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August 15, 2008

The Morality of Abortion: The Dishonest Debate

Reading Linda Hirshman's recent essay, one cannot help but marvel at the glaring logical inconsistencies in the unrestricted right to abortion plank. With more than three decades under their belt since Roe v. Wade was handed down, you'd think they'd have a few of the kinks ironed out.

As a conservative who has reluctantly remained in the pro-choice camp, my support for the limited availability of abortion is balanced against the awareness that this is a complex issue for which there are no easy answers. Ms. Hirschman's morality argument smacks of absolutism. It can be neatly summed up in one sentence located near the end of the third paragraph of her magnum opus:

Abortion is about the value of women's lives.

In essence, Hirshman's morality demands that we accept her value judgment uncritically. But when a man and woman have sex and conceive a child, at least three lives are impacted: the father's, the mother's, and their unborn child's. Hirshman tells us women "bear the overwhelming majority of child-rearing responsibility in this society"; that their "economic prospects plummet with the birth of a child"; that they may be "too poor for parenthood" and that women who seek abortions are "disproportionately black and Hispanic".

These would seem like excellent reasons for intelligent, rational adult women to prevent a pregnancy from occurring in the first place, do they not? And in this day and age, it is no mystery to any rational adult of either sex how pregnancy occurs. Nor is it a mystery (or difficult, or expensive, or time consuming) to prevent pregnancy. And yet there is no surer way to infuriate abortion advocates than to imply women are anything less than rational decision makers. One cannot imply women are ever swayed by their emotions (unless, of course, one wants to show them what an unborn fetus looks like) that they make bad decisions in the heat of passion or that they fail to think serious life decisions through (such as allowing yourself to become pregnant when you are poor, black, and have no money for an abortion, much less for raising a child). Demonstrably, women do make poor decisions of this sort under the influence of emotion. Men make them too, all the time. They fail to think things through. The very fact that there are so many unplanned pregnancies in an era where birth control is safe, reliable and inexpensive provides ample proof of this proposition, but we are not allowed to admit such an obvious fact in the context of the abortion debate lest we be accused of patronizing women.

By eliding past the responsibility of adult women to take control over their own reproductive destinies, Hirshman allows herself to conclude that women's lives have more value than the lives of their sexual partners (who are increasingly being held financially responsible for supporting children it can be conclusively proven they did not father).

But more disturbingly, she also allows herself to dispense with the lives of unborn children as though they were of no value whatsoever. She is hardly the only one to do so. At the risk of being accused of defending Justice Kennedy, his detractors do themselves no favors by blatantly mischaracterizing his position to set up convenient straw men:

The Supreme Court, as most observers now know, made a big screw-up in Kennedy v. Louisiana (banning the death penalty for child rape). It (along with all other parties in the case, it must be said) missed a change in military law which authorized the death penalty for child rape -- which is significant because much of the majority opinion was based around a supposed evolving consensus away from imposing capital punishment for that crime. And as a result, Louisiana attorneys are asking the Supreme Court to reopen the case, since this error may of substantively affected the outcome of the case.

Meanwhile, Anthony Kennedy, as most Court observers recall, based a significant part of his opinion Carhart II (upholding a federal partial birth abortion ban) on the proposition that "some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow." This was, at the time, a statement wholly without evidence, and today we learn that it is in all relevant respects false. Women who have abortions are in fact no more likely to face mental health problems than women who deliver. And since giving birth actually is more physically risky for women than is abortion, it is exceedingly difficult to honestly justify the partial-birth abortion ban on the grounds of protecting women's health.

Hirshman resorts to the same dishonest characterization, implying the "regrets" argument was a central component of Justice Kennedy's opinion:

Last year, in Gonzalez v. Carhart, the Supreme Court, for the first time, upheld the constitutionality of a federal law criminalizing a type of abortion. In his opinion for the court, Justice Kennedy wrote that "Respect for human life finds an ultimate expression in the bond of love the mother has for her child ... it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow." In Kennedy's view it was best to spare women such regrets. Indeed it was better still not to allow doctors to perform these procedures at all.

Others have dissected Justice Kennedy's bizarre logic in detail. But what most have missed is that his opinion in Carhart rested on the assumption, ceded so long ago by liberals, that abortions are a necessary evil. There is no serious scientific evidence for any of the justice's findings that a remotely cognizable percentage of the 18 million to 30 million living American abortion recipients have suffered regret, severe depression, and loss of esteem. The American Psychiatric Association has directly refuted any such claim time and again. Why, then, did Justice Kennedy feel so comfortable—indeed, "unexceptionable" —in asserting it?

Such dishonest characterizations rely on a common assumption. They assume readers have not read the original opinion. Were they to do so, they would quickly discover Carhart had little to do with the woman's mental state and everything to do with the balancing of respect for human life against a woman's recognized right to terminate her pregnancy and the existence of readily available, less drastic, and equally effective methods of late term abortion:

‘[T]he elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.’ It is true this longstanding maxim of statutory interpretation has, in the past, fallen by the wayside when the Court confronted a statute regulating abortion. The Court at times employed an antagonistic “ ‘canon of construction under which in cases involving abortion, a permissible reading of a statute [was] to be avoided at all costs.’ Casey put this novel statutory approach to rest. Stenberg need not be interpreted to have revived it. We read that decision instead to stand for the uncontroversial proposition that the canon of constitutional avoidance does not apply if a statute is not “genuinely susceptible to two constructions.”

No one would dispute that, for many, D&E is a procedure itself laden with the power to devalue human life. Congress could nonetheless conclude that the type of abortion proscribed by the Act requires specific regulation because it implicates additional ethical and moral concerns that justify a special prohibition. Congress determined that the abortion methods it proscribed had a “disturbing similarity to the killing of a newborn infant,” Congressional Findings (14)(L), in notes following 18 U. S. C. §1531 (2000 ed., Supp. IV), p. 769, and thus it was concerned with “draw[ing] a bright line that clearly distinguishes abortion and infanticide.”

What Ms. Hirshman does not wish anyone to discuss openly - lest they become too emotional - is that Justice Kennedy's opinion very dispassionately rested on the balancing of respect for the life of the child against the convenience of the physician performing the abortion.

Nothing more, nothing less. Conflicting medical evidence was presented for and against the proposition that partial birth abortions were safer for the mother. The evidence was judged inconclusive and moreover, evidence was presented that the alternative methods were extremely safe.

But the single most important fact in this case, a fact which neither Ms. Hirshman nor David Schraub felt their readers needed to know, is this:

Evidence was presented that a medical consensus exists that partial birth abortions are NEVER MEDICALLY NECESSARY. Ever.

