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Wednesday, November 19, 2008

An abortion "compromise"?

As Jack Balkin notes, given the election of Sen. Obama, it is quite unlikely that Roe / Casey will be overturned anytime soon, and it is certain that the pro-abortion-rights position will be strongly and ably represented, and advanced, in the Obama Administration.  And so, as the Washington Post reports, "a growing number of antiabortion pastors, conservative academics and activists are setting aside efforts to outlaw abortion and instead are focusing on building social programs and developing other assistance for pregnant women to reduce the number of abortions."

As I said (many) more times than my Mirror of Justice readers wanted to hear, I do not believe "the issue" in the abortion-rights debate is (from the anti-abortion perspective) simply the number of abortions.  Yes, a smaller number of abortions would be, for people like me, a good thing.  However, it is also (for people like me) regrettable that our Constitution has been interpreted to prevent political communities from providing (if they choose to provide) greater legal protections to unborn children.  Like most abortion opponents, I understand entirely that the law should not prohibit every wrong; with respect to abortion, though, many of us believe that the current regime represents not merely an entirely reasonable concession to different moral standards regarding private, self-regarding conduct, but instead constitutes (in addition to a mistaken interpretation of the Constitution) an unjust exclusion of some persons from the protections the law provides generally.

Putting aside this point, though -- a few quick thoughts on Jack's post about a "compromise" . . . 

Jack says that a "durable compromise" over abortion "would probably look something like this new approach:  Pro-life advocates continue to believe that abortion is immoral but agree that the criminal law is not the best way to solve the problem of protecting unborn life.  Pro-choice advocates in turn agree to new social services and support for poor women that make it easier for them to choose to have children. . . .  The result is a coalition of social justice pro-life advocates with traditional pro-choice liberals."

In my view, the durability of such a compromise could be undercut if (as I expect will happen) current limitations on the use of public funds for abortion (here and abroad) are lifted or watered down.  Also, I suspect that a truly stable "compromise" would need to include, among other things, acceptance by the pro-choice side of rules that allow health-care workers, hospitals, religiously affiliated institutions, and churches to opt out of cooperating directly with the provision of elective abortions.  An Administration or Congress interested in a stable compromise would not insist that, say, Catholic hospitals provide elective abortions, or that religious social-service agencies include abortion in their health insurance programs, etc.  And, it seems to me that even those on the pro-life side who are interested in compromise on this issue would not like to see limitations on the (peaceful) speech of anti-abortion protesters.

I'd welcome others' (especially Jack's) views, though.

Posted by Rick Garnett on November 19, 2008 at 03:34 PM in Rick Garnett | Permalink


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I can't speak for all pro-choice people, of course, but I'd be hard pressed to think of one I know or know of for whom it would be a compromise to "agree" to "new social services and support for poor women that make it easier for them to choose to have children." In fact, if you put the emphasis on the choose in "choose to have children," it is, in my experience, if you define those services to include things like birth control available free or at low-cost, the pro-life constituent who tends to oppose them.

Posted by: anon | Nov 19, 2008 3:45:06 PM

Rick, Jack Balkin has made this point elsewhere, but would your constitutional point be severely diminished if Congress passed a law that enshirned a right to abortion as a matter of federal statute? I would imagine there is a majority in Congress for such a statute, even though probably not enough to overcome a filibuster.

Posted by: TJ | Nov 19, 2008 3:59:58 PM

As a frustrated pro-lifer, I can accept the fact that the other side has the votes and the raw political power to impose their legal regime rather than the one I prefer. And maybe, just maybe, I could be persuaded that I should give up on my legal-policy preference and try to achieve my social goals through other means.

But regardless of whether I am just bowled over, or persuaded to change course, neither scenario can fairly be called a compromise. I greatly respect Prof. Balkin's work in many areas, but for him to even use the term "compromise" seems an insult to my intelligence.

Seriosuly, let's break this down. Our current Casey-based compromise is that pro-lifers can't ban most or even many abortions, but regulations that generally attract majority support, like parental consent, waiting periods, etc., are allowed, and taxpayers don't have to pay for elective abortions.

Under the new regime, all the restrictions will be wiped away, and a federal law will trump State autonomy and the broad majorities in most States. And we'll have to pay for this. So the legal regime goes from some modest restrictions to full on-demand, taxpayer-subsidized abortions.

