The Contrarians and Abortion Legislation


June 26, 2013by The Contrarians

Filed under: Civil Rights, Health Care, Social Issues

(for an updated look at 2014 legislation see this blog post)

The View from the Left

Derek Smith

There are a handful of middle-American states with Republican legislatures that are almost constantly churning out legislation to limit access to abortion, two of which made headlines a couple months ago—North Dakota for enacting the strictest regulation in the country by banning abortion upon detectable heartbeat (as early as six weeks); and Kansas for requiring doctors to inform patients that they are “terminat[ing] the life of a whole, separate, unique, living human being.” In spite of some initial furor and ongoing legal battles, their initial significance, as they are so extreme they seem destined to be overturned judicially and likely won’t provide much guidance for the future of more moderate abortion laws (and quite frankly, not too very people really care what happens in Kansas or North Dakota anyway).

The latest abortion bills to enter the national spotlight, from Texas and Ohio, are drawing even more attention as they are the second and seventh most populous states, respectively; combined they represent more than eleven percent of the U.S. population. The Texas abortion bill resulted in an uncharacteristically interesting procedural showdown in the state senate Tuesday night—with Sen. Wendy Davis’s filibuster attempt declared invalid and ended shortly before the close of the session, Republicans were poised pass the bill but were thwarted by a cacaphonous gallery, causing the vote to be held too late for the bill to be signed and enrolled. The bill had already garnered signficant attention for banning abortion after 20 weeks of pregnancy and for its imposition of onerous requirements on doctors and facilities that provide abortions, requirements which would have effectively shut down a significant majority of abortion clinics in the state. While the bill is technically dead for now, there is some indication Gov. Perry may call a special legislative session to attempt to revive it.

While not quite so dramatic thus far, Ohio’s HB 200 seeks to undermine abortion rights not by shortening the legal timeframe for abortion or by reducing available providers, but by heaping additional unnecessary and sometimes bizarre requirements into the medical process under the guise of protecting women’s health (and I thought Republicans didn’t like too much government intrusion into medicine).  The bill contains so many unconnected changes to the law, they are probably best summarized through bulleted list:

  • Extends the waiting period from 24 hours to 48 hours.
  • Narrows the definition of medical emergency by removing “an immediate threat of serious risk to the life or physical health of the woman”—meaning only certain death of the mother would constitute a medical emergency for exemption from the other restrictions.
  • Requires doctors to make medically inaccurate statements to their patients about a link between abortion and breast cancer—a hypothesis that has been thoroughly discredited.
  •  Requires doctors to provide a “conflict of interest disclaimer,” in which the doctor must list last year’s gross income, the percentage of that income that was earned through abortion services, and the financial loss to the doctor if the patient carried the pregnancy to term.

While the severe restrictions on medical emergencies are arguably the most draconian aspect of the bill, other parts have drawn more attention due to their peculiarity. The more bizarre portions of the bill relate to the information doctors must give patients. Doctors are understandable not very excited about the “conflict of interest disclaimer.”  Not only is this an unreasonable intrusion into doctors’ privacy, it compels them to self-incriminatingly allude to the ridiculous notion that charging a fee in exchange for a service somehow creates a conflict of interest for the doctor.

Another particularly suspect feature of HB 200 is that it requires doctors to perform an ultrasound and verbally describe “all relevant features of the ultrasound, including an audible heartbeat, if present,” but it also creates an explicit right for the patient to refuse to view the ultrasound images or listen to the heartbeat herself. The former is clearly intended to attempt to dissuade women seeking abortions, while the latter solely provides a token safeguard to point to in a judicial review of constitutionality. This intention is further elucidated by the requirement for doctors to describe the evolution of nerve endings and pain awareness at each stage of fetal development, and the embryo’s or fetus’s probable anatomical and physiological characteristics at its gestational age.

Proponents of these measures argue that they are intended to help women be better informed about their decisions, as though there are casual window-shoppers in the abortion department who get suckered in by slick sales-doctors. What of those who seek a doctor having already undertaken well-informed deliberation? They get to re-experience an emotional and painful decision process under the scrutiny of strangers in a clinical setting. The real motivation of the these laws is to make it more difficult for a woman to obtain an abortion at any point during her pregnancy, not to make women safer, more informed, or propose a reasonable standard for defining personhood.

