Abortion: Drawing the Line
Ross Douthat, examining the controversy over late-term abortions that was brought back into the public spotlight with the murder of Dr. George Tiller, observes:
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.
I think that’s right. Intellectually, it’s impossible to justify both forbidding abortion because we deem it the killing of a human being and yet allowing exceptions if the father is a rapist or pedophile. Because those cases are so extreme — and, frankly, rare — many are nonetheless willing to grant that exception.
Beyond that, I agree with Ross’ larger point, discussed in parts of the column I didn’t excerpt, that this should be a matter for public debate and consensus rather than judicial dictat. The fact that the Court made up, out of whole cloth, a Constitutional Right to Abortion in 1973 is the primary reason this issue is fought over in such a polarizing, shrill, uncivil manner.
UPDATE: Freddie objects to Douthat’s suggestion that abortion has been taken out of the democratic process.
Setting aside the banal fact that the judicial system is a part of our democratic process, there is a clear, straightforward and well-known way to overturn Roe v. Wade— pass a constitutional amendment criminalizing abortion. That’s how you override Supreme Court decisions; that’s how Dred Scott was effectively overturned. That’s how the federal income tax was passed. There’s a method for overturning Supreme Court law you don’t like, it’s well known, it’s time tested, and it’s as open to abortion foes as it is to anyone else. If anything, a constitutional amendment is more democratic, because it has to be approved by a larger number of representatives and clear more hurdles before it passes.
Under that logic, however, EVERYTHING is theoretically part of the democratic process.
The Constitution was itself essentially an amendment to the Articles of Confederation and passed according to strict guidelines. Subsequently, it has been formally amended 27 times, with 13 of those coming as as two blocs (the Bill of Rights and post-Civil War amendments). The problem with Roe and other clearly activist rulings by the Supreme Court is that it bypasses this process, creating a de facto sitting constitutional convention of nine judges — who then need only a simple majority! To say that, well, the citizenry can simply assemble a huge supermajority and go through a labyrinthine process to overturn the dictat of unelected judges is well beyond the scope of democracy.
To clarify a side discussion going on in the comments, this is entirely a discussion about process rather than results. As a matter of public policy, I’m not horribly distressed with the current state of abortion law, which the Supremes have amended dozens of times since Roe and is based on fetal viability and recognizes the right of society to impose certain limits, especially in late term and with respect to abortions by minor children.
Yes, I have noticed that political discourse in this country over issues not subject to judicial fiat is characterized by sober, thoughtful discussion.
People are people and they’re not always logical or thoughtful. But there’s no issue more polarizing in our discourse than abortion and it’s one that sprang onto the national stage in 1973.
I’m not entirely certain that the debate over abortion would be less polarized in the absence of Roe v. Wade. Our entire discourse is polarized right now.
This is a shibboleth among conservatives: The Roe decision came out of nowhere. How could it be legitimate? Of course, the truth is that Roe was a rational if not inevitable consequence of the Supreme Court’s decisions on right to personal autonomy – shorthanded as the right to privacy – especially in areas such as reproduction. One could argue whether Roe was a reasonable application of the right to privacy, or whether the trimester framework is an appropriate way to balance individual rights and government interests, but I suppose it’s just easier to dismiss the case as being made up out of whole cloth.
Am I missing something? Are there any serious political types arguing for “unregulated abortion”? Douthat’s straw man is evident even before he gets to his case.
In fact, those who argue that abortion should be banned are the ones actually arguing for “unregulated abortions.”
Which itself was made up out of whole cloth (emanations, penumbras, and all that) in 1964.
Most of the Democratic Party. Most will agree to limits on late term abortions but insist on exceptions for the health of the mother. While I fully agree with that exception in principal, in reality it means abortion on demand. An abortionist will say that quite literally anything — say, stress — is an adequate health risk to justify abortion.
Whether you want to claim that regulations get “bent,” doesn’t mean there are no regulations. Assuming there are doctors who are licensed by the state, there is a regulatory framework of some kind. “unregulated” =/= “on demand.” You of all people, James, should know the difference.
