The Clarity That Aborts Real Debate


Washington -- The great advantage of the right-to-life side in the abortion debate is its moral clarity. Louisiana's new anti-abortion law declares, "Life begins at conception and . . . is a continuum until the time of death." If the fetus is an "unborn child," fully a human being from the moment of conception, it is only reasonable that doctors who kill fetuses by abortion should be punished with up to 10 years in prison and a $100,000 fine.

What's harder to understand, given this presumption, is why this statute -- the toughest in the nation, a direct challenge to Roe v. Wade -- should explicitly exempt from punishment the woman who procures an abortion. Yet it does.

The same anomaly arose during one of the 1988 presidential debates. Michael Dukakis accused George Bush of wanting to brand women who seek abortions as criminals. Mr. Bush burbled that while he opposes abortion, "I haven't sorted out the penalties."

The next morning campaign manager James Baker declared, "Frankly, [Mr. Bush] thinks that a woman in a situation like that would be more properly considered an additional victim." That sounds compassionate, but it is nonsense. If every fetus is fully a human being, a woman who procures an abortion is exactly like someone who hires a gunman to murder her child.

In January, Utah enacted an anti-abortion law almost as restrictive as Louisiana's. After the bill passed, the ACLU discovered that this law, combined with Utah's murder statute, could lead to the death penalty -- by firing squad! -- for both doctor and patient.

The bill's author protested, "It was an innocent oversight. We specifically amended the bill to try to avoid penalties on the woman." Nevertheless, to make absolutely sure the patient would not be punished, nor even the doctor, the abortion law and murder statute were amended once again.

Before Roe v. Wade (1973), states did have laws punishing women who had abortions. Some made the woman potentially liable under statutes about aiding and abetting crimes. If states are allowed to ban abortion once again, it will require Utah-style contortions to make sure the normal logic of criminal law -- that someone who desires, seeks, arranges and pays for a crime is guilty of the crime -- gets derailed in this particular situation.

The point, though, is not that women are likely to be punished for seeking abortions. The point is that even the strongest opponents turn logical somersaults to avoid punishing women who procure abortions. What this reveals is that they don't really think abortion is the equivalent of murder.

That is, they don't really believe every fetus from the moment of conception has the same moral claims as a post-birth human being. Or at least, they are unwilling to defend the implications of that belief.

If abortion opponents would abandon their false claim to moral clarity, we could have a useful debate about what reasons for abortion are better than others and when a fetus acquires claims that override a woman's reasons for wishing to terminate a pregnancy.

But abandoning abortion-is-baby-killing would mean giving up the best weapon in the propaganda battle. And admitting the moral issue is inherently muddled might dangerously incline an honest person to the pro-choicers' conclusion: that, in most circumstances, the decision should be left to the woman who has to live with the consequences.

That's why people cling to absolutist rhetoric who can't possibly believe it. The official Republican Party position, as expressed in its 1988 platform, is that "the Fourteenth Amendment's protections apply to unborn children."

The 14th Amendment guarantees to every person "the equal protection of the laws." If the fetus is to be considered a person under the 14th Amendment, then states that punish murder (all states, of course) would have to treat abortion -- purposeful killing of a fetus -- exactly like murder. If a state regards people who arrange murders to be guilty of murder themselves, as all states do, that state would have to prosecute women who procure abortions. If a state has the death penalty, as the Republican platform strongly recommends, that penalty would have to apply to murderers of fetuses.

In a way, though, such ridiculous absolutism is just a response to the absolutism of the other side of the debate. Pro-choicers have insisted since 1973 that the extreme abortion-rights view is inscribed somewhere in the Constitution. The debate for 18 years has not been over who decides about abortion, the state or the individual, but over who decides who decides -- the legislature or the courts? This is one argument the abortion-rights side seems about to lose.

But that may be no bad thing. If one message of the pro-choice movement is that abortion is not a question that lends itself to simple moral absolutes, doesn't it follow that the question is not one for courts to settle absolutely one way or the other? Isn't it better treated as a matter for the democratic process to struggle with and reach a decision that the majority can feel comfortable with?

TRB wrote this commentary for The New Republic.

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