The Abortion Issue as Pressure Without an Outlet

I have an reflexive admiration for writers who writers who actively think through questions and come to conclusions which are not necessarily indicated by their initial commitments — even though this effect is usually achieved by the writer disagreeing with me on at least some basic elements of worldview. Megal McArdle, who blogs for The Atlantic, is often one such, and she has a very interesting set of posts dealing with the murder of abortionist George Tiller.

The War on The War on Abortion

A Really Long Post About Abortion and Reasoning By Historical Analogy That is Going to Make Virtually All of My Readers Very Angry At Me

One More Post on Abortion

There are a couple more as well, but these struck me as the most fascinating. McArdle is basically pro-choice, and an economic libertarian, though in most ways was more an Obama supporter than a McCain one. But her take on this is event is a characteristically interesting one:

if you actually think late-term abortion is murder, then the murder of Dr. Tiller makes total sense. Putting up touching anecdotes about people he’s helped find adoptions, etc, doesn’t change the fact that if you think late-term abortions are murder, the man was systematically butchering hundreds of human beings a year–indeed, not merely butchering them, but vivisecting them without anaesthetic. I’m sure many mass murderers have done any number of kind things over the course of their lives, to which the correct response, if you’re trying to stop the murders, is “so?”

Imagine a future in which the moral consensus has changed, and our grandchildren regard abortion the way we regard slavery. Who will the hero of history be: Tiller, or his murderer? At the very least, they’ll be conflicted, the way we are about John Brown.

McArdle is the kind of writer who thinks historical analogies through, and she she sees she doesn’t like:

But in this case, I think the analogy to slavery is important, for two reasons. First of all, it was the last time we had an extended, society-wide debate about personhood. And second of all, as now, there were structural political reasons that it was much harder–nearly impossible–to change slavery through the existing political process.

Listening to the debates about abortion, it seems to me that really broad swathes of the pro-choice movement seem to genuinely not understand that this is a debate about personhood, which is why you get moronic statements like “If you think abortions are wrong, don’t have one!” If you think a fetus is a person, it is not useful to be told that you, personally, are not required to commit murder, as long as you leave the neighbors alone while they do it.

Conversely, if Africans are not people, then slavery is not wrong. Or at least it’s arguably not wrong–if Africans occupy some intermediate status between persons and animals**, then there is at least a legitimate argument for treating them like animals, rather than people.

The difference between our reaction to the two is that now we know Africans are people. It seems ridiculous to think that anyone ever thought they might not be people. They meet all the relevant criteria for personhood in twenty-first century America.

But of course, those criteria are socially constructed. The definition of personhood (and, related, of citizenship) changes over time. It generally expands–as we get richer, we can, or at least do, grant full personhood to wider categories. Except in the case of fetuses. We expanded “persons” to include fetuses in the 19th century, as we learned more about gestation. Then in the late 1960s, for the first time I can think of, western civilization started to contract the group “persons” in order to exclude fetuses.

But that conception was not universally shared. And rather than leave it to the political process, the Supreme Court essentially put it beyond that process. Congress, the President, the justices themselves, have been fighting a thirty-five year guerilla war over court seats. Presidents try to appoint candidates who will support their theory of Roe, Congress strategically blocks change, and the justices refuse to retire until they know they will be replaced by someone who supports their side. To change the outcome, a pro-life political coalition would have to gain a supermajority in Congress for twenty years–long enough for a few liberal justices to die in office.

It is theoretically possible that this could happen, just as it was theoretically possible to come to some political accomodation over slavery. But a combination of supreme court rulings and the peculiar federalist structure of American meant that the only way for either side to gain decisive results was violence. At every turn, the pro-slavery forces no doubt slyly congratulated themselves on their political acumen, while also solemnly and sincerely believing that they preserved an important right. But they made war inevitable.

If you interpret this murder as a political act, rather than that of a lone whacko, than this should be a troubling sign that the political system has failed. So why do so many people think that the obvious answer is simply to more firmly entrench laws that are rightly intolerable to someone who thinks that a late term fetus is a person?

And yet the reaction she sees among many fellow urban elite pro-choicers seems to run counter to this historical indication:

Still, I am shocked to see so many liberals today saying that the correct response is, essentially, doubling down. Make the law more friendly to abortion! Show the fundies who’s boss! You know what fixes terrorism? Bitch slap those bastards until they understand that we’ll never compromise!

Well, it sure worked in Iraq. I think Afghanistan’s going pretty well, too, right?

Using the political system to stomp on radicalized fringes does not seem to be very effective in getting them to eschew violence. In fact, it seems to be a very good way of getting more violence. Possibly because those fringes have often turned to violence precisely because they feel that the political process has been closed off to them.

