weighing in, God help me

Weighing in, yes, but doing my usual trick of trying to separate matters that get entangled in The Discourse. Regarding yesterday’s SCOTUS decision, let’s keep these five questions distinct: 

1) All those decades ago, was Roe v. Wade rightly decided? I agree with Akhil Reed Amar — a pro-choice professor at Yale Law School — that it was not. Strictly in terms of legal reasoning, it was a remarkably bad decision. 

2) Should the current SCOTUS have overturned it? That’s actually a tougher question, because of a general sense that the longer a decision has stood the more powerful the voice of stare decisis becomes. It would have been far less socially disruptive if Roe had been overturned in the Reagan years. But it is so indefensible a ruling that I can’t justify keeping it on the books. 

3) Was it overturned on proper grounds? Legal scholars will be debating that for a long time, but for what it’s worth, Alito’s opinion does not strike me as an especially cogent one. It’s better-argued than Roe was, but that’s an exceptionally low bar.  

4) This is not something widely discussed, especially right now, but: Has it been wise for the pro-life movement to focus so much of their energies, for the past half-century, on the overturning of Roe? I think not, and I have always thought not. I believe that it would have been a better strategy to focus on non-legal means of reducing or eliminating abortion. The end of Roe, after all, does not mean the end of abortion in America, and may make things harder for the pro-life movement in pro-abortion states. (Related: I don’t know if Elizabeth Bruenig would still endorse what she wrote several years ago about being genuinely pro-life, but I still endorse it. See also my old manifesto on The Gospel of Life.) 

5) Finally: Is abortion a good or an evil? Note how distinct this core question is from the legal disputes: Roe could have been wrongly decided as a matter of Constitutional law even if abortion is salutary and necessary; Roe could have been rightly decided even if abortion is a great evil. One of the more frustrating elements of this particular battle in the culture war is the difficulty most people have in distinguishing “This is an outcome I like [or hate]” from “This is a good [or bad] decision.” (Indeed, the inability of the Justices to make this distinction in 1973 is precisely why the legal reasoning in Roe is so inept.) All that said: on this most essential matter, I agree with Ross Douthat

UPDATE: Please read Leah Libresco Sargeant

UPDATE 2: This should not need to be said, but: There is no correlation between the popularity of a SCOTUS decision and its correctness. Texas v. Johnson was wildly unpopular but correct; Korematsu v. United States was very popular indeed but possibly the worst decision ever reached by the supreme Court; Brown v. Board of Education was, like yesterday’s decision, deeply controversial — cheered by many, loathed by many — and was absolutely right. The idea that the popularity or unpopularity of a decision determines the Court’s “legitimacy” or lack thereof is a pernicious one. When members of the Court think that way, we get decisions like Korematsu

Christians and the biopolitical

Matthew Loftus:

Christians must develop and encourage practices of suffering that accompany those in pain, like Simon of Cyrene carrying the cross during Christ’s passion. The ethical imperatives of the Church are only intelligible to a watching world to the degree that Christians are willing to walk alongside those who suffer and bear their pain with them. Without these practices of accompaniment, Christian moral teaching about issues like abortion or assisted reproductive technology is a cold set of rules enforced by people who have the privilege of not having to bear their cost. It is through these experiences — and not just experiences with those who forsake an accessible but immoral technological intervention, but also accompaniment with the poor, the imprisoned, and those whose suffering cannot be relieved by any human means — that Christians are able to experience growth through suffering and acquire the perspective from below that shapes their advocacy for those who need the work-towards-shalom the most. 

A powerful essay. 

The themes of that essay do not immediately seem directly related to the themes of this interview with Loftus, but I think they are. Responding to claims by some doctors that we should ration Covid care to favor the vaccinated and disfavor the unvaccinated, Loftus, himself a physician, says, 

I think it is a matter of justice not to ration care away from the unvaccinated, because to do so, I think, is to pass a judgment on someone’s other personal health decisions that we would never apply in any other case. All health care is a mixture of trying to provide justice while also being merciful to others. It’s impossible to be a good health-care worker and not be willing to be merciful with people who, quite frankly, got themselves into the trouble that they’re in and had many opportunities not to do so. But it’s also a matter of justice in giving that person what they need to survive or, if not to survive, to die in a way that honors the person they are. 

Loftus is pointing here to a version of what Scott Alexander, in one of the more useful ethical essays I have read in the past decade, calls “isolated demands for rigor.” When doctors treat people for health problems that arise from obesity, they don’t withhold care until they learn whether those people have some kind of genetic predisposition to obesity or are fat because they eat at McDonald’s every day — they just treat the patients. Oncologists don’t give better treatment to lung cancer patients who smoke less or don’t smoke at all. We only think to subject the unvaccinated-against-Covid to that kind of strict scrutiny because the discourse around Covid has become so pathologically tribalized and moralized. 

