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Once You Get Your Position Sorted Out, Perhaps We Can Talk


I would say that I’m responding to Darleen Click’s arguments about this post, except that she doesn’t actually have any arguments. Does she propose a different way of restricting post-viability abortion while protecting a woman’s life and health than the Pennsylvania statute does? No. Does she actually address the evidence that the parade of regulations anti-choicers will use the Gosnell case as a pretext to argue for make the late-term abortions and unscrupulous providers she decries more likely? Nope. Does she have an explanation for why Gosnell operated not in a state with relatively equitable and pro-reproductive freedom policies (such as New York or Washington) but in Pennsylvania, long a national “leader” in passing arbitrary abortion regulations that make it harder for poor women to obtain safe pre-viability abortions without accomplishing anything worth accomplishing? Hell, no. Rather, she seems to be saying (it’s hard to tell) that my response was excessively rational and did not contain enough high dudgeon. Since I have the advantage of writing for an audience consisting primarily of non-morons, I don’t feel the need to emphasize that infanticide is profoundly wrong and that if the charges are true Gosnell should be punished severely. But, for the record, that is still my position.

Speaking of irrationality and high dudgeon, it’s hard to stop Red State:

In the first instance, in Scott v. Sandford, the Supreme Court drew a line and declared that those on the “slave” side of the line were entitled to no protection from the law, and could be treated with impunity by their masters. That slaves were human was beyond dispute; instead, the Court found solace in an artificial and tortured distinction which treated those humans belonging to the category of “slave” as a special kind of human that was not to be treated like the rest of humanity.

In Roe v. Wade, the Supreme Court repeated the same exercise, this time engaging in spectacular mental gymnastics with the word “person”…

It gets worse! As with most people making the Dred Scott analogy, this member of the Trike Force doesn’t seem to understand what made Dred Scott controversial at the time. The Supreme Court didn’t establish the grossly immoral proposition that slaves were not persons in the eyes of the law — something that was true by definition — but did try to establish the proposition that Congress lacked the authority to ban slavery in the territories. You can see why today’s “states’ rights” fetishists would probably prefer not to discuss the actual opinion even if they knew anything about it. (Taney’s opinions also made exceptionally odious arguments about the inability of even free blacks to be American citizens, but that’s neither here nor there in terms of the abortion debate.)

But more relevant to the current debate is that while there is a legitimate argument about whether or not the Constitution protects a woman’s reproductive freedom, there is for all intents and purposes no serious debate about whether the fetus is a legal “person.” If the problem with Roe is that fetuses were not declared persons, then the dissenters were just as wrong as the majority, Scalia and Thomas just as wrong as Stevens and Ginsburg. As far as I can tell, no federal judge has ever made such a claim, for the obvious reasons that 1)only a vanishingly small minority of people believes it (or, at least, is willing to act as if the belief were true) and 2)it would require legal policies whose unworkability only begins with the fact that all 50 states would be constitutionally required to prosecute women who obtain abortions for first-degree murder. Unlike the position of the Dred Scott dissenters — which took all of three years to be vindicated in a national election — the idea that fetuses are constitutionally protected “persons” is a fringe if not crackpot position.

For this reason, I continue to see little reason to engage with the “fetuses are legal persons” argument. Since even the people who claim to believe it don’t take it seriously, I have no idea why I should.

….UPDATE: B.J. Keefe deserves credit for the great picture.

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