We do not punish murderers by changing large sections of American law. We certainly don’t punish them by, in essence, shouting “nya, nya, nya, we’re killing more babies!!!!”* We punish murderers by sending them to jail, where they belong. If any of these changes to current law are justified, they’re justified on their own merits, not because they’ll piss off Tiller’s nemesis.

* I understand that those advocating such changes do not perceive themselves to be saying this. But if you’re trying to punish the gunman, and deter others, it’s their perception that matters. And what bothers them is that they think you’re killing more babies.

I think that McArdle rightly identifies why abortion has remained such a toxic issue for so long — Roe used judicial fiat to create an abortion regime significantly more liberal than that of any country in Western Europe, and did so in such a way as to put the issue effectively beyond the democratic process. In doing so, it closed the pressure valve that democratic action usually provides to out polity. If you feel passionately about a topic, you can campaign to have the law changed. Except that around abortion, our ability to do that is signficantly reduced because we either need to flip the Supreme Court majority (and even so get only a potentially temporary victory) or pass a constitutional ammendment, which requires a massive super-majority of national support. This removes the ability to compromise, and when the ability to compromise is taken away, it necessarily empowers the extremists. As pro-lifers, we may not like the anology, but I don’t think her comparison to the Middle East is entirely misplaced:

My argument is that abortion, like slavery, is becoming in this country an issue upon which people have no reasonable political recourse. I’ll go further, and say that the process by which 7 judges enforced their consciences on the American public was itself borderline illegitimate; it was first, not in their proper job description, and second, a bad way to run a government.

Yes, in theory pro-lifers could pass an amendment. And in theory, the Palestinians have access to the political process too, as right wing blogs often point out–all they need to do is elect a coherent government that Israel is willing to negotiate with. Most Obsidian Wings posters and commenters don’t have much trouble discerning that a sufficiently remote possibility of political access is not political access, and that the individual Israeli actions which might be justified in a democratic government acting on an enfranchised population, are problematic when Israel does them to the Palestinians. After all, we bulldoze peoples’ homes, too–we just call it eminent domain.

Historical analogies can only take one so far, but I think that the comparison that McArdle is making in regards to slavery and abortion is good enough that it ought to be in the interests of all Americans to get the issue back into the democratic process and allow it to be fought out with ballots rather than bullets.

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  1. When I read this, it said to me that that if you believe that abortion is wrong – is murder – then it is noble to stop it by any means necessary. What a frightening thought! It is linear thinking like this that allows the Animal Liberation Front radicals to bomb Universities where there is animal testing and primate research. It is wrong-headed!

    I also watched Fr. Pavone’s video that was kindly posted a couple days ago. He needs to spend a few years in prayerful contemplation, I think.

    It must be hard to think so firmly in black and white. Or maybe it is easier, I don’t know. I believe in the morning-after pill and think if it was more widely available we would have fewer abortions. I cannot imagine a world where the law makes young girls who have been victims of incest or rape criminals. In Brazil a nine year old girl was molested and raped by her stepfather and became pregnant. The doctors claimed she would be at risk of death if she attempted to give birth so they followed through with an abortion. The Catholic Church ex-communicated the doctors and the mother, but, tellingly, did not ex-communicate the step-father. Here is a link.

  2. In the days of Christ, there were Insurgents among the Jews, correct? They are even mentioned some in the New Testament. The Romans probably did some unjust things and these revolutionaries responded besides the fact that some of the local authorities, Kings and Sanhedrin were not necessarily kind either.

    So in this way, I think the situation of today compares to that one. Yet, Jesus tried to be peaceful and loving.

  3. I cannot imagine a world where the law makes young girls who have been victims of incest or rape criminals.

    Nor can I. Nor do I advocate for one. Nor has, to my knowledge anyone here. The reaction of the prelates in Brazil was wrong. Especially with regard to the stepfather, who in a more civilized time would have been hanged by the neck until dead for his crime.

    I also cannot imagine a world where the law enshrines as sacrosanct the process of dismembering viable infants in the womb for the flimsiest of “health” reasons.

    That’s because I don’t have to imagine it–I live in it. And you defend it.


  4. Just an amazing post with amazing commentary, DC.

    The problem with taking the problem of abortion completely beyond the influence of regular Americans through democratic processes is that it can elicit an extreme response that seems like the only available reponse.

  5. Personally, I think they should have hanged the father in that case, but I’m old fashioned…

    You are, however, significantly mis-reading Megan McArdle. Perhaps it would be easier to go over and read the three posts I linked to in order — they’re long posts and I was only able to quote the highlights.

