacks with coat hangers.

I can only look askance on the former opinion, and I think that the left's mockery of people like me demonstrates their tin ear on the subject. 

I also take exception to the latter.  Bill Clinton's amendment of the "Keep Abortion Safe and Legal" slogan to say "Safe, Legal and Rare" was politically successful, and not just because we can all agree that birth control is preferable to abortion because, in general, the less invasive a medical procedure, the better.  I think the word "rare" is a tip of the hat to people who do have moral qualms about abortion, and that means most people. 

As one writer once put it, abortion may now be a constitutional right, but it is not a right that we rejoice in like the right to vote or the right to be tried by a jury of one's peers.  It is the state's concession to the sinful, tragic world in which we live, in which neither society as a whole nor many individuals within it are prepared to extend the kind of hospitality to strangers that would make abortion unnecessary, and in which are there are genuine hard cases, medically and morally.

I think that Jesus's teaching on divorce, which would appear to be not immediately relevant to this issue, is in fact key.  He acknowledges that Deuteronomy 24: 1-4 is the law of the land and doesn't try to overturn it or revoke it.  But he adds that laws permitting divorce exist because of the hardness of the human heart, and that divorce was not what God intended for human beings when God created us male and female.  And for his community which lives under the law, he demands a much more strenuous ethic.

I do think that, given human nature, the prudent thing for a society to do would appear to be to provide for safe, legal access to abortion.  If my unwillingness to jump for joy about Roe vs. Wade, even if I think that the decision ought to stand, is occasion for mockery, well, that very mockery proves my point about the hardness of the human heart. 

But I don't think that for those who follow Jesus there should be any such thing as an unwanted pregnancy.  There may well be unplanned pregnancies which throw us for a loop, but the Spirit will help us.

More remembrances

It's not just MLK's birthday that's on the body politic's mind this week.  It's also the 35th anniversary of Roe vs. Wade.  Scott Lemieux has a three part series on why Roe was rightly decided.  In short:

1. the majority opinion in Roe was not an invention, but had both feet planted in venerable constitutional tradition;
2. the laws that Roe overturned were blatantly discriminatory, and the Roe decision thus compliments earlier Warren court decisions ending segregated schools, poll taxes, literacy tests and the like, and
3. contrary to conservative critiques of Roe, the majority opinion wasn't out in front of public opinion; it was state legislatures who were behind the curve on abortion policy.

Part two, which addresses point number two above, was most illuminating:

As I mentioned, abortion is without question a harder case than Griswold or Lawrence. I believe that women have a right to reproductive freedom, and unlike Byron White, I do not believe that abortion involves merely the "convenience" of a woman. But that isn't the end of the analysis. The reason for this is obvious: the potential argument that the fetus is human life that the state can protect, which goes beyond the consensual behavior of Griswold (or the severe invasion of Skinner.) Indeed, I would go so far as to say that if the argument that the fetus is a human life that must be protected is accepted, Roe is clearly wrong. If a state passed a law, based on a consensus view that the fetus was life and had to be protected, and was willing to enforce these laws equitably, as I judge I would uphold such a law as constitutional however much I disagreed with the underlying moral view.

But, of course, we can stop right there. The abortion laws struck down by Roe are not plausibly based on the premise that the fetus is a human life, and these laws were not enforced equitably. Let's take these two points separately:

1)Blackmun's opinion did a terrible job of both connecting its voluminous historical evidence to its legal arguments, and of tracing the extensive legal tradition that supported Roe. He did bring up one more important point, however: there is little evidence that state abortion laws, most of which dated from the late 19th century, were primarily concerned with fetal life. Both concern about the danger of the procedure (now, of course, obsolete) and patriarchal conceptions of female sexuality were more important. And, of course, this was true of even more recently revised abortion laws, and of current proposals for new abortion laws. As I have written before, abortion laws tend to be a legal, moral, and ethical shambles that are inexplicable unless their primary objective is regulating the sexual behavior of (some) women. Laws designed to protect fetal life have no reason to exclude women from punishment, or contain rape, incest or health-of-the-mother exceptions, or to permit women to obtain abortions across state lines. As the nature of these laws indicate; there is nothing remotely resembling a consensus that a fetus is a human life, and only a tiny minority of the minority that nominally accepts this position acts is a way that is consistent with this belief. For this reason, American abortion laws are directly comparable to Griswold and Lawrence: they are primarily attempts to regulate consensual sexual behavior. Perhaps these laws would pass constitutional muster if fairly applied. But this brings us to point number 2:

