Stirring the Pot, Chapter 2: Abortion

I figured it was getting on about time to stir the pot up again, and I was reading recently that Mike Huckabee is proposing a constitutional amendment to ban abortion. "Abortion!", I thought, there's a topic that's sure to stir the pot up.

So, without further ado, here's my thinking on abortion:

First, let me start by saying: I don't think there's much of a constitutional basis for Roe v. Wade. Sooner or later, it's probably going to get overturned, and if it does, it's going to be because it didn't have enough of a constitutional foundation to protect itself.

Now, before you go praising me or cursing me, let's note that I have not yet expressed an opinion on abortion; I've only given an opinion on the validity of a particular legal decision. Before I give that opinion, one thing I've noticed, and always get irritated by in this debate, is the way in which both sides constantly demonize the other as holding a view that is irrational/evil/oppressive/unreasonable. That's not very conducive to a productive discussion of a unique, and very important issue.

On the one hand, the pro-choice movement seeks to protect the rights of women. Let's stop there for a second. Is protecting the rights of women a good thing? If there were an empty room, and all that was in it was the concept of protecting women's rights, would we agree that the room had a Good Thing in it? I think most people, women traffickers excluded, would probably say yes.

On the other hand, the pro-life movement seeks to protect what are arguably the most vulnerable lives in society: the unborn. After all, they can't speak for themselves or defend themselves in any meaningful way. Let's also stop there for a second. Is protecting the most vulnerable members of a society a good thing? If there were an empty room, and all that was in it was the concept of protecting the most vulnerable members of a society, would we agree that the room had a Good Thing in it? I think most people, sadists excluded, would probably say yes.

So the problem with abortion isn't that either of the two sides is somehow founded on a thoroughly unreasonable principle, the problem with abortion is that you have two concepts that are good in the abstract which happen, in this particular instance, to be in conflict with each other.

So how do we resolve this issue as a society? First of all, we can start by acknowledging that there is no solution to this issue which will not upset a large number of people. For instance, we could do as Governor Huckabee proposes and pass a constitutional amendment banning abortion completely. That will please a relatively small fraction of the population a great deal, and upset a relatively large fraction a great deal, and would represent 100% emphasis on protecting the most vulnerable members of society, and 0% emphasis on protecting women's rights. Or we could do the opposite, and pass a constitutional amendment granting the right to have an abortion at any time for any reason. That will also please a relatively small fraction of the population a great deal, and upset a relatively large fraction a great deal, while representing a 100% emphasis on protecting women's rights, and 0% emphasis on protecting the most vulnerable members of society.

So my thinking is, we should go for a middle solution- one that is likely to make everyone somewhat unhappy. I don't believe a middle solution is always called for when there is a disagreement; however, in this case because we are dealing with competing goods, I think a middle solution is warranted. What I propose is this: a constitutional amendment which grants a woman the right to terminate a pregnancy for any reason up until a specific point, and then grants the fetus the right to survival past that point, with an exception granted for a pregnancy which threatens the life of the mother at any time. The amendment would also include language forbidding the government from infringing on the right of women to have full access to any knowledge which is relevant to making an informed choice about whether to terminate a pregnancy.

The underlying principle here is that since we have competing goods, we set up a legal framework that creates a balance, and allows the balance to tip toward protecting women's rights at first, and then toward protecting the most vulnerable members of society afterward. What we have now is similar in the sense that abortion is sometimes legal and sometimes not, but there's not a firm legal underpinning supporting legal abortion, and there's a whole lot of social energy expended in either expanding or restricting the current ad hoc framework.

As for determining when the balance should tip, I would leave that to a lively debate amongst representatives of both sides, plus doctors, plus medical ethicists. As a single male with no medical training, my knowledge of female biology is limited to an admittedly rudimentary navigational sense. I have steered clear of trying to understand how female biology really works, since it seems both nightmarishly complicated and surprisingly variable. So I've got little to add on this point, except to say that the tipping point should be late enough for a reasonable percentage (95%?, 97%?) or pregnant women to (a) realize that they are pregnant, which I have a vague understanding may take some time, and (b) find out the options and discuss them with whomever the woman thinks should be involved in the decision making.

On another note, I sometimes hear an argument that a fetus is not actually a person, and therefore should not be accorded any rights thereof. I find that argument logically unconvincing, morally oh-so-convenient, and strategically unnecessary to a resolution of the issue that goes a significant way toward protecting women's rights. Certainly, a fetus is well on its way to becoming a person, and if left alone for some months, will do exactly that. That differentiates it from, say, a hot air balloon, which if left alone for any amount of time will never become a human being. That, by the way, is how you know Rush Limbaugh isn't actually a human being.

There was a recent New York Times article saying that all this abortion legal stuff people fight so passionately about may be rendered obsolete by a relatively common drug that is used for some other purpose, but which, if taken in the right dosage, can induce an abortion with minimal side effects. The article predicted that poor women would end up going that route, and rich women would just fly to wherever they needed to in order to get a proper procedure done. So there's one vision of where we end up as a society if we don't ever resolve this issue sensibly.

The benefits of a constitutional amendment such as the one I've proposed are many:

-we don't have rich woman/poor woman scenarios like the one noted above

-we can stop having every damned Supreme Court justice nomination be about Roe v. Wade and whether we're going to overturn it or not. Christ in heaven, I get so tired of that.

-we can have abortion law that has a firm legal foundation, and is consistent everywhere

-we can spread the dissatisfaction around; i.e., extremists at both ends will be pretty unhappy, but will at least get some of what they want, while everyone in the middle of the spectrum, which I have to believe is most people, will probably have a vague feeling that it's not a perfect solution, but is a solution they can live with. And that's democracy in action.

So there you have it- yet another reason why I'm not electable, beyond modest stature, terrible hair, and a penchant for saying what I think about hard issues.