Ross Douthat’s “Stricter Legal Regime”

Today’s New York Times column by Ross Douthat begins sanely enough. He acknowledges that the late-term abortions performed by the late Dr. George Tiller were done for hard, and heartbreaking, reasons — “women facing life-threatening complications, on women whose children would be born dead or dying, on women who had been raped, on ‘women’ who were really girls of 10.”

Then he goes south a bit, insinuating that Dr. Tiller also performed abortions for frivolous reasons, even though Kansas law requires two independent physicians to sign off on a late abortion to prevent that from happening.

And then Douthat gets into the heart of his argument — women must not be allowed to have abortions unless the government decides they have a really, really good reason.

Yes, many pregnancies are terminated in dire medical circumstances. But these represent a tiny fraction of the million-plus abortions that take place in this country every year. …

… The argument for unregulated abortion rests on the idea that where there are exceptions, there cannot be a rule. Because rape and incest can lead to pregnancy, because abortion can save women’s lives, because babies can be born into suffering and certain death, there should be no restrictions on abortion whatsoever.

No, the argument for legal and medically safe abortions — which would still be regulated, as is any medical procedure — is that there are times when pregnancy and childbirth would place an unbearable burden on a woman’s life, and so women will seek abortions. Their reasons are as infinite as the details of their lives. If abortions are not legal, they will either abort themselves or they will find underground abortion providers, medically trained or not.

And if the worldwide statistics on abortions in countries where abortions are illegal tell us anything, they tell us that making abortion illegal has little impact on the rate of abortion, just on how they are done. Instead of a medically regulated clinic, women take black market drugs, or perforate themselves with sharp objects, or flush themselves with caustic chemicals, or have themselves bludgeoned in the stomach. They take their chances on abortion providers who may have little training and even less interest in antiseptics.

And we know this is true because it happens in many parts of the world, every day, in places where legal abortion is not available.

Douthat continues,

[T]he law is a not a philosophy seminar. It’s the place where morality meets custom, and compromise, and common sense. And it can take account of tragic situations without universalizing their lessons.

No, the purpose of law is to maintain conditions that allow civilizations and societies to exist and function, not to enforce morality. As I’ve argued elsewhere, many things are immoral that should not necessarily be illegal. Most of us consider adultery to be immoral, for example. But as a people who respect personal freedom, we generally think that matters involving sexual acts between consenting adults are not the government’s business. Lies (except under oath in a courtroom), envy, and countless other matters are between an individual and his spouse/friends/God/karma.

There’s a tacit understanding that some matters of morality are to be worked out in peoples’ private lives, and others are regulated by law. What’s the difference? The difference is whether an act creates a civic burden. Without enforceable contracts, for example, we’d still be living in caves. On the other hand, civilization tolerates adultery fairly well.

It so happens that most stuff that’s illegal also is generally considered immoral. Since morality is about how people relate to each other, it figures that law and morality overlap. (The venn diagram above is flawed because the blue area ought to be bigger, but I made it from the best blank venn diagram I could find.) But the purpose of law is not to enforce morality; nor is morality an argument for creating law.

One of the most fundamental requirements of a functional civilization is that there must be some restriction on killing other people. This has less to do with “sacredness” and more to do with the fact that people can’t very well live in social groups if they all can kill each other without penalty or compunction.

Through most of human history, few if any societies have banned the killing of humans outright. Rather, there were rules about who could kill whom. A nobleman could kill a serf, but a serf couldn’t kill a nobleman, for example. The notion that the life of every person is worthy of legal protection just because it’s human life is relatively recent and has little to do with how homicide came to be a criminal act.

Abortions, however, do not create a civic burden. Abortions have been practiced throughout human history. Although you can find some very old laws that restrict late abortions, there was little interest in banning abortion altogether until the 19th century. Civilization soldiered on, somehow.

So, I reject the argument that law is “the place where morality meets custom, and compromise, and common sense.” I’m not sure what “custom” Douthat refers to, since abortion has long been customary even where it is illegal. And my definition of “common sense” is “stuff I think is right even though I can’t think of an argument for it.”

Indeed, the argument that some abortions take place in particularly awful, particularly understandable circumstances is not a case against regulating abortion. It’s the beginning of precisely the kind of reasonable distinction-making that would produce a saner, stricter legal regime.

Translation: We can ban abortions and then make women petition government tribunals to receive legal dispensations in extreme cases.

Alternate translation: Hello, coat hanger.

This is “saner”?

If anything, by enshrining a near-absolute right to abortion in the Constitution, the pro-choice side has ensured that the hard cases are more controversial than they otherwise would be. One reason there’s so much fierce argument about the latest of late-term abortions — Should there be a health exemption? A fetal deformity exemption? How broad should those exemptions be? — is that Americans aren’t permitted to debate anything else. Under current law, if you want to restrict abortion, post-viability procedures are the only kind you’re allowed to even regulate.

No, the reason there’s so much fierce argument about abortion is that there are some among us who do not respect women and cannot abide the thought of permitting women to be their own moral agents.

