There seems to be quite the fooferaw over responding to the Tiller murder developing between several bloggers that I respect: Publius and Hilzoy at ObsidianWings, and Megan McArdle.  A quick summary: 

Agreeing with an Ezra Klein post in essence calling (correctly) the murder an act of political terrorism, Hilzoy wrote that Congress should respond to the murder by repealing most restrictions on late-term dilation and extraction (ie, repeal the Partial-Birth Abortion Act), require training in late-term abortion techniques for OB-GYN certification, and require that any hospital provide a woman with the opportunity to have a late-term abortion under certain circumstances.  The reason this should be done, according to Hilzoy, is to make sure that this act of terrorism not only doesn’t pay, but actually hurts the cause.

Megan, who describes herself as pro-choice (although that term is susceptible to multiple meanings), responded by saying that: (1) if you believe abortion is murder, then the murder of Tiller “makes total sense”; and (2) Hilzoy’s proposed response is “doubling down” on the very policies that drove the murderer to terrorism – in essence, it repeats the mistakes the US made in response to 9/11. 

In follow-up, Publius and Hilzoy (and again in response to another Megan response) accusing Megan of justifying the murder, and also saying that they are not proposing “doubling-down” in the face of terrorism, but instead only want to reinforce a settled constitutional right to an abortion.  They further argue that therefore what they are proposing is entirely distinct from our response to terrorism.  Finally, Megan has two particularly excellent final contributions here and here.

Unfortunately, I think Publius and Hilzoy are way off the mark on this.  First, Megan did not state that she thought the murder was justified if you accept the premise that abortion=murder – only that she could understand the impulse towards thinking that the ends justified the means in such a circumstance.  She further argued that the fact that such an impulse is understandable – though I emphasize NOT justifiable – is a sign of a deep political failure in our abortion debate. 

More importantly, though, what Hilzoy and Publius advocate misunderstands the nature of what they are proposing, the central holdings in Roe and Casey, and just how similar their proposed response appears to the very responses they (correctly, in my view) criticize with respect to terrorism. 

Let’s be clear – Hilzoy is not proposing merely increasing security for late-term abortion providers, a response that is not only understandable, but also entirely correct.  Instead, she is proposing the removal of those restrictions on late-term abortion that do exist, combined with an outright mandate that such abortions be provided or available from just about any OB-GYN practitioner.  This is the equivalent of responding to 9/11 by quadrupling our presence in Saudi Arabia.   Worse, late-term abortion – as opposed to earlier-term abortions – is something that an overwhelming majority of Americans oppose, not just ardent movement pro-lifers, on the grounds that a majority of Americans view late-term fetuses as something approaching fully human.  In making such procedures even more legal than they already are, Hilzoy’s proposed response risks “radicalizing” ever-more members of this opposition.

Nor is Hilzoy’s proposed response justified on the grounds that it is merely reinforcing a settled right, an argument that misunderstands the nature of the opposition to late-term abortion.  Although both Hilzoy and Publius claim to understand that the difference between pro-lifers and pro-choicers is over what constitutes “life,” they both – though especially Publius – seem to suggest that the debate over abortion cannot be resolved without removing the “right to privacy” from our Constitutional jurisprudence.  While there are certainly many in the pro-life movement who have a problem with the “right to privacy” parts of Roe, this is not remotely why the issue of abortion continues to be so hotly contested.  One could absolutely support, or at least accept without lasting bitterness, the idea of a right to privacy while still opposing abortion (and definitely while still opposing late-term abortion).  So far as I know, there isn’t a passionate and large movement dedicated to closing Trojan factories due to their opposition to Griswold (I’m aware there are some who probably are passionate about doing so, but we’re talking about a much smaller group than those who are passionate about shutting down abortion clinics).  Conversely, I don’t see any pro-choicers passionately claiming that the right to privacy extends to a mother’s right to kill her own children.

No, at root, the trouble with Roe and its progeny has always been that it drew an arbitrary line as to where personhood begins – a line that Justice Blackmun himself admitted was necessarily arbitrary.  The drawing of such a line has more in common with the Dred Scott decision than pro-choicers are willing to admit in the sense that it usurped a locality’s authority to define who was and was not a “person” for purposes of that locality.  That’s not to say that I think Roe is in the same ballpark as Dred Scott in terms of the egregiousness of its flaws, only that the problems caused by those flaws have a similar source – it takes a special kind of blindness to reality to define someone as not a “person” simply because of their race compared to the understandable difficulties in figuring out when a fetus becomes a human. 