Balkin offers two points as evidence of "compromise." First, pro-choicers get a bunch of social service spending that they want anyway. I fail to see how that is a "compromise" on their part. And if the pro-lifers are also small-goverment conservatives, then this is not "giving" them some half-a-loaf, but is yet another adverse policy crammed down their throats.

Second, Balkin helpfully offers that "Pro-life advocates continue to believe that abortion is immoral but agree that the criminal law is not the best way to solve the problem of protecting unborn life." The second clause is, of course, a total surrender on law/policy. But in clause one, he graciously allows that I am still allowed to "continue to believe" what I want. Oh my! How generous! I still get to think what I want! As opposed to what -- thought control?

Try a comparison: would anyone call it a gun control "compromise" if the NRA got a federal law that overrode ALL local gun controls, and repealed all federal restrictions, too, but kindly told the other side that they are still free to believe guns are bad, and to ask their neighbors not to buy so many?

I know my tone might seem snarky, but I don't know how else to convey what a joke this is. Outvote me, trump me, but don't condescend to me or insult me.

Posted by: not stupid | Nov 21, 2008 3:41:27 PM

A quick followup - I should have noted that Balkin does, in his last paragraph, suggest that pro-choicers should "give ground on some kinds of abortion restrictions." To the extent that means accepting that the restrictions we have, or maybe even allowing some other modest ones, then he does get credit. So perhaps my criticism is better directed not at him, but at Pres.-elect Obama, who cited middle ground in his convention speech, but has promised NARAL to sign federal legislation to wipe out state restrictions. So I apologize for overstating the case relative to Prof. Balkin, but I think my points stand about Obama and Congressional Democrats -- what they're talking about is not in anyway a "compromise."

Posted by: not stupid | Nov 21, 2008 3:46:03 PM

I don't think Balkin is trying to snooker pro-lifers (or insult their intelligence); I do think he is (admirably) trying to find a mix of policies that each side would like -- a method of compromise that works in a lot of areas of public policy. I do agree with Rick that Balkin offering pro-lifers social services that might decrease the number of abortions wouldn't seem like much of a "compromise" with the most ardent pro-lifers who see abortion as anywhere from a serious moral wrong to murder.

A few years back, I saw Balkin on a panel (I forget where and with whom, sorry) about a communitarian approach to abortion -- essentially, an early effort at this sort of compromise. The effort went nowhere, because he was paired up with a pretty ardent pro-lifer who would have none of this idea that legal abortion is tolerable if we just discourage it a bit more. I suppose Balkin could have had more success in his communitarian/compromise effort if his pro-life "negotiating partner" were a pro-lifer more interested in reaching common ground with pro-choicers -- but then, I guess it wouldn't have been as much of an accomplishment to reach compromise with a "pro-lifer" who's already willing to conclude that it's OK to leave abortion legal....

Posted by: Scott Moss | Nov 22, 2008 12:21:36 AM

Scott, the premise of my post, I thought, was that some "compromise" -is- possible, notwithstanding my view that abortion is a great wrong. But, as "not stupid" suggests, "compromise" involves, well, compromise. What are you willing to put on the table? My post listed some things that true compromise would include. What say you?

Posted by: Rick Garnett | Nov 22, 2008 10:07:36 AM

Rick, I've been derelict in my duties as a concurring opinions guest blogger, so I do want to continue this conversation, but let me do it there: http://www.concurringopinions.com/archives/2008/11/balkins_grail_d.html

Posted by: Scott Moss | Nov 24, 2008 12:27:33 AM

Thanks, Scott, for the note. For what it's worth, I tend to think (and maybe this is insufficiently consisent or pure) *both* that (i) elective abortion is a grave wrong, one that the Constitution permits us to closely regulate and that we should closely regulate; *and* (ii) I'd "settle" for a regime somewhere in between the one we have and the one I'd prefer (such a regime, in my view, is probably the one that "politics" would deliver, were it permitted to operate).

I take your point that some regulations might push abortions a bit later, but there is, on the other hand, what I regard as the legitimate desire to "nudge" people, in what is often a very difficult situation, toward a fully considered decision. (To the extent such nudging is a bit parentalist, it does not strike me as excessively or unjustifiably so.)

Posted by: Rick Garnett | Nov 24, 2008 10:50:32 AM

I think there is also a legitimate concern that in the long run, the social services that Jack proposes will result in more, rather than fewer, abortions. There is a reasonable argument that this has already been the case with increased access to contraceptives.

Posted by: JP | Nov 24, 2008 10:53:03 AM

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