The other day I did a fairly elaborate post discussing the proposition that Barack Obama and his progressive supporters may be able to achieve an end to–or at least a suspension of–the “culture wars” that have characterized American politics off and on over the last few decades.
Today at TNR Damon Linker, an authoritative progressive voice on this subject, responded to me and also to Tim Fernholz of TAPPED, who asked Damon whether there was any way to really “end” the culture wars.
If you’re interested in this subject, you should read all three posts. Damon agreed with my contention that there are grounds for progressive optimism on church-state separation and LGBT issues, but that abortion policy will continue to be a big problem. But his point of departure from my point of view and from Tim’s, is his suggestion that abortion policy can lose its toxic potency if, and only if, “liberals become willing to de-constitutionalize the issue of abortion.”
For the remainder of this post, I will set aside the obvious objection that pro-choice progressives most definitely aren’t about to take Damon’s advice and surrender the constitutional right to choose, and also the question of how, exactly, they would execute that surrender if they were willing to make it. Damon’s argument is germane anyway since a future Supreme Court could reverse Roe v. Wade and make his preferred state of affairs a painful necessity.
And indeed, Damon’s not the first progressive to argue that pro-choice views are compatible with a post-Roe abortion polity. Jeffrey Rosen made that argument in considerable detail in a much-discussed article in The Atlantic in 2006 (TDS Co-Editor William Galston made a parallel argument in the broader context of progressive dependence on judicial rulings).
Like Professor Rosen (whom I’ve debated on the subject), Damon makes some assumptions about what states would do if they were suddenly the decision-makers on abortion that I consider very questionably sunny from a pro-choice point of view. But the most distinctive feature of Damon’s case is his focus on the psychology of the Right-to-Life movement. He seems completely convinced that the usurpation of state governments’ control of abortion policy by the Supreme Court in Roe is the primary source of the strength and passion of the anti-abortion cause:
Roe “settled” the question of abortion by saying that the pro-choice side wins 100 percent of the time, now and forever: America is a pro-choice nation and those who don’t like it can (respectfully) go to hell. No wonder we’ll still fighting these battles 36 years later.
I have to just say that I respectfully disagree. The source of the strength and passion of the anti-abortion cause is the conviction that every abortion is a homicide, and that legalized abortion has represented (to use a term you hear a lot in RTL circles) a Holocaust. Along with this conviction has come the predictable attittude that pro-choice Americans are at best “good Germans” complicit in a monstrous evil, and are at worst conscious and callous killers of human beings. The RTL movement, meanwhile, quite naturally views itself as analogous to the anti-Nazi resistance in Europe, or to the Allies, or to the German “Confessing Church.” To most sincere anti-abortionist activists, their cause is a matter of overriding moral and/or religious obligation, not an exercise in constitutional law or civic politics.
Sure, the RTL movement is exceedingly vexed that it must achieve its goals via the rocky road of overturning a Supreme Court decision, particularly now that its hopes for conservative court appointments to replace pro-Roe Justices Stevens and Ginsberg have been dashed for the present. And of course, anti-abortion activists routinely include the “anti-judicial-tyranny” argument in their political arsenal, just as they shout about the “barbarism” of late-term abortions despite holding an underlying position that doesn’t distinguish between “partial-birth abortions” and the use of “abortifacient” birth control methods or the destruction of embryos at fertility clinics. When you are fighting a Holocaust, you naturally pick up any weapon at hand that might win allies. But I see no merit to the idea that the RTL movement inherently cares a lot about “democratic” means of winning that fight. After all, the ultimate goal of that movement has always been to secure constitutional treatment of the fetus as a “person” benefitting from full due process and equal protection rights. And for all the talk about the sanctity of “federalism” or “respecting local differences of opinion” in anti-Roe arguments, serious anti-abortionists would jump at any opportunity to enact their own mirror version of the Freedom of Choice Act preempting state laws that were more permissive on abortion policy than whatever they could get through Congress. The Terry Schiavo case should have resolved any doubts about the easy disposability of “federalism” or “local control” arguments in the RTL movement.
So if somehow progressives did take Damon’s advice and found a way to “deconstitutionalize” abortion policy, RTLers would, as well they should if they believe what they believe, pocket the concession and demand more, not suddenly forget about the plight of the unborn. And to cut to the chase here, it’s more than a bit counterintuitive to suggest that it would “end” or even significantly tamp down the culture wars to engineer a situation in which abortion policy became a 24-7 preoccupation in most state legislatures and in Congress as well, world without end. Make no mistake, that is what it would become in a post-Roe environment. It’s not as though we could expect some grand, dignified debate on abortion and then a one-time resolution of the matter. With all the big and little issues related to abortion always subject to modification in one direction or the other, activists on both sides of the debate would never rest. Every bill in every legislature would be vulnerable to abortion policy “riders.”
Even if you think that’s an appropriately “democratic” way to deal with abortion policy, it’s certainly no prescription for turning down the temperature of, much less ending, the culture wars.
Ultimately, Damon himself offers perhaps the best reason for rejecting his argument for a “deconstitutionalization” of abortion policy:
Some Americans believe that an abortion is an act of lethal violence against an innocent human being whose rights (like everyone else’s) should be protected by the state. Other Americans believe that the only legally relevant moral considerations in an abortion are the wishes of the pregnant woman — which of course presumes that the fetus is not a human being in need of protection against lethal violence. These are contrary and incompatible metaphysical assumptions about matters of life and death and human dignity.
I couldn’t agree more, God help us all. But I would contend that such matters of fundamental rights are best decided, for better or worse, in the context of constitutions and courts rather than legislatures. Maybe you think that’s easy for me to say because “my side” has won in the courts, but the broader issue is that someone really does have to win on issues of fundamental rights where compromise is impossible. And I think any honest RTLer would agree with me on that point.
This leaves the residual question, which is implicit in Damon’s argument, that the status quo on abortion leaves RTLers dangerously tempted to become even more extreme in their tactics and strategies, or even resort to violence (which they have honorably and almost universally condemned). Maybe that’s true, but it’s not self-evidently true. Who’s more likely to become “extreme?” A RTL activist who’s facing a long uphill struggle to secure a Supreme Court majority to reverse Roe, or to make America a “pro-life nation” through a change in hearts and minds? Or the same activist who’s three votes short in the Missouri House from a statute that will actually prohibit abortion and “save thousands of lives?” I don’t think the answer is obvious enough to justify a real and tangible sacrifice of the rights of American women in order to appease those activists’ passions.
I remain hopeful that there are some avenues for cooperation between Americans on both sides of the abortion barricades, such as “abortion prevention” strategies, though even there the hostility of many anti-abortion activists to methods of contraception that they consider “abortifacients” is a big problem. But on the fundamental issue of the legality of abortion, there’s no compromise that makes much sense, or that would resolve the conflict. I am truly sorry that, as Damon rightly puts it, RTL activists would be insulted by the claim that Tim Fernholz or I “respect” them even as we reject their “right” to “have a say” over the rights of their fellow-citizens. Ultimately, and honestly, the most respect that can be paid to folks who believe that women who have abortions are murdering their own offspring, and that those who defend their rights are quasi-Nazis, can be summed up crudely but accurately in the old pro-choice bumper sticker that said: “Oppose abortion? Don’t have one!”