The New Republic

What is there about this slight piece that I find so discomfiting? I'm pro choice. I dislike and stand against reactionaries who fulminate against the first term right to abort a fetus, or, more refined, the right to abort a fetus before outside the womb viability. I don't like and stand against locating personhood in conception. I'm against and dislike tunnel visioned Republican state legislators who try to chip away at the right to abort by throwing up coercive hurdles chilling its exercise. I wouldn't want SCOTUS overturning Roe or vindicating state based means of intruding on it. So what I don't like is more sub textual: Hirshman's barely suppressed glee at abortion's seeming triumph, the very tone of insensitive triumphalism pervading what Hirshman writes. What all that amounts to is the failure to see any abortion as a tragedy in the sense of a clash between two discrete rights: women's bodily autonomy, where the decision to abort isn't a case of sheer and serious danger to the mother's health, as against the snuffing out of forming life. It amounts to the failure to see Roe and the line of cases it has engendered as a tragic balancing of the-near-impossible-to-reconcile values inhering in that clash, only a few notches better than Solomonic baby splitting wisdom. To my ears and mind Hirshman's tone deafness is ear splitting. And why do I surmise, though I don't know, that as science stands to contract the right to abortion by expanding viability, Hirshman would want to expand the scope of women's right to choose? If so, hers is an unpalatable manifestation of a certain kind of blinkered feminism.

- basman

January 22, 2013 at 7:01pm

"Chief Justice John Roberts cares about the reputation of his institution and its place in history. And even a Supreme Court hell-bent on reversing Roe v. Wade would pause at the polling revealed today." I was born, long before Roe v. Wade, when my mother and father were much older than most mothers and fathers. My son was born, three years before Roe v. Wade, when I and his mother were much younger than most mothers and fathers. I don't know if it would have made a difference, for me and my son, if our lives began after Roe v. Wade. I don't really care to know, even if I do support a woman's right to choose. As for C.J. Roberts and his place in history, I don't know which side of history he would choose. I would hope that it wouldn't make any difference for me, or my son.

- rayward

January 22, 2013 at 7:07pm

Maybe "New Republic" (I omit the "The" since TNR seems to be ashamed of its particularity, it's uniqueness) is trying to become the Time or Newsweek of the educated masses.

- arnon1

January 22, 2013 at 11:58pm

Why do I find the above comments discomfiting? Because they're all made by people I assume to be men? Guys: abortion isn't a Solomonic tragedy. If you're a woman up a creek, especially if you're the victim of rape and incest but also poverty, abandonment, or dying of a pregnancy, it's a godsend. And, theological judgements to the contrary are yours, period. Women's lives are equal and just as valuable as anybody else's, despite the fact that we were born with ovaries, vaginas and wombs and less physical and economic and politic power than you. And: our choices are our own, not yours, and judgement isn't yours, it's ours, since we're in the situation, at the moment, and you are not.

- Sophia

January 23, 2013 at 2:57pm

So: I think Roe is popular because Americans are realizing that women are human beings. We have a right to control our own bodies! Our futures belong to us not to you, not to the Church and not to the State. And, there is perhaps a growing respect for First Amendment rights, which include freedom of religion. This includes my freedom not to have to kowtow to your religion. Hallelujah.

- Sophia

January 23, 2013 at 2:59pm

Sophia you last comment is beside any point I can see being pertinent here. And you may not know this, but when a woman is pregnant she has life inside her. The longer she is pregnant the more formed that forming life becomes. So the issue is balancing not an absolute answer, which is precisely what Roe's trimester analysis does, shifting the balance as pregnancy goes on to give the state's interest in protecting and vindicating that life as it becomes more and more like a whole person. Women's bodily autonomy, a mighty thing, must yield increasingly to that life, which is what Roe says. And as the test shifts from trimesters to viability, that yielding will become earlier as science progresses. So any abortion when life has started to develop is the taking of life and women's problems in that are one side of a shifting equation to be resolved in their favour before viability. Pregnancy isn't nothing. Abortion is nothing to celebrate. It's incidence is something to work preventatively against. And yammering about women's perspectives over men's, and about men having power blah blah blah, and abortion being a blessing is just that--unnuanced, ideological yammering.

