If you prefer to listen rather than read, this blog is available as a podcast here. Or if you want to listen to just this post:
Last week one of my friends called me up. This was surprising. The nature of our relationship is such that I normally call him, not the other way around. Accordingly I asked him to what I owed the pleasure, and he said he was calling to yell at me about the Georgia “fetal heartbeat” abortion law. I responded “Oh, joy…” and he proceeded to basically do just that. To be fair there wasn’t much literal yelling, but there were a lot of very strong declarations about how horrible the law was, the horrible things it would bring to pass, and the horrible people who were responsible for it all.
I defended myself as best I could, particularly given the fact that I had never expressed support for that exact law to anyone, let alone this friend. Also I hadn’t really been following the story, so I was largely going off his description of it. A description which had been significantly colored by his biases and the biases of most of the reporting. By this I’m not trying to imply any significant mendacity, rather I’m merely pointing out that he got all of his info from people who are predisposed to be absolute in their defense of a woman’s right to an abortion, and that he is similarly predisposed. Also I’m not trying to imply that his worries were unfounded, or that the bill doesn’t have some significant weaknesses. It does, and since he appointed me, as his token (pseudo) conservative friend to defend it, I figured I might as well give it a shot. If nothing else, there was a significant amount of bafflement on his side, and perhaps I can at least help resolve some of that.
I should probably start by clarifying my own views on abortion. I believe that there’s a moral continuum. On the one end abortion takes the form of a morning after pill, which I am libertarian enough to believe should be entirely legal and easily available. On the other end the closer you get to the moment the baby is ready to be delivered, the closer abortion gets to just being infanticide, and to being indistinguishable from murder. Draw a line between these two points (though it’s probably some kind of curve) and you can visualize the morality of abortion at every point in a pregnancy. Depending on one’s views on the value of female autonomy vs. the value of the unborn at some point the value of the former will outweigh the value of the latter. Before that point abortion is undesirable but allowable, after that point it should indeed be illegal, or at least legal only under certain circumstances.
I think on some level, this continuum applies to most people, though I doubt they think of it with quite this level of detail, and, of course, the current battle isn’t being fought by most people, it’s being fought by the true believers at either end of the spectrum, and for them there’s basically a cliff. On the one side, abortion is wrong from the moment the zygote is implanted in the walls of the uterus and on the other side there’s been a recent push in a couple of states to make abortion allowable basically up to the moment that the baby has left the mother. Now I know that post-viability abortions are very rare, and I’ll be returning to that point, but they do happen, and there has been a push recently to make it even easier for them to happen.
To continue unpacking my personal views, I am also in favor of the typical exceptions that are always listed: rape, incest, and the health of the mother. Though, I can also see where those could be abused and act as a loophole to get an abortion when you might not otherwise be allowed to. Which is more about the nature of what happens with exceptions than the nature of abortion.
Pulling all of this together, if it were entirely up to me (and it’s not, nor should it be) I would make sure that there was plenty of education about birth control, and that all the different forms of it, including morning after pills, were easy to obtain, and then, once all of that was in place I would make the legality of abortion a state-level issue, with the exceptions mentioned above. And where abortion is illegal, I would want the greatest possible mercy shown to women, with all enforcement directed at abortion providers. Even if some of these elements were not present, I would be fine living in a state that decided abortion should be illegal. Which I guess makes me pretty pro-life, albeit with a libertarian slant, and also endowed with the realization that the sexual revolution did happen and, perhaps unfortunately, the genie is already out of the bottle.
Given this essentially pro-life stance, you may wonder why, as I said previously, I hadn’t been following the story of the Georgia abortion law, but this is where we get into the last piece of my stance on abortion. I am on record as predicting that Roe v. Wade will not be overturned, and that specifically Chief Justice Roberts will join with the four liberals in upholding it. (Experts agree with me.) Which means that it doesn’t matter what kind of law Georgia passes, federal judges will put a stay on it (as they already have to a similar law passed by Kentucky). From there, it will eventually make its way to the Supreme Court and they’ll decide that it’s an unreasonable restriction. Meaning that while there is currently a lot of excitement around the bill, that eventually it won’t amount to anything.
