As a matter of first principle, yes. As a matter of law, no, and such compromises are frequently necessary. Ross Douthat explains (is it just me, or does he seem somehow less influential as a New York Times columnist than he was as a blogger):
The argument for unregulated abortion rests on the idea that where there are exceptions, there cannot be a rule. Because rape and incest can lead to pregnancy, because abortion can save women’s lives, because babies can be born into suffering and certain death, there should be no restrictions on abortion whatsoever.
As a matter of moral philosophy, this makes a certain sense. Either a fetus has a claim to life or it doesn’t. The circumstances of its conception and the state of its health shouldn’t enter into the equation.
But the law is a not a philosophy seminar. It’s the place where morality meets custom, and compromise, and common sense. And it can take account of tragic situations without universalizing their lessons.
Indeed, the argument that some abortions take place in particularly awful, particularly understandable circumstances is not a case against regulating abortion. It’s the beginning of precisely the kind of reasonable distinction-making that would produce a saner, stricter legal regime.
If 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. One reason there’s so much fierce argument about the latest of late-term abortions — Should there be a health exemption? A fetal deformity exemption? How broad should those exemptions be? — is that Americans aren’t permitted to debate anything else. Under current law, if you want to restrict abortion, post-viability procedures are the only kind you’re allowed to even regulate.
If abortion were returned to the democratic process, this landscape would change dramatically. Arguments about whether and how to restrict abortions in the second trimester — as many advanced democracies already do – would replace protests over the scope of third-trimester medical exemptions.
The result would be laws with more respect for human life, a culture less inflamed by a small number of tragic cases — and a political debate, God willing, unmarred by crimes like George Tiller’s murder.
I think the philosophy seminar quip is a little glib, but Douthat’s making a valuable point here. There are a number of reasons why abortion is the subject of such passionate debate, but one of the most significant is that Roe and Casey have essentially removed abortion regulation from the democratic process. The U.S. pro-life movement did not really exist in its current form prior to Roe. In most of Western Europe abortion is hardly on the radar screen politically; and it certainly isn’t the defining litmus test for holding a judgeship.
If liberals like President Obama were serious about being “moderate” on abortion, they would ackowledge that the first step toward moderation involves a rejection or significant modification of existing Supreme Court abortion precedent. Precedent, I might add, which overturned the laws of 46 states when it was enacted (I use the phrase advisedly). Of course President Obama isn’t serious about moderation, and has no intention of doing anything of the kind. If anything, his record suggests philosophy seminar style extreminism from the pro-choice side. Nevertheless, it is important to keep in mind that Roe and Casey, rather than unreasonable pro-lifers, are the real barriers to compromise on (and reduction of) abortion in the United States. To quote a childhood favorite, anyone who says differently is selling something.
Nevertheless, it is important to keep in mind that Roe and Casey, rather than unreasonable pro-lifers, are the real barriers to compromise (and reduction) of abortion in the United States.
Yup, exactly. This piece, like most of his stuff, is very good in that it gets to insightful points quickly without unncessary fluff.
Abortion was imposed by judicial fiat in an outrageous power grab by the courts. It belongs in the democratic process.
Once Roe is overturned, and I am confident it will be eventually, year by year we slowly hedge abortion in with ever-growing legislative restrictions state by state, while we continue our long term, but I think growingly successful, effort to convince the public that abortion is an evil that a civilized society must not tolerate. I am in favor of any restrictions on abortion. I look upon them as milestones to the ultimate goal of legal protection for all children in the womb.
Those, like Kmiec, who make the all-or-nothing argument that, since the Supreme Court isn’t likely to do the “REAL” pro-life thing and apply the 5th and 14th Amendments to the unborn, one might as well vote for the party fighting tooth and nail against any and all restrictions on abortion, sets an impossibly high standard for pro-lifers.
It is done purposefully. By taking overturning Roe off the table as a viable (no pun intended) pro-life option, the intent is to make voting for the pro-life party seem just as “pro-choice” as voting for the pro-abortion party. Kmiec explicitly argued as much during the election, claiming that McCain’s anti-Roe views, which would return abortion to the states, were equally as “pro-choice” as Obama’s never-met-an-abortion-he-didn’t-like-and-didn’t-want-to-constitutionally-protect-from-the-democratic-process views.
It would be returned to the states effectively. However, if there were a federal majority of pro-life members of Congress, a bill such as The Right to Life Act or other unborn-personhood legislation could effectively outlaw abortion nationwide.
The assumption that overturning Roe v. Wade will overturn the matter to the states, to remain at the state level isn’t a necessary assumption. If anything, supporters of legal abortion will immediately seek to protect their views from Washington, D.C.
If anything, those who advocate waiting for the culture “to change” strike me as similar to the “white moderates” addressed by Martin Luther King, Jr. in his Letter From Birmingham Jail.
Eric I think that for a HUman Right act to pass we would need more than a simple majority.
If it returns to the States I have a feeling the COurt would be wary of drastic regulations to protect or ban abortion via commerce clause
“Abortion was imposed by judicial fiat in an outrageous power grab by the courts. It belongs in the democratic process.”
The degree to which murder is decriminalized does NOT belong in the democratic process. Murder is murder is murder. I’m ok with chipping away, but the “compromise and reduction” that Mr. Douthat commends is total garbage. The same sort of garbage that made Roe possible with the Blackmun exception.
A personhood bill could make an end run around Roe. Why is this never acknowledged here?
Steve,
A personhood bill would not (successfully) make an end run around Roe. Roe says that women have a Constitutional right to abortion. Congressional legislation infringing on that ‘right,’ even a personhood bill, would be struck down to the extent it interfered with that right. There are really only two ways to ahieve more abortion restrictions: 1) A constitutional amendment; 2) Changing the composition of the Court.
Douthat’s piece is an effort to point out to a liberal audience (i.e. NYT readership) that Roe is the most serious obstacle to abortion compromise (which most liberals claim to want) in the United States. Even if you dislike the compromise you think he’s selling (which is undefined in the article btw), you should recognize that Douthat’s main objective here is doing spadework for overturning Roe. This is valuable work from a pro-life perspective, even if you would prefer to see different strategies emphasized.
“(If the) suggestion of personhood [of the preborn] is established, the [abortion rights] case, of course, collapses, for the fetus’ right to life is then guaranteed specifically by the [14th] Amendment.”
-Justice Blackmun in the Roe v. Wade decision
Steve,
As I said, even if Congress passed a law stating that fetuses are persons entitled to legal protection, I think the current Court would simply disregard it. The Court has held abortion is a fundamental right; in doing so, it has held that fetuses are not persons under the Constitution. A law passed by Congress cannot alter the meaning of the Constitution. Granted, the Court’s claim that abortion is a right guaranteed by the Constitution is based on very dubious reasoning, but correcting this mistake requires changing the composition of the Court.
Mr. Henry,
I suppose I’ll accept that premise since I know it frustrates you as much as it frustrates me.
That said, I think pushing a personhood bill is necessary, and the GOP’s failure to even attempt it makes them contemptible in my eyes.