Doubling Down

There seems to be quite the fooferaw over responding to the Tiller murder developing between several bloggers that I respect: Publius and Hilzoy at ObsidianWings, and Megan McArdle.  A quick summary: 

Agreeing with an Ezra Klein post in essence calling (correctly) the murder an act of political terrorism, Hilzoy wrote that Congress should respond to the murder by repealing most restrictions on late-term dilation and extraction (ie, repeal the Partial-Birth Abortion Act), require training in late-term abortion techniques for OB-GYN certification, and require that any hospital provide a woman with the opportunity to have a late-term abortion under certain circumstances.  The reason this should be done, according to Hilzoy, is to make sure that this act of terrorism not only doesn’t pay, but actually hurts the cause.

Megan, who describes herself as pro-choice (although that term is susceptible to multiple meanings), responded by saying that: (1) if you believe abortion is murder, then the murder of Tiller “makes total sense”; and (2) Hilzoy’s proposed response is “doubling down” on the very policies that drove the murderer to terrorism – in essence, it repeats the mistakes the US made in response to 9/11. 

In follow-up, Publius and Hilzoy (and again in response to another Megan response) accusing Megan of justifying the murder, and also saying that they are not proposing “doubling-down” in the face of terrorism, but instead only want to reinforce a settled constitutional right to an abortion.  They further argue that therefore what they are proposing is entirely distinct from our response to terrorism.  Finally, Megan has two particularly excellent final contributions here and here.

Unfortunately, I think Publius and Hilzoy are way off the mark on this.  First, Megan did not state that she thought the murder was justified if you accept the premise that abortion=murder – only that she could understand the impulse towards thinking that the ends justified the means in such a circumstance.  She further argued that the fact that such an impulse is understandable – though I emphasize NOT justifiable – is a sign of a deep political failure in our abortion debate. 

More importantly, though, what Hilzoy and Publius advocate misunderstands the nature of what they are proposing, the central holdings in Roe and Casey, and just how similar their proposed response appears to the very responses they (correctly, in my view) criticize with respect to terrorism. 

Let’s be clear – Hilzoy is not proposing merely increasing security for late-term abortion providers, a response that is not only understandable, but also entirely correct.  Instead, she is proposing the removal of those restrictions on late-term abortion that do exist, combined with an outright mandate that such abortions be provided or available from just about any OB-GYN practitioner.  This is the equivalent of responding to 9/11 by quadrupling our presence in Saudi Arabia.   Worse, late-term abortion – as opposed to earlier-term abortions – is something that an overwhelming majority of Americans oppose, not just ardent movement pro-lifers, on the grounds that a majority of Americans view late-term fetuses as something approaching fully human.  In making such procedures even more legal than they already are, Hilzoy’s proposed response risks “radicalizing” ever-more members of this opposition.

Nor is Hilzoy’s proposed response justified on the grounds that it is merely reinforcing a settled right, an argument that misunderstands the nature of the opposition to late-term abortion.  Although both Hilzoy and Publius claim to understand that the difference between pro-lifers and pro-choicers is over what constitutes “life,” they both – though especially Publius – seem to suggest that the debate over abortion cannot be resolved without removing the “right to privacy” from our Constitutional jurisprudence.  While there are certainly many in the pro-life movement who have a problem with the “right to privacy” parts of Roe, this is not remotely why the issue of abortion continues to be so hotly contested.  One could absolutely support, or at least accept without lasting bitterness, the idea of a right to privacy while still opposing abortion (and definitely while still opposing late-term abortion).  So far as I know, there isn’t a passionate and large movement dedicated to closing Trojan factories due to their opposition to Griswold (I’m aware there are some who probably are passionate about doing so, but we’re talking about a much smaller group than those who are passionate about shutting down abortion clinics).  Conversely, I don’t see any pro-choicers passionately claiming that the right to privacy extends to a mother’s right to kill her own children.

No, at root, the trouble with Roe and its progeny has always been that it drew an arbitrary line as to where personhood begins – a line that Justice Blackmun himself admitted was necessarily arbitrary.  The drawing of such a line has more in common with the Dred Scott decision than pro-choicers are willing to admit in the sense that it usurped a locality’s authority to define who was and was not a “person” for purposes of that locality.  That’s not to say that I think Roe is in the same ballpark as Dred Scott in terms of the egregiousness of its flaws, only that the problems caused by those flaws have a similar source – it takes a special kind of blindness to reality to define someone as not a “person” simply because of their race compared to the understandable difficulties in figuring out when a fetus becomes a human. 

Still, that’s why Roe continues to engender such passion, and sadly indefensible violence as well – it removed a decision historically and properly the role of the legislature and/or localities, and turned it into a settled question of constitutional law despite acknowledging that the Constitution provides little guidance as to how to define a “person,” and absolutely no guidance on how to define “life.”   In the process, the Court removed what has always been a political question almost entirely from the political process short of a Constitutional amendment.  I’ve long argued (and apparently at the time of Roenow-Justice Ginsburg would have agreed) that Roe‘s compromise (particularly as revised by Casey) would have become the law of the land in almost all states in relatively short order through ordinary democratic processes.  Had this happened, I think opposition to abortion would be no more violent than, say, the opposition of many Catholic groups to the death penalty, where there are clearly accessible political processes to overturn these decisions. 

