Why Can't They Just Get Along?: Abortion, Part II
By Chad A. B. Wilson
Published April 21, 2007, 5:07 pm in News, Rhetoric.
I need to continue the discussion about abortion here. I'm not arguing whether abortion is right or wrong, though. Last time, I said that I agree that intact dilation and extraction is barbaric, and it should be illegal. That's not the same as saying that all abortion is wrong. Justice Kennedy describes several reasons why this particular procedure is wrong. His main reason is that it is consistent with legal precedent. I'm not sure this is actually the case, for the courts have generally struck down any law limiting abortion, and the law clearly states that laws cannot limit women's rights to abortion. But he makes his case against intact dilation and extraction through three other reasons:
First, the procedure is never medically necessary. In other words, there are other forms of late-term abortions which can be performed. It is never the case that this exact procedure is the only one that can be performed in order to protect the health of the mother.
Second, the procedure blurs the line between pre- and post-viability of the fetus. Part of the fetus is actually born during intact dilation and extraction as part of it reaches an anatomical marker of "birth." Exactly where that marker is may not be that clear, but there's a reason this procedure is called "partial birth."
Third, it may end up protecting the mother. This reason is where Kennedy loses ground. If he had stuck to the other two, he may have been okay. Pro-choice groups would still object, of course, but this reason really alarms them. Kennedy says in his majority opinion that "Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The Act recognizes this reality as well. Whether to have an abortion requires a difficult and painful moral decision...While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained."
I really don't understand why such a statement was necessary. Does it matter that some women may come to regret the procedure? Is that what our laws are about? Limiting regret over legal medical procedures? Kennedy doesn't stop there. He goes on to say that "some doctors may prefer not to disclose precise details of the means that will be used, confining themselves to the required statement of risks the procedure entails...It is, however, precisely this lack of information concerning the way in which the fetus will be killed that is of legitimate concern to the State. The State has an interest in ensuring so grave a choice is well informed. It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form."
Then Kennedey goes on to explain that the ban on intact dilation and extraction doesn't do anything for abortion rights because the standard dilation and extraction procedure may actually be more brutal than intact dilation and extraction. But the ban is still upheld for the first two reasons. So why then does Kennedy bring up this third reason, that a woman may come to regret this decision? I don't know. He says that it doesn't make sense to not ban one because you don't ban the other, but the banning of both is too broad. Therefore, neither can be banned. That kind of logic is flawed, he says, and I agree with him. In other words, he says that they can't ban all types of abortion, but not banning one kind because the ban doesn't effectively do anything is a cop-out, a way to not do anything.
What I object to, and what most women object to, is this third reason, about protecting women from themselves. Ruth Bader Ginsburg's dissenting opinion focuses on this issue. Sure, she has a lot of legal mumbo jumbo in there, too, but primarily she objects to two points:
One, there is no heatlth exception.
Two, the ban takes away the woman's full right to choose.
And that second reason is huge. Ginsburg says that "the Casey Court described the centrality of 'the decision whether to bear . . . a child,'... to a woman's 'dignity and autonomy,' her 'personhood' and 'destiny,' her 'conception of . . . her place in society.'...As Casey comprehended, at stake in cases challenging abortion restrictions is a woman's 'control over her [own] destiny'...'There was a time, not so long ago,' when women were 'regarded as the center of home and family life, with attendant special responsibilities that precluded full and independent legal status under the Constitution.' Those views, this Court made clear in Casey, 'are no longer consistent with our understanding of the family, the individual, or the Constitution.' Women, it is now acknowledged, have the talent, capacity, and right 'to participate equally in the economic and social life of the Nation.' Their ability to realize their full potential, the Court recognized, is intimately connected to 'their ability to control their reproductive lives.' Thus, legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature."
I needed to quote that entire passage because it points out the craziness of these arguments about abortion. It isn't actually about abortion, Ginsburg says. What we're really talking about is woman's place in the entire legal stratum. According to Ginsburg, any kind of restriction on abortion is an attempt to control women. Restricting abortions of ANY kind, including intact dilation and extraction abortions, is a way for men to put women back into a subject position where they do not have control over their most basic position, their bodies.
For Kennedy, that's right. Women do need to be protected from their own bodies and their own decisions and their own destinies, to use Ginsburg's language.
What we really have here are two different worldviews that refuse to communicate with one another. Men can't quite comprehend what women go through with respect to pregnancy, for their is no male corollary. For Kennedy, women should not have control over their own bodies; yes, they do need to be protected, and he and his male counterparts cannot quite comprehend what Ginsburg is talking about. That's the problem with the abortion debate: women object to others, especially men, trying to tell them what they can and can't do with their own bodies. For pro-life people, that's right: women do not deserve control over their own bodies because it's not just their bodies that we're dealing with. There's another life in there, after all.
So what do these two groups do? They yell at one another. They just can't seem to get past that. I used to think that it was about when life begins that defined the abortion debate, but now I realize that that's just not the case. For Ginsburg and her pro-choice ilk, it doesn't matter when life begins. What matters is that no one had better tell women what to do with their bodies because that places them in a subject position, as less than men who are able to make their own decisions about their own bodies.
But then I think that that's not quite right, too. There are things that we can't do with our own bodies, after all. What about suicide? Is that so different from abortions? What about drugs? If women really believed that it's about choice, then they would all be libertarians who believed that all drugs should be legal. Isn't it a person's right to choose to kill themselves or a person's right to drug themselves into a stupor? Or to death?
Perhaps they would say that these things affect other people, that people who kill themselves are affecting their parents, their children, their neighbors, etc. But don't abortions have similar effects?
Anyway, that's my take on it. Notice that I haven't said that abortion is right or wrong, although I do agree with this ban. What I have said is that the way these arguments are usually made are not really taken to their logical conclusions. Both Kennedy and Ginsburg seem to be reacting to statements that have nothing to do with what the other says. They just don't really listen to one another.
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