Burnt Orange Report

Justifying Abortion

By Jim Dallas

Nathan Newman has a post on the rhetoric of abortion which ought to provoke considerable thought about the first principles of the pro-choice movement.

As an aside, the "pro-choice" moniker was adopted in large part to put the focus on the libertarian rhetoric Newman criticizes. So I think there's very little doubt that Newman has at least correctly identified the dominant mode of anti-prohibitionist rhetoric, viz., that abortion is not good, but criminalization is and would be bad (or worse). Newman cites Howard Dean's statement last Sunday as Exhibit A:

I don't know anybody who thinks abortion is a good thing. I don't know anybody in either party who is pro-abortion. The issue is not whether we think abortion is a good thing. The issue is whether a woman has a right to make up her own mind about her health care

For what it's worth, I'm going to make a few remarks defending the libertarian perspective against Newman's critique.

First, I take issue at Newman's claim that the pro-choice perspective is amoral:

Abortion is not just some individual decision with no effects on broader society. That kind of rhetoric is a copout that is unconvincing. Allowing abortion is critical to equality for women and whether unwanted children are forced on parents is bound to have effects not just on those families but on our communities. Most abortion rights activists have not been libertarians who thought individual choices have no effect on broader society, but people who thought the availability of abortion causes profound and needed changes in that broader society: increasing women's ability to participate equally in the workplace, changing power relations between men and women within the family, and encouraging family planning so that children were wanted and not abused.

This is not to say that abortion does not raise moral dilemmas or should be encouraged indiscriminately, but those in favor of abortion rights have to argue that, overall, we have a better society because abortion is legal than if abortion was criminalized.

Abortion politics should not be a choice between moral injunctions from the rightwing and amoral libertarian platitudes from the pro-choice side. It should be a choice between two visions of creating a good society, with progressives arguing that their vision is the more profoundingly just and moral alternative.

I'd argue in response that there is a strong moral position in defending the autonomy and dignity of women, and that is precisely what the "amoral libetarian platitudes" of the keep-your-laws-off-my-body crowd amount to. Indeed, I'd argue that such strong claims are necessary to respond to the equally moralistic injunctions of the save-the-zygotes posse. When the other side is comparing you to Hitler and claiming that abortion is the worst moral crisis since slavery and the Holocaust, you really can't respond with blunt utilitarian claims about crime and the economy.

Of course, it would be unfair of me to characterize Newman's critique as being only that; clearly, Nathan Newman does have profound respect for womens' rights and their equal participation in society.

Let me draw an analogy. I was having a discussion with another law student yesterday about the death penalty, which she opposes strongly and I am, at best, lukewarm about (more against than for, but definitely mixed). In this discussion, she pointed to the well-documented disproporitionately large number of black men on death row and the inherent racism which can, and should, be logically inferred from this.

My argument, however, was that disparate impact is, quite frankly, a "racism problem", not a capital punishment problem per se.

Here's the analogy - if women need abortions to be equal in society, then I'd suggest we've got a much bigger sexism problem to deal with. Now, I suppose it could be argued that this isn't comparable - women have a monopoly on the baby business, and certainly there is considerable strain placed on women individually and as a class because of this. That said, I am still not convinced that abortion is the "great equalizer", and even if it were that this would be a per se justification for legal abortion by itself.

The libertarian position, however, affords an opportunity to subtly shoe-horn these concerns into an argument without really claiming they make all abortions A-OK. That is, in discussing personal autonomy, the issue of compassion towards women generally has to be discussed. The right-wing groups like Focus on the Fetus, err, Family has spent years attempting to humanize a clump of cells and dehumanize adult women as criminals.

A final issue I'd like to address is the issue of selectivity. The libertarian position, of course, does not claim that abortion is a "good thing." But that is not the same as claiming that all abortions are unjustified. Indeed, when Newman asks, "if abortion is never a good thing, then why should anyone have the option to have one," he is touching on this, albeit in a way which misses the subtle distinction between characterizing abortion generally and some abortions specifically.

For example, "war" is not a good thing and very few people hanker for Four More Wars. Yet, almost everybody aside from a few absolute-pacifists can think of a war that was worth fighting.

Certainly, conceding ground in cases where abortions are not justified but merely rationalized on some abstract principle is not exactly a good opening move. But in the larger picture, it may be a better way to piece together a pro-choice majority than trying to argue abortion is not a sin needing justification whatsoever.

At the very least, I think what Newman is proposing is a very long-term project, moving public opinion at a glacial pace. Given the fact that pro-criminalization politicians and activist-judicial nominees stand ready to crush reproductive rights at virtually any moment, I'm not sure it's a practical proposal.