But even with all of that aside, Hilzoy and Publius ignore that the “right to privacy” has never been held to extend to provide absolute protection against restrictions on late-term abortions.  Indeed,  the very act that Hilzoy wishes to largely repeal, the Partial-Birth Abortion Act, has been specifically upheld as constitutional by the Supreme Court.    Thus, what Hilzoy is proposing is not merely the protection of a clearly established Constitutional right as interpreted by the Supreme Court – instead, it is the expansion of the right to an abortion beyond the already-controversial parameters of Roe and Casey.  Furthermore, in mandating training in late-term abortion for certification as an OB-GYN and mandating provision of late-term abortion by all hospitals, Hilzoy’s proposal goes to another level entirely – it holds the right to an abortion to be more important than a doctor’s right to act in accordance with her own ethics.  Indeed, to the extent that doctor might view the late-term fetus as essentially human, it would even go so far as to force that doctor to violate their Hippocratic Oath. 

If Hilzoy and Publius think that this is still good policy in its own right, fine – that is their honestly held opinion.  Where they go off the reservation, however, is in suggesting that these policy proposals are an appropriate response to terrorism.

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

51 thoughts on “Doubling Down

  1. From what I have been able to gather, Tiller was one of the few doctors willing to perform that particular procedure. Like, at all. We’re not talking about “willing to do it to whomever showed up” but, like, “folks in Connecticut got referred to Tiller”.

    I’ve also seen (perhaps at the same links you’re linking to) that there is only one guy left willing to perform this procedure anymore.

    And he’s in Boulder.

    If he retires, it will result in the odd situation where the procedure is perfectly legal but no one in the country will be willing to perform it.

    And then what?

      Quote  Link

    Report

  2. “And then what?”

    Well there’s no law that would comple someone to provide the service against their will. We fought a big, bloody war over tthe issue of forced service.

      Quote  Link

    Report

  3. Jaybird – I have a problem with the assumptions in that hypothetical. First, it ignores the possibility that many/most of those who do not perform this procedure refuse to do so not because of fear but because they themselves think it’s unethical and/or violative of their oaths. At least at this point, doctors aren’t employees of the state, so why force them to do something that they think to be violative of their oath? Given that Dr. Tiller practiced in Kansas and the other doctor apparently practices in Boulder (which, while liberal, is plenty close to some centers of pro-life enthusiasm – Ted Haggard’s old church is only about an hour and a half away), and none practice in pro-choice strongholds like California, etc., it would seem that threat of violence is not the biggest reason doctors don’t perform the procedure. If it were, you would expect at least some doctors to do so in areas where the most extreme elements of the pro-life movement are comparatively non-existent. That’s not to say it isn’t a factor at all – just that it doesn’t seem to be the primary factor.

    Another issue here is probably that there just isn’t much demand for the procedure – indeed, one of the most persuasive arguments for keeping the procedure legal is that it is used only in particularly extreme cases. So even if we wound up with no doctors practicing the procedure any more, it would not create some national crisis – a far greater crisis already exists in that we’ve somehow decided that people with terminal illnesses don’t have the right to use potentially life-saving medicines if they haven’t been approved by the FDA (how this issue doesn’t fall under the rubric of “right to privacy” is beyond me, by the way).

    There’s another assumption here, though – that no one will decide to take Dr. Tiller’s place. As you are well aware, when you decrease the supply of something by 50% without reducing the demand, there is going to be a pretty big jump in price, which makes it more lucrative to engage in, thereby potentially attracting new suppliers. But beyond that, it seems like there is a strong possibility that some other medical practitioner(s), out of fully justified outrage over the murder, will defiantly decide to start performing the procedure. It only takes one courageous doctor to return the number of suppliers back to where it was a week ago. If there really are a lot of doctors who find this procedure ethically acceptable, you’d expect at least several of them to defiantly start performing the procedure, much as several newspapers responded to the Mohammed cartoon riots by republishing the cartoons.

      Quote  Link

    Report

  4. Most on the pro-life side don’t have a problem with the right to privacy since they don’t seem to get the ideas involved. I would guess most people in general think there is an explicit right to privacy in the constitution and also don’t see how legal aborotion in based on that right. The Right/ pro-life side is filled with those who want gov out of their life but have no problem controlling others.

    “No, at root, the trouble with Roe and its progeny has always been that it drew an arbitrary line as to where personhood begins”

    The court, or if it went to a legislature, would have to have specify some time before birth when to make abortion legal or not. Unless they made it completely legal or illegal. Distinctions have to made to create any sort of legislation. So this is not a problem, but just the ways laws are made. In Dred Scott they did not have to specify who was a person or citizen other then saying everybody is. It was only there racism they led them to even see the option of saying blacks weren’t people.

      Quote  Link

    Report

  5. Great analysis Mark. I must say I just read through all of Megan’s posts earlier today and I realy wish I could articulate things as well as she does (which is probably why I quote her so often). I agreed with about 99.9% of the stuff she said.

    For me I agree that it all comes down to the definition of personhood and you are right to point out this line was drawn without any real guidance from the Constitution. My favorite part of Megan’s posts was when she correctly pointed out that RvW was the first time in a long time we actually contracted the definition of personhood.

      Quote  Link

    Report

  6. (I probably do not say “wow, great post” often enough, given that I think it quite regularly… but I jump into the whole “but what about” with my comments without prefacing it with a “you guys are the diggity dank” because, hell, every post of mine would start with a “you guys are the diggity dank” and that strikes me as overkill… but it’s definitely underkill to say it as rarely as I do. So let me say that you guys are the diggity dank.)

