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August 18, 2007

Must reading of the day

By Kathy G.

Scott Lemieux's review of a new book on why "centrist" abortion regulations don't work. Here's the gist of it:

The particularly salient lesson to draw from Silverstein's book is that it's important to ask whether abortion regulations actually accomplish anything, even on their own terms. "Basing a policy that regulates the right to abortion on confidence that the law stands outside of politics and free of bureaucratic red tape," writes Silverstein, "is a mistake fraught with consequences for those whom the right ostensibly protects."
Support for these laws is often more about the assumption that compromise on abortion is inherently desirable rather than arguments about what benefits will come from the legislation. Is there any evidence, for example, that the lack of abortion regulation makes the decisions of Canadian women less responsible? Whatever their merits in the abstract, in practice "centrist" abortion regulations do little but put up obstacles in the path of the most vulnerable women while not accomplishing any useful objective. Parental involvement laws -- which are largely superfluous for young women in good family situations and potentially dangerous for young women in bad situations -- are a case in point, especially since the safeguards intended to protect the latter don't work. Silverstein makes a careful, meticulous, and ultimately powerful case that even those who support the ends of parental involvement laws should reject them in practice.

August 18, 2007 in Politics of Choice | Permalink

Comments

Lemieux's views would be perfectly logical if the only interests and rights involved were those of the born. They will never stop seeming perfectly logical to a society committed to permanently closing its eyes to what hangs on the other side of the ethical balance.

At some point in the future it will be possible to remove fetuses from the womb temporarily and return them (after a medical procedure?). Born fetuses will travel as legal persons -- at least if they are developed enough for there to be a consensus on their full humanity --, and must retain that legal status upon return to the womb.

At that technological point will it be possible to have some fetuses "slave" and some free?

At that point it will no longer be possible for the Supreme Court to deny that, just below the consensus on humanity line (now the legal personhood line -- 14 weeks would be my guess), unborn fetuses are compelling state interests (possible human persons) protectable under Roe v. Wade's statedm but then switched off, compelling interest doctrine: fundamental constitutional privacy may only be overridden by a compelling state interest.

How far down the development scale the possibility of full-fledged human life will be taken as compelling will be returned for legislature to agonize (and read the polls) over.

Law like writing can "maketh the precise thinker", and Roe could not work out any passable logic for constitutional abortion rights -- which should make the abortion rights committed society take a second look.

Roe count tell when life begins in the case of a 10 month overdue fetus -- even though a 5 1/2 month preemie struggling to survive is unmistakably human.

According to Harvard's Laurence Tribe: "One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests [the weight of the fetus in the opposite balance from privacy] is nowhere to be found. (HLR. Vol.87:1, p.7)

Roe's did not (could not?) explain its viability line for compelling interest. America's most quoted liberal law professor, Tribe, again: "One reads this passage several times before becoming convinced that nothing has been inadvertently omitted. (quotes passage) Truly this mistakes a "definition for a syllogism" and offers no reason at all for what the Court has held.

Sandra Day O'Connor said Roe was on a [technological] collision course with itself -- meaning that the viability ruling would eventually undermine Roe's trimester structure. She was [technologically] right in more ways than one.

Posted by: Denis Drew | Aug 18, 2007 11:53:42 AM

Lemieux's views would be perfectly logical if the only interests and rights involved were those of the born.

Good news for Scott, then, since those are the only interests involved! (Despite the insipid insistence otherwise in Roe.)

Posted by: Jason G. | Aug 18, 2007 12:43:39 PM

I guess I've missed all the legislation based on the principle that compromise about abortion is inherently good. All the legislation I'm aware of has been understood and debated in relation to its probable results.

Denis, I think you're probably wrong that a fetus removed for a medical procedure and then placed back in the womb (and I can't imagine how that could be done anytime in the near future) would be considered born.

Jason, how was Roe insipid? At some point a fetus receives full human rights. Drawing that line, and for some good reason, is something that Roe rightly took very seriously. A fetus isn't essentially different in its inherent nature right before and right after it's born.

Posted by: Sanpete | Aug 18, 2007 5:55:03 PM

I guess I've missed all the legislation based on the principle that compromise about abortion is inherently good. All the legislation I'm aware of has been understood and debated in relation to its probable results.

Really? Because the probable results of parental notification laws seem pretty much exactly what Lemieux outlines, and, I mean, I guess some people might find them desirable, but to me they seem like a pretty terrible idea. Also, in the non-legislation world (i.e. a lot of people one talks to about abortion) there definitely does seem to be a view that "pro-choice but with restrictions" is the only "moderate" and therefore the only acceptable view, despite the fact that I have yet to find someone who can give me a decent reason for supporting any one of the restrictions they support, much less many of them. Perhaps your fellow conversationalists have put more thought into the issue than mine.

Posted by: Isabel | Aug 18, 2007 8:38:46 PM

As I read it, Roe says that the State has a legitimate interest in protecting fetal life, the whole way through, but that that interest doesn't override the woman's privacy interest until the second or third trimester. The decision seems to endorse the idea that the state has a legitimate interest in "protecting" a week-old embryo.

