D. Linker on Culture War-Abortion

Damon Linker with a followup on the intra-left argument about whether Obama will end the culture war with a piece today in TNR.  He responds to the question of whether Obama can indeed heal this divide looking at three hot-button issues:  gay rights/marriage (which the League has addressed in various forms, click the series link to the right), civil religion-separation of church & state, and abortion.

I think Linker is strongest (and most sharply critical of some big name voices on the left) when it comes to abortion.

Abortion. And here I think that liberals — including conscientious and fair-minded liberals like Tim and Ed — show that they just don’t grasp the depth of the problem, and how it very well might keep the culture war alive for a very long time to come. The problem has to do with the Constitution — our nation’s fundamental law. It claims to speak with the voice of all Americans — “We the People.” The provisions contained within the document express what all of us (tacitly) affirm to be the ground rules or background assumptions for public life in the United States. It is a statement of our political identity as a nation.

Prior to Roe v. Wade, the Constitution took no stand on abortion. Instead, each state was allowed to resolve the issue (imperfectly) in its own way while the country as a whole — its fundamental law — remained silent on the issue. (This, by the way, is also how the issue is handled in socially liberal Western Europe, where democratically elected legislatures readily place modest restrictions on abortion that would never be allowed to stand under current American constitutional law.)

But all of this changed with Roe. Some Americans believe that an abortion is an act of lethal violence against an innocent human being whose rights (like everyone else’s) should be protected by the state. Other Americans believe that the only legally relevant moral considerations in an abortion are the wishes of the pregnant woman — which of course presumes that the fetus is not a human being in need of protection against lethal violence. These are contrary and incompatible metaphysical assumptions about matters of life and death and human dignity. On January 22, 1973, the Supreme Court declared that the fundamental law of the United States affirms the position of the second group and rejects the views of the first. On that day, the Constitution ceased to be neutral on this matter of metaphysics.***

Linker says that when the issue becomes constitutionalized–i.e. ripped from political democratic electoral process–it becomes essentially frozen.  The pushback or alternative group (the self-identified pro-life in this case) are therefore probably best seen (in Linker’s words) as an identity politics movement. This is an extremely relevant point given that a constitutionalization process is now being deployed for abortion via international law through the language of human rights.

Linker’s answer to the question of how liberals could win and diffuse the culture war simultaneously will not appear to many–either right or left who accept the argument of a right to privacy constitutionally–as a victory but rather a self-inflincted wound.

How could Obama — how could liberals, how could supporters of abortion rights — both win and end the culture war, once and for all? By supporting the reversal or significant narrowing of Roe, allowing abortion policy to once again be set primarily by the states — a development that would decisively divide and demoralize the conservative side of the culture war by robbing it of the identity politics that holds it together as a national movement….

As Ed [Kilgore of Democratic Strategist] notes in his post, the vast majority of Americans fall somewhere in the middle on abortion, leaning toward the pro-choice side, and that’s where the issue would be settled in most states. (Hell, even a state as conservative as North Dakota has recently shown its reluctance to go very far in regulating abortion.) Perhaps a few states — Utah, some in the deep South — would significantly curtail reproductive freedom. But it’s likely that the United States a decade following the reversal of Roe would look much the same as it does now, with many states making the democratic decision to go at least as far as most European nations in permitting women to legally terminate their pregnancies. But there would be one important difference: in this post-Roe America, opponents of abortion would no longer be able to blame their losses on a system unfairly rigged by secular-liberal jurists to delegitimate their views. They would lose, but they would lose fair and square, in the court of public opinion.

That opinion–roughly–is my own.  That the US should (like most Western European countries) have basically available abortions for the first trimester and then increased regulation from then on, reaching very serious (i.e. only in serious medical and/or life-threatening scenarios) restrictions starting by around the time of potential viability (7 months+ or so).   And that instituted via legislatures not the courts.  I’m agnostic on whether that would be better achieved through state legislatures as Linker suggests or federal.  But I just don’t see it happening frankly.

One point Linker doesn’t address but seems to me to be a correlate (or at least a potential one) of his meta-point on the creation of movements.  Would the over-turning of Roe not create a reverse identity politics movement?  I would have a more the courts giveth and the courts taketh away view myself (given that I’m not convinced it was rightly decided or properly handled in the first place), but if the legal judgment brought on this identity politics movement called the pro-life or variously the religious right would not a reversal (via the courts) not propel a similar movement in the opposite direction?  The Society for the Reinstitution of Roe or something like that?  Would in other words, curtailing Roe or overturning it and returning it to the states not potentially only by another inflaming of the culture war?  Or would it mean simply a more kind of stronger-core left rump who argue for abortion as human right to be instituted via law over the top of the legislative while the majority of folks who fall somewhere in between would roughly be ok with the way the votings turn out in the states?