In light of this testimony, and considering that other safe means of late term abortions were readily available to women, and since it is a longstanding precedent that:

...every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.’

...Justice Kennedy eschewed judicial activism, deferred to the legislature, and upheld the constitutionality of the statute. Of course, one would never know this from reading Ms. Hirshman's essay.

Being female, she prefers emotion-laden diatribes about poor, minority women who must (apparently) be treated as something less than rational decision makers. That she, in proclaiming the profound "morality" of valuing women's lives over the lives of their unborn (presumably disproportionately black and Hispanic) children, would happily see these same children carved into small pieces without anesthetic because their mothers could not be bothered to use a reliable form of birth control is beyond disturbing. One wonders: does she condone the live vivisection of puppies?

Does she support experimentation on lab animals? Few progressives do. They proclaim their deep respect for all forms of "life", except when that life is human, and except when it gets in their way. They do this, primarily, by not talking about it and by not allow you to talk about it.

I will be this honest. I support the limited availability of abortion but I do not fool myself about what it is. It is the taking of a human life, because human beings have intentionally decided to value the convenience or the life of the parents over that of the child.

If we are permitted to do such an awful thing - and it is an awful thing - do we really want to back away from what the standard the Democratic Party has wisely embraced up until now: that abortions should be safe, legal, and above all rare? Do we really want to employ a lower standard of humanity and compassion to the ending of a human life than we would to the killing of that chicken breast that ends up on our dinner table tonight? Because this is exactly what Ms. Hirshman is advocating when she objects to the upholding of the ban on partial birth abortions. I am sorry if this is an unpleasant subject, but I am not the one who made this unpleasant. It is the facts which are unpleasant, and it is the facts which women like Ms. Hirshman, who value a woman's convenience over all other considerations, refuse to take into consideration.

It is this kind of willful blindness and dishonesty that infuriates and alienates even people like me. A pro-choice woman. One of those women who believes that equality involves equal responsibility to go along with some of those equal rights we fought so hard for; who doesn't much care for cheap victimization narratives that infantilize women and dehumanize infants. And Hirshman's argument is profoundly dishonest:

In the absence of a robust description of the value of women's lives—their ability to develop their capacities through education, to use them to achieve economic independence and political citizenship, to take on only the relationships they can manage—there is no moral argument for their "choice" to have an abortion. Set against the sound of nothing, the smallest moral claim of the potential human life looms large. Such an immoral act, moral thinkers conclude, must always be a mistake, the product of incomplete information or logic, and, in time, must produce regret, depression, and loss of self-esteem.

It is because I understand women's lives have value and because I respect their intelligence - because I am a woman - that I expect them to behave like adults rather than overgrown children whose lapses in judgment must always be paid for by someone else: a convenient man who can be tapped by the court whether he happens to be the biological father or not (if she wants the child), a helpless fetus who can be vivisected without anesthesia if she puts off an unpleasant "choice" for too long. Sometimes, other people's rights - other people's lives - have value too.

I wonder when the abortion lobby will ever face - honestly - what they support? Only then will can we begin to debate the "morality" of this deeply troubling - and painful - issue.


Posted by Cassandra at August 15, 2008 04:31 AM

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Comments

You make a common error with respect to abortion proponents, particularly the absolutists, you ascribe them with both commonsense and morality. The supporters, in particular the absolutists, accept ,in general, no responsibility to prevent pregnancy and then attribute no humanity to the aborted life. For those of that mindset that have availed themselves the option to abort an unwanted and/or inconvenient pregnancy there is the assertion that the "choice" was difficult yet, that emotion doesn't come through when the topic is discussed. In reading many descriptions and listening to discussions of the angst and pain of such a "choice" ,the angst and pain seems to be quickly salved and forgotten; more so after multiple abortions. It becomes no different than choosing paint colors or a dinner menu item. The cold ,thoughtless calculation I find very disconcerting.

Posted by: Edward Lunny at August 15, 2008 10:18 AM

When will women face the truth of it honestly? Susan B. Anthony did so right from the beginning. However, you'll find in her statement little comfort.

Guilty? Yes, no matter what the motive, love of ease, or a desire to save from suffering the unborn innocent, the woman is awfully guilty who commits the deed. It will burden her conscience in life, it will burden her soul in death; but oh! thrice guilty is he who, for selfish gratification, heedless of her prayers, indifferent to her fate, drove her to the desperation which impels her to the crime.
Even accepting the truth of the act, and the power of the evil done, she still believed the man is three times as guilty for "impelling" the woman to the crime. That notion has been a permanent feature of the debate, regardless of the question of whether abortion should (or should not) be legal.

I have long believed that abortion was always wrong, except when necessary to save the life of the mother. I have been willing to let the law grant the right to others to make that determination for themselves; yet every year I find it harder to convince myself to maintain that position. It is good to have a decent respect for the opinions of others; but when surveys show that only 7.1% of abortions have anything to do with health; while 92.9% are for some version of "convenience"; well, that respect becomes harder to sustain. Far harder.

Posted by: Grim at August 15, 2008 10:19 AM

That is not an inaccurate summation of my own position on the matter, Grim.

Not at all.

Posted by: Cassandra at August 15, 2008 10:21 AM

I read once that 50% of abortions are performed on women who WERE using birth control. So how does any of the arguments dealing with irresponsibility and lapses in judgement apply to them? Also, in contrast to the commenter who said abortion supporters "accept no responsibility to prevent pregnancy", which people are those? Because the ones I've read about never shut up about making birth control a priority. I never come across anyone who said they were pro-choice and didn't care about BC.

Posted by: akinoluna at August 15, 2008 10:37 AM

The odd thing about birth control is that you have to follow the directions.

You can't take the Pill only part of the time. And if you use condoms, you'd better use a backup method of birth control. I can attest to this, because my oldest son would not be here if that were not true.

I was very young when I got pregnant. However, I know that this was the case and I failed to do anything about it. There is a name for people like that. Or at least some of them.

Mothers.

Posted by: Cassandra at August 15, 2008 10:57 AM

So how does any of the arguments dealing with irresponsibility and lapses in judgement apply to them?

Personally, I think it's a lapse in judgment to assert that your convenience is more important than a child's life -- to say nothing of your own child's life. I'd say it was an act of irresponsibility to even entertain the notion.

But as I said, I'm rather strongly of the opinion that abortion can only be justified at all when it is necessary to save the life of the mother. In that case, one has to choose between saving one life or saving neither, if the baby is too young to survive alone; or at worst, one must choose which life to save. The former is no choice at all; while the latter, though hard, is a choice of a very different order than the choice of abortion in any other circumstance.