    Mark, I don’t know, and I’ll say why: We have 300,000,000 people in this country… and two people (hey, anybody with better numbers… PLEASE provide them!) were capable of providing this service until the murder and now there’s just one. I don’t know that the situation is one where, say, a rate change of $10k from $6k is one that will create more applicants.

    The numbers strike me as small enough (miniscule!) that we’re talking about individuals rather than “the margins”.

    Sure, an individual might step up. Of course. One would think that, if that were the case, that one would have by now… given that there were only two guys in the country willing to do this.

    (Note: If there are, in fact, 300 doctors doing this all over the country, please strike everything I’ve said and I’ll go back to assuming that this is a margins problem where, as Mark has pointed out, a change in supply with no change in demand will result in a market incentive to change careers for typical med students out there.)

      Quote  Link

    Report

  7. Megan McArdle is a hypocrite, like all of the prolife movement.
    When I see them protesting outside fertility clinics and volunteering to be hostwombs for some of the thousands of fertlity therapy embryos preserved in terminal cryostasis then I might consent to read her whited sepulchre drivel.
    I despise her on prolife because she is dishonest and a faker.

      Quote  Link

    Report

  8. My dad is an orthopeadic surgeon, and I suppose I feel about prolife fundamentalist terrorists exactly like the right feels about islamic fundamentalist terrorists.
    Should I feel differently?
    Like Hilzoy, I would like to see the whole movement punished for their tacit approval of terrorism and murder.
    I have not seen ONE SINGLE STATEMENT from the right didn’t incorporate a “Tiller deserved it” in some form into their disclaimer.
    And I understand my motivation for revenge.
    Cognitive Anthro rules.

      Quote  Link

    Report

  9. Megan always seems so intelligent and sharp, to me, and yet there are literally websites entitled “fire Megan McArdle,” and basically all of the commenters at Hilzoy were being extremely nasty about her intelligence and so on; this is a common theme among comments at her blog, as well (or at least it has been in the past).

      Quote  Link

    Report

  10. Greginak:

    I agree with this:
    “The court, or if it went to a legislature, would have to have specify some time before birth when to make abortion legal or not. Unless they made it completely legal or illegal.”

    The trouble is that in terms of process, this is the appropriate role of the legislature, not the courts (and I really am one who tries to avoid the charge of legislating from the bench). Legislators are supposed to draw arbitrary but absolute lines, not courts, who are supposed to apply law to facts to the extent possible. When a court does this, it turns a legislative function into a constitutional function, which is a huge distinction. Were the compromise of Roe implemented legislatively, it would not engender nearly the level of vitriol and passion which it does.

    As for your point about Dred Scott, what you propose was, sadly, not a conclusion even available to that court, just as a conclusion that a fertilized embryo is a person was, thankfully, not a conclusion available to the Roe court.

    Had the Court in Dred Scott ruled as you suggest, it would have had to ignore clear language in the Constitution that permitted or at least tolerated slavery – in other words, it was a conclusion that, whatever we might wish, was simply unavailable; however, in the alternative, the Court could have and should have held that state legislatures have a right to decide who is and is not a person for purposes of that state’s laws, which would have been an uncontroversial assertion even then totally consistent with common sense and tradition. And that is precisely how the Court in Roe probably should have held as well.

    Again – this isn’t to compare the two cases on a moral level, and the flaws in Roe are not a result of disgustingly racist assumptions but are instead the result of trying to balance much more difficult questions. It is, however, to point out that the flaws share a structural similarity that renders opposition thereto politically powerless.

      Quote  Link

    Report

  11. Brilliant post, Mark.

    After the dust settles from this a bit, I think, we’ll need to address (or at the very least some people should discuss) a point of enormous significance raised by Megan.

    “My argument is that abortion, like slavery, is becoming in this country an issue upon which people have no reasonable political recourse.”

    After all, the issue of political recourse as a the only option versus terrorism as a viable option, is one of the great tests of emerging democracies and part of the reason that semi-free states tend to have the highest incidence of terrorism.

    In any case, I appreciated Megan’s comments as a reasonable attempt to bridge a gap and her highlighting that tendency of ineffectual responses is to exclusively focus on what was done. Progress seems more likely when the motivation for an act (its why) is understood and addressed and I appreciate your post as a more detailed augmentation of that original thought.

      Quote  Link

    Report

  12. Matoko: Megan is pretty open about being ardently pro-choice, so I don’t see how this makes her in anyway like “the rest of the RTL crowd,” since she doesn’t even agree with them. Anyhow, you write that “I suppose I feel about prolife fundamentalist terrorists exactly like the right feels about islamic fundamentalist terrorists.” I can understand this – indeed, in my mind, there is no real difference. But if you think that the Right’s response to the latter was wrong, then why would responding the same way to the former be any more correct? That’s exactly my point, and, I think, also Megan’s point.

    Jaybird: You may well be right about that. The trouble is that there’s really no way for either of us to know, unless one of us can find some statistics on the number of late-term abortions that go unperformed due to lack of supply. Still, my bigger point is just that it doesn’t seem like the principle reason for the lack of supply here is the threats (though I support doing any number of things to increase security for doctors who perform these procedures) – if it were, you’d expect at least some doctors to perform it in areas where the most rabid elements of the pro-life movement are virtually non-existent.