I don’t know.  I do know that as short term as it may seem for those potentially on the left (or perhaps libertarians of various strains as well) that the idea Linker proposes would be crazy, any state where say a Prop 8 like unexpected victory takes place for identified social conservative view on abortion would lead to a massive popular movement towards voting in pro-life legislation.  A true Pyrrhic victory for the right.


***  See Freddie’s important critique on this point and my response in the comments.

Please do be so kind as to share this post.
Share

39 thoughts on “D. Linker on Culture War-Abortion

  1. I’m sorry, but I simply can’t take seriously an argument, like Linker’s, that rests on the assumption that the Constitution was “metaphysically neutral” prior to Roe v. Wade. No document that discusses fundamental citizenship rights could ever be “metaphysically neutral” in any meaningful sense.

    Linker is yet another abortion foe who is trying to take his disagreement about the content of the Roe decision and craft it into some sort of disqualifying procedural disagreement with it, in order to perform an end run around the basic fact that we have a country that is deeply conflicted on this issue. It’s a constant tactic of those who oppose abortion, to try to wriggle into some philosophical corridor that they think inoculates them from the simple fact that they don’t like abortion. Every discussion becomes about process as a way to deflect attention from what is in fact a simple substantive disagreement about morality and policy.

    But I need to give this the attention it deserves in a post.

      Quote  Link

    Report

  2. Actually I should have fisked that part of the argument, thanks for flagging it. Because I don’t by the metaphysically neutral part either. I don’t think his argument rests on the point. Or at least has to. To me all one has to say is that it was a matter for legislatures not courts. I think his sub-point about how compromise works makes sense from there.

    I’m not sure that automatically makes him an opponent of abortion–he might be i don’t know either way–as much as it might make him someone in that ambivalent (i.e. pulled in both directions) middle.

    Also, I’m not sure the content/procedural distinction while in theory very separate i don’t see how in practice (at least in this case) they get so easily separated. If someone believes that the courts weren’t in the position to be making a decision on the matter in the first place, they may or may not agree with the content or even the logic behind the content-conclusions, but basically it’s full stop before that point. That content train doesn’t even leave the procedural station.

    I’m also not sure there is automatically inoculation at work. I see what you mean and that does happen, but I can think of counterexamples. Andrew Sullivan comes to mind who says flatly he thinks abortion is wrong but also thinks we live in a plural civil society and therefore something along the lines of the non-restricted abortion in the first three months is something he thinks is a fair compromise with that order.

    As far as the actual argument/content of Roe v. Wade if you one were going to argue for it as right in the Constitution, seems to me it would be much better argued from the equal treatment clause than right to privacy.

      Quote  Link

    Report

  3. last thought on metaphysically neutral. seems to me better to say that the issue of abortion was not one that could have been thought of or envisioned by the document itself. There are various elements of the Constitution that can be deployed to support either view–I think legitimately. So it’s not perhaps the Constitution is neutral so much as pre-differentiated on this point. Which is probably why it’s such a divisive one.

    Which again leads me back to the idea that it probably isn’t the proper context in which to be having the debate.

      Quote  Link

    Report

  4. /yawn

    The culture wars are over.
    The last election was the political equivalent of the extinction event at the K-T boundary for religious conservatism.
    The elephant in the room of teh cultcha of teh Unborn is this– how many citizens actually think Roe should be overturned?
    Less than 40%.
    There’s no ideological refuge in mob rule for the religious right anymore. The religious right is a shrinking mob.
    Evolve or go extinct.

      Quote  Link

    Report

  5. Matoko,

    I think that it will be news to my friends who are currently fighting for marriage equality that the culture war is over. It is not over.

    Do you think the fight over school prayer is over for those who are fighting to overturn over 60 years of Establishment Clause precedent? Frankly, it doesn’t matter what either of us think if they think it isn’t.

    You and I may have agreement in principle on these matters but you significantly underestimate your opposition or its will to fight for what it believes in, regardless if you or I agree with those positions.

      Quote  Link

    Report

  6. I agree with most of Linker’s piece, though that will carry little weight here. I agree that the problem is Constitutional and that Roe was wrongly decided. But, then again, I think the Fourteenth amendment which it rests on is highly problematic.