Posted by: Grim at August 15, 2008 11:15 AM

"I read once that 50% of abortions are performed on women who WERE using birth control. "....when were they "using" it, last week, yesterday ? How many "unplanned" pregnancies are due to " I forgot to take my pill " et al ? Those whom assert that they use birth control don't use it 100% of the time and maximum effectiveness is available with 100% usage only. The effacy of all birth control methods is based on this. This is a convenient excuse to deny responsiblility for the pregnancy. Further, the failure, real or fabricated, of birth control does not justify the act of an abortion.

"Because the ones I've read about never shut up about making birth control a priority."...Then why are there so many abortions performed every year ? Birth control ,in one form or another, is readily available and is not that unreliable. The vast, vast majority of abortions, a 90% figure was posted above, have nothing to do with medical neccessity, nothing. If becoming pregnant is inconvenient ,on the part of either party, then they have the responsibility to prevent that from happening, or they have the moral responsibilty of accepting parenthood.
A serious problem in the discussion of abortion is the lack of honesty. Honesty about how the pregnancy came about and honesty about the effect on the one life whom isn't allowed a choice.

Posted by: Edward Lunny at August 15, 2008 11:16 AM

Grim - I think the context of Anthony's remark is crucial:

http://www.prolifequakers.org/susanb.htm

At the time when she was writing and given the circumstances she was referring to, her claim that men (she is actually referring to husbands) impel their wives to abortion has merit.

As for women who use birth control still needing abortions, there are women who get pregnant on the pill even when they're taking it correctly. Condoms are not foolproof, not is spermicide. So, yes, women can get pregnant even when using birth control correctly and faithfully. However, I'd take that 50% number with a grain of salt. A pregnant woman telling someone she wants an abortion is quite likely to hear some version of, "Why were you too stupid to use birth control?" I'm sure it would be difficult - especially for younger women - to say they forgot, got carried away, or just didn't think. It's much easier to say they were using birth control and it just failed.

As I said in an earlier comment, Hirschman’s essay conflates two separate issues: carrying a pregnancy to term and raising a child. The fact that a woman is not prepared - financially, emotionally, whatever - to raise a child does not necessarily mean she cannot carry a pregnancy to term. It seems to me that over the last few decades the idea has arisen that a woman suffers the torments of the damned if she gives her child up for adoption and that therefore every effort must be made to at a minimum support her decision to keep her child and at a maximum actively encourage her to do so. Even abortion is apparently preferable to adoption. I simply do not see how someone can logically or morally get to that conclusion.

I have found in the past that an interesting way to judge whether people believe abortion has moral weight, whether the life of the fetus deserves any consideration at all, is to ask whether there’s anything morally wrong with a woman deliberately not using birth control and relying on abortion whenever she becomes pregnant. I’ve yet to run across anyone who thought that was acceptable. This tells me that most of us understand - whether we admit it or not - that abortion is weighing the life of the fetus against the needs of the mother; that the ideal outcome would be for the life of the fetus to weigh more heavily; and that the cases where the needs of the mother tip the scale should be exceptional rather than routine. In other words, legal, safe, and rare is a position most people understand and can live with.

Posted by: Elise at August 15, 2008 12:11 PM

" Being female, she prefers emotion-laden diatribes about poor, minority women who must (apparently) be treated as something less than rational decision makers. "...Nothing new here, this is an ongoing diatribe on the left. The sole reason for most of the government social program retinue is ,at the foundation, based on this, or a very similar premise. This allows the progressives ,along with nimority activists, to continue to milk the victimisation meme. The prime accomplishment of this strategy, besides continuing the rape and pillage of millions of paychecks, is to addict a segment of the population to government handout; usually at multiple levels. So long as the progressives continue this line the "disadvantaged" will never extricate themselves from the need of government assistance.

Posted by: Edward Lunny at August 15, 2008 12:14 PM

Elise,

At the time when she was writing and given the circumstances she was referring to, her claim that men (she is actually referring to husbands) impel their wives to abortion has merit.

No doubt it did -- and even today, it does: a man who fathers a child should adhere to his duty towards his child; and as his failure to do so might increase a woman's likelihood of having an abortion, he must share the blame.

What I was pointing to was the concept that the man's share of the blame was three times that of the woman's. Cassandra has said that women, if they wish to be treated as equals by men, must take equal responsibility and claim only equal rights. She was arguing that the refusal to admit to the awful truth about the nature of abortion was an avoidance of responsibility.

I cited Susan B. Anthony to show that, even at the point when the debate was clear on the evils of abortion, the concept of equality for women already meant something other than that. There is not equal guilt, but triple guilt for men. (I gather her argument was that men are guilty for forcing sex on wives who don't want children, and therefore bear responsibility for defiling their bodies, oppressing their souls, and also for the abortion's destruction of a human life; whereas the woman is only guilty of the abortion.)

Posted by: Grim at August 15, 2008 12:29 PM

For example, I don't think that this description of marital sex is going to please our hostess:

Oh, there is a dreadful volume of heart-histories that lies hidden in almost every family in the land! It tells of trust betrayed, of purity violated under sanction of law, of every holy feeling outraged and purest love turned to fear and loathing. If the moral feeling in the heart of woman was not stronger than death itself, the crimes we now chronicle against them would be virtues compared with the depths of wickedness and sin into which they would be driven.
So: in 'almost every family,' women are oppressed by their husbands demanding sex when they don't want children; and this is an 'outrage,' a violation of 'purity' and a turning of 'purest love into fear and loathing.'

If that is how she views the normal condition of married life, we started this debate on very unfriendly ground. Men are monsters, whereas women -- fortunately! -- have a moral feeling "stronger than death itself."

Posted by: Grim at August 15, 2008 12:39 PM

I was horrified when I read Hirschman's essay. And tempted to start a blog all on my own to rant away about it.

I find the aspect of abortion being not only a right, but a valued right, very disturbing. Years ago I participated in various pro-life activities and was more aware of the abortion lobby (and it is a multi million dollar operation, so let's not kid ourselves about it being just about "rights") and their preferred 'talking points'. Few were using the "not only do I have the right to do it, but damn it, abortion is good for me" argument. But that is basically what Hirschman is saying.

And THAT is horrifying. My gut feeling is that that particular argument is most important to those women who have had abortion(s) and are feeling some qualms about it. For some reason they feel like they can't hold the "abortion is necessary, but evil" thought in their head and so resort to the "it is beneficial" argument.

Sad.

I have a good friend of mine who had an abortion in college, for all of the regular reasons. She regretted it later, although she was able to reconcile herself to God and to forgive herself. Interestingly, I think she never was fully healed, however, because she never had kids. Her reason was, "I wouldn't be a very good mother." There was a subtext to that, which would occasionally come out if we had had a few glasses of wine. "not a very good mother....because a good mother wouldn't have aborted her child."