And here is where we bring my friend back into the picture, since, at the time of his call, I wasn’t able to speak very knowledgeably to the specifics of the bill I offered this latter argument as justification for why he shouldn’t worry about it. To which he retorted, “Only if Ginsburg doesn’t die!” And yes, if Ginsburg dies, that would definitely throw a wrench into things, and it’s clear that her health isn’t great, but I think it’s equally clear, based on the Kavanaugh hearings, that if she does die, and Trump is still president that the Democrats will do everything in their power to stop Trump from appointing another justice. What those actions might be is beyond the scope of this post, but recall that they have the House, which means they have the power of the purse, and you shouldn’t underestimate what they can do with that. Also at this point the “blood in the streets” option is also probably on the table. And that takes me to my biggest worry about Roe being overturned, not that the legality of abortion will go back to being determined at the state level, but that the insane divisiveness which already exists will get turned up to 11, and whatever the chances of “blood in the street” are if Ginsburg dies, that they’re at least double that if Roe actually gets overturned.
Accordingly, one of my biggest worries is one I’ve mentioned before, that issues like abortion are going to be so divisive that eventually people are going to start resorting to violence, and that once that violence starts, I’m not sure where it ends. But as I’ve already talked about that let’s get into a discussion of the actual Georgia law.
After a high level discussion of the new law, which as I said, is the only level I could engage at, my friend proceeded to list all of the horrible things that were specifically part of the new law. Women thrown into jail for miscarriages, charged with second degree murder. Women being charged with murder for getting an abortion in another state. People who drive the women to get an abortion (in or out of the state) being charged with conspiracy to commit murder, etc.
At the time of the call I was out for a lunchtime walk, so I didn’t have access to the internet (or rather I was talking on my internet connected device.) But when I got home I quickly looked up the actual text of the bill. I should mention at this point that it’s surprising how few of the articles, particularly those that are critical of it, link to the actual law, for example the NYT article I linked to at the beginning includes no link to the actual bill.
Reviewing it I very much expected to see all of the penalties my friend described, and I was surprised to discover that in fact none of what he said was in there. No murder penalties, no mention of conspiracy, none of that. So what was going on? Well, the primary thing the Georgia law did, other than the six week cutoff, was define a fetus/unborn child to be “person” under the 14th Amendment. And then, if an unborn child is a person, there are a whole host of other laws which kick in. If unborn children are people then an abortion is 2nd degree murder. In other words, the opponents of the law are arguing that while the law doesn’t mention any of these penalties that they flow as a natural consequence from declaring that the unborn are people. That under the law all miscarriages are now possible cases of 2nd degree murder.
Given that only 34% of voters can name all three branches of government, what are the chances that the average person upon hearing about the horrible penalties of the law realize that they are not actually written into the law itself? But only a possible consequence of declaring an unborn child to be a “person” under the 14th Amendment. (If you’d like to see someone from the left arguing that these penalties definitely will be applied see here. And if you’d like to see someone on the right arguing that they definitely won’t see here.) All that said, I will admit that it’s reasonable to ask, why did they invoke the 14th Amendment?
I can think of several possibilities:
- They did it precisely in order to be able to apply these penalties. They want to charge women who have an abortion with 2nd degree murder, and they want to immediately suspect all women who have miscarriages of the same thing.
- Bringing in the 14th Amendment has nothing to do with the mothers or their unborn children. It’s actually about something entirely different. For example, the bill does mention including the unborn in “population based determinations” perhaps what Georgia is really hoping for is another seat in congress.
- They actually didn’t think through the consequences. The 14th Amendment has been used to expand rights for lots of different groups, including being used in the recent decision which legalized same-sex marriage, and tossing it in sounded good. But, by doing so, they failed to realize that if they declare fetuses to be people that abortion is 2nd degree murder.
- They did think through the consequences, but they were far more focused on the hundreds of thousands of unborn who are aborted every year than they were on the women who might have an abortion. That, basically, they feel like abortion is an enormous crime, and after 46 years of Roe v. Wade, they are desperate to see it overturned, also, similar to what I just said, the 14th Amendment seems like a promising avenue to accomplish this. As far as the penalties, they are either planning to deal with that after they see what the courts say, or they feel that they are already covered by pre-existing laws (which is what the conservatives are arguing.)
