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After South Dakota, Pt. 1: The Side of Principle

Image hosting by PhotobucketHi all–this is Scott from Lawyers, Guns & Money. Many thanks to Jane and ReddHedd for letting me post with so many excellent bloggers!

Between the confirmation of Samuel Alito and the appalling recent legislation passed in South Dakota this is a grim time in many respects for pro-choicers. For Blog Against Sexism Day, over the next three posts I’ll point out why the pro-choice position is more coherent, principled, and popular than the pro-criminalization position, why pro-choicers should not be reluctant to embrace Roe, and why the South Dakota legislation may be a political opportunity.

If there was any question of whether the advice of Vichy pro-choicers such as William Saletan and Amy Sullivan to fight for reproductive freedom by accepting the anti-choice framing of the issue and by capitulating on everything but the formal legality of first-trimester abortions had any value, its endorsement by the folks at RedState should remove all doubt. Trying, no doubt, to be a selfless good sport, one Leon H. Wolf wonders about why pro-choicers won’t take Lord Saletan’s sage advice:

Saletan is one of the few pro-abortion writers who can manage an argument more cogent than "you pro-lifers just don’t want women having sex!" His advice, if the pro-abortion forces in this country are smart enough to listen (they aren’t) is that it is time for Roe to go, that defending second trimester abortions is an ever-increasing political loser which raises (gasp) ever more serious moral questions as fetuses become viable at earlier stages of development. In other words, second-trimester abortions are the anchor which threaten to drag down the entire pro-abortion movement.

Politically speaking, Saletan is right. But it is also a virtual guarantee that those whom he is defending will not listen. First, they are generally of a stripe that does not understand that sometimes, as a matter of strategy, you must surrender untenable ground to solidify your overall position. Second, while Saletan’s position is a winner politically, it creates an internal incoherency that the forces which drive the pro-abortion movement cannot abide: it provides legal rights to some unborn humans, while depriving others of the most basic human right, the right not to be killed.

I agree with Wolf about one thing: the pro-choicers who argue that abortion should be nominally legal but burdened by a number of pointlessly burdensome and grossly inequitable regulations are taking an incoherent position, although Wolf’s own example is inept: it’s perfectly rational and defensible to say that the state has a greater interest in protecting a viable fetus than a non-viable one. (And, as I will get into in a second, these contradictions are trivial compared to those of the American pro-life movement.) But the rest of this is just nonsense. In particular, as I explain in detail here the implication that "grave moral questions" are being raised because technology is making second trimester fetuses viable is just a flagrant lie, and nor does he provide any evidence that it’s a "political loser." (He also, of course, ignores the fact the abortion regulations he urges pro-choicers to support make second trimester abortions more likely by making it harder for women to obtain abortions in a timely manner.) The fact that Saletan is willing to advance these evidence-free arguments proves nothing except that many pro-choice pundits have the remarkable ability to fall into every rhetorical trap, false claim and diversionary non-sequitur floated by the forced pregnancy lobby. I urge supporters of reproductive freedom to avoid doing this. When somebody claims that second trimester fetuses are becoming viable, the appropriate response is to point out that it isn’t true, and pro-lifers are lying about it as a part of a disingenuous smokescreen in order to camouflage their extremely unpopular agenda of using state coercion to force women to carry almost all pregnancies to term.

But, wait, it’s about to get a lot worse:

The pro-abortion forces in this country are thus faced with a choice. They can either continue to defend wildly unpopular abortion practices, or they can render their position internally incoherent, and bank on the hope that the American public will not notice. It’s not a very enviable position to be in. By contrast, all that the current pro-life position in this country demands is that the states be allowed, on a local basis, to set abortion regulations in accordance with local norms and practices. This is an eminently reasonable, and increasingly popular proposition, especially as the American public grows more educated about what exactly Roe stands for, and the monstrosity it entails.

This is far too much to bear. First of all, the claim that Roe is becoming unpopular is, again, simply a baldfaced lie: Roe remains extremely popular with the American public, and the position that abortion should be criminalized is highly unpopular, which is why the GOP did everything it could to obfuscate Alito’s opposition to Roe. But even worse is his critique that the pro-choice opinion, if not absolutist, could fail because it is internally incoherent. Really, being lectured by an American pro-lifer about incoherence is like being lectured about ethics by Duke Cunningham, or having Orson Welles piously inform you that you’re letting yourself go. Take Wolf’s purportedly "eminently reasonable" position that " the states be allowed, on a local basis, to set abortion regulations in accordance with local norms and practices." Except that earlier he claimed that "unborn humans" have "the right not to be killed," and you’re unprincipled if you believe that this right varies at all during pregnancy. If this is true, how on earth could it be acceptable for some states not to respect this right? According to Wolf, in Mississippi a fetus has an inalienable right not to be killed–but this right vanishes entirely if a woman boards a plane to New York! To state the obvious, this argument and the word "principle" should not even be mentioned in the same sentence. It could not possibly be the policy advocated by someone who really believes in the right of "unborn humans not to be killed."

But, of course, most American pro-lifers don’t believe it, or at least are not willing apply this position with even a shred of consistency. American pro-life politics is in fact a moral, legal, and ethical shambles, defined by risibly illogical arguments and comically transparent internal contradictions. To cite a few examples, first of all according the GOP platform, abortion should be first degree murder in all 50 states–but women should not be punished at all for obtaining one. (The SD law also makes this indefensible distinction, which is straight out of late 19th century law, when women weren’t seen as responsible enough to practice law or vote.) They attach scary names to morally neutral medical procedures in order to pass wholly arbitrary and irrational regulations. They oppose policies that would unquestionably reduce abortion rates, while unquestioningly supporting the highly ineffective policy of criminalization. Which is why Wolf wants to pre-empt arguments about the obvious importance of the regulation of female sexuality inherent in abortion laws. Whatever individuals have subjectively convinced themselves, it is self-evidently true that while the policies supported by most American pro-lifers don’t make a shred of sense if they were trying to protect fetal life, they certainly do make sense if seen as an expression of discomfort with the ability of women to have sex without the "consequence" of pregnancy.

None of this is to say that pro-choicers will never need to make any compromises, or that there’s anything wrong with Hillary Clinton’s strategy of pointing out that the bundle of policies favored by pro-choicers both promotes female autonomy and happens to lead to lower abortion rates than those favored by pro-lifers. But pro-choicers need to go on the offensive. Our position is popular, it is right, and it is also far more principled than the "pro-life" position as it manifests itself in American politics.

(Cross-posted to L, G & M. Graphic from Liza.)

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Scott Lemieux

Scott Lemieux