Sad.

I am currently 4 1/2 months pregnant. Half-way to D-day, as a matter of fact. But far shy of the "cut off" for the D&E procedure. I cannot, CANNOT, imagine a woman voluntarily going through that procedure after she has felt the baby move inside her. I am somewhat convinced that she has to be brainwashed, in some capacity, to think that is a good thing. And she must never have seen an ultrasound of her baby. Because I cannot imagine how she would think THAT would be a good alternative to any other outcome.

Ok, I have taken up enough space here. But I continue to be horrified and appalled by Hirschman.

Posted by: Kimberly at August 15, 2008 01:52 PM

The Thunder Run has linked to this post in the - Web Reconnaissance for 08/15/2008 A short recon of what’s out there that might draw your attention, updated throughout the day...so check back often.

Posted by: David M at August 15, 2008 04:21 PM

I read Anthony differently. Her triple guilt for men was because married women had no choice in whether they became pregnant whereas men had a choice in whether to make them pregnant. I believe you could extend that to mean that when choices (rights) become equal, guilt (responsibility) will also be equal.

I also read her claim of terrible "heart-histories" in almost every family as a belief that marriage between two people of such unequal power in all aspects - not just the sexual one - must inevitably destroy love. I also note that she does not place all blame for this state of affairs on husbands since she also chastises women for being "weak and disgracefully submissive".

I find her concluding paragraphs hopeful. She asserts that men are not evil but merely unthinking, simply doing as their fathers have done. Further, she believes that almost all husbands would - if they truly understood what life was like for their wives - strive to make marriage better.

Her whole riff about how the only reason women don't rise up and murder their husbands in their beds is that women's higher natures and moral feelings are so strong? I have to admit that's a bit much. But within the context of her times it's standard fare, at least the "women are more moral" part.

Posted by: Elise at August 15, 2008 04:36 PM

Grim, as to Susan B's view of marriage, in her day she may have been more correct than you think.

In general, women were controlled by their husbands almost completely. Of course there are exceptions to that.

Some states not only didn't allow women to vote, they either couldn't own property or had limited control over their property. Things began to change in 1848, and some states always allowed more rights to women.

In reality, a woman had little choice but to depend on a man for support. Men had the power (physically, politically, and monetarily) and some abused it horribly.

A lot of the abuse depended on whether the couple married for love or for the transference of property.

If a man can today, beat and imprison his wife and children (as I recently read about, but do not even remember the state), imagine how much easier it was for those so inclined 150 years ago.

Feminism made great strides for many years, but I think it's lost its way now.

When I was younger my position on abortion was that I shouldn't judge those who had one, knowing full well that I could never even contemplate it myself.

I'm quite close to Cassandra's position now. Having a daughter who had severe preeclampsia allowed me to come to the conclusion that abortion should never be completely outlawed, though in her case the baby would likely have survived if she had to be induced early. As much as I love my grandchildren, I'm not willing to sacrifice my daughters for another one.

Posted by: Donna B. at August 15, 2008 07:05 PM

Well, honestly, I have trouble accepting Susan B. Anthony's view. She is very harsh on women for being 'shamefully submissive,' but this is the very generation of women that overthrew centuries of tradition -- and, unlike later generations of women, without actual political power, but purely through persuasion and moral example.

My own sense is that women were far more powerful than is commonly appreciated -- indeed, surely the results speak for themselves. The Temperance woman in the satirical Hallelujah Trail sings, "Women can remake the world!" But the actual fact is, they did. These very women.

Posted by: Grim at August 15, 2008 07:20 PM

In Delderfield’s A Horseman Riding By, set in England between the two World Wars, one of the characters is a woman married to the local Squire. She adores her husband and is more than happy sharing his bed, bearing his children, supporting his endeavors, running his household, taking an interest in the lives of his tenants, and presiding over local fetes. She has all that she has ever wanted out of life. Speaking of the suffragettes causing such a ruckus, she says something like, “If I get the vote, I suppose I’ll use it but I can’t say it’s all that important to me. Do you think that’s why the suffragettes have to struggle so fiercely? Because of all the women like me who are content to trot between kitchen, nursery, and double bed?”

I believe it is those women - women content with the status quo - to whom Anthony is referring when she chastises women for being weak and submissive. Obviously Anthony’s understanding of them is somewhat faulty: surely most men are decent and many wives happy with their traditional roles. But since - as Grim points out - the only vehicle for change was through persuasion and moral example - even women who were content as they were needed to at least acquiesce to the movement’s goals for it to succeed. At a minimum they needed - as Anthony requests - to speak openly to their husbands about the darker side of marriage for a woman even if the conversation was, “You know I adore you and I’m perfectly happy but I can imagine what my life would be like if you weren’t such a kind, decent man.” Or “You know I adore you and I’m perfectly happy but look at (fill in name of woman who is married to a brute, perhaps even the husband’s sister or mother). She is not so fortunate as I and surely fairness demands she be given a better chance to save herself and her children from the monster she married.”

It’s worth noting that Anthony died 14 years before women were granted the right to vote; her abortion essay was written 51 years before women were granted the vote. We can look back and say that the actions of the generation Anthony was addressing would eventually change the world for women but I don’t think the situation looked that clear to Anthony herself. I imagine the resolve it took for her to fight her entire life for an outcome she never saw realized and can easily forgive her for being frustrated at those of her sisters who did not do more to advance the cause.

Posted by: Elise at August 16, 2008 11:21 AM

My 17 year old son, whom I adopted from foster care when he was 11, was the child of a single, unemployed, homeless mother. I'm glad Linda Hirshman and the rest of the feminazis didn't get to her, and tell her what the right decision in light of her circumstances was.

Posted by: V the K at August 16, 2008 01:52 PM

This is for Elise. I read all of Delderfield's books back in the 70's. very nice stories and I enjoyed and learned a few things from them. Nice of you to use that as an analogy.For the article BW has posted here I always thought that abortion rights where for the protection of the mother in severe cases and she could be harmed and not for mass birth-control because people where to stupid to think.

Posted by: Mike at August 16, 2008 03:12 PM

Sorry Cassandra I forgot which blog I was on.
Mike

Posted by: Mike at August 16, 2008 03:14 PM

When I was seventeen or eighteen or so, I attended a lecture by sci-fi author Isaac Asimov.

He was asked what he thought of birth control/abortion. I have never forgotten his answer - probably because it infuriated me at the time.