Without attempting to put words into the mouth of either my friend, or the bill’s opponents, my sense is that they are both sure that it has to be possibility number one. That the bill is a malicious and premeditated attack on women. That the people who supported and voted for this bill are not trying to “save lives” they are looking for the best way to punish women who have the temerity to violate their puritanical views on morality, and that applying the 14th Amendment to fetuses is the best way to accomplish this objective. This seems unlikely, and in a minute I’ll look at why I think that is.
Number two also seems unlikely. Doing anything with abortion laws is such a messy business that it’s hard to imagine that anyone would think that it’s the best way to accomplish some unrelated goal, regardless of what that goal might be.
Number three would appear to be strictly superior to number one just on the basis of Hanlon’s Razor (Never attribute to malice that which is adequately explained by stupidity.) And for that reason alone I wouldn’t discount it as the best explanation for what happened. As I’m sure my friend would/will point out, this explanation doesn’t absolve the lawmakers from the responsibility of considering the possible consequences of declaring an unborn child to be a person, and of being more clear about what sort of punishment (or lack of punishment) they envisioned. And I would have to agree, but I also think it’s more important to look at what they intended to do, rather than what they forgot to do.
Once we honestly try to imagine what they intended then I think it’s clear that their intention was to use the 14th Amendment as part of an overarching strategy for increasing the chances that this law won’t be struck down by the Supreme Court. Maybe they did it without considering all of the potential consequences. Maybe they saw the consequences, but didn’t want to risk diluting the bill, by adding anything extraneous (possibility four). Regardless, I think it’s clear that whatever their reasoning their primary focus was stopping the abortion of unborn children, not punishing the women who had those abortions. Though I expect that assertion to be controversial, given that, in many respects, it represents the crux of the abortion debate.
One common complaint among the vociferously pro-choice is that those who oppose abortion don’t actually care about the unborn, that they are mostly men, entirely motivated by a desire to punish those women they see as being immoral. And even if concern about the unborn is in there somewhere, that it’s still largely driven by animus towards women, and if some abortions are prevented as a side effect of this animus, they’re fine with that, but it’s not their primary goal. I seem to remember my friend making an argument very much along those lines. Given that there is no gender split in the debate over abortion and that the most ardent pro-life activists seem to largely be women, the narrative of a movement entirely driven by misogyny seems false on its face, but beyond that, as is so often the case, Scott Alexander of Slate Star Codex, gave the definitive response to this argument back in 2013, and I would urge you to read his entire post on the subject. But if you don’t have time here are the salient points:
- Many people make the argument that if pro-life Christians truly cared about stopping abortion they would support much greater access to birth control to prevent pregnancies in the first place. But this assumes that, philosophically, they’re consequentialists. That a lesser evil is okay, if it leads to a greater good. But Alexander points out that Christians aren’t consequentialists, and that only about 10% of all people are consequentialists. As you can imagine this particular distinction gets pretty deep in the theological/philosophical weeds, which is one of the reasons why I recommend the original post.
- Given that fetuses, particularly the later you get in a pregnancy strongly resemble human beings, except for location, you would be very surprised if abortion didn’t end up being a very fraught moral issue, and you would be even more surprised to find that no one was bothered by it. So if all of the normal pro-lifers just want to oppress women, where are all the people who are bothered by doing something which strongly resembles killing a human being? Or as Alexander says:
In short, in order to believe [this] thesis, we would have to accept both that a hundred million pro-lifers who claim they believe in rights for fetuses are lying, and explain the absence of about a hundred million pro-lifers we would expect to find merely by the difficulty of the moral dilemma alone.
- Alternatively, one might argue that when pro-life individuals argue against abortion that they’re actually signalling their morals, that deep in their heart of hearts that they don’t really believe that abortion is wrong. This gets into the weeds of what it means to “really want” something. And even if we accept that there might be something disingenuous about their support, what makes the oppression of women less disingenuous? How do we know that they “really want” one thing but not the other?