      Quote  Link

    Report

  7. Culture wars never end. They are usually not termed “wars” and shouldn’t be, but they never end. At what point in time has “culture” itself been static? matako, your arrogance will be your undoing. It comes across not so much as confidence but as the lack thereof.

    I say this as someone largely sympathetic to the causes you argue for. I don’t think these sort of brash statements further the conversation, and Dave is exactly right, this ain’t over yet. Nor will it ever be.

    Chris, I don’t mean to thread-jack. I’ll have a better response up as a post.

      Quote  Link

    Report

  8. Nope.
    Its ovah. And I’m not arrogant……I’m mathic.
    Frum.

    Gallup’s latest polling reveals the continuing collapse of the Republican party’s base vote. The news is so very bad that there will be only one possible response from GOP party leadership and our radio talkers: Ignore it.

    Overall: 36% of Americans now identify as Democrats and only 28% as Republicans. That 8% advantage for the Dems is the biggest since 1983, before the Reagan boom and triumph in the Cold War created a “Reagan generation” of young conservatives.

    George Bush may get much of the blame. But Republicans in Congress are even less popular than Bush, with a 25% approval rating in December 2008.

    State by state, the numbers look even worse. In only 7 states do more Americans identify as Republicans than as Democrats:
    Utah, Wyoming, Idaho, Alaska, Nebraska, and Kansas, and Alabama.

    The two parties are tied in Arizona and South Carolina.

    In all the other 41 states, including every one of the large population states, Democrats outnumber Republicans. In 29 states, including every Northeastern state and every Midwestern state save Indiana, Democrats outnumber Republicans by 10 points or more.

    The GOP is like a chicken with its head cut off.
    The body will run around for a while…..but the ending is pertty certain.

      Quote  Link

    Report

  9. Prop 8 will be eventually overturned by judicial fiat.
    Does anyone doubt that?
    Roe v Wade will never be overturned.
    Neither will Brown v Board or Loving v Virginia.

      Quote  Link

    Report

  10. Maybe, but the GOP and the culture wars are two entirely different things. And if you haven’t noticed, politics, culture–it all moves in circles. What happened two years after Clinton got elected? Or 12 years after Reagan? Who won in 2000? In 2008? Nothing is over. I haven’t heard one damn fat lady singing…

      Quote  Link

    Report

  11. But matako, you yourself use the term “eventually” regarding prop 8; and don’t be sure of anything regarding Roe v Wade–that can change with the simple appointment of another conservative to the SCOTUS. Not under Obama, no, but who next? Just don’t count on anything and you’ll live a happier life.

      Quote  Link

    Report

  12. The relevant question is not whether the GOP are useless morons (they are). Or that more people (esp. younger) generally subscribe to a set of political views more consonant with the Democrat Party. Again no argument there.

    The specific issue is abortion. And that one continues to show in the US a majority favoring both legalization AND restrictions of various kinds. Linker’s point is that our laws actually should in this case reflect our beliefs. They sorta almost do but only through layers of layers of judicial fights that are really poor channels (imo) for this type of public political debate.

      Quote  Link

    Report

  13. ” the GOP and the culture wars are two entirely different things.”

    FALSE!
    E. D., the GOP has become synonomynous with teh culture wars.
    What is the GOP brand? Not small government or free market capitalism– but anti-abortion, anti-gay, anti-science, and anti-intellectual.
    That is your brand.
    The GOP has sown itself into a shroud with the religious right.
    See those statistics? ^^
    That is the storm crows coming home to roost.
    ;)

      Quote  Link

    Report

  14. Chris–agreed. And am in general agreement regarding the post at large, as I am grudginlgy pro-choice but do see more room for restrictions and regulations etc.

    matako–first off, I’m not a republican though I do believe in the Republic, and not all Conservatives are anti-any-of-those-things you describe though certainly some are, perhaps even most. And I agree too that the GOP is a bunch of morons in large part, but that is not the same thing WHATSOEVER as the culture war which goes much deeper than politics.

    Just remember, nothing is so changeable as the human heart, save perhaps the human mob. Tidal might be the word I’d use to describe it.

      Quote  Link

    Report

  15. So what Chris?
    70% of high school seniors would not have an abortion.
    60% of high school seniors are against overturning Roe.
    Like with racial discrimination, anti-miscegenation and segregation laws, the majority approved….and that is we have judicial interpretation to protect citizens against mob rule.
    All this lugubrious whing about teh constitution…..feh.