He said: if you are a woman, you cannot honestly escape the truth, and that is that if you become pregnant - NO MATTER THE CIRCuMSTANCES - you will have to bear the lion's share of the responsibility for the resulting child. Bearing a child places your life at risk. In this day and age, the risk may be smaller than it once was, but it is still a risk. For 9 months, your body will be taken over by another life form. And once you have the child, someone has to care for it. This will either affect your ability to work, or reduce your income if you pay someone else to care for your child while *you* work. The net effect is that your income will be reduced.

And finally, there is absolutely no guarantee the father of your child will stay around and help support the child until adulthood. Neither marriage vows, court orders or awards of child support can *force* him to do so.

Given that this is so, the inexorable outcome of this calculation is that the responsibility for preventing pregnancy rests where the risk is greatest -- on the woman. IOW, you can rant about "fairness" all you want.

But biology is not interested in fairness. The world is not interested in fairness. And you have to live in the real world, not some fantasy world in which everything is "fair". If women are logical, they will protect themselves.

Morality has nothing to do with it. This is a question of simple self interest.

************************

I was young when I heard that lecture. I am, of course, paraphrasing his actual words. But he was absolutely correct.

Women routinely fail to protect their own interests in romantic relationships, and then they cry, "unfair"! It always strikes me as odd when I hear men describing women as calculating and mercenary. Nothing could be farther from the truth. If we have a failing as a general class of people, it is that we fail to protect our self interest.

That is why we make good mothers - we think of behaviors men don't bat an eyelash at as being somehow shameful.

Regarding birth control, the failure rates of most birth control methods (properly used, of course) are so small as to be insignificant. That said, I work with statistics. If you truly don't want to conceive a child, you don't rely on just one method.

Again, the means of prevention must be rationally related to your risk tolerance. That is the missing piece here - the bottom line is that we routinely fail to perform this calculation. I did it, too, when I was young.

The difference is, I don't excuse the behavior, or call it anything other than what it is.
But I also learned from my mistake, even though the outcome in that case was a child I love more than life itself. And when I was only 23 I looked honestly at my situation, at the fact that I become pregnant at the drop of a hat, and I had a tubal ligation.

I grieved over that decision for a good 15 years, every year on the anniversary of when I had it performed. That is a goddamned long time to hurt over something.

But I vowed that I was not going to spend my adult life fearing a pregnancy that was unplanned and with my back up against the wall. I would, of course, have had the baby. But with me it would have been just one, and that would have been unfair to my husband. I'm not careful enough on a day-in, day-out basis. I know that about myself.

So if I sound a bit harsh on this topic, it is not anything I have not thought out, or anything that I have not lived with.

Posted by: Cass at August 16, 2008 05:51 PM

Women routinely fail to protect their own interests in romantic relationships, and then they cry, "unfair"! It always strikes me as odd when I hear men describing women as calculating and mercenary. Nothing could be farther from the truth.

I think the primary reason men say that is cause women feel offended or taken advantage of, and then they lash out emotionally and take your stuff. Or strip your apartment one day and leave you with not even a chair.

This creates the sense that women are calculating only to the extent that men can't see this happening in advance in so it looks like it is sudden and pre-planned. Obviously, if you are un-vigilant and get jacked, it will look like they pre-planned.

Posted by: Ymarsakar at August 16, 2008 09:24 PM

Pro-choice always refers to the right of the woman, not the child. Pro-choice always refers to the burden placed on the mother by the unwanted child. Pro-choice always offers one choice, abortion. Why is it pro-choice?

What about giving the unwanted child to a family that would dearly want and love that child. In this day and age there isn't much danger of shame in being pregnant and not married. Nobody seems to even believe in marriage anymore.

I am sure the child would enjoy breathing and living rather than being burned alive with a saline abortion or being ripped apart in other methods. I know it is graphic, but shouldn't it be shown for what it is. Killing shouldn't be approached lightly with no thought to the real outcome.

For those of us who believe in God, The God who created us and gave us life, how can we stand by silent? What will we say when we face him on our last day?

I pray that we as a nation don't keep facing life so callously.

Posted by: mhgdairy at August 16, 2008 09:41 PM

I think the primary reason men say that is cause women feel offended or taken advantage of, and then they lash out emotionally and take your stuff.

My observation -- speaking as someone who has never had a painful breakup, and so had observed them with a certain detachment -- is that it usually happens like this:

1) Women enter relationships with hope, and try to see if they can be made to work. This is the part where calculation and mercenary sentiment would actually be appropriate: the time to make such calculations is before unbreakable bonds are formed, such as those emotional bonds caused by sex, the lifelong bond caused by creating life, or the legal and spiritual bond of marriage.

However, as Cass notes, women often don't adequately protect their interests. They end up forming one of those bonds with someone who isn't appropriate for them, due to incompatible goals, personalities, or other problems. (I read yesterday an interesting article on what the Pill may contribute to these miscalculations by women; you probably saw it.)

2) The men enter into the relationships out of the joy of finding an attractive woman apparently interested in them. Due to biological imperatives, they tend to press for sexual commitment faster. Men are also not calculating at this stage -- it's enough that there is a beautiful woman, and you have a chance with her.

3) Sometime after the bond is formed, the woman begins to recognize that the man is not compatible. She begins to do her calculating now: how can she change him into something more like what she'd prefer, especially in terms of career goals, longterm desire for a steady relationship to her, etc.?

4) The man finds this to be calculating and mercenary. Had it been done at the earlier stage, it would not have been painful for either of them: she would have kept looking, and he would not have noticed her unmentioned rejection of him among all the other rejections that men receive. Now, however, she is plainly saying that he isn't all right just as he is: and he'd better change if he wants to keep her. The changes she wants are hard, and he resents being manipulated and forced to choose between being someone he doesn't want to be, and losing her love.

5) The relationship breaks up in mutual bitterness and acrimony. The man is convinced the woman is mercenary and calculating; the woman, that the man took advantage of her willingness to offer her love without being serious about commitment.

He fails to realize that she only became mercenary when she had already formed a bond with him, and wanted to make it work. She fails to realize that he thought he was committing to a life with her, but one in which he would get to continue being the person he always was -- not asked to become someone he never wanted to be.

All of these problems arise from too-early sexual behavior, and a failure to calculate (which is perfectly honest and respectable, in something as important as choosing a lifelong mate) at the right time. Both negative impressions are partially fair, and partially misplaced. The anger, though, tends to linger; and once this has been repeated more than once, it tends to flavor people's attitudes to the whole opposite sex.

Posted by: Grim at August 16, 2008 09:57 PM

Ymar, there is a lot of truth to that :p

One of the perennial problems between men and women (and Grim outlined a lot of this) is that commonly women will give out lots of signs that something is wrong. They will try to talk things over and fix it. And the more astute men (or the ones who want a relationship) will at least try to meet them halfway.