- Even if you steelman the argument, as some of the commenters do, into “Pro-lifers just want to force women who have sex to bear the consequences for their supposed misdeeds”. Alexander points out that this still amounts to basically the same thing. Our legal system is based on the idea of forcing people to bear the consequences of their action, particularly if we can’t mitigate those consequences without bringing harm to someone else. Given that pro-life individuals feel that a fetus is a “someone else”, then everything about his point still stands.
Alexander tosses in other things like the genetic fallacy, the principle of charity, and even a study showing that birth control may not reduce the number of abortions, but the key point to take away from all of this is that abortion is an enormously complicated moral issues where a lot of values conflict, and it is entirely understandable and even predictable that someone, probably a large number of someone’s, would end up thinking that abortion is akin to murder. And if that’s the case then it’s also entirely reasonable for them to think that millions of babies being aborted is akin to millions of murders being committed. And once you’re there, you could imagine that for these people the Georgia law doesn’t seem all that bad. And I understand that there are people on the opposite side of this issue, as I said it’s a place where two of our most cherished values, freedom and life collide in a spectacular fashion. And, at the end of the day, there doesn’t appear to be some easy or philosophically obvious way to resolve this collusion, so what are we going to do?
The Georgia bill is one attempt to resolve this collusion, and I understand that there are a LOT of people who think that, as attempts go, it’s horrible. Particularly the part where an innocent women who just had a miscarriage might end up going to jail, so let’s talk about that for a minute.
We have lots of laws where innocent people are occasionally, and unfairly punished. We have lots of stories of bad things happening, that we wish didn’t happen because things are one way rather than another. And I would argue that many of these bad things happen because abortion is legal, even if you assume that society should be reasonably pro-choice. For example there is widespread agreement that abortion after the first 20 weeks is different than abortions before then, and that partial birth abortions are particularly abhorrent. (In fact 65% of people think abortion should be illegal after the first 13 weeks.) And yet they still happen, despite the fact that at 20 weeks you’re very close to the point where the baby can survive on its own outside of the womb and under any reasonable system of morality you’re edging towards infanticide. But, over and over again, you’ll hear the justification that such abortions are rare. Most recently Samantha Bee pointed out that abortions at or after 21 weeks comprise only 1.3% of all abortions. Is the other side allowed to make the same argument? That it’s very rare for a woman to be charged with 2nd degree murder for travelling to another state to have an abortion, or that it’s okay because only 1.3% of all miscarriages result in the woman mistakenly going to jail?
I don’t know what the numbers would end up being, certainly if you look back through history, it does happen. Woman went to jail for miscarriages. And I think that’s awful, and as I already said we should show the greatest amount of mercy to the actual women. But if the Georgia law is not struck down by the Supreme Court how common would this sort of thing actually be? One story can certainly be sensational, and a woman falsely imprisoned for abortion when it was just a miscarriage, makes a heck of a story (much better than the story of a 23 week old fetus). But we can’t make and overturn laws based on one bad story.
The larger point is that of course there are tradeoffs. Of course bad things are going to happen, really no matter what we do. The current system brought us Dr. Gosnell, how many falsely imprisoned women is he worth? 100? 20? 5? 0? I understand where you’re coming from if your answer is zero, though I suspect you might be biased. But, also, you should realize that for a lot of people the answer is definitely not zero.
In the time it’s taken me to write this, other laws restricting abortion have been passed, including the one in Alabama which criminalizes all abortion except where the mother’s health is at risk. And the Alabama law also includes a steep prison sentence for abortion providers of up to 99 years. As I have said, the Georgia law is not the one I would have passed, and that goes double for Alabama’s. But once again the same two points I brought up with respect to Georgia’s law also apply to Alabama’s law. First, both of these laws are moves in a larger game. The people who crafted Georgia’s law thought that referencing the 14th Amendment was a good idea. In Alabama’s case the move was to craft a law the Supreme Court couldn’t ignore. In both cases they want the Supreme Court to revisit Roe v. Wade and they want to increase the chances of it being overturned.