- basman

January 23, 2013 at 3:43pm

OF COURSE my comment about First Amendment is pertinent and it's key to why younger people are supporting Roe, because they don't remember the bad old days. Issues of ensoulment and whether an alive thing is a human being or when an acorn becomes an oak are totally religious in nature. And, women's perspective and a reflection on our relative lack of power isn't just "yammering," you wouldn't say that if you were a woman, so get a grip basman. Please. You sound like a harem owner at the moment. Sorry but you do.

- Sophia

January 23, 2013 at 3:52pm

Also you wouldn't be yammering about yammering if you were dying of a toxic pregnancy, facing a lifetime raising a child you don't want, a victim of rape or incest, or coping with poverty. FTS. Damn right perspective is important. And no it IS NOT a Solomonic tragedy for heaven's sake, again with the judgmental nonsense. In fact, if I were a whale or a shark or a bear or a hummingbird or an endangered butterfly I might regard "human life" as a total, complete, utter catastrophe.

- Sophia

January 23, 2013 at 3:55pm

Freedom of religion is epiphenomenal here. The analysis in Roe is essentially secular. That's why too what you call "ensoulment" is beside the point. Of course what's inside a pregnant woman is alive, that's basic biology. People differ about what status to confer on that life, legal status or otherwise. I sound like a harem owner?!?! Here you're being incredibly dense. Read my first comment. I favour Roe. And if you were actually to read Roe, and not reflexively spout it for things you think it means, you will see that SCOTUS in its reasoning is talking along my lines about balancing competing rights and drawing lines. Women's lack of power is one thing. But on the issue of abortion men and women across a variety of spectra agree and disagree. It's a vexed issue and men and women have equally refined and equally stupid views about it. And why would you be presuming to lecture me about rape and incest. I support in those instances in particular the greater legal weight to be accorded to the choice side of the equation. But in those instances too, there's innocent life involved, which at a certain point is going to get the legal balance resolved in its favour. Do you favour women's absolute right to choose right up till the time of birth? If you do, then line up with the rest of the idiots on abortion. If you don't, ask yourself why and apply your reasoning to your own position and you'll wind up roughly where the court in Roe was, which is about where I am. If you were a shark or a whale or a bear or a hummingbird or an endangered butterfly, you would probably be making more sensible comments here and thanking me for being so nice to you in each incarnation the last time I was at the zoo. Looking on appreciatively and like the sign says not feeding you.

- basman

January 23, 2013 at 4:24pm

I read that there is just one abortion clinic in North and South Dakota and Minnesota if true that being popular abortion rights hasn't been translated into facts on the ground.

- arnon1

January 23, 2013 at 6:35pm

I agree with basman’s points in this discussion. Though I also am “pro-choice,” I come to that conclusion advisedly and with recognition that the issue requires a balancing of competing interests, both of which are valid and profound. As basman notes, it is a biological fact that a fetus is a living entity that has all of the required genetic material to become a fully developed human being. Whether that living entity has a moral claim to life is a question that we must, perforce, come to grips with. Theology may or may not come to play in answering that question. That also is true of the question whether a new born infant has a moral claim to life. The fact that theology may, for some, play a role in that determination does not mean that we cannot make that determination as a matter of law. The last time I looked, infanticide is considered murder and is criminally sanctionable. Answer this question Sophia: why is infanticide a criminal act? It has nothing to do with ensoulment, does it? Even an atheist would agree that a newly-born infant has a moral claim to life, and that killing a newly-born infant is homicide. Why? Dhurtado

- NR143296

January 23, 2013 at 8:40pm

NR a "born infant" does have a claim to life. However, abortion is not about born infants, it's not even about potential infants, it's about who has the right to decide at what point we can "speak of a life" and not merely biological tissue. Hence your point that "the issue requires a balancing of competing interests" is besides the point, since one only balance the interests of competing claims and I don't see that the claim of a so called "potential life" is equal to the claims of a real life. Besides the interests of the "potential life" is always enunciated by those who have other more pressing interests and they are not those of the woman. These same interests would stop women from having access to pills that would stop pregnancies in the first place. Their interests are social, they wish to control human behavior, and are not merely about protecting "the born infant."