      Quote  Link

    Report

  13. A truly excellent post, Mark. I particularly approve of this:
    “Furthermore, in mandating training in late-term abortion for certification as an OB-GYN and mandating provision of late-term abortion by all hospitals, Hilzoy’s proposal goes to another level entirely – it holds the right to an abortion to be more important than a doctor’s right to act in accordance with her own ethics. Indeed, to the extent that doctor might view the late-term fetus as essentially human, it would even go so far as to force that doctor to violate their Hippocratic Oath. ”

    Just so. Late-term abortions are intensely controversial, and a subject about which otherwise “pro-choice” providers are genuinely conflicted. To require OB/GYN’s to learn (and presumably perform) a procedure that is morally troubling to a great many people would only serve to drive otherwise committed providers from the field. Presumably, those who wish to be trained in the procedure are, and forcing those who are/do not to be otherwise would accomplish nothing good.

    I have been struck by the sad irony that I have labored to save the lives of dangerously premature infants after birth, knowing that an arbitrary line and a few days confers personhood upon them, while in other clinics or practices a fetus that is developmentally indistinguishable is being terminated. While I am not arguing that this should not be legal, it does show how very arbitrary and contextual our definitions are.

      Quote  Link

    Report

  14. Thanks, Kyle (and all others who gratuitously complemented this post – though if you don’t stop, it’s going to go to my head, and that’ll be really bad)!

    More importantly, that is a fantastically interesting idea!

      Quote  Link

    Report

  15. Kyle,

    While I liked almost everything Megan said, I don’t know if I’m willing to accept that the lack-of-recourse-will-lead-to-more-violence suggestion. If that is the case we could name any one of hundreds of issues that the Supreme Court ‘closed the book on’ so to speak. Take the Kelo v. City of New London eminent domain case from a few years ago. Are we to believe that as more cities grab land for the purposes of increasing their tax base we will see people with no recourse reacting in violent ways?

    I think the point I’m making is that there is always hope for another case to come down the pike which changes things. McArdle seems to suggest the ‘supreme court guerilla war’ of the last 30 years is a holding action designed to preserve Roe. My gut tells me that the court would be willing to re-litigate it under the right circumstances.

      Quote  Link

    Report

  16. “I suppose I feel about prolife fundamentalist terrorists exactly like the right feels about islamic fundamentalist terrorists.”

    Do you see why the right is talking about root cause analysis for the prolife fundamentalist terrorists or do you share their attitude for islamic fundamentalist terrorism root cause analysis?

      Quote  Link

    Report

  17. Dan: Thank you, especially for providing some useful context to this.

    Mike: I understand what you are saying about Kelo, but one point I would make is that there’s an important distinction there. Specifically, Kelo only held that local governments could engage in some truly shady dealings without violating the US Constitution. It said nothing about whether state laws and constitutions, or even federal laws, could restrict those dealings. As a result, it didn’t really alienate anyone’s access to the political process – the behavior could still be blocked legislatively on a federal, state, and local level, and indeed, many citizens are even more engaged with those processes now as a result of their desire to prevent their local governments from doing such things. Indeed, a number of laws and ordinances have been passed in various locales that deprive Kelo of any real value in those locales.

    That’s not a defense of Kelo, by the way – just a point that Kelo isn’t a particularly good example of the court alienating citizens from democratic processes.

      Quote  Link

    Report

  18. Mark – you are correct. That was just the first case that popped into my head.

    Re-reading Megan’s remarks I think what she was saying is that it’s not that Roe is untouchable it’s that we need a huge swing in the courts to make it happen. But doesn’t having Roberts in charge give conservatives a leg up in the sense that he controls the cases they review and can select ones that would aid a conservative agenda?

      Quote  Link

    Report

  19. Mike: Not really – the Chief Justice’s influence over the Court is usually exagerrated. He does get to set the agenda in terms of which cases get discussed at length for possible cert, but the decision to actually grant cert requires a vote of four justices. The greater influence is that he gets to decide who will write majority or minority opinions (depending on whether he’s in the majority or minority).

    Since it’s pretty clear that there’s still at least a five judge majority in favor of upholding Roe and Casey (assuming Sotomayor is going to be clearly in favor of upholding Roe), it would not be wise for any of the four judges in the minority to vote for cert on a case for the sole purpose of overturning Roe/Casey – the result would probably just be that Roe and Casey get strengthened. They may support cert for cases where there’s a chance to chip away a little bit at Roe/Casey, but they aren’t going to do so for a case where the validity of Roe/Casey is the primary consideration at issue.

      Quote  Link

    Report

  20. @Mike: I think that’s a fair challenge to Megan’s argument.

    I think she does go out of her way to point out that violence is more likely to occur of issues of fundamental human rights, which eminent domain arguably isn’t. Outside the realm of political philosophy, that is.
    Where you’re more likely to see violence is on issues that people view in life and death terms. The pro-life crowd certainly does view abortion in those terms. I think there’s an argument that can be made that slavery was similarly viewed in similarly important terms (John Brown, cessation, the Civil War).

    But I like your challenge and think if you wanted to look at the court alienating citizens from democratic processes, Romer v. Evans might be a germane example.

    I’ll defer to Mark as to the Supreme Court composition question but as I understand it, since it only takes four to grant Cert, (the rule of four), either conservatives or liberals could, should a case be available at the appellate level, choose to hear a significant case on abortion. The Chief Justice doesn’t have particularly strong powers in that case.

    However, any significant change on the matter seems unlikely as only Scalia, Thomas, and maybe Alito would back a full overturning of Roe. Kennedy and Roberts would ascent to upholding restrictions but it’s unlikely that Kennedy would go any further than that.

    If anything, the SG would also have a significant amount of influence in moving abortion cases to the Supreme Court and I highly doubt that doing so is high on Elena Kagan’s to do list.