Secondly, if anything, the Alabama law even more clearly demonstrates that some people do really view abortion as essentially murder, and if it is, having an exception for rape or incest doesn’t make a lot of sense. In fact, many individuals on the pro-choice side have used the rape and incest exception as proof that pro-life people don’t care about the unborn they just don’t want women having sex. Alexander had a particularly good answer here:
If some anti-abortion people want to relax their sacred beliefs out of deference to the trauma of people who have been raped, I am totally going to let them do it without attacking them or pillorying them for their kindness or accusing them of secretly hating women (if they do, they are doing a very bad job of it).
But I think most of this is just political compromise anyway. X proposes an anti-abortion bill, Y tries to drum up opposition by saying “But what about rape victims?!” (who are less than one percent of abortions), and X tries to head off the objection and restore support by saying “fine, no abortion for anyone except rape victims”. It’s a good political strategy and it would be surprising if people didn’t use it.
(As a side note, if you’re curious like me, apparently abortions in cases of rape and incest combined only represent 1.5% of all abortions.)
At this point, I assume that many people are wondering, “Why now?” And “What happens next.” The first question is obviously easier to answer than the second. Kavanaugh, and a conservative Supreme Court is why it’s happening now. Though I think there are also reasons beyond that. A columnist in the Washington Post opined that extremism on the other side, in New York and Virginia, paved the way for extremism in Georgia and Alabama. While I think this earlier extremism also has its roots in Kavanaugh’s appointment, I would also not underestimate how big the New York and Virginia laws were for the pro-life crowd. But I think there are some reasons which pre-date Kavanaugh, but which may be more subtle. As with so many things I think technology has played a role.
For example, here’s an article that appeared last year in The Atlantic, Science Is Giving the Pro-Life Movement a Boost. It talks about ultrasounds, fetal pain, neonatal surgery, and premature babies surviving after earlier and earlier births. All of these are things which have gradually and cumulatively made fetuses seem more like babies and less like the sort of thing you can dispose of if they’re inconvenient. And none of these technologies are going to become less impactful as time goes on and many of them will become even more salient in the ongoing debate. Just a few days ago there was the article, We’ll Grow Babies in Artificial Wombs “In a Decade”. What happens when the technology exists to, in place of an abortion, move the fetus to an artificial womb? What does the debate look like then?
Which takes us to the discussion of what happens next. With many progressive issues there has been a clear trend, where even if a state passed a reactionary law, all you had to do was look at the trend line to know that in 5-10 years it wouldn’t matter. Same sex marriage is a great example of that, support went from 37% to 62% in 10 years. But abortion is not like that, the country has essentially been split 50-50 for the last 20 years, and arguably the trend is towards being more pro-life. Also, as I pointed out previously, the support by gender is pretty evenly split as well. This isn’t an issue where there are obviously a class of victims who all feel universally harmed by it. This is an issue, where as I’ve been trying to point out, there are real and difficult questions. There no clear situation where one group is oppressing another. There is no easy answer.
Of course even if support for the two sides has remained relatively constant, the intensity of that support has increased dramatically. And it’s becoming increasingly difficult for me to imagine a situation where both points of view can coexist peacefully. I said earlier that a repeal of Roe v. Wade could be a “blood in the streets” moment, but I wonder how many people actually understand that all it does is move it back to the level of the states? It doesn’t make abortion illegal across the entire US. And I also wonder if, after the initial shock of the repeal, we might end up in a better place. Yes I imagine there might be some sorting with people leaving Georgia and Alabama (and maybe New York and Virginia), but might that not be a good thing? Might it be the only thing that can solve an issue that shows no signs of going away and every sign of getting more and more divisive?
I’m sure there are people who imagine that all they have to do is hope that Ginsburg doesn’t die, weather the next 20 months between now and the election, and that everything will go back to “normal”. I don’t think that’s going to happen. I think it’s apparent that the abortion issue is not going away, people aren’t becoming more progressive on this issue and technology isn’t going to help. We have a situation where two groups of people genuinely see the world in two entirely incompatible ways. We can seek either greater understanding or greater separation, but if we don’t do either of those things then we’ll eventually end up with greater violence.
I said a couple of weeks ago that I would have shorter and longer posts, this is definitely an example of a longer post. What did you think? Did it make you want to donate?