- arnon1

January 23, 2013 at 8:54pm

But WHY does a born infant have a moral claim to life, arnon? Please answer that question, and then explain why the same rationale does not apply to a third trimester fetus, or a second trimester fetus or a first trimester fetus. Dhurtado

- NR143296

January 23, 2013 at 9:41pm

I don't know your point of view, but form a moral point of view you may be right that a potential being has the same rights as an actual being. You can also argue that only what is actual what can live outside the womb is a person. People with divergent moralities will never agree on that. However, from a purely logical and metaphysical point of view the fetus is a potential and not an actual being while the just born infant is an actual being and hence a claim on us. To kill a born baby is as wrong as to kill an old man. Now getting back to the abortion issue: if one claims that potential life has as much a claim on us as an actual being then logically (and for the sake of consistency) one would have to claim that not only the first trimester fetus has a claim to life but that potentially the sperm as it enters the woman's body is already a potential form of life as is the released egg cell in the woman. This is why the Catholic Church is as opposed to birth control pills as they are to abortion. It's a moral position which if you decline to make the distinction between the potential and the actual is logical. I don't know enough about Catholic theology to know for certain but I doubt that Catholic theology wouldn't distinguish between potential and actual in all ontological matters. In any case, I believe in limited abortion (which is the law) in part, because it keeps from sliding back into a kind of Talibanization of logic. I hope I have answered your question, Dhurtado.

- arnon1

January 23, 2013 at 10:31pm

I’m not sure that you have answered my question, arnon. The question is why does a born infant (or an old man, for that matter) have a moral claim to life such that killing it constitutes murder? I take your answer to be that a born infant is an “actual being.” With all respect, that’s not a very satisfying answer. After all, apes, dogs, and even earthworms are actual beings aren’t they? But I take it that by “actual being” you are endeavoring to distinguish a born infant from a fetus (or unborn infant) by contending that a fetus is only a “potential” being. You say that “from a purely logical and metaphysical point of view the fetus is a potential and not an actual being while the just born infant is an actual being and hence a claim on us.” I find that to be completely question-begging. I might be able to agree that a newly fertilized egg is merely a “potential” being, but by what logic or metaphysical analysis is a six-month old fetus, for example, which has a beating heart, brain activity, and sensory capabilities, merely a “potential” being rather than an “actual” being? To be sure, it is difficult to isolate the point at which a developing fetus becomes an actual being, or becomes a being with a moral claim to life, but to identify that point as birth is no less arbitrary than identifying that point as the beginning of the third trimester, the beginning of the first trimester, or viability. It is no less self-serving for the pro-choice faction than identifying that point as conception is for the pro-life faction. And even if a developing fetus does not have a moral claim to life equal to that of a born infant, it clearly has SOME moral claim to life, doesn’t it? That moral claim needs to be balanced against the legitimate interest of a woman in not carrying a pregnancy to term. As basman has noted, the very premise of Roe was that there are profound, competing interests that need to be balanced, and that there is a point at which the state has an interest in protecting fetal life that trumps the woman’s interest in bodily or reproductive autonomy. People can reasonably disagree about where the line should be drawn. Although, as I said, I am pro-choice, it has always frustrated me that pro-choice activists have refused to recognize that the issue does present a legitimate moral dilemma, a dilemma that should, in my opinion, usually be resolved in favor of the interest of the woman, but a dilemma nonetheless. Dhurtado

- NR143296

January 24, 2013 at 12:03am

"After all, apes, dogs, and even earthworms are actual beings aren’t they?" Yes, and in many cultures animals are sacred. Well, NR, i did answer your question. I made a distinction between morality and logic and within logic between actual and potential. If you can't understand my answer, well..... the best to you.

- arnon1

January 24, 2013 at 12:27am

But YOU don't believe animals are sacred, do you? You don't believe killing animals is murder, do you? So the fact that a born infant is an "actual being" can't be your real answer for why you believe infanticide is murder. Therefore, your distinction between actual and potential does not answer the question. Even if the actual/potential disntinction were morally and logically relevantl, you don't explain why a 6-month old fetus is only a potential being, while an earthworm is an actual being. Indeed, you don't answer my last post at all, other than to say that that in some places animals are sacred. Are really going to adhere to the position that at least a fairly developed fetus has NO rights that need to be balanced against the pregnant woman's rights? Dhurtado

- NR143296

January 24, 2013 at 7:55am

...However, abortion is not about born infants, it's not even about potential infants, it's about who has the right to decide at what point we can "speak of a life" and not merely biological tissue... This isn't precise or sufficiently complete. The issue isn't when "we can we speak of a life." The issue is, or at least includes, at what point and why and in what circumstances does the autonomy we rightfully accord to women over their bodies as a legal matter weigh less in the balancing than the state's interest in protecting the forming life inside their bodies, and when and why and under what circumstances does that latter interest give way, even in the case of late term pregnancies, to the life and well being of the mother?