Posted by: Jason G. | Aug 18, 2007 8:40:32 PM

I suppose if I lived in the fascinating Raymond Carver-esque universe that Denis Drew inhabits, I too would want abortion policies based on things that have yet to occur... but they haven't and we don't. In the world we live in, viability remains about where it has been since Roe was decided, and that's one of the main reasons Roe holds up in its analysis that, as Jason G notes, says that the state's interests in protecting fetal life only override the mother's wishes after viability. We'll have a lot more issues than just abortion policy to contemplate should Denis' mysterious future world arrive, anyway, but I think the one part of the dilemma that's going to be constant is that many people, me included aren't going to automatically let technology override the right of a woman to control her body.

In any case, I think the book sounds interesting, though I think Lemieux, for all his passion on the topic, gets a little ahead of himself, and Sanpete's right - there isn't a "centrist" abortion law involved here, but really a series of awkward compromises; as a society we're kind of uncomfortable with the idea of teenagers getting abortions and hiding them from parents, so "parental notification was presented as a sort of benign, though troubling, alternative. Now we have extensive research to suggest that judicial workarounds don't work, and it's likely that the only real outcome is renewing a battle that never really had a compromise in it. I'd love to think that this book will help bring a snesible end to parental notification, but I doubt that, like sci-fi notions of womb transfers, is realistic.

Posted by: weboy | Aug 18, 2007 11:21:14 PM

Isabel, those who support parental notification laws think the likely outcome will be parents being notified when their minor child seeks an abortion. If they agreed with Lemieux about the likely results they might feel differently.

There's a difference between weighing competing goods and bads and arriving at a compromise and the view that compromise is itself inherently good. Roe is an example of the former. Your acquaintances may favor a "moderate" position on abortion, but that may not be because it's moderate. It's probably because they think the particular issues involved with, say, parental notification call for a solution that happens to be not on either extreme, e.g. parents really ought to have the legal right to notification, but not in cases where there is a danger to the child, etc.

I don't think I've ever heard someone justify a belief in a policy related to abortion on the grounds that compromise itself it the goal. Satisfying competing ends as well as possible may be the goal. Seeing the reasons for a policy in as compromise for compromise's sake is just a way to dismiss the reasons for the compromise. (It may be more common for some to believe that compromise is inherently bad.)

The decision seems to endorse the idea that the state has a legitimate interest in "protecting" a week-old embryo.

The state can easily have an interest in human life at all stages, don't you think? The Court, as you say, doesn't rule that it's a strong interest at first, but the state might take an interest even in early stages to, say, prevent birth defects. I don't think that's unreasonable.

Posted by: Sanpete | Aug 19, 2007 1:21:57 AM

The mysterious "present" world consists of a human mid-brain/fore-brain setup wherein our highly evolved fore-brains are configured to figure out ways to satisfy the cravings of our lizard-vestige mid-brains.

As far as I can see (looking into my own mysterious mid-brain) fetuses simply don't exist to said mid-brain (a.k.a., seat of murky human motivations) until born. Hence my appeal to a sci-fi future where fetuses are born temporarily as a way of tickling today's mid-brains to recognized the possible "existence" of fetuses.

Our current C3K (close encounters of the third kind) legal setup of equal rights is not exactly Dr. Spock logical -- but if blind emotion couldn't care less; what's a fore-brain to think?

Another version of the "born = existence" switch: in partial birth abortion a baby is delivered feet first and the brain is sucked out to ease the final delivery through the cervix. Logically, if feet-first "fetuses" are not a legal persons, HEAD first "fetuses" must not be either. Logically.

There are doctors in China who deliver full-term babies head first and, then, either strangle them after the heads emerge fror inject chloroform into theie fontanels just they are about to emerge, as a form of abortion. Try that on this side of the Pacific and end up with a murder conviction.

"Abort" a full-term baby, partially delivered, feet first and get away with it? Maybe; but certainly not if somebody tickles the baby's feet first -- the interaction of tickling would definitely throw that reflexive mid-brain switch that baby now exists.

If one's mid-brain is completely unconcerned with the fate of the unborn -- period -- one's fore-brain will find the above a lot of (useless?) nonsense. It all depends on one's reptilian reactions (there is a moral side, too -- but then we have to get into the "will" or the "soul").

Posted by: Denis Drew | Aug 19, 2007 1:34:04 AM

I forgot to mention above: said mid-brain (a.k.a., limbic system -- fountain of human motivations) is about the size of a pea.

Posted by: Denis Drew | Aug 19, 2007 10:52:56 AM

Oh wow Denny, you mean you actually don't understand the difference between a fully born child and a second-semester, pre-viability fetus such as one would abort via D&X?

How embarassing for you.

Posted by: Dawn | Aug 20, 2007 5:04:45 PM

Dawn, the differences seem rather continuous in development, at least taken together, so what Denis is talking about raises the issue of where to draw the line between a human being with full rights and a fetus with none, or whatever system you'd prefer.

Posted by: Sanpete | Aug 20, 2007 8:14:24 PM

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Posted by: judy | Oct 11, 2007 7:42:28 AM

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