Today marks the 32nd anniversary of the Supreme Court decision in Roe v. Wade, a limited and limiting bit of jurisprudence, yes, but also the Supreme Court’s landmark recognition–even if in a partial and problematic way–that women have a human right to control their own internal organs, including the reproductive ones. It’s sometimes frustrating that Roe is the ruling that we’re stuck having to defend, but January 22 is the jubilee day in which most abortion was decriminalized in every state in the U.S., and it is a good day to celebrate the remarkable story of the radical feminist movement. (You do know that it was radical feminists who organized the first abortion speak-outs and who drove the movement for abortion law repeal rather than weak health-of-the-mother reform, don’t you?) Roe was the capstone victory in a remarkable struggle that exploded, seemingly out of nowhere, with the first abortion speak-out in 1969, and transformed the lives of millions of women for the better over the course of 4 years. And if that’s not worth celebrating, I don’t know what is.

In honor of the occasion:

• Most of what I want to say today are things that I’ve already said, in Happy Roe v. Wade Day!, April March, Why We Marched, and Pro-Choice on Everything, Part I.

• Digging even deeper into the archives, I can’t encourage you enough to give a read to Lucinda Cisler’s Abortion law repeal (sort of). It’s a remarkable, sometimes depressingly prescient, essay written four years before Roe, on the opportunities and dangers that lay ahead, and on the need to be consistent and completely unapologetic about abortion rights. It’s a woman’s right to control her body that’s at stake here, and there’s no excuse for letting anti-choicers Mau-Mau us into acting as if they had some kind of monopoly on moral discourse.

  The most important thing feminists have done and have to keep doing is to insist that the basic reason for repealing the laws and making abortions available is justice: women’s right to abortion.

  …

  There are many reasons why a woman might seek a late abortion, and she should be able to find one legally if she wants it. She may suddenly discover that she had German measles in early pregnancy and that her fetus is deformed; she may have had a sudden mental breakdown; or some calamity may have changed the circumstances of her life: whatever her reasons, she belongs to herself and not to the state.

• Lauryn at Feministing exhorts:

  Hopefully you have some kickass events planned for the day, however, if Thursday’s festivities left you feeling like you have little left to celebrate, then take a moment to reflect on what you’re willing to do to for the reproductive rights movement.

  Whether it’s a commitment to start escorting at your local abortion clinic, writing a quick email to Congress, taking a pro-choice picture, making a donation, or posting on BushvChoice–just get busy.

  Nancy Keenan, president of NARAL Pro-Choice America, encourages that: “We need to talk to neighbors around the kitchen table about the values of freedom and privacy; we don’t run away from the arguments. Our movement is on stronger ground when we take seriously the moral dimensions of the issue.”

• Of course Keenan is absolutely right that there is a moral principle here, and it’s one worth being unapologetic over. The Well-Timed Period makes that especially clear by offering us a harrowing history lesson. Criminalizing abortion is State violence against women. We must never go back.

• BlackFeminism.org marks the occasion by reminding that for all too many communities, Roe is only a slip of paper, since abortion providers have been run out by the bullies, the thugs, and the constant daily assault from reactionary state governments. Today is a day to celebrate what we’ve won; but it’s also a day to commit ourselves to a struggle that is far from over.

• And finally, L. reminds us of just how far we have come, and how important that struggle has been:

  So just do me a favor and thank dumb luck or the deity of your choice that you were born in an age of reasonably effective birth control and open, legal abortion Better yet, thank your mothers and your grandmothers, for what they forced into being and what they lived through, and admire their strength without being nostalgic for its necessity. You don’t have to wallow in any grim hypothetical details, though there are plenty to be had. Just pause for a few seconds and consider that, yeah, ok, it really is better this way.

Just a reminder: all that sound and fury from the anti-abortion movement on behalf of Unborn Victims of Violence; all that sentimental law-making allegedly in the name of Laci Peterson and her yet-to-be-born son Connor; all that’s not really about protecting pregnant women from domestic violence. It’s not about punishing men who batter pregnant women, and it’s not about protecting children, either.

What it’s about is laying legal groundwork for punishing young women who seek abortions.

Test case: in Macomb County Michigan, prosecutors are now researching whether they can charge a 16 year old girl and her boyfriend with manslaughter for a desperate home-made abortion when she was four months pregnant:

(Link nabbed from excellent commentaries at Mouse Words 2004/11/17 and Pink Feminist Hellcat 2004/11/18.)

Investigators said a pregnant 16-year-old girl allowed her boyfriend to beat her with a miniature baseball bat to cause a miscarriage, which may lead to criminal charges against the teens and one of their parents.

