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The Cost of “Choice”
Edited by Erika Bachiochi
Encounter Books, San Francisco, 2004
This is a frankly partisan book, and though subtitled Women Evaluate the Impact of Abortion, it would be fair to say that positive claims for any impact are given short shrift, and the editor is someone who has changed her mind. Changed her mind in what sense? Perhaps the greatest difference between British and American attitudes – and I must make clear that this is not the same as British and American practices – is that while here we regard abortion as a range of moral options, Americans have been polarised by their legal system into only two: for or against. This is an American book (the experience of other countries is hardly mentioned), the editor is American; she was once for abortion and is now against it. Under all circumstances? It is fair to say that this not much discussed.
The landmark decision on abortion in the US was the Supreme Court ruling (which has been strengthened by several subsequent ones) in Roe v. Wade in 1973, five years after the Abortion Act was passed in this country. Both effectively legalised abortion on demand, at any stage in the pregnancy, so that it was it was perfectly permissible to kill someone who, if born, could survive if supported by present-day technology, or even without it (p. 6). Personally I would like to think that such cases are uncommon. However, the on-going US debate on “partial birth” abortion, where parturition is induced so that the emerging baby can more conveniently be killed (p. 19), suggests otherwise. Congress passed a law against it, which was vetoed by President Clinton, but signed by President Bush in 2003; it may yet fail at the Supreme Court, which in 2000 declared partial-birth abortion legal.
Although in this country the matter was debated in Parliament (though without its later ramifications being even suspected) and laid to rest when the Act that legalized abortion passed into law, in the US “the decision of Roe v. Wade launched a civic debacle… [when] the Court abruptly brought this process to a halt (p. xii)”. There is no doubt that this decision, tortuously argued from a “right to privacy” not mentioned, let alone enshrined, anywhere in the US Constitution, was correctly called by one of the dissenting judges “a power grab” and by another “an exercise in raw judicial power”. And if legislatures could be circumvented in this way, where would it all end? → Continue reading: Who pays the cost?
The federal court sitting in (of course) San Francisco has struck down the recent federal ban on “partial-birth abortion.”
First, I agree with this decision, but on federalism grounds, not the privacy grounds cited by the Court. Nowhere does the US Constitution grant the national government the power to ban any medical procedure, as far as I can tell. It is interesting that this particular basis for overturning the statute apparently never occurred to the (liberal/statist) federal court in San Fran. Liberal statists are horrified by any reference to the fact that the Constitution grants the national government very limited powers, as taking these limitations seriously would probably require either extensive amendment of the Constitution or the junking of over half of what the national government does.
Second, it is interesting to observe the politics around this decision. The statement by the abortion rights spokesman that whether a fetus feels pain is irrelevant to a woman’s right to choose is utterly tone-deaf, and seems to be telegraphing a belief that at no point does a fetus acquire personhood that would negate or need to be balanced off against the woman’s right to choose. That is a losing position with the American electorate, and probably explains the rather noticeable silence from the Kerry camp.
The doctors probably have the law, and the morality of it, about right according to this article. The seminal Roe decision granted/recognized a right to choose abortion up until the point of viability, and was basically silent after that. I am no abortion scholar, but I do not think that the Supreme Court has ever really expanded on this time period in any explicit way, although it has danced around it in a number of decisions on ancillary and peripheral issues. Doubtless the inveterate Samizdata commenters will refine my understanding of the law, but I think that viability is not a bad place to draw a line on abortion rights. The difficulty is, of course, that technology constantly pushes the point of viability backwards, but that is a discussion for another day.
However, whether the common medical understanding of abortion rights is correct in turn begs the Constitutional question of whether the US Supreme Court had any business overturning state laws on abortion in the first place. The underlying reasoning, relying as it does on “emanations” and “penumbras,” has been endlessly mocked, and rightly so, for it signalled a Court that no longer cared much what the words on the page said, but rather what they wished the words on the page said.
This in turn showed a Court much less concerned with what the Constitution says than with what the Court says. This disregard for the plain meaning of the Constitution, although arguably employed in the service of individual rights in the abortion cases, paved the way for such utter travesties as a Court upholding extensive and explicit restrictions on political speech. Very little of the US Constitution’s substantive provisions concerning the powers of government and the rights of citizens are still operative in any meaningful way, because the primary enforcer of the Constitution no longer cares to apply the plain language of that document.
State funding of abortions is, however, a completely different matter. The pro-choicers say it’s a matter of choice. Let it stay that way, then, without forcing people who oppose infanticide to fund it.