Personhood is a primarily social construct, and not one consistently defined across time or cultures. State constitutional initiatives to define life as beginning at conception have been put on the ballot in a few relatively conservative states, but all attempts thus far have failed. Even more attempts have been in other states, but failed to collect enough signatures to qualify for the ballot. So American society seems to generally reject that notion. Even the Catholic Church did not hold that life begins at conception until 1869. Before then, Catholic canonic law subscribed to Aristotle’s division of the soul into three evolutionary phases—the vegetative, animal, and rational souls. Only the abortion of an ensouled (i.e., rational soul) fetus was considered a grave sin, requiring excommunication; while still considered a sin akin to contraception, canon law prescribed no penalty for abortion of an unensouled fetus. Many modern abortion bills essentially seek to define a moment of ensoulment through the use of medical and scientific proxies for “soul evidence.” Various medical markers of personhood have come into use, such as viability, pain awareness, or presence of heartbeat, in an attempt to impose a scientific rationale on an otherwise arbitrary distinction. Yet there still exists arbitrariness in deciding which medical marker to use. It is better to realize and accept some degree of subjectivity, and be able to have a more honest discussion exploring the nuances and boundaries of that subjectivity.

Abortion is a tricky subject to debate, not just because it can be a highly personal and emotional one. It also ultimately comes down to individual’s conceptions of morality, personhood, and ethical valuations of forms of life that are far from ubiquitous. A main difference between the pro-life movement and the pro-choice movement is that only side one seeks to make everybody else live by their own personal viewpoints.

 

The View from the Right

Gregory Conterio

Abortion is without question the most toxic political issue in America today.  To quote from Derek, as written above:

Abortion is a tricky subject to debate, not just because it can be a highly personal and emotional one. It also ultimately comes down to individual’s conceptions of morality, personhood, and ethical valuations of forms of life that are far from ubiquitous.”

I think few of us would argue that statement, but I think the immediately following remark is illustrative of why it remains so contentious:

“..A main difference between the pro-life movement and the pro-choice movement is that only side one seeks to make everybody else live by their own personal viewpoints.”

So, the side of the argument wishing to preserve their right to take life, which wants to force all of us to pay for the taking of life, despite the fact some might consider doing so to be a mortal sin, which wants to force private religious institutions to pay for or provide access to abortion procedures against their will, this is the side that doesn’t “..seek to make everybody else live by their own personal viewpoints?”

To be fair, both sides of the abortion argument can be pretty self-righteous sometimes, but I have always found it especially galling to be told the pro-life side of the argument is uniquely coercive.  There is much legitimate debate to be had about the nature and value of pre-natal life, but there can be no question that abortion requires the taking of such life.  To put it more bluntly, the act of abortion requires killing, and it is difficult to imagine many things more disenfranchising than that.

Where it all began…

There certainly was a great deal of contention over the issue of abortion before 1973, but there can be little doubt that Roe vs. Wade, (Along with the closely related Doe vs. Bolton case) which was decided that year lit a fire under the debate, and escalated it to levels of acrimony not seen before.  Ironically, it was the court’s desire to settle such venomous disagreement that caused them to insert themselves into the debate in the first place.  I wrote a piece a few years ago on judicial activism in which I discussed the court’s clear desire to insert itself into the debate:

“..Then came Roe vs. Wade, eight years later. When this case came up, it was a court looking for activist opportunities that accepted it, and under some unusual circumstances. The complaint filed by Roe, et al, was affirmed by District Court, which struck-down the Texas proscriptions against abortion on the basis they were vague and over-broad. This was a reasonable ruling. Despite this, the Burger Court accepted the appeal of the district court’s denial of injunctive relief, which under the circumstances was a technicality. Roe had already given birth, and the lower court had already struck-down the Texas laws. There was no practical or objective relief or remedy for the Burger Court to provide, but they inserted themselves into the controversy nonetheless. Some of the text of the majority opinion reveals to mood of the court in accepting this case:

“We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion.

 In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem.”

Clearly this was a court actively looking for an opportunity to exploit an activist role. When the court was finished, any legal regulation of abortion was deemed unconstitutional, and we were given the unique proposition of a specific activity certified as being protected by the constitution.”

