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 Roe, now-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.