Why the "Golden Mean" Position on Abortion is Unreasonable

I think it’s worth adding a little more to Sam’s terrific post about the Pollit/Saletan debate, (see Atrios too). I have been having a conversation in comments with Pithlord, one of our favorite commenters, about the consequences of overturning Carhart, which has (as is generally the case) focused on the legal questions. Let’s, for the time being, leave aside the question of whether, as a matter of constitutional law, the states should be allowed to pass all kinds of abortion regulations even if they can’t actually ban first trimester abortions, which is certainly a difficult question. Let’s also leave aside the question of tactics, although certainly I share the doubts of Black, Rosenfeld and Pollit that “abortion is a horribly, horribly bad thing and women who get them are highly immoral _{(but abortion should remain legal)”} is a particularly good political strategy for pro-choicers. Let’s look at it as a policy question. Does the “abortion should be legal but heavily regulated by the state” make sense, strictly as a matter of public policy? I think the answer is “no.” I don’t think the regulations advocated by “centrist” pro-choicers are “reasonable” at all.

To stay with the easy case, let’s briefly reconsider the highly popular legal bans on “partial-birth abortion.” For the same reason that these are such a dangerous Trojan horse for gutting Roe, they’re also bad (indeed, fundamentally unserious) public policy. Again, to ban one method of abortion but not another at the same stage of viability, without any basis in protecting the health of the patient, is wholly irrational. Let’s consider this from a pro-choice centrist position, and pretend that these laws are not simply about chipping away at Roe. What legitimate purpose is served by forcing women to use one method of abortion rather than another to get an abortion at the same time? The result is the same, except (unless you trust the judgments of anti-abortion legislators over those of medical professionals) that women will face increased health risks. There simply isn’t any public interest served by such a policy. None.

Or consider parental notification laws (which, constitutionally, are the most defensible of the commonly favored regulations.) What effect do these laws have on children in stable, loving families? Essentially, there is none; for the most part, you’re going to tell your parents anyway in that situation. For women in unstable and/or abusive families, what are the effects of these laws? To expose vulnerable young women to all kinds of emotional, physical and financial retaliation, in exchange for discussions that aren’t likely to be very valuable. What, from a pro-choice perspective, is the possible value of these laws? Don’t ask me; I sure can’t tell you. Parental consent laws are the same but worse–parents can also stop young women from carrying pregnancies to term in addition to the other bad effects. If you’re pro-choice, again, it’s hard to see the merits here. And while vulnerable children theoretically have access to judicial bypasses, these tend to be bewildering and arbitrarily enforced. Spousal notification laws, same thing, except worse because they essentially treat the relationship between husbands and wives as analogous to the relationship between parents and children. (It’s worth noting that Sam Alito himself tried to defend such laws by arguing that they don’t actually change anyone’s behavior. If so, what possible public interest is being served? If they’re just symbolic, then just pass a resolution rather than creating a criminal penalty you don’t really think is unenforceable.)

And, of course, looking at them individually is highly misleading. While individually they’re merely pointless-to-bad, the collective effect of such regulations is of course to make abortions harder for women to obtain while chipping away at Roe and Casey. It seems to me that the “centrist” pro-choice position is basically powerless to stop such policies from being used cynically; it’s hard to explain why you favor all “reasonable” regulation individually but not collectively. And, as Atrios says, the “partial birth” legislation shows that this isn’t just a slippery slope fallacy. If they can gin up a regulation that can be used to harass doctors and attack the foundations of constitutional liberties out of literally nothing but applying a scary term to a morally neutral medical procedure, there’s no way it’s ever going to end. And, in addition, it’s worth noting that virtually without exception these regulations exacerbate class inequities in access to abortion. They affect women who don’t have money to travel and pay for hotels far more than ones that do, uneducated women more than educated women, women in unstable families more than those in stable families, women who go to publicly advertised clinics more than those who can get quiet abortions from their personal ob-gyn, etc. etc. etc. This is fine if you’re an unprincipled pro-lifer, so common in the Republican party, who thinks that abortion should be illegal but not quite so illegal that anyone they know would actually be denied one. The “centrist” position is great for them (which, one suspects, is also why it’s so beloved by media elites who damn well know that they and/or their wives and daughters will always have access to safe abortions.) But how this is consistent with a pro-choice position–again, I’m at a loss. I don’t that it makes any sense at all.

So you can call be an “extremist” if you like, but like Sam I prefer to call my position “coherent” and “principled.” I don’t think that–however popular it may seem to be–that the “pass pretty much any regulation you want but don’t quite ban” position makes any logical sense, and in any case in practice it generally ends up in more or less the same place as criminalizing abortion anyway.