Late Term Abortion Case

Well, CNN is reporting that the late-term abortion case is going to go before the Supreme Court in the fall. Last we saw, this ridiculous law had been overturned:

A federal appeals court had ruled against the government, saying the federal Partial-Birth Abortion Act of 2003 was unconstitutional because it did not provide a health exception to pregnant women facing a medical emergency

Indeed, this is not even the first time a law has had trouble for the same reason:

In 2000, the justices threw out Nebraska’s version banning the “partial birth” procedure. Using an earlier legal standard, the court concluded 5-4 that the state law was an “undue burden” on women because it lacked the critical health exception.

Despite that ruling, the Republican-controlled Congress — backed by the Bush White House — passed its own version three years later.

So why is the Supreme Court even hearing this case? Well, because the Justice Department told them to:

On the federal late-term abortion law, the Justice Department urged the justices to accept the case, saying the lower courts viewed the issue incorrectly.

“That decision overrides Congress’s carefully considered finding, following nine years of hearings and debates, that partial-birth abortion is never necessary to preserve a mother’s health,” Solicitor General Paul Clement said in a legal brief.

What arrogance! How can they say something will never be necessary? Really, not even in one possible instance? Incredible. These decisions should be left to a doctor and a patient, who are in a much better position to know the risks in a given situation that legislators in a far-off city.

Which is exactly what Cecile Richards, President of The Planned Parenthood Federation of America, had to say:

“Health-care decisions should be made by women, with their doctors and families — not politicians,” Richards added. “Lawmakers should stop playing politics with women’s health and lives.”

Sounds pretty good to me. Aren’t conservatives supposed to keep their noses out of other people’s business? I know, I know, abortion is murder. However, as I’ve written about before, the uncertainty about the status of a fetus means the final decision should be made between a woman and her doctor. Laws that prevent that freedom are unconstitutional and offensive to the spirit of our nation.

Both Pro-Choice and Pro-Life?

As someone who feels that the framing of the abortion debate is a little ridiculous, I was really excited when I came across this “interpolation” in the essay “Authority and American Usage,” by David Foster Wallace:

This reviewer is thus, as a private citizen and an autonomous agent, both Pro-Life and Pro-Choice.

The “interpolation,” even though it is a brief aside presented in a footnote to a review of a usage guide, was the first piece of writing I had seen in a long time that clearly and successfully described why defending a woman’s right to choose makes good sense no matter what one believes about the beginning of life.

A little context is in order. You may have seen the book Consider the Lobster And Other Essays in your local bookstore; I love David Foster Wallace and I bought it as soon as I saw it.

I almost skipped the essay “Authority and American Usage,” because it was dense and narrowly (I thought) focussed on, well, american usage.

Yet at one point DFW mentions the constant battles in our national discourse about “what to call things.” As a footnote, he writes a lengthy exegesis of his views on Pro-Choice and Pro-Life, and he concludes that the logical position is to be both. The quotes below appear on pp. 82-83 of the book.

On the Pro-Life side, he writes:

Given our best present medical and philosophical understandings of what makes something not just a living organism but a person, there is no way to establish at just what point during gestation a fertilized ovum becomes a human being. This conundrum, together with the basically inarguable soundness of the principle “When in irresolvable doubt about whether something is a human being or not, it is better not to kill it,” appears to me to require any reasonable American to be Pro-Life.

As I read this, I felt my world shaking. I am zealously Pro-Choice, a feminist, and a Democrat to the max, and yet none of the argument rang false in any way. Happily, immediately following the above, DFW writes:

At the same time, however, the principle “When in irresolvable doubt about something, I have neither the legal nor the moral right to tell another person what to do about it, especially if that person feels that s/he is not in doubt” is an unassailable part of the Democratic pact we Americans all make with one another, a pact in which each adult citizen gets to be an autonomous moral agent; and this principle appears to me to require any reasonable American to be Pro-Choice.

This statement of our belief in choice is excellent. We all agree to respect each other as moral actors, and that’s that. It even has built in protection against the slippery slope argument that I often encounter in these debates, because of the irresolvable doubt standard.

All of this makes me think about the framing of this issue. As it stands, Republicans get to be Pro-Life, while Democrats get to be Pro-Choice. This is not really fair, because from a linguistic standpoint I suspect life is more important to most people than choice, Patrick Henry notwithstanding. As I think over Wallace’s ideas, though, the thought occurs to me that there are many humans who are clearly alive and clearly suffering, and for whom the GOP is doing nothing (if they are lucky; if not, the GOP is actively legislating them into the poorhouse), and for whose challenges Democrats can offer real, positive ideas.

It seems a powerful way to restate the framing, because by reclaiming the Pro-Life term (for things that are undoubtedly alive) as it applies to healthcare and tax policy, while retaining the Pro-Choice term as it applies to abortion specifically as well as civil liberties generally, we redefine the debate and blunt one of their favorite wedge issues.

Wallace describes the difficulty of holding this position:

Every time someone I know decides to terminate a pregnancy, I am required to believe simlutaneously that she is doing the wrong thing and that she has every right to do it. Plus, of course, I have both to believe that a Pro-Life + Pro-Choice stance is the only really coherent one and to restrain myself from trying to force that position on other people whose ideological or religious convictions seem (to me) to override reason and yield a (in my opinion) wacko dogmatic position. This restraint has to be maintained even when somebody’s (to me) wacko dogmatic position appears (to me) to reject the very Democratic tolerance that is keeping me from trying to force my position on him/her; it requires me not to press or argue or retaliate even when someone calls me Satan’s Minion.

While it is no fun, this approach to the question neutralizes almost every attack of the Anti-Abortion crusaders. We can agree that abortion is wrong, and then coherently remain Pro-Choice. While I don’t personally believe that abortion is wrong, this approach works well no matter what you believe about abortion. As such, I think it represents a clue for Democrats that can lead to successfully reframing the debate.

Cross Posted at The Daily Kos