The girl estimated she was four months pregnant, said Macomb County Prosecutor-elect Eric Smith. Police said the boy’s mother helped transport the fetus to her home and bury it in the backyard.

Smith said the beatings were done over a period of three weeks. It was done in an effort to terminate the pregnancy.

How dare they! Don’t they know that abortion is illegal in this country?

This is not a black and white area of the law. It is a gray area, added Smith. It is shocking the lengths these two teens went to terminate the pregnancy.

I am shocked! shocked! to find that a desperate 16 year old would go to such lengths to have an abortion outside of official state-approved channels. Why in God’s name would she do that?

Under Michigan law, people under 18 need one parent’s permission to obtain a legal abortion.

Oh.

Neither family knew about the pregnancy before it was terminated, Smith said.

Well.

A first-trimester abortion without complications costs about $300, Warren said.

Yeah.

If 16-year-olds feel that this is there only option, than we have really missed the boat on educating them about sexual health, Warren said.

Indeed.

This is a culture of life we’re building here, folks. And that means doing everything we can with pro-life laws to stop young women from getting abortions from a safe, medical provider. And throwing them in a pro-life prison when they finally make a desparate attempt to end the pregnancy at home without the aid of a doctor.

Or taking a pro-life gun and shooting them in the neck with a pro-life bullet if they do make it to the clinic:

INDIO, Calif. A California teenager has been convicted of attempted murder for shooting his pregnant girlfriend inside a Riverside County abortion clinic.

The shooting left the 16 year-old victim a quadriplegic.

She testified during the trial that 17-year-old Jeffrey Fitzhenry told her before the shooting that she was depriving him of his unborn child.

The prosecutor told jurors he also threatened, If you take something of mine, I’ll take something of yours.

As Sheelzebub puts it at Pinko Feminist Hellcat:

Apparently, he didn’t like the idea of her getting an abortion. Or rather, he was an abusive sociopath. He reportedly told her: If you take something of mine, I’ll take something of yours.

Except the fetus was in her body not his, and she’d be the one to deal with the health risks and potential complications, not him.

Now, you might think that it’s unfair of me to sit here pinning the actions of one abusive boyfriend on the anti-abortion movement as a whole–but how are Jeffrey Fitzhenry’s actions different in any salient respect from the legal action that pro-life laws are pushing pro-life prosecutors to take in Macomb County? Enforcing laws that stop young women from obtaining medical abortions means stationing armed men who are ready to shoot you in the neck to keep you from getting an abortion. Enforcing laws that punish women for getting an unauthorized abortion means using violence against young women who try to get one through other means. The fact that the abusive sociopath wears a suit and works in Congress does not make it any different. The fact that the shooting is done by men with badges does not make it any different. The fact that any complaints against the men who shoot you will be dismissed by men in black robes does not make it any different. The only difference is that Jeffrey Fitzhenry is only one sociopath, with only one woman as his target. The pro-life state would be a sociopath with armies at its disposal, with all young women as its targets. (For more on the same topic, see GT 2004-03-08: April March.)

Jeffrey Fitzhenry didn’t care about life; he shot his ex-girlfriend in the neck because he wanted control over her body, and he wanted to take revenge when she didn’t comply. He is not pro-life; he is an abusive sociopath. And nothing less is true of the legislators, presidents, or prosecutors who use deceptive bills to enforcing a culture of life at the barrel of a gun.

In case you were wondering, that strange sound that you heard during the third debate actually was Socrates vomiting.

The candidates sucked. The questions went unanswered. I can’t say that I necessarily blame the candidates for that, though, since the questions mostly sucked, too.

If kudos must be given out, then kudos to John Kerry for actually talking about the wage gap in a question about poverty–although I happen to fundamentally disagree with him on the means of dealing with it:

Mr. Schieffer: Next question to you, Senator Kerry. The gap between rich and poor is growing wider. More people are dropping into poverty. Yet the minimum wage has been stuck at, what, $5.15 an hour now for about seven years. Is it time to raise it?

Mr. Kerry: Well, I’m glad you raised that question. It’s long overdue time to raise the minimum wage.

And America, this is one of those issues that separates the president and myself. We have fought to try to raise the minimum wage in the last years, but the Republican leadership of the House and Senate won’t even let us have a vote on it. We’re not allowed to vote on it. They don’t want to raise the minimum wage.

The minimum wage is the lowest minimum wage value it has been in our nation in 50 years. If we raise the minimum wage, which I will do over several years, to $7 an hour, 9.2 million women who are trying to raise their families would earn another $3,800 a year. The president has denied 9.2 million women $3,800 a year. But he doesn’t hesitate to fight for $136,000 to a millionaire. One percent of America got $89 billion last year in a tax cut. But people working hard, playing by the rules, trying to take care of their kids, family values that we’re supposed to value so much in America — I’m tired of politicians who talk about family values and don’t value families. What we need to do is raise the minimum wage.