– Tomas Kohl
I suspect the constant trench warfare in American politics over abortion is somewhat mystifying to our overseas observers, and I think abortion poses some real philosophical problems for libertarians stemming from the unanswerable question of when a “fetus” becomes a “person.” Those issues aside, this David Frum blog entry is full of wisdom, not only on abortion, but on the dangers of ideological absolutism in matters political and social.
Now let me say right off: I am not pro-life. I think abortion ought to be legal for the first 12 weeks of a pregnancy and available to protect the health of the mother during the weeks thereafter. I don’t see this as a matter of fundamental human rights, so much as one of accommodating reality. I can’t defend Roe v. Wade as a legal decision, and I would be very glad to see abortion become much more rare than it now, but if the law attempts to suppress abortion entirely, it is the law that will fail, rather than abortion that will disappear. Please don’t email me about this: I have thought about this issue just as hard as you have, and I’m not going to change my mind.
But precisely because I believe in accommodating the realities of abortion, I think those on the pro-abortion side need to acknowledge that the no-concessions approach of the organized abortion lobby is catastrophically mistaken. Abortion rights would be much more secure if they were confined within reasonable limits that squared better with the conscience of the nation.
→ Continue reading: Accommodating reality
I have always taken what I regard to be a classically liberal and ruggedly secular approach to the issue of abortion, a matter which I feel is best dealt with by reference to degree rather than dogma.
It is for these reasons that I have (and still do) lean towards the view that abortion is a matter for the individual conscience rather than the dictates of the state. This does not mean that I think aborting a foetus is a good thing. It simply reflects my belief that a blanket prohibition would be a cure that proves to be worse than the disease.
However, there is abortion and then there is ‘partial-birth abortion’, a process that is conducted between the 20th and 26th week of gestation when the infant is dragged from the womb feet-first before being killed by a blow to the skull. For the life of me I cannot see how this barbaric process can be distinguished from murder most foul.
So I have no hesitation in endorsing British conservative Peter Cuthbertson in his welcome of this decision of the US Senate:
The Partial Birth Abortion Ban Act of 2003 received a 64-33 vote. It now heads to the Republican-led House, which passed the ban last year before it was stopped in the then-controlled Democratic Senate.
Peter has uploaded some photographic evidence of the horrific aftermath of a partial-birth abortion. He should make no apologies for doing so. That the truth is ugly and unpalatable is all the more reason for confronting it and it is not anti-liberty to protect a small human being from this brutal and undeserved fate.
The accumulation of medical information by the state is a bad idea for too many reasons to list here. The reason its being done is part of the desperate attempt to make the National Health Service work at any cost. For my part I look forward to the News of the World (a very downmarket British tabloid) informing us which cabinet minister’s wife has head lice, which one takes Prozac, who’s receiving treatment for haemorroids and which cabinet minister’s children won’t have the autism jab.
Of course it is rather difficult arguing against breach of doctor-patient confidentiality on pragmatic grounds: first national databases could be handy in a bio-warfare emergency, it would be handy for the state to know where the greatest threat of smallpox epidemics are. Second, lawyers caved in on this issue of client confidentiality, banks on financial records, now doctors. Oddly enough the most principled professionals are the media. Perhaps it makes a difference that journalists, unlike doctors or lawyers, aren’t working in a licensed sector: a journalist who rats on sources is competing with others who will protect theirs.
The existence of the blogsphere and web media provides a “back street” media which is what the medical profession needs right now. If we had a flourishing industry of back-street abortionists, state centralized records would be meaningless. I confess that’s the most unlikely argument I’ve ever put forward for banning abortions.
Chris Cooper’s Blog is slowly getting into its stride. It may never proceed at faster than a slow walk, which is fine by me. So far the postings have been longish and rather scholarly, in keeping with the new title at the top, Blogosophical Investigations. If Chris sets a slow pace but sticks to it, then all honour to him, I say. On current evidence I recommend a visit about once a week, with Friday being the day when the most seems to happen.
The latest posting is a meta-contextual comment on the abortion issue, which concludes thus:
There is no such thing as a right answer here. That’s not sitting on any fence: pointing to the existence of a hundred-foot high fence isn’t the same thing as sitting on it.
So chew on that, objectivists. It means that in a free society, people are going to divide into communities of divergent moralities, and the anti-abortionist ones are just going to have to live alongside communities of people whom they regard as murderers. As they already have to do, of course – but they’re not reconciled to the fact.
A week ago, there was a piece, with lengthy quotes, concerning the argument between Bjørn Lomborg and the Scientific American. No sitting on that fence either.
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