Still, that’s why Roe continues to engender such passion, and sadly indefensible violence as well – it removed a decision historically and properly the role of the legislature and/or localities, and turned it into a settled question of constitutional law despite acknowledging that the Constitution provides little guidance as to how to define a “person,” and absolutely no guidance on how to define “life.”   In the process, the Court removed what has always been a political question almost entirely from the political process short of a Constitutional amendment.  I’ve long argued (and apparently at the time of Roe, now-Justice Ginsburg would have agreed) that Roe’s compromise (particularly as revised by Casey) would have become the law of the land in almost all states in relatively short order through ordinary democratic processes.  Had this happened, I think opposition to abortion would be no more violent than, say, the opposition of many Catholic groups to the death penalty, where there are clearly accessible political processes to overturn these decisions. 

But even with all of that aside, Hilzoy and Publius ignore that the “right to privacy” has never been held to extend to provide absolute protection against restrictions on late-term abortions.  Indeed,  the very act that Hilzoy wishes to largely repeal, the Partial-Birth Abortion Act, has been specifically upheld as constitutional by the Supreme Court.    Thus, what Hilzoy is proposing is not merely the protection of a clearly established Constitutional right as interpreted by the Supreme Court – instead, it is the expansion of the right to an abortion beyond the already-controversial parameters of Roe and Casey.  Furthermore, in mandating training in late-term abortion for certification as an OB-GYN and mandating provision of late-term abortion by all hospitals, Hilzoy’s proposal goes to another level entirely – it holds the right to an abortion to be more important than a doctor’s right to act in accordance with her own ethics.  Indeed, to the extent that doctor might view the late-term fetus as essentially human, it would even go so far as to force that doctor to violate their Hippocratic Oath. 

If Hilzoy and Publius think that this is still good policy in its own right, fine – that is their honestly held opinion.  Where they go off the reservation, however, is in suggesting that these policy proposals are an appropriate response to terrorism.

Larison argues, contra Linker (and me), that overturning Roe wouldn’t end the culture wars with respect to abortion, but would instead merely decentralize them and make pro-life voters even more solidly Republican:

It would decentralize the culture war and make it part of democratic debate in each state, which means that the issue would retreat from debates in presidential elections and in Congress but become even more intense as an issue in state legislative and gubernatorial elections. It might be for the next few decades that most states would maintain legalized abortion with few restrictions, but the pressure to change that in many states would be constant and intense. The more politicized and involved in the democratic process a contentious issue becomes, the more it becomes the basis for identity politics and polarization. There is certain “damned if you do, damned if you don’t” quality to this: keeping the issue as a matter for the judiciary and keeping Roe in place generates tremendous opposition and perpetuates the culture war, but overturning Roe would probably intensify the culture war.

I take Larison’s point, but I’m not convinced.  The problem I have with this argument is that it ignores the way in which Roe (and now Casey)’s arbitrary line drawing has the effect of uniting both the pro-life and pro-choice sides of the issue.  As I said in my previous post on this issue, this line drawing ensures that the federal courts are going to have to continue revisiting Roe almost ad infinitum, which guarantees that the issue will remain on center stage in the culture wars for decades to come, even as it continues to accelerate the politicization of the judiciary.   

But it also does something else: by drawing arbitrary lines, Roe ensures that everyone with an opinion must either identify as “pro-choice” or “pro-life,” even though as a policy matter, very few Americans favor unfettered access to abortion or near-absolute restrictions on abortion.  By casting the debate as “pro-choice” vs. “pro-life,” Roe ensures that the only voices with influence in the debate are these relatively few absolutists, who more or less win by default the portions of the mushy middle that are on their side of the arbitrary Roe/Casey lines.

If you overturn Roe and send the issue back to the states, you put an end to this.  In most places, the pro-choice and pro-life absolutists will no longer find themselves with quite as much power, as the majority in the mushy middle will wind up crafting most state regulations.  Simply put, sending abortion back to the states would have the effect of drastically reducing the unity that exists within the two identity groups. 

In some states, you would no doubt wind up with the absolutists of one variety or another dominating the debate and securing pretty clear victories.  But in those states, it’s probably safe to assume that the number of absolutists on the losing side will be very small and not terribly vocal to begin with.  This means that even in those states that implement the most extreme policies (of one variety or another), there really won’t be the amount of contentiousness that we see on the issue on a national scale, where the absolutists of both sides are more or less in equilibrium.

And while you can certainly expect the pro-choice movement to mount a pretty vocal campaign to reinstate Roe, this campaign will be unlikely to succeed and I think will peter out within a few years.  First, any decision overturning Roe would of necessity present a legal clarity that would more or less remove the issue from the federal courts system, thereby preventing any serious challenges to the new regime that would have a legitimate chance to reinstate Roe.  Second is the fact that in the states where the bulk of pro-choicers reside, the pro-choice side would likely achieve quite satisfactory legislative results, lessening the motive to vocally push to reinstate Roe. 