2)Abortion laws in the United States have never been applied equitably, or anything remotely approaching this. As I have written before, the definitive account can be seen in Chapter 2 of Mark Graber's Rethinking Abortion. When I say that abortion laws aren't equitably applied, I don't mean this in the sense that any law in any context short of utopia is unfairly applied. Rather, I mean that affluent white women had virtually universal de facto access to safe abortions performed by competent doctors in hospitals. Such grey market abortions could have been easily stopped--you don't have to march a respectable ob-gyn out of work in handcuffs many times to dissuade him, and these abortions left a paper trail. The laws weren't enforced because there was no social will to enforce them. Just as the effect of contraception laws was to prevent to distribution of free contraception to the poor, the effect of abortion laws was to deny abortion to poor women and women of color. It doesn't exactly require a radical reading of the due process and equal protection clauses of the 14th Amendment to see this legal framework as intolerable. When one considers how abortion laws are actually applied, the case for their constitutionality is extremely weak. In addition, this selective enforcement makes clear that protecting fetal life was not particularly important to legislatures (unless fetuses only become intrinsically valuable when they are carried by poor women or women of color.)

So my question is, Has the pro-life movement really moved beyond where state legislatures were in the 19th century when they wrote anti-abortion laws?  If it's not about punishing poor women, black women, Latino women, and Native American women for fornicating, but about the life of the unborn child, then serious pro-life legislation in a post-Roe would, it seems, have to prosecute both the pregnant woman as well as the doctor in all cases of abortion except when the mother's life is in danger.

I haven't heard many mainstream pro-life people calling for that.

Add to that the fact that the ire of the pro-life movement may be misplaced.  A whole lot of abortions are performed on women in their 20s and up, many of whom are married or are in stable, long term relationships:

Georgette Forney, who had an abortion when she was 16 and is now an anti-abortion campaigner leading Anglicans for Life, says she often sees economic pressures triggering abortions, even in middle-class families.

"In one situation, the husband was adamant that they were on track to pay for their two sons' college education and a third child would throw off his whole calculation," Forney recounted. "So that baby was aborted, and that woman was devastated. It was a five-year process to recover."

Forney said she also encountered a single mother who was worried she might lose custody of her daughter in light of a suit by the biological father. The woman then became pregnant, Forney said, and had an abortion in violation of her own beliefs because she feared having a second child would jeopardize prospects for keeping her daughter.

"We've begun to depend on abortions," Forney said. "We feel we have to choose between our unborn child and our born children."

Martha Girard, on the other hand, says she's appalled by the notion that women should lose the right to choose.

A hospital ultrasound technician from Pleasant Prairie, Wis., and a mother of three, Girard had an abortion two years ago, at 44, when she mistakenly thought she was too old to get pregnant. Having been through three difficult pregnancies previously and coping with a mentally disabled eldest son, she felt abortion was the prudent choice.

"I knew that this pregnancy would end up badly -- I could feel it -- and we've already got enough problems with the mentally ill son," Girard said.

The Journal of Family Issues published a report this month asserting that women often choose abortion because of their wish to be good parents.

That means women who have no children want the conditions to be right when they do, and women who already are mothers want to care for their existing children, said the lead author, Rachel Jones, a researcher with the Guttmacher Institute.

Now let me be clear.  Even if abortion should be legal, and I think it should, that does not mean that it is not a dubious moral act.  Many legal things are morally questionable, even reprehensible:  certain "no-fault" divorces, topless bars, preventive war, etc. 

Borrowing from Karl Barth's treatment of suicide, I would say that we need to meet the problem of abortion with the gospel and not the law.  Not "Thou shalt suffer this child to live," but "Thou mayest live with this child.  And we'll help you."

In the above citation the problems that led to abortion were flat out coercion by a husband, an unpredictable and potentially hostile legal system, and the financial and emotional burdens of caring for existing children.  I do believe that God can "make a way out of no way," and I think God uses ordinary people helping people to do that.  That means people helping empower women, giving them access to safe, reliable birth control, universal health care, and the whole "village" (pardon me) pitching in to raise the children.

There's too much law in the pro-life movement.  When one gets beyond the rhetoric of life and looks at specific legislative proposals, it still seems like it about "By God, you've made your bed, and you're going to lie in it."  I'm not on board with that.  And I think that pro-life people and soft pro-choice people really need to grapple with that, as well as with the legal and social points that Lemieux makes in his summary of Roe.

UPDATE:  In case you or I were thinking I was in Lemieux's hip pocket on this, read him mock me here (to the extent that he mocks this William Saletan article, which I pretty much agree with).