      Quote  Link

    Report

  21. Do you see why the right is talking about root cause analysis for the prolife fundamentalist terrorists or do you share their attitude for islamic fundamentalist terrorism root cause analysis?

    The truck sized hole in your analogy is that the islamic fundamentalist terrorists are mostly not US citizens.
    The root cause analysis is non-isomorphic.
    Like I pointed out, the right simply isn’t analysizing root causes. From Dr. George to McArdle there is a consistant theme that Tiller somehow brought this down on himself, that christian fundamentalist terrorists somehow aren’t accountable because of the flawed system that let Tiller “murder babies”. Its the Ann Coulter argument for Rev. Hill. I despise McArdle’s argument and Hilzoy’s equally, though.
    This is America and we have the rule of law.
    Can’t deal? gtfo.

      Quote  Link

    Report

  22. You rightly criticize the Klein-Hilzoy policy response proposal, but are quite mistaken in giving quarter to McArdle’s ravings in so doing. Mgan McArdle is studiously to be ignored on several topics, this being a shining example.

    There is a point in this series of posts from her in which she compares the minority absolutist anti-choice position to disenfranchisement, specifically of Palestinians. She specifically does not reject the resultant implications for the possibility of justified violence. In fact that is the driving, undelying point behind her posts the last two days. Dangerous, illiberal, and despicable.

      Quote  Link

    Report

  23. Kyle – that’s a very good point about the SG. I had overlooked that. And I agree that Romer would be a better example for Mike’s point, although it’s worth pointing out that the citizens deprived of their voice weren’t really being deprived of “fundamental human rights” there – the referendum that was overturned would have prohibited gays and lesbians from being protected by anti-discrimination laws. Still, it’s a much better analogue than Kelo, and I’ve little doubt that there are even better counter-factuals.

    Matoko: I’m not sure how citizenship has anything to do with whether it’s any more right to assign collective guilt for terrorism to the pro-life movement than it is to assign such guilt to Islam. Additionally, I fail to see where Megan suggests that Tiller brought this upon himself, especially seeing as she apparently thinks what he was doing should be legal. All she seems to suggest is that she understands why someone with the honestly-held view that this type of procedure equals murder would feel compelled to kill a practitioner of the procedure given that there is no legal recourse for them to attack the procedure politically with a reasonable chance of success.

      Quote  Link

    Report

  24. Michael – I have to disagree with you here. Neither she nor I (since I fully agree with her on the point she was making) think that the violence is legitimate. In fact, she at one point makes the specific rejection of violence that you say she is missing: “I can understand the structural forces that contribute to Palestinian terrorism without believing the terrorism is legitimate.” In context, she’s saying that this same logic should lead to an identical conclusion with respect to pro-life (or anti-choice) terrorism.

    That, to me, is the most important point in this whole discussion – even if you think that violent resistance to a form of disenfranchisement is unjustifiable and an act of terrorism, that doesn’t mean that you respond to that violence by doubling down on the very thing that is at the root of the perceived disenfranchisement. That’s not to say you cowtow to the terrorism either – just that you should take seriously the question of whether there is a legitimate grievance that is giving rise to the illegitimate behavior and then ask whether it’s possible to alleviate the causes of that legitimate grievance by giving them an avenue to pursue that grievance legitimately.

      Quote  Link

    Report

  25. I fail to see where Megan suggests that Tiller brought this upon himself,

    But she completely” understands ‘and sympathizes with the prolife terrorists and warns that LAWS will just marginalize them further, even FORCE them into more terrorist acts.
    She is also a COMPLETE AND UTTER FOOL if she thinks prolifers really care about fetuses.
    Mark, I am frankly disgusted by McArdles tortured pretzel logic. And Jaybird, I understand the “root causes” perfectly. It is about power and who controls teh wimmens, and not about succoring differentiated cell clumps. If prolifers actually gave a rap about saving teh Unborn, they would protest fertility therapy and attempt to dissuade women seeking abortions instead of demonizing and assassinating abortion doctors.
    Just like McArdle the prolife are fakes and poseurs.
    /spit

      Quote  Link

    Report

  26. “giving them an avenue to pursue that grievance legitimately.”

    May I suggest….passive hunger strikes hopefully resulting in their incapacity and eventual death?

      Quote  Link

    Report

  27. So far as I can tell, she never uses the word “sympathize,” nor does she imply it. Moreover, you continue to ignore that she explicitly identifies as “pro-choice,” which means you are attributing to her views which she expressly doesn’t hold, not just on violence, but on abortion as a whole.

    Additionally, the procedure we are discussing here – late-term, post-viability abortion – is not remotely in the same ballpark as prohibiting contraception or even prohibiting first trimester abortion. Indeed, it’s a procedure that an overwhelming majority of Americans think should be pretty restricted. If you define “pro-life” in this case as simply being in favor of greater restrictions on this procedure or even as being in favor of more restrictions on abortion generally (short of outright bans without exceptions for rape, incest, life, or health), you’re talking about 60-75% of Americans, depending on the poll you look at.

      Quote  Link

    Report

  28. Saying that it is possible to see the motive for violence while not granting its legitimacy is a far cry from asserting unequivocally that it is not justified. Moreover, analogizing the grievances of pro-lifers to those of Palestinians without focusing, really it should be dwelling, on the gulf between the two examples is dangerously misleading and merits dismissal.

    So 1) no, she does not explicitly reject the violence in either case, at least not in the language you provide, and 2) she positively compares the theoretical justification (while not explicitly aligning herself with it) for violence by self-perceived marginalized political activists in the U.S. to people in lands where they are systematically unrepresented and physically oppressed.