But a lot of men just shut down when they hear something they don't like. As my husband likes to say, "That's one response..."

It's OK, I guess, if you don't plan on staying together. The thing is, relationships involve negotiation. All of them do. And negotiation means you have to be engaged. I have watched women all my life. A lot of the 'hysterical' behavior men dislike in women is just women trying to get a man's attention when he knows damned well that there is a problem (and men admit all the time that they knew something was wrong but had decided to ignore it in the hopes that it would "go away").

Like a lot of things, including your teeth, if you ignore them long enough relationships also "go away". Women do not, actually, expect a man to capitulate to their every demand. Both men and women, I have noticed, will stubbornly try to get their way in a relationship. There is always a power struggle. But if you both care, you compromise. Thus, a man who thinks he can just go on without ever changing his behavior one iota isn't ready for a relationship, because you have to behave differently in a relationship than you do when you're single.

So do women. You have to let your partner know what things are negotiable and which ones aren't. And then you work it all out. The man Grim is describing didn't really love her.

He was having sex and didn't want to have a relationship on top of that. It's just that too many women erroneously assume that if a guy is hanging around regularly and having sex with her, he cares for her the way she does for him.

Not so. Hence the waterworks when she realizes her mistake. If you ask me, from a female standpoint, men are far more "mercenary" about relationships. They know damned well that women want a serious relationship, and yet many will take the sex and rebel when the "bill" (in the form of an actual relationship) comes due. For them to say they didn't know is nonsense.

They knew. It just didn't matter to them until the "price" of sex became too high.

Posted by: Cass at August 17, 2008 08:17 AM

The man Grim is describing didn't really love her. He was having sex and didn't want to have a relationship on top of that.

No, I don't think that's quite right. I think the men I've observed did love the women -- otherwise they wouldn't be so hurt and angry about all of it.

It's just that they loved the woman, just the way they were when they met. And they wanted to be and expected to be loved, just the way they were. And at first, when they made the choices they made, they thought that's just what they were getting.

What they didn't want was to change. They wanted things to continue as they were, forever. They thought that every day, they'd get up and go to work and then to their favorite recreation, and the woman would come, and they'd have a wonderful time together, just as they had been doing. Perhaps someday they'd marry or have children; but if there was any change, it would come naturally, just sort-of happen, and be easy and smooth.

Now, that's obviously unrealistic from where I sit today: but I can remember being young, and how years would pass and it felt like nothing changed. In my early 20s, it seemed like you'd go or come, do whatever you wanted, be in this city or that one: you had forever, and there was no rush about anything. Years passed, but nothing seemed to change. It's only in retrospect that I can see how little time there was.

So when I see young people going through this dance-to-misery, I just feel sorry for them. They have been failed by their ancestors, who didn't teach them what they needed to know to avoid it. People thought breaking down the walls -- those oppressive traditions -- would free them to have a beautiful, natural sexual relationship that would be free of pain or longing.

Well, no, this is what you get instead. And will continue to get, until finally we establish some new ground rules.

I played the game by the old rules. Some of that is because I came from a part of the country where the old rules were still in fashion. Part of it was because I grew up with stories of knights and ladies. I had a vision of True Love to pursue and try to enact.

That's what's missing. It's not the fault of either the man or the woman; they're both doing what comes naturally, each following their heart, which is what they've been told to do. What they needed was to be taught to follow the vision, instead.

Posted by: Grim at August 17, 2008 10:11 AM

What they needed was to be taught to follow the vision, instead.

Or rather, to follow The Vision -- the Ideal.

The problem I see is that too many bombs have already been dropped on that bridge, leaving it too narrow and rickety for more than a few to cross at a time.

The "Instant Gratification" JDAM. The "It's all about me" FAE. The "Because I'm worth it" BLU-106. The "Just do it" CBU-59.

The final realization that the world will pretty much ignore one's unrealistic expectations will sometimes result in a mental turnaround -- and sometimes result in a mindless railing against the "unfairness" of it all.

Posted by: BillT at August 17, 2008 10:53 AM

Yes, exactly. The Vision is what I meant; and you are right that the bridge is too damaged now for many to travel.

That means the bridge must be rebuilt. But this is always true:

But the young earl said: "Ill the saints,
The saints of England, guard
The land wherein we pledge them gold;
The dykes decay, the King grows old,
And surely this is hard,

"That we be never quit of them;
That when his head is hoar
He cannot say to them he smote,
And spared with a hand hard at the throat,
`Go, and return no more.' "

Then Alfred smiled. And the smile of him
Was like the sun for power.
But he only pointed: bade them heed
Those peasants of the Berkshire breed,
Who plucked the old Horse of the weed
As they pluck it to this hour.

"Will ye part with the weeds for ever?
Or show daisies to the door?
Or will you bid the bold grass
Go, and return no more?...

"And I go riding against the raid,
And ye know not where I am;
But ye shall know in a day or year,
When one green star of grass grows here;
Chaos has charged you, charger and spear,
Battle-axe and battering-ram.

"And though skies alter and empires melt,
This word shall still be true:
If we would have the horse of old,
Scour ye the horse anew.

Posted by: Grim at August 17, 2008 11:24 AM

"Will ye part with the weeds for ever?
Or show daisies to the door?"

I can part the weeds and cut the daisies with a MOAB...

Posted by: BillT at August 17, 2008 11:53 AM

Yes: but will they stay gone forever? :)

Posted by: Grim at August 17, 2008 12:22 PM

They will if I plant kudzu.

Posted by: BillT at August 17, 2008 02:02 PM

Perhaps someday they'd marry or have children; but if there was any change, it would come naturally, just sort-of happen, and be easy and smooth.

*sigh*

I've bitten back several comments on the way to this one. Grim, as you yourself pointed out, this isn't exactly realistic, is it? :p

Those are rather big life decisions. They don't happen organically - they come about (one hopes) because two people have seriously:

1. Committed to a long term partnership that will effectively end the 'idyllic' existence you describe, and

2. Talked it over, first.

This is why so many women get frustrated - because guys absolutely do have a tendency to want to coast along ignoring the elephant everyone knows is in the room. It's OK to be on different timetables. You just need to get that out into the open, and some guys can't or won't discuss the subject honestly.