And I love the way Douthat keeps saying he wants to “regulate” abortion. Again, abortion is regulated. It is regulated to maintain safe medical standards, for example.

What he’s really talking about is not regulating abortions, but regulating women.

If abortion were returned to the democratic process, this landscape would change dramatically. Arguments about whether and how to restrict abortions in the second trimester — as many advanced democracies already do –would replace protests over the scope of third-trimester medical exemptions.

Douthat is hallucinating. There will be no peace as long as there is a violent, extremist movement determined to ban all abortions, including first-trimester abortions, and as long as politicians cater to that movement. I would be very happy if we as a nation could come to some sort of firm decision about a gestational limit on elective abortion, as long as it’s not absurdly early and doctors are given broad discretion in matters of medical need. What’s standing in the way of that is the so-called “right to life” movement, not Roe v. Wade.

Do you want to talk “compromise,” Douthat? The only acceptable “common ground” is encouraging contraceptive use to reduce the number of unwanted pregnancies.

For a sane view, be sure to read Marie Cocco.

Nearly two decades ago, Bill Clinton said he believed abortion should be “safe, legal and rare.” The “rare” part was supposed to come from greater support for birth control and better sex education for young people.

Here is how the anti-abortion movement and its supporters in Congress responded: They carried out a campaign, which continues to this day, to curtail women’s access to birth control and severely limit teenagers’ access to comprehensive sex education.

Working first through the Republicans who took over Congress in the mid-1990s and then through the Bush administration, they blocked access to emergency contraception, birth-control pills that are taken after unprotected sex. They continue to promote state legislation and a movement among anti-abortion pharmacists to allow druggists to refuse to fill birth-control prescriptions. They wish to expand the current “conscience clause” allowing medical professionals who have ethical objections to abortion to cover birth control and abortion referrals for rape victims who might be pregnant. They spent billions on abstinence-only sex education that has been proved, time and again, to be ineffective at keeping teenagers from having sex.

When the original House version of the economic stimulus bill included a bureaucratic change to make it easier for state Medicaid programs to offer family planning services to poor women, Republicans caused such a fuss that Obama prevailed upon Democratic congressional leaders to remove it. His gesture won not a single Republican vote for the stimulus package in the House.

“The common ground is family planning,” says Rep. Carolyn Maloney, D-N.Y. Yet Maloney has spent much of the past decade in the forefront of congressional efforts to push back the right-wing assault on family planning.

It is time to stop hoping that somehow, through pleasing rhetoric or even genuine efforts to build bridges, those who oppose allowing women to control their reproductive lives can be persuaded to some other view. Continuing the pretense on this point isn’t naive. It’s cynical.

19 thoughts on “Ross Douthat’s “Stricter Legal Regime”

  1. Douthat is hallucinating.

    Here’s the thing. Ross Doubt-that or Douchehat is a not-at-all-stealthy Christofascist, misogynist puppy. His yappings are pointless, his carpet-widdlings too easy to mop up. I predict we’ll tire of batting him around very soon. He’s simply not that interesting to us older, wiser cats.

  2. Ok, let’s make all abortions illegal unless approved by a council of wise men – maybe throw in a token woman or two to make it look fair.

    Let’s then follow to the next logical step. If you are the biological father, as proven by DNA evidence, you must, by law, marry the woman and support the child. If you are already married, you must divorce your current partner and remarry, and pay any and all penalties and child support.
    After all, if the woman’s not allowed a choice why should you?

  3. “there are times when pregnancy and childbirth would place an unbearable burden on a woman’s life, and so women will seek abortions. Their reasons are as infinite as the details of their lives.”

    Exactly, just ask the thousands of ‘pro-life’ activists that have themselves snuck in the back door to get their own abortions, ask them why they made the painful decision to cross their own picket line and select to abort.

    And ask them why they went right back to their picket lines against the very services they themselves chose to receive.

  4. I deliver mail to a High School with a day care center. These kids have figured out how to get laid; they haven’t been taught how to keep from getting pregnant or avoid STDs. Never in the history of mankind have there been as many options to prevent pregnacy and prevent disease. No one needs that information and access to those options more than teens with raging hormones. When are we going to call those religious nuts what they are when they impede information and access?

  5. You should repackage this and submit it to the Times. It’s an excellent rebuttal to Douthat.

  6. c u n d gulag: Ok, let’s make all abortions illegal unless approved by a council of wise men – maybe throw in a token woman or two to make it look fair.

    Sounds vaguely like SCOTUS, but they’ve already ruled on this as I recall. Roe v. Wade, I think. If Douchehat (thanks, Joan) wants them to start hearing specific abortion cases, well gee, they’d be making policy and that’s bad, isn’t it?

    Sounds like what Douchehat (thanks, Joan) wants is a precise legal definition to cover all instances where abortion would be legal (“Should there be a health exemption? A fetal deformity exemption? How broad should those exemptions be?“). Something like those horrid death and dismemberment insurance policies they used to sell our parents when I was in grade school. ($200 for a lost finger; $500 for a lost arm; …) I think that would be the single most grim law ever written. And doesn’t the enforcement of such a large and detailed law lead to the evil of Big Government? Did I miss something, or is that still bad?