    You need to get out of Megan McArdle’s corner, Mark.

      Quote  Link

    Report

  29. “Still, that’s why Roe continues to engender such passion, and sadly indefensible violence as well – it removed a decision historically and properly the role of the legislature and/or localities, and turned it into a settled question of constitutional law despite acknowledging that the Constitution provides little guidance as to how to define a “person,”

    It’s disingenuous to claim that abortion restrictions have anything to do with redefining the idea of what it means to be a person. Nobody wants to expand the definition of personhood to include all human life. That would be impossible to live up to, anyway. Abortion restrictions are actually about creating a NEW category of human life, one that has rights which are more important than the rights of people who engage in certain types of disfavored behavior, but less than other people who are totally cool. It’s ludicrous for McArdle to claim that we ever granted personhood to fetuses in the same way that we granted personhood to African-Americans.

    Another way of saying this is that it is obviously unconstitutional to have abortion bans that make exceptions for rape victims, and if the bans make these kinds of exceptions, then “personhood” is obviously not what’s at stake.

    “ask whether it’s possible to alleviate the causes of that legitimate grievance by giving them an avenue to pursue that grievance legitimately.”

    Pro-lifers have that avenue. What you’re suggesting is putting a thumb on their side of the scales, so that pro-life majorities should be able to get their way even when they want to enact laws that violate the Constitution.

    I don’t mind that pro-lifers consider themselves to be beautiful nebulae beyond the restrictions of law and logic. I just wish you’d stop inventing language designed to obscure this fact.

      Quote  Link

    Report

  30. Indeed, it’s a procedure that an overwhelming majority of Americans think should be pretty restricted…..LAWFULLY, not by assassinating doctors that provide the service.

    I call bullshytt on McArdle, she is a prolifer in that she is declaring solidarity with their pathology. She is writing apologia for the prolifers, so no fair whining that she is relly “pro-choice”. She is a dishonest faker.
    One more time, if the fake prolife movement actually gave a crap about teh Unborn they would try to persuade women not to abort instead of demonizing and terrorizing and assassinating abortion providers. If women seek abortion there will always be providers, legal or no.
    Did Dr. Tiller kidnap those women or hypnotize them into aborting?
    No, they sought him out, paid his fee and lay down on the table.

    McArdle is just another blogposeur bullshytt-artist doing a head-fake on pro-choice. She isn’t prochoice a’tall.
    Bravo Dave!

    “ask whether it’s possible to alleviate the causes of that legitimate grievance by giving them an avenue to pursue that grievance legitimately.”

    Pro-lifers have that avenue. What you AND MCARDLE are suggesting is putting a thumb on their side of the scales, so that pro-life majorities should be able to get their way even when they want to enact laws that violate the Constitution.

      Quote  Link

    Report

  31. And I’m thoroughly sick of McArdle’s stupid wildly innapropriate analogies.
    Fetuses are nothing like slaves, women who are denied LEGAL reproductive choices by terrorists are the slave deme here.
    Exactly like teh islamic fundies, the prolife fundies well understand how unappealing their memetics are, so they seek to enforce them through criminal violence.
    McArdle is essentially saying the rule of law is FORCING the domestic terrorists into criminal behavior because they FEEL obligated to exercise their MORAL INTUITION.
    She is just another creepy conservative apologist.
    Sadly, I think she does have some knowledge of economics, and my hero Freddie speaks well of her.
    But I have negative infinity respect for her at this point.
    I doubt I’d ever read her again.

      Quote  Link

    Report

  32. I think….people like Megan should put their bellcurve tribal allegiance above their partisanship. She is using a timehonored conservative head-fake here.
    McArdle: I’m verry pro-choice/pro-science/pro-SSM/etc., but I support the majorities right to mob-rule on the issue of ….choose one…..[IDT forced into high schools, domestic terrorism, oppression of minority rights, humanlife-at-conception, slaughtering abortion providers, discrimination, etc.]
    The whole conservative federalist schtick is just localized mob-rule.
    Its like they pay lipservice to classic liberalism while declaring solidarity with the base under the table, wink,wink, nod, nod.
    Its a fake-out.

      Quote  Link

    Report

  33. I had a mom friend that ended up carrying a dead fetus in her womb for two months because no one was trained in the procedure. I have no sympathy for people who all of a sudden find themselves in ethical conflict with their chosen careers. I think you’re a bit dismissive and ahistoric concerning Dred Scott. Unless were going to revisit Federalism in a real way, the Left should have it’s turn for punitive legislation. Trying to argue otherwise after the last administration seems like the bad guy in the movies begging for leniency….. “don’t hurt me!”

      Quote  Link

    Report

  34. “And Jaybird, I understand the “root causes” perfectly. It is about power and who controls teh wimmens, and not about succoring differentiated cell clumps. If prolifers actually gave a rap about saving teh Unborn, they would protest fertility therapy and attempt to dissuade women seeking abortions instead of demonizing and assassinating abortion doctors.”

    This contains approximately as much nuance as a right-wing analysis of the Israel/Palestine debate.

      Quote  Link

    Report

  35. “Moreover, analogizing the grievances of pro-lifers to those of Palestinians without focusing, really it should be dwelling, on the gulf between the two examples is dangerously misleading and merits dismissal.”

    I will make this analogy instead.

    I don’t think that gay marriage is particularly analagous to “mixed-race” (an ugly term) marriage. Like, at all.