Now contrast with what would be the case were abortion totally outlawed (which is a much more common argument on the “pro-life” side): There is no state regulation, only criminal penalties. Any abortions that did occur (and they *would*, but like there are people who use drugs despite their illegality) would be – by definition “unregulated,” unless you count criminal codes as “regulation,” which I suppose you could.
Practically, it’s the same thing. Judgments are left up to the doctors.
Now who’s beating a strawman? Yes, there are people who favor that position. But no states where that could be passed into law even if Roe were overturned.
True. It’s a shame that the Founding Fathers didn’t have the foresight to include a protection of unenumerated rights in the Bill of Rights.
(Man, but I’m feeling snarky today.)
James,
You refer to exceptions for “mother’s health” as though it doesn’t count because it’s a loophole big enough to drive a mack truck through. Fair enough, but it’s extremely difficult to derive any exceptions that can’t be exploited.
Notably, if you put in a rape exception, you’re going to see a huge uptick in rape accusations. What are the authorities to do? Who decides if they are legit?
I don’t think the exceptions morally undermine anti-abortion sentiment, but logistically it seems likely that they would create some serious problems.
Of course, Griswold didn’t cite the 9th Amendment, which is all but a dead letter (unfortunately).
Beyond that, I don’t think anyone prior to 1973 thought there was an inherent right to abortion as a free citizen.
You give far too much credit to state legislatures in the south, James.
Yes, and your problem with that is? Aren’t most medical judgments left up to doctors (at least, those that aren’t closed off by insurance companies)?
And as long as we’re discussing the “health of the mother” exemption, what is the “pro-life” value in jeopardizing two lives instead of one potential life? Would you rather play roulette with the life of the mother just so we can see whether the infant/baby/fetus/whatever lives in some form or another?
And, to be clear, this is ~ 1 percent of the total number of abortions you’re talking about with “late term” abortions.
I’m not entirely sure I agree with that. Contrary to the popular perception, there was little outrage in the major evangelical communities, for example, when the ruling was actually handed down. It didn’t become a major mobilizer until the 1980s, when anti-abortion campaigns started pulling in the hard-line evangelical camp.
As for abortion, my opinion has always been that it should depend on three things:
1. The risk to the mother’s health in pregnancy.
2. The physical development of distinctly human mental capabilities that we associate with sentience – namely, higher level brain development.
3. Fetal viability outside the womb.
I usually think abortions should be more restricted after about the 17 weeks mark, because (if I remember the medical stuff correctly), that’s when the fetus enters in a period of rapid brain growth and development that actually continues outside of the womb until he/she/it is about 3-4 years old. It’s not usually a big problem, since the vast majority of abortions occur well before that period in any case.
After that period, abortions would be restricted unless the mother was in serious medical jeopardy*, or unless the fetus was sonogrammed and shown to be effectively non-viable outside the womb (meaning, like with many of Tiller’s abortions, it was horribly deformed).
*I’ve always wondered about an alternative. Suppose you have a likely-viable fetus, with a mother who can’t have it for medical reasons. Could you do something on the order of having the mother sign a waiver waiving parental rights over the child, then, with her permission, sedate her, perform a caesarian section, and remove the child? Or would she still need to go into labor?
Am I wrong in reading that Roe v. Wade was decided based upon a right to “privacy,” not a right to “abortion,” per se?
Brett writes:
I generally agree with what Brett wrote prior to this. This particular “what if” smacks far too much of medical force to achieve an outcome from an individual they may not desire. I’ll avoid the obvious “slippery slope” argument here, but I think that’s a point to consider.
“But the law is a not a philosophy seminar. It’s the place where morality meets custom, and compromise, and common sense.”
Now apply that line of reasoning to the gay marriage debate. Custom and tradition are so often overlooked by those seeking to change laws. This is why those seeking change should be much more patient and understanding of those opposed to the change.