We also need to hold on to equal pay. Women work for 76 cents on the dollar for the same work that men do. That’s not right in America. And we had an initiative that we were working on to raise women’s pay. They’ve cut it off. They’ve stopped it. They don’t enforce these kinds of things.

Now I think that it is a matter of fundamental right that if we raise the minimum wage 15 million Americans would be positively affected. We’d put money into the hands of people who work hard, who obey the rules, who play for the American dream. And if we did that we’d have more consumption ability in America, which is what we need right now in order to kick our economy into gear. I will fight tooth and nail to pass the minimum wage.

And kudos to Mr. Bush for achieving the single most transparent transition onto message that I’ve ever heard from a politician (and that’s saying something). On the same question:

Mr. Schieffer: Mr. President.

Mr. Bush: Actually, Mitch McConnell had a minimum wage plan that I supported that would have increased the minimum wage.

But let me talk about what’s really important for the worker you’re referring to, and that’s to make sure the education system works, it’s to make sure we raise standards. Listen, the No Child Left Behind Act is really a jobs act, when you think about it. The No Child Left Behind Act says we’ll raise standards, we’ll increase federal spending. But in return for extra spending, we now want people to measure, states and local jurisdictions to measure, to show us whether or not a child can read or write or add and subtract.

… And so on. He talked about No Child Left Behind for the rest of the response time.

Bob Schieffer was terrible. The questions were terrible, and Schieffer breezed past opportunity after opportunity for desperately needed follow-ups. His one good moment for the night came when he actually directly asked one of my two questions for George W. Bush. A while after Mr. Bush muttered this empty platitude…

Mr. Bush: I think it’s important to promote a culture of life. I think a hospitable society is a society where every being counts and every person matters. I believe the ideal world is one in which every child is protected in law and welcomed to life.

I understand there’s great differences on this issue of abortion. But I believe reasonable people can come together and put good law in place that will help reduce the number of abortions.

… Schieffer actually came back around and asked, point blank:

Mr. Schieffer: Mr. President I want to go back to something Senator Kerry said earlier tonight and ask a follow-up of my own. He said, and this will be a new question to you, he said that you had never said whether you would like to overturn Roe v. Wade. So I’d ask you directly would you like to?

Alas, my prediction of the necessary follow-up questions also came true. Bush had a full minute and a half in which to speak; here is the entirety of what he said:

Mr. Bush: What he’s asking me is will I have a litmus test for my judges. And the answer is no, I will not have a litmus test. I will pick judges who will interpret the Constitution. But I’ll have no litmus tests.

Kerry got off to a fantastic start in his response:

Mr. Kerry: Thank you very much. Well again, the president didn’t answer the question. I’ll answer it straight to America. I’m not going to appoint a judge to the court who’s going to undo a constitutional right, whether it’s the First Amendment or the Fifth Amendment or some other right that’s given under our courts today under the Constitution. And I believe that the right of choice is a constitutional right. So I don’t intend to see it undone. Clearly the president wants to leave an ambivalence or intends to undo it.

Mate in two moves. Bush either has to answer this–in which case there is no politically acceptable answer for him to give–or else he simply refuses to answer the question again, in which case you simply point to his record and say that his silence here speaks volumes.

So what does Kerry do? Ah, yes, of course. Before he finishes he decides it’s time to insert a canned soundbite about racial equality (why? because women’s equality isn’t good enough to have a 90 second response on its own?) and No Child Left Behind:

Let me go a step further. We have a long distance yet to travel in terms of fairness of America. I don’t know how you can govern in this country when you look at New York City and you see that 50 percent of the black males there are unemployed. When you see 40 percent of Hispanic children or black children in some cities dropping out of high school. And yet the president who talks about No Child Left Behind refused to fully fund by $28 billion that particular program so you can make a difference in the lives of those young people. Now right here in Arizona that difference would have been $131 million to the state of Arizona to help its kids be able to have better education and to lift the property tax burden from its citizens. The president reneged on his promise to fund No Child Left Behind. He’ll tell you he’s raised the money and he has. But he didn’t put in what he promised. And that makes a difference in the lives of our children.

… which of course allowed Mr. Bush to spend his 30 second follow-up on talking about No Child Left Behind. And that was it for the night on reproductive rights and women’s equality.

Good job, genius.

Well, not quite. Bob Schieffer did decide to wrap up with his idea of throwing a bone to women’s issues:

Mr. Schieffer We’ve come gentlemen, to our last question. And it occurred to me as I came to this debate tonight that the three of us share something. All three of us are surrounded by very strong women. We’re all married to strong women. Each of us have two daughters that make us very proud. I’d like to ask each of you what is the most important thing you’ve learned from these strong women?