    Oddly enough, those *OPPOSED* to gay marriage sound almost *EXACTLY* like those *OPPOSED* to “mixed-race” marriage.

    My argument is not that the Islamic terrorism debate is anything like the Abortion debate in this country. It’s that the blinkers of those screaming “they’re not opposition, they’re on the other side” strike me as identical, if you know what I mean.

      Quote  Link

    Report

  36. So, I had this magnificent final contribution to this thread that got eaten by the Internets. I’m not going to rewrite the whole thing, but….

    1. There is an assumption in our public debate and in some of these comments that there is a “constitutional right to an abortion.” This assumption is incorrect, and is a position that the Supreme Court explicitly rejected in Casey and at least one other, earlier decision. Instead, there is a right to make reproductive decisions over one’s own body without unwarranted interference from the state. The trouble is that the SCOTUS drew a line for all time, despite recognizing that there were two valid competing interests – which Justice Blackmun himself acknowledged was arbitrary, although Justice O’Connor in Casey made it somewhat less so – as to where that line should be drawn, and turned it into a Constitutional law.

    2. What Jaybird said in 39.

    3. Cascadian – Wow. That is extraordinarily sad. I have some thoughts and questions in response, but I don’t want to pry too much. Still, as Dr. Summers explains above, this isn’t an issue of a sudden ethical conflict along the lines of a pharmacist refusing to fill a prescription for birth control, it’s a situation where the fetus is usually viable outside the womb, which is a situation where . That said, there is certainly a very strong case to be made for mandating training in the procedure solely for the purpose of responding to miscarriages.

    4. As for Dred Scott/slavery, Ta-Nehisi Coates has me half-convinced that the analogy isn’t the greatest, at least with respect to slavery more generally. That said, the form of the Dred Scott decision, to me, shares an awful lot in common with Roe structurally, which is my main point.

    5. I take issue with the notion that, in a couple of blogposts, even long ones, one must disavow every belief that the post could hypothetically justify or must discuss every nuance implied by that post. Specifically with respect to Palestine, I’ve seen that demand used by both sides in really destructive ways (e.g., I was once accused of “applauding Hamas” because, in a post suggesting that Israel’s tactics were likely counterproductive to its own aims, I did not include a lengthy diatribe on how evil Hamas is, etc.). The result is that the substance of the point gets ignored, and the author gets unfairly smeared.

      Quote  Link

    Report

  37. Cascadian,

    Echoing Mark’s remarks about a sad situation and not wanting to pry, I find it hard to understand how an assumingly mid-to-late term fetus couldn’t be delivered through medically-induced labor, which is a common method for dealing with those situations, or through a C-section which is more invasive, but equally effective. Unless every medical show, article, etc I have ever read was off-base, having a dead fetus inside the mother for too long puts her at serious risk for infection, especially if the baby was mid-to-late term.

      Quote  Link

    Report

  38. Mike: I’m not really sure why those options weren’t available. I didn’t really pry when she was telling me about it. I just wanted to crawl into a hole.

      Quote  Link

    Report

  39. “There is an assumption in our public debate and in some of these comments that there is a “constitutional right to an abortion.” This assumption is incorrect, and is a position that the Supreme Court explicitly rejected in Casey and at least one other, earlier decision. Instead, there is a right to make reproductive decisions over one’s own body without unwarranted interference from the state. The trouble is that the SCOTUS drew a line for all time”

    The Constitution doesn’t explicitly guarantee a “right to an abortion”.

    The Constitution can be held to guarantee the right to an abortion, or to leave that matter to the states. I’m not a lawyer, but I understand that we leave those decisions to the Justices as a practical matter. Even so, their rulings are not considered “correct” or “incorrect” interpretations of what the Constitution promises. They’re simply adopted into practice. No interpretation of the Constitution is “incorrect”, even when the Supreme Court rules otherwise and you’re just some BA.

    As well, when the Court rules, it does not draw a “line for all time”. That’s why abortion becomes such a relevant political issue. Because there is a democratic process that both sides have access to.

    Anyway, I find it difficult to argue that the Constitution guarantees unlimited abortion rights. But it also seems clear to me that the creation of a law that allows abortions to rape victims but not to women in identical physical circumstance but with a different backstory would violate the Constitution. The inevitable terminus point of such laws is the creation of “abortion tribunals” of some kind which decide which women are worthy of which surgeries. That’s not America. If the Supreme Court was increased to ninety and ruled unanimously against me, it would not be enough to determine that I was “incorrect”.

      Quote  Link

    Report

  40. Dave:

    This may be just semantics, but the point I’m trying to make is just that the phrase “constitutional right to an abortion” makes no sense, and is a position that almost no one actually holds, even though it is a commonly used phrase. When the phrase is used, what people are really saying is “a woman’s fundamental right to privacy/freedom from government intrusion, which is protected under the due process clause of the Constitution.” Otherwise you are arguing that Roe was too narrow, which is a position that virtually no one holds.

    Re: Draw a line for all time. I stand by this assertion – the only way to overcome the Court’s decision is either through a Constitutional Amendment or through having Roe overturned by the Court. This latter option is the option that the Right focuses on because it is nominally easier; however, it’s an option that has a real penchant for causing problems due to its effect in unnecessarily politicizing the Court and, if successful, its effect in undermining principles of stare decisis, which is why moderate pro-life judges have a penchant for upholding Roe. The alternative, Constitutional Amendment, while A “democratic process,” is an extremely limited one in which the pro-life side has to obtain a super-majority of support to get ANY meaningful change pushed through while the pro-choice side need only retain a relatively small minority of support. Pre-Roe, the two sides had roughly equal access to the political process, and the pro-choice side was rapidly gaining ground; Post-Roe, the issue has become more divisive, with the support for both sides remaining remarkably steady over the course of 35 years (in other words, the pro-choice side’s momentum in terms of public support stalled after Roe).

