Reacting to the Rhetoric (unfinished)

Dobbs v. Jackson Women's Health Organization and the public conversation...

A First Impression

          When I was younger (like early to mid-adolescent) I firmly believed that abortions should be criminalized everywhere in the United States. I took a very legalistic approach to the issue, more or less as follows: the state should protect the rights of its citizens and while fetuses aren’t fully formed people with apparent consciousness, neither are infants or the comatose and the borders of legality had to be drawn distinctly (especially when it came to the most basic role of the state) and conception was the only clear place to draw this border.

          As I grew older I realized that the law is full of gradations and blurry boundaries, and that it ultimately exists to promote a just and happy society, and the public policy interests in favor of abortion were overwhelming, so I changed my stance and I remain pro-choice today.

          This is an issue (perhaps more than any other) where the two sides (for there are only two basic stances, with a spectrum of compromise policy positions between them) speak right past each other. Before I lay out these two positions and their attendant worldviews, I want to eliminate all the rhetoric and arguments that seem specious, wrong, irrelevant, or made in bad faith. I will ignore those arguments that have no logical or evidentiary validity or are irrelevant, such as the idea that Planned Parenthood traffics in the tissue of aborted fetuses.

1.)   (PRO LIFE) Abortion is tied to eugenics - This has some historical validity but it’s irrelevant in today’s debate. Eugenics was once a firmly established part of the medical and legal establishment of the West and there are many policies and ideas tied to it. No one that I’ve encountered supports legal abortions because they are disproportionately done on black Americans. The fact that this Supreme Court decision referenced this argument is frankly embarrassing. People are pro-choice because they feel that women will be hurt and restricted by restricting access to abortion, not because they are secretly promoting genocide.

2.)   (PRO CHOICE) Men just want to control women’s bodies – This is historically true and is probably true in some partial and general sense even today but it’s not what drives the pro-life movement. If control over women was the driving motivation, then why are these ideologues only focused on pregnant women? Surely they would want to control women’s freedom of movement and dating and employment liberties and there is no indication that these possibilities have any popular support, while criminalizing abortion has 40-45% support across the United States. About half of pro-life people in this country are women as well. This isn’t a movement secretly motivated by sexual oppression-it’s mostly a religious one (the relationship between religion and sexual oppression isn’t negligible, but that’s not our topic). Pro-life people believe that fetuses are humans that deserve the protection of the state. If you believed that there should be no legal distinction between a fetus and a 2-month old infant, would you not also support the protection of the fetus? There is no sexism necessary to hold that view. Unfortunately, abortion restrictions are sexist in practice, because women are the only people who can become pregnant, while all pregnancies are caused by men. To say that the motivations for those restrictions are sexist is like saying that outlawing murder is sexist since men tend to be more aggressive and violent (in all times, places, and cultures) and will therefore be penalized at a massively disproportionate rate. If you believe that murder is anti-social then you support its criminalization. No sexism required.

3.)   (PRO CHOICE) Men’s opinions on abortion are irrelevant – this might be true in SPECIFIC cases but as a general political position it’s indefensible. We all get to vote on representatives based on our stance of issues and how we think proposals will impact ourselves and the wider society. Veterans don’t get special weight when voting on foreign policy, black Americans don’t get voting privileges when it comes to issues of racial discrimination, etc. If you’re a part of an affected demographic or interest group then it’s incumbent upon you to convince others to support your ideas. That’s how democracy works. To see how illogical this stance is, let’s interrogate it further. If men shouldn’t have an opinion on abortion then pro-choice men should be just as dismissed as pro-life ones. Instead, this is a generally way to discredit only pro-life men’s opinions. Perhaps they should have more empathy, but (an awkward fact for feminists) this is not primarily a sexually-based opinion. The differences between men and women regarding abortion are much less than the differences between conservatives and non- or between evangelicals and non-. There are tens of millions of pro-life women in the United States. Should their opinion be given priority over the (much larger) number of pro-choice men? And if women are uniquely privileged to state opinions on this issue, why? Because they might become pregnant? In that case infertile women should not have a say. Because they’ve been pregnant? In that case menopausal women should not have a say. This idea lacks rigor.

4.)    

5.)   (PRO CHOICE) Pro-life people aren’t REALLY pro-life because they don’t support money for healthcare or maternity leave, etc. – this has some validity (in my mind) but they’re separate issues. There’s no inherent contradiction between taking a religious view that human life, worthy of full legal protection, begins at conception, and the idea that the state should have a small role in the lives of people (or in the idea that murderers should be put to death). Pro-life doesn’t mean pro-‘government funded medicine’ or pro-‘clemency for death row inmates’. It indicates that the speaker supports the idea of the fetus as a legal human.

