Sunday, November 15, 2009

Seeing Roe v. Wade as a Political Compromise

It seems to be the case that much of the pro-Life camp regards Roe v. Wade as a kind of left liberal “pro-abortion” plot of some sort. It is not.

Although I can see how if you live at the extreme end of the spectrum, anything toward the center might be regarded as a plot, or perhaps a capitulation, I don't think it's politically useful to think this way.

Let me begin by identifying that my personal position is pro-choice. That is, I think the question of whether to have an abortion or not must be chosen by the woman who is pregnant. That isn't to say that I think one should always have abortions or always not have abortions. I think these are things anyone can hold individual opinions on, and yet I also think the ultimate choice at any time during pregnancy in the sense of legally authorizing an action and in the sense of being immune from legal prosecution should be with the woman who is pregnant. That's what I think is right and just. But it's not a position I will argue for here as an outcome.

My analysis here is not for the purpose of advocating my personal preference. If it were, other people would just express their personal preference and there would be a lot of “Oh, yeah, so who put you in charge?” or “What makes your position any more valid than mine?” While I don't agree with the positions others take on this, I think that in a pluralistic society, one has to regard the positions of others, especially large numbers of others, with a degree of respect at least to the extent of hearing them out and seeing if they can be accommodated. I expect the same of those on the other side, of course.

I begin with the assumption that this debate will not be won by everyone on one side changing the mind of everyone on the other side. Therefore, I think that, absent genocide (which I'm going to assume most rational people do not want), the right answer will not be at one end of the spectrum or the other. So we can line out “no abortion” and we can line out “unconditional abortion any time for any reason.” I can see the pro-Life camp wincing because already it's as if their mission has failed. But what you should understand is that I may have already pissed off a great many pro-choice women by this remark. Even people I agree with on principle.

I don't make this first observation out of some desire for a particular outcome, however. I am merely observing that these are not legitimate hopes for anyone with any understanding of politics. They will not, as a practical reality, happen. Or, if they do, it will be a period of time in American history that is as unstable as Prohibition was. Whatever your feeling about alcohol, there's simply no question that outlawing it was not a good plan. The same will be true with either a law that allows no abortion or a law that allows utterly unfettered abortions.

It's hard to summarize a whole movement in concise form, so I won't attempt to. I'll assume anyone reading this has read and discussed the matter extensively before and I will appeal to shorthand descriptions that others have used before me. For simplicity of discussion, let's assume this comes down to a question of whether personhood begins at conception or at birth. The entire argument seems to revolve around this. If you believe that a group of a few cells is “a person” that's going to lead you to a certain line of thinking whereas if you think it's not, it will lead you to a different line of thinking. And that's how the discussion ends up breaking down. So where is the middle ground?

Well, speaking in my role as neutral arbitrator, and leaving my personal preference aside, it's pretty clear that there's a continuum between these points of view. The pro-Life group is quick to point out that if something is a person at the moment of birth, then it's hard to argue that it's a not a person just a moment before. But let's be careful. This implies a certain transitivity that may apply locally in a kind of ad hoc way, but that clearly doesn't apply as you get farther away in time, away from birth and toward conception.

For example, by the same fuzzy argument, Boston is close to San Francisco. How do I know this? Well, ten feet away from anything is close to something. And so if I'm only ten feet away from something that's close to something, surely I must be close. And if ten feet away from Boston is close, then so is ten feet away from ten feet away. And so on. Until ten feet turns into three thousand miles. Clearly, at some point I'm far away. But where? Does the fact that I cannot articulate that precise point at which I am far rather than close mean that I am never far away? Or is the precise point simply elusive? There may not even be a single point in the sense of working for all purposes. Philadelphia may be close to Boston for some purposes and far for others. In fact, western Massachusetts may be close to Boston for some purposes and far for others.

And so one possible analysis (not my personal way of analyzing this, incidentally—I'll write about that another day) is to say that at one end of the pregnancy, there is personhood, and at the other end there is not, and so presumably in the middle it gets a little fuzzy, with properties of each.

And so along comes Roe v. Wade, which I will argue reached the most politically optimal and correct conclusion, even if for the wrong reasons. The rationale offered in Roe was based on viability, which seems to me an objective quality that is irrelevant. Moreover, it is a messy quantity because viability clearly has no uniquely determined sense. Relying on such a definition puts the debate into the hands of those in control of dictionaries rather than leaving it in the control of public discourse between aggrieved parties. So I don't like the rationale for the reasons that the terminology has been possible to co-opt and manipulate. What I do like, not in my personal point of view but in my role as neutral arbitrator, is structure of the decision. That is, it's a good decision for reasons independent of its stated rationale.

I think what saves Roe is that it creates a staged transition between opposing communities unlikely to agree. A trimester in which those who claim that a fetus is not a lot like a person have a strong case to make, a trimester at the other end in which those who claim a fetus is a lot like a person have a strong case to make, and a trimester in between when there are interests on both sides, and where some negotiation seems possible.

Structurally, as a political compromise, this is not ideal for either side. And this is what makes it a good political compromise.

I think the pro-Choice community already sees Roe v. Wade, as a compromise, and there are those who seek for greater autonomy. I personally think they are right. What they say is compatible with my personal theory of how the world operates. But they ask for anything beyond this compromise at some peril in a world where the opposing side seems committed to pushing back.

By contrast, I think the pro-Life community mostly does not see Roe v. Wade as a compromise. I think they view it as a victory for what they call the “pro-abortion” side. I think this is a political mistake because I think they can't do better than this middle point without risking backlash.

The two sides should recognize this impasse and agree to terms. I think pushing this forward risks eternal strife and to no good end.

I also doubt the pro-Life camp will take my advice. They will continue to push, and so this notion of compromise will have no purpose. In that world, expect me to simply champion the pro-Choice position right up to birth. Adopting this middle ground is only useful in exchange for a promise of cessation of conflict, and I think would be well worth that price.

Then again, in the coming years, as population increases further on a crowded planet of finite size, this issue may become moot.


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Originally published Nov 15, 2009 at Open Salon, where I wrote under my own name, Kent Pitman.

Tags (from Open Salon): politics, right, pro-life, pro-choice, anti-choice, pro-abortion, anti-abortion, absolute, clash of absolutes, legal, fair, unfair, safe and legal, coat hanger, coathanger, roe, roe v. wade, roe vs. wade, law, personal, choice, compromise, neutral, middle ground, acceptable, unacceptable, political, philosophy, health, medical, abortion