But, as I suggest above, the most important thing is that sending abortion back to the states would drastically split both the “pro-choice” and “pro-life” sides of the debate, as those majority in the mushy middle no longer will need to identify strictly with either side.

In the comments to Chris’ excellent post on Roe v. Wade and the culture wars, I wrote:

…The issue, fundamentally, is whether Roe was legally and Constitutionally correct; on that point, you would be surprised the number of legal scholars who have criticized its reasoning.

Importantly, Roe did not define personhood as beginning only at birth for purposes of abortions; nor, obviously, did it define personhood as beginning at conception. Instead, it sought to draw a line between personhood and non-personhood that was inherently arbitrary [N/B: Justice Blackmun's papers explicitly acknowledge this] in a way that defining it as beginning at birth or at conception would not have been….

But this, to me, is the great problem with Roe – Courts should not put themselves in the position of drawing fundamentally arbitrary lines, which is the province of the legislature.

To which Freddie responded:

No. That was the issue while the decision was being decided. Now the issue is that abortion foes don’t have the popular support to pass a constitutional amendment to change the law.

To a point, I agree: it may well be that this is the issue for many, even most, abortion foes, as well as for many, even most, supporters of Roe.  This is largely why Roe continues to play such a central role in the Culture Wars.

But the shoddy reasoning of Roe very much made this inevitable, and ensures it will continue for quite some time. (For a pro-choice legal scholar’s explanation of why that reasoning was so shoddy and problematic, see this legendary law review article by John Hart Ely written shortly after Roe). 

First, Roe did not occur in a vacuum – it has precedential effects that can go far beyond the issue of abortion law.   More importantly, within the arena of reproductive rights law, its arbitrariness and incoherence create a lot of unnecessary confusion for all sides, confusion that ensures issues related to abortion will continue to make their way through the courts for a very long time – and will thus allow Roe to remain at the center of the Culture Wars.  

And this last leads to the biggest problem of all: Roe’s central place in exacerbating the politicization of the judiciary. 

[Read more →]

Damon Linker with a followup on the intra-left argument about whether Obama will end the culture war with a piece today in TNR.  He responds to the question of whether Obama can indeed heal this divide looking at three hot-button issues:  gay rights/marriage (which the League has addressed in various forms, click the series link to the right), civil religion-separation of church & state, and abortion.

I think Linker is strongest (and most sharply critical of some big name voices on the left) when it comes to abortion.

Abortion. And here I think that liberals — including conscientious and fair-minded liberals like Tim and Ed — show that they just don’t grasp the depth of the problem, and how it very well might keep the culture war alive for a very long time to come. The problem has to do with the Constitution — our nation’s fundamental law. It claims to speak with the voice of all Americans — “We the People.” The provisions contained within the document express what all of us (tacitly) affirm to be the ground rules or background assumptions for public life in the United States. It is a statement of our political identity as a nation.

Prior to Roe v. Wade, the Constitution took no stand on abortion. Instead, each state was allowed to resolve the issue (imperfectly) in its own way while the country as a whole — its fundamental law — remained silent on the issue. (This, by the way, is also how the issue is handled in socially liberal Western Europe, where democratically elected legislatures readily place modest restrictions on abortion that would never be allowed to stand under current American constitutional law.)

But all of this changed with Roe. Some Americans believe that an abortion is an act of lethal violence against an innocent human being whose rights (like everyone else’s) should be protected by the state. Other Americans believe that the only legally relevant moral considerations in an abortion are the wishes of the pregnant woman — which of course presumes that the fetus is not a human being in need of protection against lethal violence. These are contrary and incompatible metaphysical assumptions about matters of life and death and human dignity. On January 22, 1973, the Supreme Court declared that the fundamental law of the United States affirms the position of the second group and rejects the views of the first. On that day, the Constitution ceased to be neutral on this matter of metaphysics.***

Linker says that when the issue becomes constitutionalized–i.e. ripped from political democratic electoral process–it becomes essentially frozen.  The pushback or alternative group (the self-identified pro-life in this case) are therefore probably best seen (in Linker’s words) as an identity politics movement. This is an extremely relevant point given that a constitutionalization process is now being deployed for abortion via international law through the language of human rights.

Linker’s answer to the question of how liberals could win and diffuse the culture war simultaneously will not appear to many–either right or left who accept the argument of a right to privacy constitutionally–as a victory but rather a self-inflincted wound. [Read more →]