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.