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Nice Reproductive Freedom You’ve Got There, Shame If Something Would Happen To It

[ 1 ] June 10, 2009 |

Given that many people have already critiqued the latest Douthat nonsense on abortion (see also here), for some variety I thought I’d address similar arguments made recently by Megan McArdle. From her response to Hilzoy:

My argument is that abortion, like slavery, is becoming in this country an issue upon which people have no reasonable political recourse. I’ll go further, and say that the process by which 7 judges enforced their consciences on the American public was itself borderline illegitimate; it was first, not in their proper job description, and second, a bad way to run a government.


Questions of fundamental human rights that have been closed off from the normal political process are very likely to produce violence. I can simultaneously, as I do, want Tiller’s murderer given a long jail substance, and worry that we’ve left his fellow lone gunmen no other outlets for their legitimate moral beliefs.

Is it naive to think that the political process would tame this rage? I don’t think so. The political process would always offer some always offer some marginal victory worth fighting for, whereas now, any marginal victory is more likely than not to be struck down by a court.

So much illogic here:

  • The most obvious problems are the ones that afflict all arguments about countermobilization against the Courts: the utter lack of evidence that people respond to judicial policymaking differently than policymaking by other institutions. For example, if judicial intervention into the abortion issue greatly increased political violence, the effect should travel — but it doesn’t. Judicial intervention in Canada hasn’t produced the level of terrorism that we’ve seen in the United States, and indeed hasn’t even produced a major political party that wants to recrciminalize abortion.
  • Even more bizarre is her analogy to slavery. Let’s leave aside the normative offensiveness of the comparison and just discuss how McArdle couldn’t be more wrong about its implications. The issue of slavery, of course, was essentially left to ordinary political processes, with not only the court but the text of the Constitution itself being silent on most of the most important issues. Is she repeating the canard that Dred Scott led to the Civil War? If so, the obvious problem with the argument is that it’s completely false (certainly, Buchanan’s bungling over Lecompton was much more important.) Indeed, the Supreme Court’s decision, while grossly immoral, had pretty much zero policy impact. There was no chance that further restrictions on slavery in the territories would have passed before 1861 (Congressional elites for the mst part strongly supported Dred Scott), Lincoln just ignored it, and then it was overturned by constitutional amendment within a decade. Even more puzzling, Dred Scott created exactly the same kind of arrangement that McArdle claims will stop political violence — leaving fundamental human rights issues “to the states.” State legislatures remained perfectly free to abolish slavery, but somehow this didn’t stop John Brown. Roger Taney was wrong to think that leaving things to the states would decrase political conflict about slavery, and McArdle is wrong to think that allowing some states to force women to carry pregnancy to term would decrease political conflict about abortion.
  • The slavery analogy is also useful in demonstrating that in addition to having no empirical support McArdle’s assumptions make no sense even in theory. Just as abolitionists didn’t think that being established by normal political processes (at least by 19th century standards) made human bondage more acceptable, it seems vanishingly unlikely that terrorists who think that abortion is murder will be content with abortion being legal because of legislative decisions. I don’t know about you, but I would not find the legalization of murder any more acceptable if it was the result of a legislative decision.
  • In addition, I note again the trademark Douthatian claim that there is no possibility of “marginal victories ” for forced pregnancy advocates, when of course for nearly two decades the Supreme Court has made clear that all marginal restrictions on abortion, pre- or post- viability, would be upheld (with the exception of the extremely rare ones that might equally affect women similarly situated to Sandra Day O’Connor.) Most abortion policy, in other words, is left to ordinary political processes. The one major exception — bans on pre-viability abortion — would not be politically viable in many states and almost certainly would allow for a substantial gray market even in states where bans were viable.
  • Finally, McArdle rests on traditional but erroneous assumptions about the independence and “countermajoritarian” nature of the judiciary. In fact, Roe has stood up for as long as it has because it has very substantial political support. It is not correct, for example, to say that the only political option for anti-choicers to oppose Roe is a constitutional amendment; in fact, what they need is five votes on the Court. Abortion remains legal in the United States not because courts were omnipotent but because Robert Bork was defeated by a bipartisan majority in the Senate. Proponents of a virtually unlimited state power to criminalize abortion had access to the political process. They lost.

So I’m afraid I’m not going to sign on to the idea that women’s reproductive rights should be sacrificed for alleged speculative benefits that have pretty much no empirical or theoretical basis. It makes rather more sense to combat terrorism with state power.