But Christians in particular have a very strong reason not to employ such strict scrutiny: We believe in a God who sought out and saved “people who, quite frankly, got themselves into the trouble that they’re in.” In an earlier reflection on this general subject, I mentioned Eve Tushnet’s wise comment that “mercy to the guilty is the only kind of mercy there is.” The rationing of medical care away from the unvaccinated is structural mercilessness. It is anti-shalom

Reclaiming Jesus

This is a great statement, and I agree with every word of it. But how I wish it were possible for Christians to speak prophetically to the abortion regime in this country in the same way they can speak – so confidently, with such unity – to the evils of racism and sexism. I wonder if the subject even came up during the Ash Wednesday gathering that led to this statement. I suspect it did not, because I suspect that everyone there understood that abortion was an issue that would threaten their agreement on other points.

“It just became so obvious”

When Colleen Malloy, a neonatologist and faculty member at Northwestern University, discusses abortion with her colleagues, she says, “it’s kind of like the emperor is not wearing any clothes.” Medical teams spend enormous effort, time, and money to deliver babies safely and nurse premature infants back to health. Yet physicians often support abortion, even late into fetal development.

As medical techniques have become increasingly sophisticated, Malloy said, she has felt this tension acutely: A handful of medical centers in major cities can now perform surgeries on genetically abnormal fetuses while they’re still in the womb. Many are the same age as the small number of fetuses aborted in the second or third trimesters of a mother’s pregnancy. “The more I advanced in my field of neonatology, the more it just became the logical choice to recognize the developing fetus for what it is: a fetus, instead of some sort of sub-human form,” Malloy said. “It just became so obvious that these were just developing humans.”

Emma Green 

the real objection

Pro-life rhetoric isn’t the real issue for pro-choicers anyway. The bedrock pro-life view — which, if you haven’t figured it out already, I share — is that abortion is the unjust killing of living human beings. Any expression of that view, any political action taken to advance it, is going to offend many pro-choicers, and could lead some people to violent acts. Pro-choicers who want pro-lifers to stop saying that abortion kills unborn children aren’t objecting to the pro-life movement’s rhetoric; they’re objecting to its existence.

Ramesh Ponnuru. This is exactly right, and should be read in conjunction with Ross Douthat’s recent post on the same subject.

But for her words to rise to the level of an extraordinary ‘big lie,’ a vicious slander of abortion providers everywhere, it seems to me that something more than this kind of misdescription would need to be in play. If the scene in question literally did not exist, which is what the language of her critics consistently suggests — if Fiorina had conjured up a vision of an intact fetus with a working heart and twitching limbs having its brains harvested out of her hyperactive pro-life imagination — well, that would merit liberal shock and outrage. But she didn’t conjure or invent it: It’s very easy to figure out what scene she’s talking about, and the discrepancies between what’s in the documentary and her description aren’t wild or incredible or weird. There’s no fabrication here, in other words, and what Lithwick calls ‘the big lie about the kicking fetus and the brain harvesting’ is a basically-accurate summary of what the film actually shows. (A twitching, dying fetus? Check. A firsthand description of harvesting a brain from an intact fetus? Check again.)

Ross Douthat. This kerfuffle has done more than anything ever has to convince me that many supporters of unrestricted abortion are simply and genuinely incapable of acknowledging what happens in an abortion.

Tell me anything but this, liberals: Tell me that you aren’t just pro-choice but pro-abortion, tell me that abortion is morally necessary and praiseworthy, tell me that it’s as morally neutral as snuffing out a rabbit, tell me that a fetus is just a clump of cells and that pro-lifers are all unhinged zealots. Those arguments, as much as I disagree with them, have a real consistency, a moral logic that actually makes sense and actually justifies the continued funding of Planned Parenthood.

But to concede that pro-lifers might be somewhat right to be troubled by abortion, to shudder along with us just a little bit at the crushing of the unborn human body, and then turn around and still demand the funding of an institution that actually does the quease-inducing killing on the grounds that what’s being funded will help stop that organization from having to crush quite so often, kill quite so prolifically – no, spare me. Spare me. Tell the allegedly “pro-life” institution you support to set down the forceps, put away the vacuum, and then we’ll talk about what kind of family planning programs deserve funding. But don’t bring your worldview’s bloody hands to me and demand my dollars to pay for soap enough to maybe wash a few flecks off.

Ross Douthat, speaking truth and trying to get himself fired. God bless him.