And yet the public seems to have shifted (a majority at least) to favoring at least civil unions. And, of course, one could make the same argument about any area of “civil rights.” Why didn’t those pesky women or blacks or whoever just wait for the rest of the country to come around, instead of pushing through those laws. /snark
You’re joking, right? I can think of several states off the top of my head in both the Central Plains (the Dakotas) and South that would almost immediately move to ban nearly all abortions were any right to them on the national level taken away.
Hell, you already see a bunch of trigger laws that are designed to immediately go into effect to strongly restrict or outright ban abortion should Roe v. Wade be overturned. The one in the link allows an exception for the life of the mother, but not for rape – meaning that from a legal perspective, a woman is nothing more than the sum of her womb, and can be co-opted by any guy who can force her down and rape her.
Yes it did. The majority opinion cites the Ninth Amendment in reaching the conclusion that the right to privacy is protected by the Constitution. The Concurring Opinion by Justice Goldberg (and joined by Brennan and Warren) goes even further and develops an entire jurisprudence around the Ninth Amendment. Here’s a sample:
It goes on from there to explore the history of the Ninth Amendment and its intent.
Not to mention that the entire bill of rights was opposed by the federalists precisely because they opposed any enumeration would justify people saying things like:
Also RvW doesn’t say there is a right to an abortion, it says there is a right to privacy and given the fact that the founders thought it impotent enough to explicitly enumerate that the people of the United States have the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” this is hardly the stretch of logic that the holy warriors against judicial activism make it out to be.
James- When you finally outlaw abortion, what penalties do you intend to impose on the doctor and the women who have them anyway? Murder charges? Murder for hire? What punishment will there be? How will enforcement take place? Should the death penalty be applied to those who repeatedly perform abortions? What about the woman- death penalty? Or just life in jail?
The fact that they were so specific seems clear evidence they didn’t intend to create a blanket “privacy” right. So does the fact that the Bill of Rights went into effect in 1791 and the Privacy Right was not discovered until 1965.
I’d forgotten about the concurrence, although it’s not binding. You’re right, too, about the majority opinion, although I’d still contend that it invoked the 9th in support of the penumbra argument rather than as the crux of the opinion. After all, the Court — not to mention Congress — routinely ignores the 9th to this day.
That’s a matter for public debate. In the past, we penalized providers rather than those who sought their services. I’d prefer the murder for hire model myself, which seems appropriate for abortions after fetal viability.
How does enforcement for any law take place?
We’re largely moving away from the death penalty and don’t think we applied it to abortionists pre-Roe, anyway. I’d have no problem with it for repeat offenders, though.
Well, I’d argue that’s a problem with the court, not the ninth, which is pretty clear in stating that the BoR is not a blanket enumeration of rights of the people – ditto the 10th.
Aw, hell, now you’ve got me going all libertarian on this thread.
Which is what we are doing right now. Again, what charges would you consider filing for a doctor, what charges would you consider for the woman? Then, what penalties would you impose for those charges? Remember- you are the one who wants to outlaw abortions, you can’t possibly have put all this energy into outlawing the procedure without thinking of what possible penalties would be for engaging in those behaviors. Given how successful every government endeavor to control people’s behavior with their own body (see drugs, prostitution, etc.), surely you have to realize that there will be millions of violations of your new abortion-free America. How will you punish them? What kind of sentences?
We aren’t talking about someone growing a pot plant in their backyard, or someone stealing someone’s wallet, we are talking about a medical procedure. Would you follow the Phil Kline model and simply subpoena the medical records of every woman of child-bearing age. Would you attach an attache to every OB-GYN office to make sure no illegal actions are occurring? Or would you wait until there is an assertion that someone has had an abortion? Would a miscarriage or an ectopic pregnancy be considered a misdemeanor offense?
We talking the mother or the doctor? What would constitute a repeat offense? A woman who has two abortions? Three? A doctor who gives two abortions? Three?
I’ve already answered this. This is all tangential to the post, which is about who should make our laws.
James,
It did, but the Concurring opinion did end up being persuasive. It was on the basis of the concurring opinion that the District Court ruled in Roe’s favor in Roe v. Wade, and the Supreme Court supported this interpretation:
Ninth Amendment jurisprudence is murky, but you can trace its influence in the cases leading up to Roe as well as Roe itself.