      Quote  Link

    Report

  16. matoko: I’m a card carrying Republican. I used to be a precinct captain. I guarantee you that I have not thrown my lot in with what you characterize. It is true that at the moment the only public Republican figures are Southern but that will not, can not continue. I consider myself a Cascadian conservative, very different from your conception. Take a look at Tom McCall, a past Republican Oregon Governor. Are you advocating a one party State? I can tell you, living in the NW, it doesn’t work very well.

    Gentlemen: What language can I do quotes and what not with here? HTML?

      Quote  Link

    Report

  17. well at least we are getting to the central issue then. matoko your view assumes abortion is in the same category as segregation, racial discrimination, and anti-miscengenation. obviously if one were to assume it was that kind of issue, then your point on the judiciary protecting rights against a mob rule is valid. But can you see that the entire disagreement roughly comes back to this point: is abortion in that category?

    in fact both sides could argue themselves into the side of the defense of rights on their side–in fact they do. Women’s reproductive rights (women as the racial victims parallel) or infant/fetus rights (same thing in reverse).

      Quote  Link

    Report

  18. I am not advocating anything.
    I am speaking truth.
    Sure, there should be two parties.
    But it certainly isn’t my say.
    I am saying the current form of the GOP is doomed.

    Evolution or extinction, your choice.

      Quote  Link

    Report

  19. infant/fetus rights (same thing in reverse).

    Incompletely differentiated cell clumps do not have citizen rights.
    The very first thing the right must abandon is personhood/life at conception.
    Simply a moronic argument.
    And the citizen (mother) ‘s rights trump the rights of the fetus.
    In a free society the state simply cannot force women to be wombs.
    The first right of a free people is autonomy over ones own body.

      Quote  Link

    Report

  20. There’s one important thing that seems to be missing from this argument: whether a majority of Americans want to see Roe overturned is (or at least ought to be) fundamentally irrelevant. There are precious few Americans who actually know what Roe held (meaning they’ve actually read the decision and understand the legal theories upon which it was based). The issue, fundamentally, is whether Roe was legally and Constitutionally correct; on that point, you would be surprised the number of legal scholars who have criticized its reasoning.

    Importantly, Roe did not define personhood as beginning only at birth for purposes of abortions; nor, obviously, did it define personhood as beginning at conception. Instead, it sought to draw a line between personhood and non-personhood that was inherently arbitrary in a way that defining it as beginning at birth or at conception would not have been. Of course, had the court chosen to do either of those two things, Roe would be even MORE controversial today, as for the vast majority of Americans personhood begins at some undefined point between conception and birth (you will not find many people who are supportive of third trimester abortions for example).

    But this, to me, is the great problem with Roe – Courts should not put themselves in the position of drawing fundamentally arbitrary lines, which is the province of the legislature. Indeed, as Linker says, if Roe did not exist, it is unlikely that abortion rights would be much changed in the vast majority of the country, because the vast majority of the country (myself absolutely included) fits within the mushy middle, being increasingly pro-life the further along the pregnancy, and increasingly pro-choice the closer to conception.

    (N/B: I edited this comment to cut it into paragraphs instead of being one giant block of text)

      Quote  Link

    Report

  21. The issue, fundamentally, is whether Roe was legally and Constitutionally correct

    No. That was the issue while the decision was being decided. Now the issue is that abortion foes don’t have the popular support to pass a constitutional amendment to change the law.

      Quote  Link

    Report

  22. Freddie,

    An issue (I wouldn’t say the) might be that if Mark’s analysis has some validity then it is not just the who has the more votes to make the laws they want (or not), but the rather sad state of affairs that has resulted from the decision in the first place.

    If we had a discussion on the political proceduralism, I don’t really find much connection with my views on the subject. I don’t support a constitutional life amendment–never gonna pass anyway. Though the Supreme Court makeup could shift and Roe could be overturned though I’m skeptical this will occur, but who knows.

    My general sense is that the Constitutional procedures on this point are flawed in that amendments are the way for the Legislature to re-check the Judiciary. But that’s a whole other topic I suppose.

      Quote  Link

    Report

  23. iow, I think it just muddles along as is and has a corrosive effect on civil society. Whatever else one thinks about the morality or not of the choices and what it does to individual and family lives. that’s a whole other other topic.

      Quote  Link

    Report

  24. Chris Dierkes;
    “But can you see that the entire disagreement roughly comes back to this point: is abortion in that category? in fact both sides could argue themselves into the side of the defense of rights on their side–in fact they do.”