Um. Yeah.

When it comes to political argument, you can usually count on abortion to get a response, and it seems that Why We Marched (GT 2004/05/30) was no exception to the trend. Fortunately, unlike most of the responses that you usually expect to draw by writing on abortion, the responses to my article were thoughtful, carefully argued, and deserve consideration and reply. (I think this just goes to show that pessimism about conversation on abortion is understandable but overly hasty. The problem is not that rational argument on the topic is impossible–just that it is very hard; not that people can’t talk reasonably about it, but rather that they don’t. Here, even more than in other areas, it’s vitally important to elicit just what the structure of the arguments is, and I hope I’ve helped a bit in that direction.)

After reading over my post again, and seeing how the responses sorted themselves out, I do think that I didn’t do nearly as good a job as I should have in marking out the two different purposes that I had in the post–the fact that it had two different purposes, that is; if you got that, then I think what they were is pretty easy to discern. This is important, because I think some of the critical replies to my post seemed to muddle the two different issues together, and I think that muddling allowed people to endorse claims for abortion that they would be hesitant–or, at least ought to be hesitant–about endorsing in other areas.

Well, what were the two points being made? To wit:

1. … that arguments against pro-choice political strategy as anti-democratic (by judicial tyranny in Roe v. Wade-style court decisions as a means to repeal abortion laws) are question-begging: if the basic pro-choice position is correct, then it would be judicial activism to uphold an abortion bill–because there could be no such thing as a (legimately enacted) law to ban abortion.

2. … that the basic pro-choice position is in fact both reasonable and correct–and thus that courts do have an obligation to throw out abortion bills.

Both of these points are connected with the deductive argument that I gave in defense of Roe-style court decisions:

1. No government body has the legitimate authority to legalize slavery. (premise)
2. A legislature can only successfully make a law if they have the legitimate authority to enact that law. (premise)
3. Courts can only enforce such laws as have successfully been made by the legislature. (premise)
4. Forcing a woman to carry a pregnancy to term against her will is a form of slavery. (premise)
5. Courts can only enforce bills that the legislature has the legitimate authority to enact (from 2, 3)
6. Courts cannot enforce bills that purport to legalize slavery (from 1, 5)
7. Courts cannot enforce bills that purport to legalize forcing a woman to carry a pregnancy to term against her will. (from 4, 6)

Therefore, no court can rightly uphold, or make a ruling based on, a law that purports to criminalize abortion. Q.E.D.

The first point that I was defending (which I had already argued at some length in my comments at Alas, A Blog) is that this argument is valid, and that all of the premises other than (4) are not only eminently reasonable, but also premises that you have to endorse in order to take judicial activism seriously as a term of critique. And what that means is that if (4) is true, you ought to endorse the conclusion; thus, whether premise (4) is true or not, it is the real issue in the debate. If (4) is accepted, then upholding state abortion bills, not overturning them, would be an act of judicial activism (since no such laws could legitimately have been made by the state legislature). Even if (4) is denied, a charge of judicial activism against pro-choice political methods without an independent argument against pro-choice political goals just begs the question against the pro-choice position–much like trying to give a Christian an argument that Christian doctrines stifle social reform, without first showing her that quietistic doctrines are false.

The second point that I was defending, enlarging on the first, is that the argument is not only valid but also sound: not only are premises (1)-(3) true, but so is premise (4) (because a woman has the right to control her own internal organs–yes, even the reproductive ones–and that right cannot be undermined by someone else’s need to use them). It’s important to see here that you can (indeed, should) accept the first point even if you don’t buy my defense of the second point. If you’re unconvinced by my argument in defense of (4), and remain unconvinced after my clarifications and emendations here, fine–but don’t keep basing your arguments on claims about judicial tyranny (or, mutatis mutandis, principles of democracy, federalism, etc.). The real action is in the debate over premise (4).

Well, just saying that you should accept the first point is not the same as demonstrating it, and apparently some of my interlocutors aren’t yet ready to buy in. Thus, for example, Otto Kerner wrote:

Charles, the flaw in your QED is in an implicit assumption that it is relevant to Roe. It is not. The US Supreme Court has no business enforcing or not enforcing state laws, except in a few specific cases. It was acting outside of its jurisdiction.

The question, of course, is why the Supreme Court has no business upholding or nullifying state laws; and there are a few different reasons that you might hold that. You might, for example, base it on a view of the powers delegated by the United States Constitution; or maybe on a prior notion of state sovereignty (perhaps as recognized by the Constitution); or on a strategic concern for political decentralization. Far be it from me to impute an argument to Otto without his consent–but since I’ll discuss the decentralist concerns in greater detail below I’ll take a moment to deal with the Constitutional claim here whether that’s Otto’s claim or not.

