A new ad out tries to force McCain into that question pro-lifers never want to answer: if abortion should be a crime, how much time should women who have them serve? (Via)
I've yet to hear a coherent justification (at least, one that isn't nakedly paternalistic -- e.g., women are irrational creatures controlled by their emotions, so they can't be punished) for why abortion can be outlawed (as murder), but the murderers should get off scot-free. I suppose if someone doesn't think abortion is murder, but still can come up with a reason for it to barred, they could dodge out of this, but the few arguments I've heard on those lines are also pretty paternalistic (it's a serious decision, and we can't know if you're taking it seriously enough unless you're willing to prove it somehow to the state).
In any event, it's a question that McCain and his allies shouldn't be allowed to dodge. But I agree with Bean: it's a pretty new tactic (at least in mainstream argumentation), and nobody knows how new tactics will play out.
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If abortion prohibitionists could see beyond their moral posturing, there's a perfectly coherent way to ban abortion and punish physicians for performing it, without penalizing women who request it: go back to treating it like a medical procedure instead of like a murder. The "partial birth" abortion ban teeters its way toward this idea through its myth-making about medicine, which the Supreme Court seems happy to go along with. Constitutionally and even politically, there's nothing wrong with being paternalistic so long as the paternalism is based on health concerns rather than moral ones. We penalize drug dealers much more heavily than we do users -- once we stop talking about murder, why not do the same with abortion dealers and users?
States can regulate doctors quite heavily under their police powers, and the federal government can fill in the gaps through the FDA's power over drugs and medical devices. Declare abortion to be an unsafe procedure. If the government actually funded prenatal care and services for pregnant women properly, it might someday even become factually true that delivering a baby is safer than having an abortion. In the meantime, states can lie like Congress did and just pretend that it's not safe.
I'm not sure that it's a legitimate move to say "if we lie about abortion being unsafe, we can cease lying about why we don't want to punish women for committing what we think is murder!"
The ad is misleading because political calculus prevents McCain & co. from going after the women. But most political ads are about scaring or misleading voters on some level, so lets put that aside and engage the topic intellectually.
Maybe we could look at abortion as something less than murder because the fetus falls short of some measure of "full personhood." Which at least takes away the rhetorical power of "letting murderers off scott-free." It doesn't answer why we should give a pass on lesser crimes, though.
Or maybe a pregnant woman can always plead self-defense, and anti-abortion laws are just barring assistance by doctor. Then the only tough question is why shouldn't defense of others be allowed in this narrow category of
cases.
My 2 cents. I'm visiting Carleton in a week-and-a-half (when finals are done). Wanna watch some Futurama?
If abortion isn't murder, what is it? It traditionally was classed as a "morals crime," alongside past hits like masturbation, fornication, sodomy, ladies' smoking in the street, etc. We're becoming increasingly harm-based in our approach to law; barring something just because it makes another person feel icky to know that it exists doesn't work much anymore. Hence digital child pornography's getting 1st Amendment protection: if it causes no harm to an actual child, what's the non-icky basis for banning it? I am not including in the "icky" crime area the various crimes of indecency, in which the offender causes emotional distress to others, e.g. through public sexual activity, self-exposure, display of obscenity, etc.
We could try to frame it as a harm to self (like using illegal drugs), and paternalistically ban it, but that would require the set of lies about the comparative harms of abortion versus pregnancy + delivery that David thinks won't pass muster. (Judging by the partial birth ban passed by Congress and upheld by SCOTUS, lying about the comparative safety of abortion seems to work just fine, but he presumably meant "legitimate" in some less realpolitik sense.) If abortion is a harm to self, the state can ban it under the police power to protect citizens from themselves.
I would be interested in seeing an attempt to frame abortion as one of our few morals crimes that's still popular to punish: cruelty to animals. If a not-yet-viable fetus can't be murdered because it's not a person, then it's morally closer to an animal: sentient but not rights-possessing. Killing animals is legally and morally OK, but doing so in a cruel way (unless you're factory farming, of course) is not.
This would allow for closer regulation of abortion to ensure that procedures did not cause pain to a sentient being. The anti-cruelty law could require that abortions be performed either before the embryo/fetus developed nerve capacity -- i.e., in the first trimester -- or with the fetus anesthetized. Nearly 90% of abortions already are performed during the first trimester, so I can't console those worried about the "holocaust" that this would reduce the total number of abortions substantially. But it could reduce whatever actual suffering abortion causes the fetus, and if one is sincere about concern for suffering, that's a worthy goal in itself. (If one thinks of abortion as a morals crime like sodomy, then this framework is useless. But I don't hear many abortion prohibitionists claiming that abortion is a victim-less crime. Their new schtick is to frame it as )
Oops...
(If one thinks of abortion as a morals crime like sodomy, then this framework is useless. But I don't hear many abortion prohibitionists claiming that abortion is a victim-less crime. Their new schtick is to frame it as a self-harm as well as murder.)
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