    This is a moot point. As soon as you start creating abortion laws via political compromise, you are inevitably going to end up drafting unconstitutional laws.

    These “compromises” always end up as back door bigotry. Some believe that fetuses must be protected against harm. But for most that belief evaporates if the mother is a victim of rape, or if the child is seriously ill, or if the mother’s health is at risk. (But it better be “serious” risk, goddammit!)

    It should be clear that the greatest potential for compromise exists where there is most contempt for the hypothetical woman seeking the abortion. Whether or not you think that states should be able to deny abortions to women because their reasons for wanting one aren’t good enough, or because they “should have made up their mind already”, the idea that we can grant rights to unborn children based on our moral judgment of their mothers, without violating the Constitution, is absurd.

    Maybe you could draw up a law that granted legal protection to fetuses that was principled upon a sincere desire to protect the “rights” of unborn humans, and not to punish sex. And perhaps, in that case, there would honestly be room for debate as to whether or not it was Constitutional. But there would be no political support for such a law, so who cares?

      Quote  Link

    Report

  25. Dave,

    I’m not really sure where you got the ‘i’m after punishing sex’ line. For me it’s more about trying to craft legislation that recognizes both some necessity to abortion as well as the difficult moral calculations involved.

    I don’t see how the moral judgment of the mothers or their sexual status is what the law is aimed at (in either direction).

    I think the constitutionality argument is a product (in part) of the way in which Roe was handled. I think the constitution is very much the wrong context to be dealing with this debate. That’s why I don’t support a (so-called) pro-life amendment nor the manner in which Roe was decided.

    You may well be right that the kinda view I hold doesn’t have any political legs. The only evidence we have to go on is the fairly consistent responses of majorities favoring some middle position for years now. If those people are actually being truthful if it came to a vote, I think, (like Mark) it would go according to what people have indicated. A continuum moving from less to more restriction generally indexed to length of pregnancy with obvious exceptions in serious medical scenarios or cases of rape and so forth.

    If it were handled by states then of course some would be more and some less restrictive. But you are right at this point it’s all “if” and I don’t see any real way that doesn’t continue.

      Quote  Link

    Report

  26. More importantly the view you hold has no legs culturally.
    Evolutionary Theory of Culture 101– culture doesnt shape society as much as society shapes culture according to its collective needs.
    Own it….prolife issues are just a whip that the stealthy philosopher kings of the right side use to beat the low information electorate with.

      Quote  Link

    Report

  27. Seriously….eight years?
    Did conservatives work to overturn Roe?
    Nah. If they had cultcha life would cease to be politically useful as a voting issue and a tool to farm votes from the information-challenged republican base.

      Quote  Link

    Report

  28. Chris Dierkes

    “I’m not really sure where you got the ‘i’m after punishing sex’ line.”

    I never said you did; you’re misquoting me. It’s true that I don’t have a lot of respect for views like yours, popular as they may be. You’ pay lip service to the “difficult moral calculations” that you’ve supposedly figured out. But you don’t show your work. After all, it’s the “middle position”, which, no duh, is where all difficult moral calculations lead. I think you’re just hedging your bets, like a lot of Americans who want legislation towards the middle of the “spectrum”. (A spectrum which is shaped by women on one end with no agency, and women on the other end who made their bed, and now must lie in it.)

    What I am saying is that when we talk about these compromises, we mean banning the abortions that most people want to ban, according to polls. And those majorities are shaped by a significant chunk of people who think stricter abortion laws will force people, especially women, to take fewer risks in their sex lives.

    For example, imagine a state where there are strict abortion laws. Now imagine a woman who would have gone to bed with a guy without these laws, but because she can’t be sure of her access to an abortion, decides she’ll wait until she knows that he would definitely not abandon her if she got pregnant. There are a lot of people who would think that this is an unqualified good thing, and these people are both seeking to punish sex, and they are making moral judgments about certain types of behavior. And these people factor in to your compromises.

    I don’t know how much more obvious this can be than the fact that even the most conservative states have to write rape exceptions into their fantasy trigger laws. Once you allow political compromise to shape legislation, you are allowing prejudice against certain types of behavior to be a factor in who lives and who dies.

    Rape exceptions and other loopholes are what make any laws that would actually vote through unconstitutional. We can’t offer these protections to some fetuses, or to some women, based on some mass delusion that women who need abortions can be placed along a “spectrum”.

      Quote  Link

    Report

Leave a Reply

Your email address will not be published. Required fields are marked *