Hmmm. Guess that uppity Rosa Parks should have been willing to spend a few more years riding in the back of the bus.
So, let me see if I have this straight, Mr. Joyner:
You want states to outlaw abortion in all cases but don’t think any would.
If they did however you’d favor prosecuting the women who obtained abortions just as you would a case of murder for hire.
In cases of multiple abortions you’d have no objection to imposing the death penalty.
You want a country where a woman could get something legally in New Mexico that would merit the death penalty in Texas.
Will Texas have the right to pursue Texan women who have legal abortions in New Mexico? Will they have the right to extradite? And will New Mexico be able to pass a law making abortion a protected right and specifically denying extradition to anti-choice states?
How about New Mexican abortionists advertising in Texas? Legal? A crime?
Yes. This scenario certainly sounds less contentious than Roe.
Paging Mr. Scott. Mr. Dred Scott.
but they think they are..
How does privacy grant one the right to murder their children?
It doesn’t.
How does privacy give the Doctor the right to make money murdering children?
It doesn’t.
When does human life Begin?
When it begins.
Please argue with my logic….
G.A. Phillips,
The phrase “human life” is a misnomer. The question is truly, when does a human person begin?
Personhood, I would argue, lies in the brain. Which is why I would say that someone with zero brain function is dead, even if his heart and lungs are still functioning due to mechanical interference.
Likewise, I would argue that a fetus is not a person, deserving of rights, until the brain is formed within the womb. Other metrics have too many problems:
– Fertilization? Well, the egg then still has to go through the second meiotic stage or the cells won’t divide.
– Conception? Many an embryo never finds its way into the uterus, so conception is no guarantee of full development.
– Entry into the uterus? Well, you still don’t get full development until the amniotic sac is implanted into the uterine wall.
Consider this, GA – roughly 20-25% of ALL pregnancies end in miscarriage. Do you think that they all had souls? Does that make theological or biblical sense? I’d argue that it doesn’t.
If that were logic, I’d argue with it. As it is, I can’t tell if it’s sarcasm or the ravings of a madperson.
For instance:
Tautology.
I would outlaw abortion of viable fetuses with an exception for the life of the mother and certain extreme cases of fetal malformation. My sense is that the political process would process a milder law than that.
Regardless, I think the political process, not the whims of judges, should make law.
@JJ
How about contraception in 1965?
Part of my point is that often abortion foes tend to speak as though they are arguing only process and not content when complaining about Roe. My experience is that, inevitably, they are arguing content, in the guise of arguing process. Which is fine, of course, content matters, but let’s be clear about what we are arguing.
Mr. Joyner:
I note your careful sidestep of the thrust of my point. Interesting how much difficulty pro-lifers have in coming to grips with the practical, real-world consequences of their moral and legal theories.
So long as you can keep the discussion abstract you sound rational. Once you transition to the real world effects you sound like irresponsible loons.
How so? I address it head-on: I don’t support making all abortions illegal nor do I see any popular support for such a law. I think late-term abortions except under limited circumstances should be criminalized.
As to the tangential points, states enforce their own laws. An Alabama resident who flies to Oregon to do something legal in Oregon but illegal in Alabama isn’t generally subject to punishment by Alabama.
Presumably, too, the regulation of advertising of illegal practices would follow similar patterns as now exist. How do we handle, say, gay marriages that are legal in a handful of states and not most?
So, James, how would you apply that principle to gay marriage (e.g., Iowa and Virginia)?
An Alabama resident who flies to Oregon to do something legal in Oregon but illegal in Alabama isn’t generally subject to punishment by Alabama.
Conspiracy to abort. Conspiracy to commit murder, as you might have it. The decision, the raising of the money for travel, the buying of tickets for same, could easily be a criminal conspiracy under Texas law. Right? And since when do states not extradite to other states? So a conspiracy to abort in Texas could easily lead to a demand for extradition from New Mexico to Texas. Is that correct or have I missed something?