- basman

January 24, 2013 at 2:17pm

P.S. And the issue isn't I don't think over "who has the right to decide..." There may be an interesting debate about that whether the "who" "ought" to be the court or the legislature. But it's quite settled now that the "who" is both as they long as they confine themselves to their proper jurisdictional domains. Quite the same issue in Canada with respect to "who ought" even though we are a parliamentary system combined with an entrenched Charter of Rights. My country's experience is that abortion was against the Criminal Code. In Canada, crime is a federal matter, beyond the scope of the provinces. The SCC, after our Dr. Henry Morganthaler kept getting acquitted for running abortion clinics throughout the country, (an affirmation of the jury as community writ small), then ruled the Criminal Code provisions violative of the Charter--I can't remember the precise technical legal reasoning. Since then, about 30-40 years ago, the federal government under different political stripes, liberal and conservative, in Canadian parlance, never sought to legislatively fill in the void. And now there is no prohibition. I once tried to check out whether there was any prohibition against late term abortions anywhere and found none but was advised by one clinic I spoke to that they are extremely rare as a matter of medical convention. Every once in a while a private members' bill get introduced but gets no traction. It's my country's tradition to allow Members of Parliament a free vote, unwhipped that is to say, on the issue.

- basman

January 24, 2013 at 2:35pm

“This isn't precise or sufficiently complete.” Abortion was and is above all a political debate between one side (and this isn’t limited to “the State,”) which believes that for moral (usually religious) reasons it has the right to decide whether or not to make abortion a criminal matter and another side which believes that it’s up to the impregnated woman to decide the matter. Questions of viability which are scientific (biological ) issues cant in itself decide the debate. Nor can questions of ontological logic. These notions are being used by both sides to pursue arguments that all too often are grounded in moral beliefs. The State has been the arbiter in this debate by legalizing one or the other side of the issue. Prior to Roe the State had made abortion illegal in most instances. With Roe the State introduces standards under which abortion would be legal. Its first standard I believe was viability. This standard has since shifted to “trimesters.” It will shift again as the political debate continues. The State can decide what is legal (under the constitution and what is not) however the State can’t decide what is (from a biological point of view) a life. This primary issue will be decided through philosophical and moral debate by hopefully rational discussants. The rest is commentary.

- arnon1

January 24, 2013 at 3:25pm

I hadn't read Basman's second post when I wrote my comment. My comments will stand as a reply to both posts. Gotta go.

- arnon1

January 24, 2013 at 3:27pm

@ Arnon, We may be speaking past each other, but it’s too binary and it’s unnecessary, respectfully, to say it’s one kind of question or the other. It’s all kinds of questions and as between the legal and the political among other categories of question, the legal has been holding its own. There is of course a strong religious dimension to the pro life side, but my view is that at the high levels of legislative action and at that level of public debate and even more so and certainly in judicial instances of dealing with abortion the only legitimate public arguments are secular. I don’t think there’s any suggestion that viability can decide the debate. Science will determine viability, but American courts as I understand the post Roe case law, have gotten away from the trimester analysis and are moving to keying on viability, the reverse of the trend you note, as the test under which state interest starts to get taken into account. If someone more knowledgeable in the post Roe case law can clarify that I'd be obliged. Nor of course will judicial decisions “decide the debate.” They will rather decide the issues as a matter of law, an ongoing dynamic process. As to what all the “rest” is, and what is and isn’t "commentary, I couldn't and don't feel the need, to say.

- basman

January 24, 2013 at 4:37pm

I am more interested in abortion as a socio-political than a legal issue. This may be why we are "talking past each other."

- arnon1

January 24, 2013 at 4:44pm

Fair enough.

- basman

January 24, 2013 at 5:07pm