In my view, a genuine pro-life political position takes its commitment to human life seriously, and is therefore willing to commit to supporting the lives of mothers and children rather than simply their births. I do not believe harsh punishment is the way to address the challenges facing mothers and infants that tragically conclude, at times, in abortion. Yet penalty seems to be the one way those operating under the “pro-life” banner feel comfortable expressing their commitment to life, which is why I find the usual rightwing anti-abortion approach underwhelming and incomplete. Compassion isn’t cheap, and it’s defined by its longevity: If we are to take seriously a cultural commitment to life, which I believe we should, then we’ll conduct ourselves with mercy and sensitivity to the difficulties that bring women to choose abortion, and will commit ourselves to concrete political change aimed at reducing those struggles.

Elizabeth Stoker

I don’t buy this argument, in part because I agree with Furedi that something profound changes at birth: The woman’s bodily autonomy is no longer at stake. But I also think that the value of the unborn human increases throughout its development. Furedi rejects that view, and her rejection doesn’t stop at birth. As she explained in our debate last fall, “There is nothing magical about passing through the birth canal that transforms it from a fetus into a person.” The challenge posed to Furedi and other pro-choice absolutists by “after-birth abortion” is this: How do they answer the argument, advanced by Giubilini and Minerva, that any maternal interest, such as the burden of raising a gravely defective newborn, trumps the value of that freshly delivered nonperson? What value does the newborn have? At what point did it acquire that value? And why should the law step in to protect that value against the judgment of a woman and her doctor?

After-Birth Abortion: The pro-choice case for infanticide. It’s also worth noting that the arguments for infanticide cited here apply equally to anyone who is under the care of others: the gravely ill, the seriously injured, the feebly elderly. The logic of the authors’ position is quite straightforward: if you are so severely limited in your physical or mental abilities that caring for you imposes burdens upon me that I do not wish to take on, then I am free to declare that you are no longer a person and end your life.

A woman who has sex with multiple partners (maybe hooking up a lot if she’s at a more elite college), contracepting throughout and having at least one abortion, then cohabits, then marries in her early 30s if at all, might be a hedonist or a relativist. In my experience she’s much more likely to be trying to do everything right, finish her education and start climbing the economic ladder and make good rather than hasty choices in her men. Her mother usually supports or even pressures her in her decision to abort, and many of the decisions I’ve described are made not in the service of personal sexual liberation but as a means to preserve her relationships. A lot of the time it doesn’t work – the marriage or cohabitation she really hoped would be “the one” still breaks up – but she sees all the alternative choices as even riskier, and therefore irresponsible.

I don’t know that I have “solutions” really. You can’t solve somebody’s heart. I would suggest that explicitly naming the new rules and explaining how and why they fail may help. We need to offer a broader array of vocations, rather than capitulating to a culture which upholds marriage and motherhood as the only two paths to adulthood. (Motherhood, not fatherhood – a man can stay a boy as long as he wants, and often much, much longer than that.) Perhaps both Christians and social conservatives should focus more on beauty (here’s a suggestion directed to Christians on college campuses) and much, much less on mere statistical stability. And we need to stop acting like hedonism is our biggest problem. If only!

Eve Tushnet

As ‘After-birth Abortion’ spread around the world and gained wide publicity ​— ​that damned Internet ​— ​non-ethicists greeted it with derision or shock or worse. The authors and the editor of the Journal of Medical Ethics were themselves shocked at the response. As their inboxes flooded with hate mail, the authors composed an apology of sorts that non-ethicists will find more revealing even than the original paper.

‘We are really sorry that many people, who do not share the background of the intended audience for this article, felt offended, outraged, or even threatened,’ they wrote. ‘The article was supposed to be read by other fellow bioethicists who were already familiar with this topic and our arguments.’ It was a thought experiment. After all, among medical ethicists ‘this debate’ ​— ​about when it’s proper to kill babies ​— ‘has been going on for 40 years.’

Andrew Ferguson. I think Ferguson might make even more of this than he does. The editors are saying, quite straightforwardly, We do not expect or want the people who could be affected by our recommendations to see those recommendations, or how we arrive at them. This is the classic behavior of what Coleridge called the “clerisy,” the self-appointed intellectual custodians of society: Run along, now, little ones, while your betters make decisions on your behalf. To call this attitude “contemptible” would be too kind by half.

Rather than focus on passing laws, Gushee conveyed an alternative approach: He urged pro-lifers to study data on why women seek abortions and to systematically address those factors. This approach recognizes that the right to life and the right to choose are not antithetical. In fact, they’re aligned to the extent that women don’t like abortions. Help women avoid pregnancies they don’t want, and you’ll wipe out the vast majority of abortions without having to enact a single restriction.

I don’t expect pro-lifers to stop fighting for restrictions. But I did notice some of them—notably, Helen Alvare, the former spokeswoman for the U.S. Conference of Catholic Bishops—using the term “pro-life” to describe the broad spectrum of Americans who are morally but often not legally opposed to abortion. If you’re going to claim these people as part of a pro-life majority, represent them. Pursue a culture of life, not a legal regime.

— What pro-lifers can learn from the Princeton abortion conference