Arguing that the world should be X but that it’s not likely to become X does not reduce your burden to explain why you would have X become policy.
And while you say you don’t want to outlaw all abortions you would like to see a world in which individual states could do so. Which would have the chaotic effects I outlined. And which you avoided discussing.
So just so I’m not misunderstanding: do you think a patchwork of laws in which abortion is considered a protected right in one state, and a capital crime in the adjoining state, is preferable to Roe?
IANAL but so far as I’m aware offenses committed in New Mexico are not subject to prosecution in Texas.
Yes, I think Federalism is preferable to a dictatorship of the judiciary.
If you get married in Iowa, you’re married in Iowa and any state that recognizes said marriage. Currently, you’re not married in Virginia.
And that, my friends, is f**ked up.
BTW, outside of teh gay marriage and abortion, are there any other areas of law in which states could (with any realistic chance of passage) differ so wildly that would cause all sorts of interstate issues? I can’t think of any.
I think late-term abortions except under limited circumstances should be criminalized.
They already are.
I’m not a lawyer, either. But we aren’t talking about New Mexico prosecuting Texas laws, we’re talking about extradition.
This is essentially the issue that gave us the Dred Scott decision. Free states refused to enforce laws requiring runaway slaves to be returned by force to the slave state. The Supremes compelled those Free states to enforce slave state laws.
Sooner or later an abortion case would find its way to the SCOTUS which could then decide whether Texas had a right to extradite an abortion conspiracist (read: pregnant woman) from the state where she obtained her legal abortion, to the state where she formed a criminal conspiracy to abort.
As for advertising, states can now forbid a person to advertise their services as a hit man. A doctor who provides legal abortions in NM but advertised his services in Texas — perhaps on the intertubes — would have committed a crime under Texas law. So Texas would be able to issue a warrant and arrest that doctor as he changed planes at DFW.
In fact, if abortion is a capital crime in Texas, and if it were to take the logical step of outlawing a conspiracy to commit abortion, it would have the legal right to arrest any woman passing through DFW that Texas thought was conspiring to abort.
This is why federalism failed in slave times, and again under Jim Crow, and why it is not a solution to the problem of abortion.
It is absurd to have abortion a capital crime — as you suggested it could be — in one state and legal in another. It is absurd to charge a woman on a murder-for-hire charge — as you suggested — for doing something that is perfectly legal in other states.
This is not a minor quibble over blue laws, this is highly-charged and state governments could be expected to behave badly. You’re contemplating a country where American citizens acting within the laws of one state could be dragged by bounty hunters into another state to face capital charges.
Why? Because of an overblown paranoia about a dictatorship of the judiciary.
In the abstract the argument can be made. And just as soon as we all move from the real world to abstract world maybe we can revisit it.
So, where do we draw the line of judges, rather than the representatives of the people, making our laws?
And, again, acts committed in New Mexico are not grounds for extradition to Texas. And, again, abortion never has been and never would be a capital crime. I’m not even advocating that should be. I merely wouldn’t have any heartburn if serial abortionists, in a society where abortion were illegal, were subject to the death penalty.
Crime A: Abortion.
Crime B: Conspiracy to commit abortion.
A conspiracy does not require that the crime itself be carried out. For example you can conspire to commit an act of terror without blowing up a building.
Crime B would stand alone, regardless of whether the actual abortion were carried out in a pro-choice state.
As for where to draw the line, I think we should draw it where we usually do: as close to the letter of the law as we can get without damaging the very polity the law was meant to preserve, or insulting basic human rights.
Again, Dred Scott or Korematsu (the SCOTUS decision that allowed us to round up Jand intern Japanese-Americans.)
Is that vague? Yes. There are often ambiguities in real life.
Of course, those were both Supreme Court decisions that were antithetical to our basic humanity. Now, granted, in the case of Korematsu, it merely affirmed a presidential order. But, rather clearly, said detentions were in absolute regard of the 4th Amendment.
Dred Scot was dubious but likely defensible in light of the pre-Civil War Constitution.