To the extent that women allow them to do this, they are equally at fault when misunderstandings arise. But for an adult to think he can have all of the benefits of marriage with none of the responsibilities is... gosh, do I have to spell that one out? There's an old saying: why buy the cow? And men are perfectly willing to go on taking the free milk for years and then they act surprised when they find the cow thought some degree of reciprocal relationship (give and take) went along with the privileges she isn't giving anyone else but him (duh). And to be fair here, it's a rare guy who would be happy to have her stepping out on him, so whatever he says there was some sort of understanding there. He just prefers to keep it squishy and not think about unless it's his ox being gored :p

I don't blame men entirely. I think (as I said) women have a responsibility to be up front about their expectations. I never had that problem with anyone I dated, but then I think I must have made it plain, even if I did so in an unspoken fashion, that I had certain standards and if I wasn't getting what I wanted from the relationship, I would find someone else. I think also I didn't date guys who were likely not to treat me well, and so the problem didn't arise.

I know with my husband we discussed this fairly early in our relationship when it became apparent we were pretty serious about each other and it also was apparent we were on different paths. He made it plain his plans didn't include marriage in the near term and he was honest enough to let me know what his time frame was. This made me unhappy but I appreciated his honesty.

I was willing to wait for him, but not that long. And so I told him my plans didn't include an exclusive relationship with someone who might well change his mind. So, I thought we should both date other people, and if we were meant to be together, things would work themselves out. But I wasn't going to sit around for years waiting on his plans. That didn't make him happy as I recall, but then again there's that whole "don't get something for nothing" proposition. As it turned out, eventually we did end up together. But it didn't "just happen" :p

Posted by: Cass at August 17, 2008 02:15 PM

The changes she wants are hard, and he resents being manipulated and forced to choose between being someone he doesn't want to be, and losing her love.

That's like hitting your toe and getting angry. I think those issues are painful, yes, but still temporary. It's the permanent psychic damage stuff that I believe creates that long lasting bitterness Cass has seen over at Dr. Helen's webpage and what not.

So in those terms, I attribute the damage more to psychic shock, the surprise of it all, rather than knowing she wants changes and disliking it. It's often men don't even know something is up, they only get a whiff when the disaster hits, and then they get bitter since it is a combination of getting surprise ambushed and becoming helpless.

A lot of men don't want to play the manipulation or lying or dishonesty or whatever they see it game. Doesn't mean they are right, but that's how they are, for one reason or another. Even people who look beyond that, still argue about what the virtue of honesty is, Grim.

(I read yesterday an interesting article on what the Pill may contribute to these miscalculations by women; you probably saw it.)

The only thing I saw on your blog was a bunch of posts about swordsmanship ; )

But if it was there, I probably missed it.

She fails to realize that he thought he was committing to a life with her, but one in which he would get to continue being the person he always was -- not asked to become someone he never wanted to be.

But I don't think most men, or even some men, would dislike it all that much if the women were upfront and frank about what they didn't like. Depending on what it actually is, like money or whatever, it could be resolved.

People make compromises in life all the time between what they want and what they can have. It's the surprise factor that essentially makes people emotional and angry, in my view.

People thought breaking down the walls -- those oppressive traditions -- would free them to have a beautiful, natural sexual relationship that would be free of pain or longing.

Or the KGB made them think it was their own idea, when they were simply, in reality, puppets pulled by other walls and oppressive traditions. The tradition of war, deception, and propaganda.

Posted by: Ymarsakar at August 17, 2008 06:41 PM

People make compromises in life all the time between what they want and what they can have. It's the surprise factor that essentially makes people emotional and angry, in my view.

Also, people tend to behave differently with lovers, friends, and family than they do with strangers and other members of greater American society.

Like the thing with not paying back your little "loan" because you are their friend and don't charge interest?

It's like without the societal expectations or conditioning, there is no motivation there to act according to the same standards. So while men may have to negotiate hard and bargain or whatever in terms of economic cash and spending, they may think it is different in a private relationship. The same for women.

And this may be independent of their actual economic acumen or not. Although those wise in the way of economy always inevitably end up being wise in terms of human relationships as well. Since human folly and human nature is nothing if not spending money unwisely.

Posted by: Ymarsakar at August 17, 2008 06:45 PM

When I was young, I could not have imagined saying that a woman must not enter into a sexual relationship with a man until the man has proved that he can make a safe home for the child that may well result. I'd have said you were crazy, repressive, paleolithic. But the simple fact is that few women can be sexually active for a very long time without experiencing an accidental pregnancy. The odds are just not in favor of it. And then what? If we've been having sex with a man who just wanted a pleasing relationship, where does that leave the baby? Is it the baby's fault that we couldn't face facts?

I thought the idea that a woman should guard her "purity" was the sheerest lunacy. But now I can see that it's her simple duty as an adult human being to say, "No sex until you prove you can and will help me make a safe home for the child that may result." Unless she genuinely believes she can do that on her own. Some women can, but it's awfully rare. The number of 16-to-26-year-olds who can pull it off is vanishingly small. Yet that's just the age I was when I thought anyone proposing restrictions on free, natural sex was just an old fart, chained by an ignorant past.

It can't be right to start the sexual relationship, then later spring it on the guy that we're really serious about making a safe, long-term baby nest. If he's not on board, best find out right away, and both keep looking.


Posted by: Texan99 at August 18, 2008 07:10 PM

That comment, Ma'am, is one I could have written :p

And it mirrors the advice I gave my young sons exactly.

I told them it was their absolute duty as gentlemen to protect any young woman they chose to share their bed with (and themselves) because I was explaining how biology works to them, even though I was pretty sure they were too young and cocky to believe me.

I told them that in a perfect world the girl would look out for herself, but there was also a word for young men who relied on *that* premise:

Dads :p

Posted by: Cassandra at August 18, 2008 07:25 PM

Then you must be a lovely mother.

Posted by: Texan99 at August 18, 2008 10:31 PM

I made a lot of mistakes as a mother.

A lot. There is a lot I wish I could do over.

But that one thing, I feel good about. My boys picked lovely, intelligent women whom I love dearly, and they have wonderful relationships with them.

They are good sons, and I'll bet that, too had more to do with their father's good example than anything I ever taught them.

Posted by: Cassandra at August 18, 2008 10:40 PM

If you say so. :-)

Posted by: Texan99 at August 19, 2008 03:24 PM

Yet that's just the age I was when I thought anyone proposing restrictions on free, natural sex was just an old fart, chained by an ignorant past.

The first step in destroying a society is convincing the next generation that the wisdom of the ancients are foolish and should be disregarded.

Posted by: Ymarsakar at August 20, 2008 03:53 PM

"Evidence was presented that a medical consensus exists that partial birth abortions are NEVER MEDICALLY NECESSARY. Ever."

Never has there ever been a more appropriate usage of the passive voice. Ever.

