On Abortion

A long time ago, I heard a Boston talk-show host explain why he never discusses abortion on the air. He said, roughly, that 1) everyone already has an opinion; 2) nobody is about to change their mind; and 3) there hasn’t been much new added to the debate in about 20 years.

Now, each of those are pretty much demonstrably false, on the face, but they do sum up why I tend to avoid the discussion: it tends to generate a hell of a lot of heat, but almost no light. It tends to rapidly degenerate into a lot of shouting and howling and fury, but almost no actual dialogue, no give and take, no thoughtful exchanges. There isn’t going to be some sudden flash of insight, some great revelation, that will switch a believer in one side over to the other.

I’m going to set that aside, and spell out my position on abortion, and why I believe the way I do. And I’m going to leave the comments open at first – but I will close down the comments if I think things have gotten out of control. I am not interested in hearing the howling arguments and vitriol that this subject tends to provoke. I have walked through an Operation Rescue picket (I was merely passing by the Planned Parenthood office – it was between my home and my work), and I once dated a staunch pro-choicer. I’ve also known women who’ve had abortions – but, both through my own paranoia and a bit of good luck here and there, never been involved in one directly. There isn’t much I haven’t heard before.

I often describe myself as “squishily pro-choice,” and that’s the best summation I’ve found for my extremely un-philosophical, apolitical, flying-by-the-seat-of-my-pants judgment on this most contentious issue.

(A brief aside on terminology here: I’m going to use the terms “pro-life” and “pro-choice” for the two sides. As a general rule, I tend to refer to people by the terms they choose to define themselves as a courtesy.)

Generally, I do find the pro-life side arguments compelling. They tend to focus on concrete details about the whole process, including scientific and medical evidence. On the other hand, the pro-choice side deals in abstractions – and the more abstract, the better. They seem to practice what George Carlin routinely denounced as “anaesthetizing language,” and that offends me.

As disturbing as it is for me to admit, I find that Bill Clinton summed it up best when he said that he favored abortion be “safe, legal, and rare.” But where he didn’t actually do anything to demonstrate his belief in it, I found it the least worst solution.

I support most restrictions proposed on abortion by the various pro-life groups. I think that abortion should not be considered different from many other medical procedures, so things like parental notification laws are entirely reasonable and sensible (as long as alternatives, like a court’s approval, are provided). I think that certain procedures that have been categorized as “barbaric” – such as partial-birth abortion and the circumstances that prompted the “Born Alive Infant Protection Act” – can and should be restricted or banned.

Another restriction I would respect would be a hard deadline. There must be a point where we say “no, the fetus has developed too far; it’s too late.” An old standard was “viability” — the point where the fetus could survive outside the mother’s womb. That has a certain logic and appeal; unfortunately, it is not a fixed point. It seems every month we have another news story of an even-earlier fetus surviving. An alternative I have tossed around is brain activity. That is currently one of the legal definition of death, so that has a certain elegance and symmetry.

Other restrictions put forth, though, are simple, transparent attempts to institute back-door bans to abortion. The mandatory “counseling sessions” before an abortion. Waiting periods. “Educational” materials. Zoning restrictions. Limiting abortions to hospitals. Those are ones that I can not and will not support.

And then there are those on the pro-choice side who also play such games with the law. Most people agree with what I’ve dubbed “the big three” exceptions to abortion on demand – rape, incest, and the life of the mother. Pro-choice activists have perverted the last one to mean “the lifestyle” of the mother, or to define “depression” or other such sophistries.

So, if I do side with the pro-life side on so many things, why don’t I support an outright ban on abortion?

Because I simply don’t think it can work.

One of my core political beliefs is pragmatism. I don’t like “symbolic” gestures when it comes to law. It is my staunch belief that the law must mean something, that all laws must mean something. The law is a hugely complex tapestry, and all laws are dependent on all other laws for our society to hold together. A law that is unenforced – or, worse, unenforceable – weakens the respect for the law in general, and weakens all other laws.

And I just don’t think that an all-out ban on abortion is feasible.

Here it is, in a nutshell: when something is made illegal, that means that there is a penalty exacted by society if one commits that act. (And are caught, tried, and convicted of doing so, of course.) So, what should the penalties be for soliciting and performing abortions?

Well, if you listen to the core argument of the pro-life side, an abortion is the deliberate, willful killing of a human being. We have laws about that; it’s called “murder.” Such murders are usually punished by the most severe punishments allowed by law – in many states, that includes execution. And soliciting such a murder is most often held as just as heinous a deed, incurring the same penalties as actually committing the murder.

So, it seems to me that, if we follow the logic of the pro-life side, any doctor who performs an abortion ought to be locked up for life, or put to death. And the same goes for the woman who sought out the abortion. Because if abortion is murder, then it’s murder for hire.

So, who’s in favor of that? Apart from Eric Rudolph and a few other psychotic assholes, very few. Most pro-lifers get very uncomfortable when you press them for details on just how they would implement their legal ban. In fact, they remind me a lot of liberals when confronted with issues like gun violence or drugs – they seem to think that if you just pass a law and say something is illegal, it’ll just go away.

News flash: things don’t work that way. Never have, never will.

Also, enforcement will be a cast-iron bitch. Abortion will be very much like prostitution: a “victimless” crime, in the sense that there will be no complaining party to call in the cops and little if no evidence of it having taken place. It will take law enforcement actively seeking out abortionists, possibly even setting up “sting” operations to catch them. And I just don’t see that as being a very high priority to most cops.

The first thing we need to do, though, is overturn Roe v. Wade. I have yet to hear anyone give a spirited defense to the legal reasoning behind that decision. Indeed, it’s a pretty safe assumption that most people who agree with the legal reasoning behind Roe v. Wade, finding a clear “right” to an abortion in the Constitution, tend to have remarkable difficulty in seeing an individual right to bear arms in the 2nd Amendment.

Overturning Roe would not, in a flash, criminalize abortion. Instead, it would simply revert the matter to the several states – in accordance with the 10th Amendment, which states “(t)he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

So yeah, throw the matter back to the states. Let the state legislatures handle the matter. It never should have been a federal concern in the first place. Let the matter be decided by the people, through their elected officials. Let us have fifty different legal laboratories, fifty different legislatures trying their hands at finding the best compromise, the best solution to this dilemma.

Some states – like Utah, I suspect – will impose absolute bans, or such strong restrictions as to be de facto bans. Other states – Massachusetts comes to mind, as well as possibly Minnesota – might even go so far as to offer publicly-funded abortions.

There will be many, many more fights in the future. But the difference will be that these will actually mean something. Things might actually change as a result of the arguments. Politicians will have to not only take a stand, but demonstrate the courage of their stated convictions. Laws and rules and regulations will be tried and tested. Some will pass; others will be found wanting.

Winston Churchill – that fount of eminently quotable quotes – once said that “Americans can always be counted on to do the right thing…after they have exhausted all other possibilities.”

For 35 years, we’ve essentially put the abortion issue on hold. Oh, sure, we’ve argued, blustered, yelled, screamed, and whatnot, but in the end both sides have engaged in 35 years of political masturbation.

Quite frankly, I’m bored with the whole sound and fury, which has, indeed, signified nothing. I say let the two sides fight it out – for real – and see which side prevails in the court of public opinion.

That, to me, is the only true American way.

Stephanie Tubbs Jones in Critical Condition
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  1. Acksiom August 22, 2008
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