Now, I don’t recognize the authority of the U.S. Constitution in the first place; but since most people seem to think it matters, we can set aside my views on the nature of legal authority for the moment for a bit of immanent critique. The first of the common-sense premises I introduced for my argument was (1) that no government body has the legitimate authority to legalize slavery. I think that (1) is always and everywhere true, under principles of natural law. But whether I’m right about that or not, it’s certainly true of governing bodies if they derive their authority from the United States Constitution–since that reads, in part:

Amendment XIII

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

Note that it says within the United States, or any place subject to their jurisdiction; if that doesn’t make state slavery bills the Feds’ concern, I don’t know what could. So if the Supreme Court were ever to hear a case concerning a state bill that purported to legalize slavery, what possible basis could it have for devolving the issue to state courts rather than applying the clear text of the federal Constitution? (Again, since under the Thirteenth Amendment no state legislature can have the authority to make a law that authorizes slavery, it follows that any bill that a state legislature passed to that effect would not be a law; it’s a dead letter just as surely as some “bill” that I wrote on a napkin and passed around to my friends. Thus, any Court which upheld the bill would, in fact, be engaging in an astonishing act of judicial activism, since it is purporting to effect a law where no law had been made by the legislature.)

Of course, this leaves open an additional question (which, I suppose, Otto is right to chide me on) of whether the Supreme Court should hear these cases in the first place. But I can hardly see any way that one could argue that (given the scope of the Thirteenth Amendment) a case over a state slavery bill would not be within the category of all cases, in law and equity, arising under this Constitution (Article III).

Of course, you might argue that forced childbearing is not slavery. You might even think it’s outrageous to even compare the two. But if so, your issue is with premise (4), not with the other premises. (Acid test: would you say the same thing if, say, South Carolina’s legislature were to pass a bill authorizing the enslavement of all Blacks, and the Supreme Court proceeded to strike it down? If you would, you’re nuts. If you wouldn’t, your problem is with (4) alone.)

You might also give me a thwack on the noggin and point out that the Court did not base its decision, in Roe, on the Thirteenth Amendment. True; and that’s too bad, because I think the reasoning would have been much stronger and the ruling much better if they had relied on the Thirteenth Amendment rather than on privacy rights that Griswold claimed to find hanging out in the penumbra of various parts of the Bill of Rights. But you can defend the outcome of a Court case (and the fact that it was decided by the Court) without defending the reasoning behind that outcome. And besides, aren’t the rights protected in the Bill of Rights also the U.S. Supreme Court’s concern (mutatis, mutandis), under the Fourteenth Amendment’s provision that No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States? (If not, then what in the world does that provision do?)

Moving away from Constitutional exegesis, Kevin Vallier objected to what he saw as my neglect of the libertarian arguments against Roe specifically: to wit, that

the decision allows the judiciary to literally create rights out of thin air — that in the end, creating a right to privacy and having an institution that is allowed to do this will be destructive of liberty. It isn’t that many libertarians think that abortion should be illegal. It’s that Roe should be repealed and the battle fought in a different way. That’s the reason I’m against Roe; it increases statism by centralizing power.

Now, I don’t doubt that this is an argument against Roe, but I have trouble understanding it as a libertarian argument. I take it to be absolutely vital to libertarianism (as a theory of justice, not as a region on the Nolan Chart) that rights can be recognized or ignored, respected or violated, but they cannot be created or destroyed by anyone–not by judges, not by legislatures, not by executives, and not by constitutions either. A corollary of this is that when a piece of jurisprudence claims to recognize a right, the important question to ask is not whether the judge has the authority to make or unmake the right (no-one does), but rather whether the judge’s claims are true or false. Do you think that a woman’s right to control her own body includes the right to seek an abortion? If so, then you think Roe was rightly decided (although perhaps for the wrong reasons). And if you think that Roe recognizes a legitimate right, then what’s the problem with enforcing it?