"Evidence was presented." No. What was presented was Congress' findings, a raw assertion that PBAs are never medically necessary. The medical community, as it happens, doesn't quite agree. All three district courts which heard challenges to the act found that there was, at least, substantial disagreement on this score, and held that there was no "medical consensus" supporting the claim. Indeed, Justice Kennedy admits that Congress' assertion on this front is "factually incorrect". And even supporters of the law admit that the procedure banned under the act is sometimes safer, such as when Focus on the Family Vice President Tom Minnery ghoulishly lauded the increased risk of "danger of internal bleeding from a perforated uterus" as a perk to the legislation.

Kennedy's opinion simply doesn't hold water as either a good-faith application of Carhart I, or any critical standard of review required under Casey's undue burden test. Unsubstantiated Congressional "findings" by all reasonable interpretation cannot trump the clear holding of Carhart I that abortion restrictions need to have a health exception for the mother. There is no reasonable way to argue that this is satisfied by an unsubstantiated finding by non-doctors that isn't agreed to by a consensus of actual doctors.

Posted by: David Schraub at August 24, 2008 12:40 AM

None of what you are saying addresses my point: that there was hardly anything in the opinion itself about a woman's mental state, yet both you and Hirshman somehow inflated an extremely MINOR point into being the central argument when (in fact) it was not.

Also, the opinion clearly states that since there was significant medical debate and doubt about the necessity of this procedure (again, READ THE OPINION), and SINCE THERE ARE OTHER EASILY AVAILABLE MEANS OF OBTAINING LATE TERM ABORTIONS THAT DO NOT VIOLATE THE ELEMENTARY STANDARDS OF HUMANE TREATMENT MOST PEOPLE WOULD GRANT TO A PUPPY - BUT APPARENTLY NOT TO A HUMAN BABY) and since it has been a longstanding judicial maxim to defer to the will of the people whenever possible:

...every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.’

...there was no reasonable alternative (save the arbitrary and capricious exercise of judicial power) to upholding the statute.

Sorry, no sale. As I noted, I read the opinion. Several times.

Posted by: Cassandra at August 24, 2008 09:18 AM

"...every reasonable construction must be resorted to, in order to save a statute from unconstitutionality."

In the words of a great Spanish swordsman, that maxim does not mean what you think it means. More specifically, it's a standard of interpretation (construction), not a standard of review.

What that means is that if a statute is ambiguous, and there are multiple ways of interpreting it, the court will if possible resolve the ambiguity in a way that makes the statute constitutional. Say, for example, a state barred all programs which "discriminate on basis of race." And let's say the state education system was under a federal ruling which required it to give affirmative action to Black students as a remedy to past discrimination. Does that count as "discrimination" under the statute? Maybe, maybe not, but if it does the statute is clearly unconstitutional under the Supremacy Clause. So the courts will likely interpret it as not encompassing the federally mandated AA program.

Or take another example closer to the case at hand. Say a law similar to this was ambiguous as to whether it prohibits D&E and D&X abortions, or just D&X abortions (for purpose of forestalling argument, we'll say it has a health exception). And let's say the court has already decided that prohibiting D&E abortions in unconstitutional. In that case, the court would resolve the ambiguity of the statute so that it only bans D&X abortions. And indeed, that question as applied to this case was the only time Kennedy cited the maxim in question ("The canon of constitutional avoidance, finally, extinguishes any lingering doubt as to whether the Act covers the prototypical D&E procedure." [proceeding to quote your maxim]).

But once an interpretation of the statute is settled upon (or it is clear from the start), the maxim does not have any effect on the standard of review the court brings to bear (which is good -- were it a standard of review it would gut the entire line of fundamental rights jurisprudence from Brown to Griswald to Lawrence to Gideon). Courts most certainly are not supposed to defer to legislators when there is a right at stake (when there is not a right at stake, there are supposed to defer under what's known as "rational basis" review, but abortion cases don't fall under that rubric).

In this case, what the statute does is not ambiguous. It bars D&X abortions in all cases, included those where the attending physician feels that it is the safest practice for the mother. The question under existing court doctrine is whether that is a) an "undue burden on a woman's right to choose" under Casey and b) consistent with the ruling in Carhart I that abortion regulations need to make room for health exceptions (or more specifically, whether Congress can fiat that requirement away).

Posted by: David Schraub at August 29, 2008 09:38 AM

The ambiguity inherent here is whether this particular procedure was closer to abortion or infanticide and whether, if allowed, it would diminish the value of human life.

There is no rational question that that is a difference between euthanizing a human baby BEFORE cutting it out of the mother piece by piece (or stabbing it to death) and allowing it to be partially born and then commencing with what amounts to either a physical assault or vivisection.

In this case, since other comparable means of abortion were readily available, the Court asserted that the State had a greater interest in protecting the value of human life and staying well away from procedures that too closely resemble murder than it did in preserving the mother's "infinite choice" to a variety of abortion methods.

The full Kennedy quote is here:

The Act's ban on abortions that involve partial delivery of a living fetus furthers the Government's objectives. No one would dispute that, for many, D&E is a procedure itself laden with the power to devalue human life. Congress
could nonetheless conclude that the type of abortion proscribed by the Act requires specific regulation because it implicates additional ethical and moral concerns that justify a special prohibition. Congress determined that the
abortion methods it proscribed had a "disturbing similarity to the killing of a
newborn infant,"
Congressional Findings (14)(L), in notes following 18 U. S. C.
§1531 (2000 ed., Supp. IV), p. 769, and thus it was concerned with "draw[ing] a
bright line that clearly distinguishes abortion and infanticide."
Congressional
Findings (14)(G), ibid. The Court has in the past confirmed the validity of drawing boundaries to prevent certain practices that extinguish life and are close to actions that are condemned. Glucksberg found reasonable the State's "fear that permitting assisted suicide will start it down the path to voluntary and perhaps even involuntary euthanasia."

Since alternate means of abortion were available (all the physician had to do to escape statutory liability was kill the infant before extraction) it did not place an undue burden on anyone. The Court was properly protecting a legitimate government interest. I read no convincing argument that this procedure was any safer (in fact, the Court referenced statistics implying it was not any safer). Therefore in a competing interest situation, the statute was upheld.

As for the health exception, though the statute contains no explicit health exception, a doctor being prosecuted under the stature could still assert the Constitutional defense that the procedure was necessary to save the life/health of the mother.

Again, no "right" is waived by upholding the statute.

Posted by: Cassandra at August 29, 2008 11:06 AM

And as an aside, none of this has anything to do with the central point of this post, which was that both your post and Ms. Hirshman's piece asserted that the "mental health of the mother" argument was a central or major part of the Court's reasoning.

In fact, it was not. That this assertion is contra-factual is quickly demonstrated by reading the opinion.

Posted by: Cassandra at August 29, 2008 11:09 AM

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