Are All Abortions Equal?

As a matter of first principle, yes. As a matter of law, no, and such compromises are frequently necessary. Ross Douthat explains (is it just me, or does he seem somehow less influential as a New York Times columnist than he was as a blogger):

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.

Indeed, the argument that some abortions take place in particularly awful, particularly understandable circumstances is not a case against regulating abortion. It’s the beginning of precisely the kind of reasonable distinction-making that would produce a saner, stricter legal regime.

If anything, by enshrining a near-absolute right to abortion in the Constitution, the pro-choice side has ensured that the hard cases are more controversial than they otherwise would be. One reason there’s so much fierce argument about the latest of late-term abortions — Should there be a health exemption? A fetal deformity exemption? How broad should those exemptions be? — is that Americans aren’t permitted to debate anything else. Under current law, if you want to restrict abortion, post-viability procedures are the only kind you’re allowed to even regulate.

If abortion were returned to the democratic process, this landscape would change dramatically. Arguments about whether and how to restrict abortions in the second trimester — as many advanced democracies already do – would replace protests over the scope of third-trimester medical exemptions.

The result would be laws with more respect for human life, a culture less inflamed by a small number of tragic cases — and a political debate, God willing, unmarred by crimes like George Tiller’s murder.

I think the philosophy seminar quip is a little glib, but Douthat’s making a valuable point here. There are a number of reasons why abortion is the subject of such passionate debate, but one of the most significant is that Roe and Casey have essentially removed abortion regulation from the democratic process. The U.S. pro-life movement did not really exist in its current form prior to Roe. In most of Western Europe abortion is hardly on the radar screen politically; and it certainly isn’t the defining litmus test for holding a judgeship.

If liberals like President Obama were serious about being “moderate” on abortion, they would ackowledge that the first step toward moderation involves a rejection or significant modification of existing Supreme Court abortion precedent. Precedent, I might add, which overturned the laws of 46 states when it was enacted (I use the phrase advisedly). Of course President Obama isn’t serious about moderation, and has no intention of doing anything of the kind. If anything, his record suggests philosophy seminar style extreminism from the pro-choice side. Nevertheless, it is important to keep in mind that Roe and Casey, rather than unreasonable pro-lifers, are the real barriers to compromise on (and reduction of) abortion in the United States. To quote a childhood favorite, anyone who says differently is selling something.

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