That’s not to say that there’s no legitimate issue worth raising here: aside from the question of whether defending Roe is just, there is also the question of whether defending Roe is prudent. As I’ve argued elsewhere (concerning the Violence Against Women Act), it’s perfectly reasonable to be concerned about the strategic value of vesting our hopes in the tender mercies of a highly centralized federal court. It’s something worth worrying about on libertarian grounds–and, for that matter, on radical feminist grounds too (anyone who thinks that a bunch of old white dudes with black robes and government pensions are the source of, or a reliable bulwark for, women’s liberation needs to get their head checked). But I think it’s no less foolish to put our hopes in highly centralized state courts, or state legislatures. When it comes to matters of strategy in playing the two off one another, we have to ask ourselves which of these pompous outlaw gangs is likely to commit or sanction fewer rights violations in the long run? I think any honest appraisal of the past couple centuries of American history has to show that the answer is Well, it depends. Reactionary states have been the primary agents of tyranny no less than the Feds (see: Crow, Jim; see also: race slavery), and choosing which to side with in a conflict is not something to which I think there is any good answer other than ad hockery based on historical precedent. And if we look at the history of cases decided under the Supreme Court’s doctrine of privacy rights, I have to say that the record looks pretty positive: Griswold (1965) abolished state laws banning married couples from obtaining contraceptives, Eisenstadt v. Baird (1972) struck down all state laws banning consenting adults from obtaining contraceptives from a doctor, Roe (1973) nullified most state abortion laws, and Lawrence (2003) did away with state sodomy laws. If you’re pro-choice (mildly or otherwise) and libertarian, that looks like a pretty solid record!

Broadly speaking, it’s very difficult for me to understand the charge that the Court’s privacy doctrine is a harbinger of statism. Whatever the hell the penumbral right of privacy is supposed to mean (and I’m not at all clear on this myself), it is certainly privacy from government interference. It’s no accident that every landmark ruling on the doctrine has curtailed the power of government over the individual rather than enlarged it. How, exactly, is a ruling based on such a principle, even such an admittedly vague one, supposed to give the State more power over people’s day to day lives?

Now, again, I suspect that a lot of the worry that seems to be directed against premises (1)-(3) actually has more to do with discomfort with (4)–and with my failure to adequately put asunder the two questions in my last post. If forced childbearing is slavery, then how could we possibly let the modest rhetorical gains that statism might make in delivering a Supreme Court decision outweigh the massive victory for women’s freedom from government control over their own bodies that the abolition of state abortion bills wins? If, on the other hand, you’re not willing to defend the rightness of the Roe decision, isn’t that just an indicator that you think forced childbearing is different from slavery in some salient respect?

What about the second point of my post–that premise (4) is true, and so that the argument for defending Roe (or similar court rulings) is sound? Well, there’s plenty to say about that, too–but not, alas, tonight. I hope, for now, that I’ve cleared the ground for approaching what I take to be the real issue in the debate.

For further reading

• GT 2004/02/05: Because of assholes like this guy… — the decentralist justice case for VAWA
• In a Blog’s Stead 2004/08/26: The Stone Idol — Roderick Long on ex-Chief Justice Roy Moore his battle against Federal jurisdiction
• In a Blog’s Stead 2004/06/26: The Constitution of Liberty — Roderick Long on the Lawrence decision

(Standard disclaimer: People other than myself may or may not agree with everything I have to say here; and while they certainly ought to, my act of linking shouldn’t be taken as a claim in either direction.)

Well, it has been about a month since the March on Washington; and what better time, I ask you, than a month after the March, to post some photos? It’s also been about a month since I promised I would return to the topic of abortion, democracy, and the courts. And what better time to respond to an argument than a month after you have said you would?

Thus, I intend to do both. Let’s begin.

About a month ago, about 1.15 million of us marched to defend a woman’s right to abortion. Specifically, we marched–at least most of us did–to support the Supreme Court’s decision in Roe v. Wade and to oppose the Bush administration’s on-going war to undermine, and perhaps eventually reverse, that landmark achievement in the government’s recognition of women’s rights.

One of the more weaselly rhetorical maneuvers that some anti-abortionists make is to complain about the centrality of Roe to our political demands. By relying on the Court’s nullification of nearly all state abortion laws in Roe, and by working to defend the decision from being overturned, we are–the argument goes–guilty of sanctioning and escalating something called judicial activism (or, more extravagantly, judicial tyranny). The pro-choice movement, it is claimed, is playing dirty pool by bypassing the democratic process in order to force our favored policy on abortion from the federal bench–rather than working through democratic procedures on a state-by-state basis. And that is, we are told, a dangerous compromise of both federalism and the separation of powers between the legislature and the judiciary.

Now, I say the argument is weaselly because it’s almost never put forward out of any principled concern for the separation of powers or political decentralization–as is well-demonstrated by the fact that the very same people who advance the argument rarely have any qualms about standing behind federal bans on specific abortion procedures, a Human Life Amendment to the federal Constitution that would impose an abortion ban on all 50 states, or judicial activism that happens to suit their policy prescriptions on abortion. It’s an argument almost always advanced out of sheer opportunism; anti-choicers want the abortion debate to devolve to the States only because, and to the degree that, devolving it ensures that they’ll pick up a few along the way (ie, most of the Deep South and the inland West, and probably Michigan and much of the Midwest, too). That said, being weaselly is not the same as being unsound; it’s a property of the arguer, not the argument. And so even a weaselly argument might be a good argument–although it cannot be a good argument for a weasel who advances it even though s/he is unwilling to own up consistently to its premises. So, in the spirit of interpretive charity, let’s look at the charge and what we ought to say about it now that we have sat down from the march and have some time to talk.