    She does, however, bring up two important concerns that I think you’re failing to understand. First, we _do_ tend to admire people who resist what they see as evils through sometimes violent means. So for instance, in the recent Tom Cruise movie, the German officers who plotted to assassinate Hitler were the “good guys” not the “bad guys”. John Brown, who abolitionist though he was was also a bit of a wack job, is at least seen as a prophetic figure, if not a wholly good one. Given our cultural tendency to admire revolutionaries, that someone out near the fringes would take such an action is not surprising.

    Second, it is an observable fact that if you impose a detested political situation on a population and provide them with no way to change it through the peaceful political process, that violence will begin to occur. That doesn’t make it right, but it’s observably true. We are all familiar with this from watching the Middle East routinely engulfed violence on television. We should hardly be surprised if it applies in our own country as well.

    Megan deserves more thought than you’re giving her. The Atlantic is one of the more thoughtful mainstream outlets out there (to my mind, signficantly better than The New Yorker or the New York Review of Books) and Megan is one of the more interesting of their in-house bloggers. And on the moral question of abortion itself, you agrees with you more than with me. It’d be wise to get past the intellectual gag reflex and read what she has to say fairly.

  6. DC,
    I will give it another read. I don’t want to interpret her unfairly. You went to a lot of work putting the diary together and it deserves a careful read.

  7. viona walsch Says:
    Tuesday, June 2, 2009 A.D. at 12:44 pm

    No, TomSVDP, Jesus WAS peaceful and loving.


    That is your righteousness revolting as it is. Now, let’s look grammatically at my sentence:

    ” Yet, Jesus tried to be peaceful and loving.”

    Now, you wish to change this grammatically to how??

    “Yet, Jesus WAS to be peaceful and loving.”

    Buzz off!

  8. Ms McArdle is right. Roe was robbery. Period. The Court dishonestly removed a policy matter from the political process by simply declaring one side had one based on ficticious constitutional penumbra. If they had let the political process work normally, laws would differ among states but overall would be more restrictive — probably much like most of western Europe. Pro-life forces would continue their effort to tighten laws by persuading voters and their representatives of the righteousness of their cause. As it stands now, such efforts are largely feckless due to artificial and unfair judicial constraints. The other side one by cheating. It is hardly surprising that the cheated side gets angry, and that is why Ms. McArdle is right.

  9. Information about the bishops in Brazil comes from Reuters, a source not known for its impartiality. I believe that we should not get our panties all into a twist about events in other countries, about which we are liable to be misinformed.
    The Church is not against abortion when the mother’s life is in danger. It tells the doctors simply that they must try to save both.
    The father would not have been excommunicated. Sin is not a cause for excommunication, or we would all be excommunicated.

  10. May God have mercy on the souls of those associated with the website who’s hate-filled rhetoric (e.g., Tiller the Killer) is in part responsible for Tiller’s murder. His blood is on your hands. Hypocrites.

    [Editor: I’m leaving your comment up, Dave, as an example of how reflexively unthinking commenters can be, but if you have further content-less comments I’ll delete them to avoid tedium.]

  11. Mr. Austin,
    I didn’t realize Reuters was biased. The article was also in the New York Times and several other papers.

    I am sorry I offended you. I wasn’t making a grammatical change to your comment, but only commenting on it. Your response is not appropriate.

  12. Viona,
    Reuters is famously biased. Second only to the NYT.

    Tiller was a killer. Just in case you didn’t know.

  13. The thing is, Dave is right – except for the part about being hypocrites.

    We are partially responsible, in that we speak the truth about abortion. I say, so what? It is more important to call abortion what it is than to worry about what happens to the abortionist. What would the Daves of the world have us say? That abortion isn’t murder? If it is wrong to summarily execute Tiller, it is also wrong to tell lies so that people like him aren’t killed – even though I am quite sure that people are capable, all on their own, without our help, of recognizing that what Tiller did was infanticide, a crime against humanity.

    Here’s a thought – if being in a business that half the country, possibly more, regards as child murder is dangerous, get out of that business. Stop chopping up babies as if they were pieces of meat.

    Unfortunately whats going to happen is what McArdle predicts – an irrational, hysterical, and senseless reaction that will be taken out on the victims of abortion by fighting even harder it. You just have to look at the commentary, both from the paid writers and bloggers of the left, and from their mobs of vicious com-boxers following in their wake, to realize what is coming next.

    It isn’t going to be a ‘dialogue’ about abortion, that’s for sure.

  14. How many of Tiller’s procedures would have been illegal in many European countries?

    Moral conservatives and their critics often cite a scholastic dictum about laws not being so restrictive that they encourage disrespect for the law. Sometimes laws can be so permissive that they too encourage disrespect.

