Ross Douthat believes that if abortion was mostly illegal throughout pregnancy, there would be no controversy over late-term abortions, and Dr. George Tiller would not have been murdered:
The argument for unregulated abortion rests on the idea that where there are exceptions, there cannot be a rule. Because rape and incest can lead to pregnancy, because abortion can save women’s lives, because babies can be born into suffering and certain death, there should be no restrictions on abortion whatsoever.
As a matter of moral philosophy, this makes a certain sense. Either a fetus has a claim to life or it doesn’t. The circumstances of its conception and the state of its health shouldn’t enter into the equation.
But the law is a not a philosophy seminar. It’s the place where morality meets custom, and compromise, and common sense. And it can take account of tragic situations without universalizing their lessons.
Indeed, the argument that some abortions take place in particularly awful, particularly understandable circumstances is not a case against regulating abortion. It’s the beginning of precisely the kind of reasonable distinction-making that would produce a saner, stricter legal regime.
If anything, by enshrining a near-absolute right to abortion in the Constitution, the pro-choice side has ensured that the hard cases are more controversial than they otherwise would be. One reason there’s so much fierce argument about the latest of late-term abortions — Should there be a health exemption? A fetal deformity exemption? How broad should those exemptions be? — is that Americans aren’t permitted to debate anything else. Under current law, if you want to restrict abortion, post-viability procedures are the only kind you’re allowed to even regulate.
If abortion were returned to the democratic process, this landscape would change dramatically. Arguments about whether and how to restrict abortions in the second trimester — as many advanced democracies already do – would replace protests over the scope of third-trimester medical exemptions.
The result would be laws with more respect for human life, a culture less inflamed by a small number of tragic cases — and a political debate, God willing, unmarred by crimes like George Tiller’s murder.
Barbara O’Brien, as usual, has the definitive response. She just eviscerates Douthat’s argument. Quoting the first sentence of the first paragraph in the above quote, O’Brien retorts:
No, the argument for legal and medically safe abortions — which would still be regulated, as is any medical procedure — is that there are times when pregnancy and childbirth would place an unbearable burden on a woman’s life, and so women will seek abortions. Their reasons are as infinite as the details of their lives. If abortions are not legal, they will either abort themselves or they will find underground abortion providers, medically trained or not.
And no, the purpose of law isn’t to reconcile “morality to custom.”
No, the purpose of law is to maintain conditions that allow civilizations and societies to exist and function, not to enforce morality. As I’ve argued elsewhere, many things are immoral that should not necessarily be illegal. Most of us consider adultery to be immoral, for example. But as a people who respect personal freedom, we generally think that matters involving sexual acts between consenting adults are not the government’s business. …
There’s a tacit understanding that some matters of morality are to be worked out in peoples’ private lives, and others are regulated by law. What’s the difference? The difference is whether an act creates a civic burden. Without enforceable contracts, for example, we’d still be living in caves. On the other hand, civilization tolerates adultery fairly well.
[…]
Abortions, however, do not create a civic burden. Abortions have been practiced throughout human history. Although you can find some very old laws that restrict late abortions, there was little interest in banning abortion altogether until the 19th century. Civilization soldiered on, somehow.
Stricter regulation of women’s bodies (because it’s not abortions that people like Douthat want to regulate) would do nothing to make abortion a less contentious subject:
… There will be no peace as long as there is a violent, extremist movement determined to ban all abortions, including first-trimester abortions, and as long as politicians cater to that movement. I would be very happy if we as a nation could come to some sort of firm decision about a gestational limit on elective abortion, as long as it’s not absurdly early and doctors are given broad discretion in matters of medical need. What’s standing in the way of that is the so-called “right to life” movement, not Roe v. Wade.
Read the rest, and be sure to follow the link to Marie Cocco’s piece at the Washington Post.
Here is what some others have to say about Douthat’s op-ed.
So Ross Douthat has written a beautiful, almost elegiac, column on abortion, with the title “Not All Abortions Are Equal.” The title is meant to make you subconsciously think that women’s equality is irrelevant for this topic which is defined by Mr. Douthat and concerns the way we can save people like Dr. Tiller from getting murdered.
That way is to give in to the demands of extreme anti-abortion fanatics so that they stop killing people[.]
[…]
Let’s apply the same arguments to the Islamic terrorists: If we only gave them what they want they would stop terrorist acts against the West! Let’s do that! Surely Osama bin Laden would allow us to micromanage some parts of our own lives as women? Surely?
Kevin Drum isn’t following Douthat’s reasoning:
There are a whole bunch of missing steps here. Regardless of the merits of overturning Roe v. Wade, why does Ross believe that protests over second-term abortions would be any less inflamed than protests over late-term abortions? Does he really think that if we adopted a European-style regime that banned abortion at, say, 18 weeks instead of 26, this would reduce the culture war heat that abortion breeds? I’m really not seeing the logic here.
Shorter Ross Douthat, via TBogg: “Hand over your uterus and nobody gets hurt.”
PAST CONTRIBUTOR.