What’s the charge of judicial activism supposed to mean? Well, the argument, apparently, is that abortion is a matter properly dealt with as it was before Roe–that is, to be regulated or left unregulated by the state legislatures–and that the justice’s decision to nullify state abortion laws in Roe exceeded any possible authority that they might have. The complaint, then, is that the pro-choice movement’s support for Roe means bypassing (1) the proper separation of powers between the judiciary and the legislature, and (2) putting important policy decisions in the hands of appointed judges rather than in the hands of the democratically-accountable legislature. (I think that’s a fairly romanticized view of how the legislature actually relates to the electorate over a given single issue in a liberal republic. But let’s move on.)

The critical claim here is a claim about who has the authority to make law. If the argument succeeds, it has the attractive feature (for the anti-abortionists) of short-circuiting the political argument over abortion in favor of convicting pro-choice activism on a purely procedural point. The problem, however, is that the argument only can succeed by either (a) begging the question on the political debate over abortion, or (b) endorsing a totalitarian theory about the authority of elected legislatures. And doing (a) makes the argument premature until we have already come to an agreement on the debate over abortion on independent grounds, whereas (b) requires a premise so repugnant that no non-question-begging reasons can be given for it Why? Because given what pro-choicers believe about abortion, asking them to leave it up to the state legislatures is like demanding that slavery be put up for a vote state-by-state; it’s making the recognition of women’s fundamental rights to their own bodies contingent on the outcome of innumerable local legislative processes.

Another way of getting to this point is by considering the short argument in defense of Roe-style court rulings that I offered in the comments on Alas. Thus:

1. No government body has the legitimate authority to legalize slavery. (premise)
2. A legislature can only successfully make a law if they have the legitimate authority to enact that law. (premise)
3. Courts can only enforce such laws as have successfully been made by the legislature. (premise)
4. Forcing a woman to carry a pregnancy to term against her will is a form of slavery. (premise)
5. Courts can only enforce bills that the legislature has the legitimate authority to enact (from 2, 3)
6. Courts cannot enforce bills that purport to legalize slavery (from 1, 5)
7. Courts cannot enforce bills that purport to legalize forcing a woman to carry a pregnancy to term against her will. (from 4, 6)

Therefore, no court can rightly uphold, or make a ruling based on, a law that purports to criminalize abortion. Q.E.D.

So is there something wrong with this argument? If so, what? If not, then what’s the problem with overturning abortion laws in the courts?

(One interesting feature of the argument to note: it takes the separation of powers complaint and turns it on the anti-abortionist who advanced it. If the argument here is sound, then upholding any abortion law would be a brute act of judicial activism; it would be a ruling without basis in any law that the legislature had actually passed. Contrary to an all-too-common lament, it’s far from impossible to find common ground from which to argue abortion politics.)

The argument from premises (1), (2), (3), and (4) to (7) is, as far as I can tell, valid; so the only way to avoid the conclusion is to deny at least one of the premises. Now, of course, any anti-abortionist in his right mind is going to object to premise (4); the point of introducing this argument is not primarily to convince you that it is sound (although, in fact, it is). The main point here is to show why the charge of judicial activism is premature. Why? Because (1), (2), and (3) are completely reasonable premises on which both pro-choicers and anti-abortionists should agree. To deny (3) is to deny that you have any objection to judges making up law–which is just to give up on the original complaint of judicial activism against Roe. To deny either (1) or (2), on the other hand, is to endorse totalitarian powers for the representative legislatures–i.e., to claim that the worst crimes are legally O.K. as long as they are approved by an elective assembly. The only point at which the opponent of Roe can object to the argument is at step (4)–to deny that outlawing abortion is in fact a form of slavery.

But that is just to admit that any charge of judicial activism hinges on whether or not outlawing abortion means denying women the fundamental right to control over their own body–which in turn is to admit that it hinges on finding some independent resolution to the controversy between the pro-choice position and the anti-abortion position. Trying to weasel out of the abortion debate by accusing pro-choicers of supporting judicial activism just is to bypass the real debate and beg the question against the pro-choice position.

So what about (4)? Is forcing a woman to carry her pregnancy to term against her will a form of slavery? Well, here is how Pangloss, my (apparently anti-abortion) interlocutor on Alas, objected to it:

(4) False. You trivialize the historical institution and current practice of slavery. BTW, who’s doing the forcing in your hypo?