There are legitimate concerns that this will swell the ranks of children in foster care, and those waiting for adoptions, and victimized by neglect, and I don’t think any serious person would label these effects as anything but certain in the aftermath of this ruling. Nevertheless, I believe a pro-life person would say that the answer is not to kill those children (even in the womb) but to try to improve their lives.

Now for the decision: Dobbs was a bad ruling. The majority held that there is no historical tradition of abortion rights in the US. That might be true (before 1960) but there was no legal protection for black patrons and employees and home buyers from racial discrimination either. The role of the Supreme Court is to interpret the rights and enumerated powers in the Constitution and the argument in favor of a nationwide regime of (limited) protection for legal abortion was that there was an implicit right to privacy in the Constitution and that right includes the right to make private decisions with medical providers free of an overreaching state.

Unfortunately Roe v. Wade (1973) was also a bad ruling in my opinion. It used a penumbra theory of legal rights to expand rights interpretations that had already been expanded to the breaking point. Let me be clear: I believe that abortion should be legal across the United States. The question for that court was whether a generous reading of the Constitution could lead to that and, at the time, I believe the answer was no. Abortion was already being legalized, state by state, and wasn’t considered a divisive political issue. Roe galvanized evangelicals and turned them to the right (that turn didn’t become a political reality until the early 1980’s). Ironically, Roe (probably moe than any other single issue over the past 50 years) created a reactionary movement of religiously-motivated political activists comfortable imposing their values on the wider society. I believe that abortion should be legal but I am just one voter and I don’t believe that it is protected by the Constitution. It should have been left to the voters of each state to decide, as it will now.

Dobbs was a bad decision, even in the light of all that, because it overturned 50 years of precedent (completely ignoring stare decisis, as the dissenting opinion noted) and its reasons are not persuasive. According to the decision Roe imposed an oppressive regime on the country. It’s only oppressive if you’re a state government official who wants to legalize abortion. For the millions of women who want the right to an abortion it’s actually the opposite of oppressive. It’s liberatory. The Dobbs majority said that abortion legalization was divisive, but their decision is far more so. Abortion is a heated topic, but comfortable majorities of every major demographic in the United States (except evangelicals and extremely conservative people) believe that it should be legal. This decision hasn’t healed the division-it’s badly deepened it.

I also believe that if you’re pro-life you are free to be so. You should be allowed to consider abortion murder and to try to persuade pregnant women to carry their babies to term and to support those decisions. You could raise money and pay every pregnant woman $20,000 (or whatever) to carry their baby to term. Not interested? Then maybe you’re not willing to act as if aboprtion is murder, and maybe the state shouldn’t either.

At the end of the day, the law (as I see it) is not a vehicle to enforce right and wrong (especially not narrow religious interpretations of right and wrong). It’s a social mechanism to enforce order and common values SOLELY to promote freedom and well-being among our citizens. Protecting Constitutional rights isn’t important because that’s a sacred duty-it’s important because without those rights we will slide towards a more brutal and arbitrary state. Protecting human life isn’t important because God has given each human life worth (regardless of what some of the founders thought). It’s important because a society that doesn’t protect it becomes cruel and dangerous. Abortion has been more or less legal for 50 years and our society has become much LESS cruel and dangerous in that time. If there was some possible harm in allowing millions of abortions we would have felt it by the 1980’s. Instead, abortion is a safe and medically-sound procedure that has only had benefits for our citizens. It has ended the lives of many fetuses, but that’s only an issue if you believe they have a ‘soul’ and that is a private religious belief. It’s not one that should dictate policy or law. Souls have no perceptible reality in our public life. Autonomous bodies do, and this ruling hurts the latter to benefit some vaguely articulated sense of the former.

This is one more point I want to make. It’s actually the most important in my opinion, and it’s the direction the pro-choice movement should take in opposing the pro-life worldview. The pro-life position is essentially religious, and any effort to contend with it that does not acknowledge this is completely lacking. YET, there is no clear religious dictate that says that life begins at conception. It certainly (and explicitly) does not in Judaism. Catholicism has held that it does, but they have also considered birth control to be a sin (another idea for which there is no real Biblical evidence). If abortion was roundly condemned in the Old and New Testaments then I could understand why so many religious people were pro-life, but it simply is not. This is an emotional subject that has been weaponized by a political minority in the United States to rally electoral support.

To oppose it, electoral support must be rallies in the opposite direction. Pro-life people must be convinced (which means validating and acknowledging their ideas and values), money must be raised, representatives and governors must be elected. This decision doesn’t criminalize abortion in America. It simply returns the question to the state level. Rights always must be fought for, even at the risk of death. This has been a reality for some Americans and it was true historically. In this case, it’s true for everyone, today.