    Look, if it were simply an issue of determining whether or not a woman’s right to privacy extended to her right to make decisions about her reproductive health, then there would be little wrong with Roe – such a determination would have been fully consistent with precedent. Indeed, if the Court had simply stopped at the point where it found that fetuses were not “persons” within the meaning of the 14th Amendment, and just held that there was an absolute right to an abortion up until the moment of birth, there would likewise be little problem – such a decision would have been consistent and avoided arbitrary line drawing; it also would have been so unpopular as to virtually guarantee some kind of a Constitutional compromise for an amendment such that the resulting situation would have had complete political legitimacy. But that’s not what the Court did; instead, it went through the process of drawing arbitrary lines that are almost always better drawn through political compromise and which were, frankly, unnecessary to resolution of the case before them.

    Look, I’m not one to make the “judicial activism” charge often. In fact, I think a lot of so-called “judicial activism” is often a good thing. I also find charges of “legislating from the bench” to usually be frivolous. Roe, to me, seems to be the one notable exception to that rule in the last 40 or 50 years, precisely because of the nature of the line it decided to draw – a line that would have been no less arbitrary unless it were drawn at birth or conception.

      Quote  Link

    Report

  41. I take issue with the notion that, in a couple of blogposts, even long ones, one must disavow every belief that the post could hypothetically justify or must discuss every nuance implied by that post. Specifically with respect to Palestine, I’ve seen that demand used by both sides in really destructive ways (e.g., I was once accused of “applauding Hamas” because, in a post suggesting that Israel’s tactics were likely counterproductive to its own aims, I did not include a lengthy diatribe on how evil Hamas is, etc.). The result is that the substance of the point gets ignored, and the author gets unfairly smeared.

    I agree weith that as long as you keep to the topic at hand. But when you raise flashpoint disputes as analogy entirely of your own accord in support of your position on an unrelated topic, as McArdle did, your wiggle room with regard to the specifics of the situation you raise and their implications for your main argument, as well as exactly whay you say about that situation, gets vastly trimmed back. But that is really not the issue with Megan’s raising Palestinian resisitance to muddy the question of how we should look at the murder of law-abiding Americans. The issue is not one of some stray phrase I am bending out of shape, or small technicality in the facts of the two cases. Rather, using the Palestinian situation as Megan does is fundamentally spurious and illegitimate here unless one is specifically contrasting the two cases of political violence. That is the only honest way to compare the two examples.

      Quote  Link

    Report

  42. “Otherwise you are arguing that Roe was too narrow, which is a position that virtually no one holds.”

    I hold that position. And I overwhelmingly agree with the substance of what you just wrote, and am glad to see someone else say it. Roe seems like a badly formed decision to me precisely because it invents that arbitrary line.

    “Re: Draw a line for all time. I stand by this assertion -”

    Who knows what would have happened if McCain had won the election, though? It seemed pretty dicey there to me for a few years. As for amending the Constitution, I understand that it’s hard to do. It isn’t impossible, if the political will is there.

    “Indeed, if the Court had simply stopped at the point where it found that fetuses were not “persons” within the meaning of the 14th Amendment, and just held that there was an absolute right to an abortion up until the moment of birth, there would likewise be little problem – such a decision would have been consistent and avoided arbitrary line drawing;”

    I agree. Unsurprisingly, I also believe that Roe’s line of reasoning, attempting to wrangle some kind of logic behind this weird compromise, is strained and tortuous in real life. It’s bad Supreme Courting, it would be bad law. But you seem to desire these sorts of compromises occur on a legislative level, as logically indefensible as they are. I don’t understand that. There are two coherent arguments to make. One is that we draw the line at birth, the other is that we draw the line at conception, and just accept the strain of treating unborn human life the same as we treat each other. I think the latter would be impossible, so I accept the former. But the choice is between the two; that’s just what it is.

    “it also would have been so unpopular as to virtually guarantee some kind of a Constitutional compromise for an amendment such that the resulting situation would have had complete political legitimacy.”

    Boy, do I find that fanciful. Didn’t you just argue that Constitutional Amendments are impossible to pass? I think that Blackmun was probably trying to bring his decision in line with the prejudices of the day (and today), when he wrote in that business about trimesters. However, Roe basically did end up legalizing all abortions for everybody because of the mental health exception to all late term restrictions. I mean, at least that’s what Ramesh Ponnuru believes. And there’s been no resultant political mobilization.

    Wwhen it comes to abortion and the Constitution, we agree about a lot. However, what we seem to disagree on, which you’re not addressing, is whether the Court should allow states to come up with their own mushy compromise laws that will, hypothetically, resolve the conflict, or at least make it into a nothing issue that doesn’t affect elections. But I think all of those compromises are going to be inherently unconstitutional. I think these middle positions, popular as they are, aren’t based on anything but primitive instinct. That’s the word I’d use to describe the view that abortion should be banned unless the woman was a victim of assault: primitive.

    It’s not that the Supreme Court is limited to issuing decisions that set rights at conception, or that set rights at birth. It MUST force legislatures to choose between these two poles. Allowing these compromises to take place would be a dereliction.

      Quote  Link

    Report

Leave a Reply

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