Well, let’s start with the latter first: if you’re puzzled about where the forcing comes in in an anti-choice regime, then try get an abortion under one and see what happens to you. A very wise man, who probably did not realize the applicability of his thesis for radical feminism, once put it this way:

It is important to remember that government interference always means either violent action or the threat of such action. . . . Government is in the last resort the employment of armed men, of policemen, gendarmes, soldiers, prison guards, and hangmen. The essential feature of government is the enforcement of its decrees by beating, killing, and imprisoning. Those who are asking for more government interference are asking ultimately for more compulsion and less freedom.

Ludwig von Mises, Human Action, ch. XXVII, p. 719

This doesn’t mean, of course, that nothing a government does can be worthwhile. More compulsion and less freedom is exactly what we want when it comes to the freedom to murder, torture, or pillage. But what it does mean is that you’d better be awfully sure that whatever you’re getting the government to do is worth forcing other people to do. Government decrees are not magical incantations; they are provisions for the use of violent force. And if you’re not willing to own up to using violent force against people trying to get an abortion, then you oughtn’t be asking the legislature to outlaw it.

So why categorize the forced completion of a pregnancy as slavery? Well, according to one common theory, what slavery means is a condition of involuntary servitude: to be enslaved is to be forced to give up the use of your body to another person, for a sustained period of time, whether you like it or not. And how else would you describe forcing a woman to turn her uterine lining over to the use of a fetus (or, rather, a bunch of grown men purporting to act on the fetus’s behalf)? The only thing that could make the use of force here legitimate would be for the fetus, or someone else other than the woman, to own the woman’s reproductive organs. And for anyone to claim that just is to claim ownership over the woman’s body–which is another quick elucidation of what it means to claim that someone is your slave.

Of course, an anti-abortionist will object that she doesn’t have the right to control her own internal organs when someone else’s life depends on it. Now, it’s tendentious enough to claim that a fetus is a political agent that could have a right to anything. But set that aside for the moment. The fact is that this is not a principle that nearly anyone would ever endorse if we weren’t talking about women and their wombs–it’s only because people have thought of women’s reproductive organs as the property of men for so long that the idea even gets a hearing. Don’t believe me? Try another hypothetical: Susan needs a kidney or she will die. John has two good kidneys; and it turns out that he’s the best match in town. One problem: John likes his kidneys and won’t undergo surgery. Now, some people might think that John’s action is cruel and selfish. Maybe so; but vanishingly few people would be inclined to suggest that Susan has the right to have John tied down and to cut out one of his kidneys against his will. That’s because John owns his own body, not Susan. Slavery is still slavery, even if the slaver can’t survive without it. When it comes to other people’s rights to control their own bodies, a need is not a claim.

It might also be objected that being forced to carry a pregnancy to term is not slavery because the woman has tacitly forfeited control over her uterus when she consented to have sex. Let’s set aside the fact that the majority of pregnancies resulting from rape end in abortion; at least some anti-choicers are willing to allow for abortion in cases of rape and incest. Still, could a woman forfeit her rights to determine who makes use of her uterine lining by consenting to sex? No, of course not; the idea of tacit consent here is silly to begin with, but more importantly even if there were explicit consent the woman would still have the right to revoke it at any time. She could only fail to have that right if her right to control her own internal organs were alienable. But it’s not; she has (and so do you) the right to withdraw consent, at any time; claiming irrevocable, completely open-ended rights over her internal organs would, again, be claiming that she is your slave just as assuredly as claiming irrevocable, completely open-ended rights over the work of her arms and legs.

(What about the claim that the description of anti-choice politics as slavery trivializes the reality of slavery? That would only be true if saying this is slavery were the same as saying this is just as bad as American race slavery, or whatever other instance of the institution the interlocutor happens to have in mind. But it’s not. Any honest appraisal of historical evidence would show that the position of thralls in medieval Scandinavia was far, far better than that of field slaves in the Caribbean, or the forced laborers in Dachau or the gulag. But that does not mean that we shouldn’t categorize the thralls as slaves. And similarly, it doesn’t mean that we shouldn’t categorize forced pregnancy as a form of slavery, either.)

Is there some other basis for asserting that the government has a right to force a woman not to terminate a pregnancy? If there is, I’d be glad to hear it. But if there is not, then we are left to conclude that premise (4) is true. And if premise (4) is true, then no government could have the authority to outlaw abortion, and any judge which upheld a bill purporting to outlaw abortion would be engaging in the worst sort of judicial activism. And thus the Court made the right decision in Roe. Those who fight against that decision are fighting for a Court to uphold the government’s right to legalize slavery and enact reproductive tyranny.

That’s why I marched, anyway. What about you?