    It’s also possible that the media fail to relieve pressure on the abortion issue by ignoring it (though some certainly increase the pressure).

    People are going after O’Reilly for hitting Tiller hard before his lamentable murder, but if more “respectable” outlets were critical of Tiller then that could even have a moderating effect. If you have an ally in the MSM, you’re more inclined to think the system has a chance of changing. And that ally will be a person of moderation, not a fire-starter.

    McArdle’s ability for intellectual sympathy may advance this irenic attitude, even if she isn’t an ally of pro-lifers.

    I’m wary of saying that pro-lifers need to reexamine themselves because of what one violent man did. That would define an effort by its extreme.

    However, considering the cautionary example of “Bleeding Kansas” in the 1850s, I suggest we remind everybody who compares pro-lifers to American abolitionists:

    Abolitionists, and the reaction to them, helped cause a civil war that left 600,000 dead. We need better examples than them.

  15. Good point, Kevin. And here’s another thing to consider: the recent jury nullification that acquitted Tiller of his blatant skirting of the minimal restrictions on medical referrals was another example of the failure of the current system.

  16. Viona, you imply that victims of rape and incest would be turned into “criminals” if abortion were made illegal.

    Well, back when abortion was illegal, it was always the doctor or other medical “professional” who performed an abortion who was punished, NOT the woman who sought one. If anything the woman was seen as a second victim — someone whom the abortionist took advantage of in her desperation.

  17. Well, back when abortion was illegal, it was always the doctor or other medical “professional” who performed an abortion who was punished, NOT the woman who sought one. If anything the woman was seen as a second victim — someone whom the abortionist took advantage of in her desperation.

    This is simply wrong. I can point to several states that have laws on the books with penalties for women who commit abortion.

  18. “Studying two hundred years of legal history, the American Center for Bioethics concluded: “No evidence was found to support the proposition that women were prosecuted for undergoing or soliciting abortions. The charge that spontaneous miscarriages could result in criminal prosecution is similarly insupportable. There are no documented instances of prosecution of such women for murder or for any other species of homicide; nor is there evidence that states that had provisions enabling them to prosecute women for procuring abortions ever applied those laws. The vast majority of the courts were reluctant to implicate women, even in a secondary fashion, through complicity and conspiracy charges. Even in those rare instances where an abortionist persuaded the court to recognize the woman as his accomplice, charges were not filed against her. In short, women were not prosecuted for abortions. Abortionists were. The charges of Planned Parenthood and other “pro-choice” proponents are without factual basis. Given the American legal system’s reliance on precedent, it is unlikely that enforcement of future criminal sanctions on abortion would deviate substantially from past enforcement patterns.” Women and Abortion, Prospects of Criminal Charges Monograph, American Center for Bioethics, 422 C St., NE, Washington, DC 20002, Spring 1983

  19. This is almost exactly the argument that Mary Ann Glendon (of Notre Dame fame) makes in her classic Abortion and Divorce in Western Law (Harvard, 1987). Abortion advocates constantly complain that Americans should follow the European example and avoid heated arguments over abortion. Glendon shows that European countries almost all formulated and revised their present abortion laws (more restrictive than our own) by democratic means.

  20. This is simply wrong. I can point to several states that have laws on the books with penalties for women who commit abortion.

    As recently as 1989, adultery was a class b misdemeanor under the Penal Law of New York (and may still be). I am not sure I have ever heard of anyone being indicted for it. Prosecutors have a good deal of discretion. (I think it legitimate to prosecute women for procuring abortions).

  21. Here is WI code on the matter:
    (3) Any pregnant woman who intentionally destroys the life
    of her unborn child or who consents to such destruction by another
    may be fined not more than $200 or imprisoned not more than 6
    months or both.
    (4) Any pregnant woman who intentionally destroys the life
    of her unborn quick child or who consents to such destruction by
    another is guilty of a Class I felony.


    One could point to Guatemala to find an example of a woman being prosecuted for abortion. The greater difficulty has always been finding evidence thereof. My understanding is that in former times, the charge of witchcraft was more often brought because the charge was easier to prove.

  22. MZ,
    Your statement about laws is not incompatable with Elan’s statemtent about enforcement. Lots of crimes are on the “books,” but not subject to prosecution. Look it up. Notwithstanding the laws, research finds only one — one — women in America that was actually prosecuted. One. Again, look it up. I’m way too busy to find it, but have reserached the matter in the past.

  23. I’m not advocating for Tiller’s murder, but in response to:

    “Jesus was peaceful and loving.”

    That is true, but Jesus’ love is often misconstrued as broad tolerance for everything. Don’t forget Matthew 10:34.

    “Do not think that I have come to bring peace upon the earth. I have come to bring not peace but the sword.”

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