Rad Geek People's Daily

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?