It is interesting to note that Norma McCorvey and Sandra Cano, known as Jane Roe and Mary Doe respectively in their famous court filings, are now both pro-life activists, but that is another story.

Whether you think abortion should be legal or not, Roe is a clearly activist decision, and based on the most fanciful of constitutional interpretations.  Looking at how much of the rank & file punditry of the left reacts to well-grounded legal decisions they don’t like, such as Citizens United, D.C. vs. Heller, or even the hysteria over this week’s Shelby County vs. Holder, one can only imagine the outcry over a “conservative” opinion based on the sort of “magical thinking” that went into Roe, and its precedent, Griswold.

Turning toward the contemporary state-level legislation Derek mentions, let me first reassure Kansas and North Dakota, you still are part of the United States, and many of us do indeed care what happens there!  It has become an unfortunate habit for some on both sides of the political divide to simply find a way to dismiss the other side rather than engage serious points or questions they might raise, but the ongoing tendency to dismiss “flyover country” as a bunch of backwoods hicks has become a well-known stereotype by the left without parallel.  Statutes like North Dakota’s ND 1456 are precisely the sort of regulation that Roe swept away, and aside from reflecting the will of the people of that state, it indeed has a very good purpose: to test the validity of Roe once again, as it no doubt will do in the coming years.  Regardless of whether ND 1456 is upheld, it raises a worthwhile question:  is there a point at which the unborn are entitled to legal protection, even from their own mother?  It’s an honest question, and one that deserves honest debate from both sides.  As I noted above, the one thing about abortion you cannot get away from is it requires killing, and thus should be approached with the utmost solemnity.  I think it’s entirely appropriate for pregnant women to be urged to look at ultrasound images, listen to heartbeats, and consider the seriousness of ending a life.  When one listens to the haunted regret expressed by literally thousands of women who have had abortions, there is a very strong argument that by making it easy for them, the state is actually causing them harm.  Urging them to take time and think carefully about their choice can save them a lifetime of self-recrimination.

Overturning Roe does NOT mean ending abortion

This is one of the great fallacies of the debate over abortion: overturning Roe means abortion will be outlawed.  This is demagogic nonsense.  The effect of Roe is to forbid any state-level regulation of abortion.  Overturning Roe would not instantly make abortion illegal, it would simply allow states to decide for themselves how it may be regulated.  A few might try to outlaw abortion completely, and if that is really what their people want, why should they not be able to “live by their own personal viewpoints?”  In any event, I doubt this will happen.  Some states will regulate or restrict the practice to greater or lesser degrees, but contrary to the stereotype pushed by many on the left, conservatives are not a homogeneous group of anti-abortion zealots.  There certainly are some who believe abortion is murder in all cases, but this distinction falls along religious rather than political lines, and there are actually many Democrats who hold this view.  Most conservatives in fact would regard any federal-level legislation to outlaw abortion to be just as bad as Roe only from the opposite-end of the spectrum.  Conservatives, by definition want as little federal regulation and legislation as possible, and an arbitrary federal rule restricting abortion violates this principle just as much as Roe does.

I think most Americans recognize that the most fundamental purpose of the constitution, and the federal government it created is to protect the rights of the People, even from the government itself.  The issue of abortion pits the rights of an unborn child against the rights of its mother to control her own body.  In a rational world, the federal government needs to remain neutral in this conflict, because it cannot weigh-in on behalf of one party without disenfranchising the other, and thus violating  its most fundamental purpose.  The federal government cannot and should not try to answer moral and existential questions about when life truly begins, or which types of life do or do not deserve legal protection.  It will never be able to satisfactorily answer such questions, and any attempts to do so are little better than arbitrary decrees which will never settle anything.  Some controversies cannot be settled by courts or laws, they must rather be left to the People to settle themselves.  In fact, Derek conveys the reasons for this very eloquently himself:

Abortion is a tricky subject to debate, not just because it can be a highly personal and emotional one. It also ultimately comes down to individual’s conceptions of morality, personhood, and ethical valuations of forms of life that are far from ubiquitous.”

Not only do I completely agree with this assessment, I believe this is exactly why Roe is such bad law, and why the federal government should stay out of it.

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