    On the balance, I believe that Douchehat (thanks, Joan) basically has his head up his ass. We’ll have to consult a panel of wise men to see if we’re allowed to remove it. Until then, up his ass it stays.

  7. Until this morning I’d managed not read a Douchehat column. But I’m very concerned about continuing attacks on women health care and upset by Dr. Tiller’s murder. I will (charitably) assign Douchehat’s ideas to youth and willful ignorance and not to a hatred of women and a desire to control women’s lives.

    I remember conditions before Roe v. Wade and we did have things like hospital panels to decide if an abortion was to allowed. It’s been noted in various places that there were hospital wards full of women maimed or killed by DIY abortions and back-alley procedures done by untrained people. And then there is the case of Sherri Finkbine. From the Wikipedia entry on Romper Room:

    In 1962, the hostess of the Phoenix franchise of Romper Room linked her own name with that of the ongoing controversies over abortion. Sherri Finkbine, known to television viewers as “Miss Sherri”, sought hospital approval for abortion on the ground that she had been taking thalidomide and believed her child would be born deformed. Being a community-minded woman, Finkbine made a public announcement about the dangers of thalidomide.

    The hospital refused to allow an abortion, apparently because of her announcement and its own fear of publicity. Finkbine traveled to Sweden for the abortion. Upon completion, it was confirmed that the fetus had no legs and only one arm.

    The incident became a made-for-TV movie in 1992, A Private Matter, with Sissy Spacek as Finkbine.

    Yeah, those panels really worked well. These were also the days before things like amniocentesis or ultrasound and other genetic tests. Why have these tests if you can’t use the results to guide health decisions and guide your life?

  8. The notion that the life of every person is worthy of legal protection just because it’s human life is relatively recent and has little to do with how homicide came to be a criminal act.

    And of course even this is in no way absolute in our society. There’s no punishment for killing men, women, children and no doubt fetuses in the most horrific ways imaginable as long as you call it a “war.” In fact, we have schools and training centers which instruct people how to do this, and we pay people and give out medals for that sort of thing. And then there’s the death penalty. We can kill those people too, even if we’re not 100% sure they’re guilty (oops!). You don’t see these “pro-lifers,” including Douchehat, having any moral problem with taking a human life in those circumstances.

  9. Excellent article, Maha. Definitely worthy of wide distribution.

    I agree with all the above comments, though I wouldn’t call him “Douchhat”, even though it is funny. There’s a bit of misogyny in the term. Douches…

    Other than that, the guy deserves as much disdain as we can all muster.

  10. Douchehat (thanks, Joan)

    Dave: I can’t take credit; far as I know, it originated with commenters on Wonkette.

    If you see Mr. D’s photo, “Douchehat” is pretty much the first word to pop into your head. He looks like he’s been old enough to shave for the past six months, but doesn’t know how.

  11. Canadian Reader: in the U.S. “douche” has become synonymous with “jerk.” Maybe it’s not used that way in Canada. I believe it’s non-gender-specific in French (doucher, “to take a shower,” according to my Cassell’s).

    Personally, I lean toward “Ross Doubt-that.”

  12. moonbat read my mind, or read this post before I did. So I second the motion about submitting it to the NYT letters department, and do edit it yourself lest they eliminate your most salient points. (Yes, I’ve had personal experience with this.) To reiterate moonbat again: it is a superb rebuttal to a man obsessed with abortion for reasons only he knows.

  13. An excellent takedown, Maha, but I wonder if this column even deserves wrestling with intellectually. It’s a prettified version of Ward Churchill’s “chickens coming home to roost” rationalization of murder. Arguing against abortion is one thing, but pinning even indirect responsibility for Tiller’s assassination on the Supreme Court and pro-choice supporters is utterly disgusting.

    I can’t believe the NYT printed it at all, much less days after the crime.

  14. A council of wise men sounds like a good idea to me… Of course they would have to be morally fit.. Maybe a council composed of morally upstanding guys like Newt Gingrich or Rudy Giuliani. Yeah, men that aside from thier unimpeachable ethics and morality also understand a women’s needs and sensitivities. We could borrow and alter the council name from the Afghani tradition and call it a Jerka.

  15. And this desire to have government decide who can get an abortion from the very same people who will oppose a government run healthcare program because, “I don’t want the government making decisions about my healthcare. That’s between me and my doctor.”

    Good Grief.

  16. For a somewhat contrarily different view here are my two cents. We have got to stop making this abortion issue so important that people vote for the POTUS and other positions based entirely on abortion. Abortion is a personal decision people unfortunately have to make on their own. My concern about civil liberties is pretty straight forward: government should not be involved with things that happen in your bedroom or doctors office. To me this means, smoking a little marijuana or other recreational drug should be out of the governments business, gay or lesbian relationships are not my governments problem, and women facing terrible choices associated with a dangerous pregnancy are out of their realm of concern. Goodness – to propose having men involved with this decision at all is preposterous. Until we as a society can choose to move away from these issues we are going to be stuck in this place politically forever.

  17. Crazy About Urban Planning — the problem with not making the abortion issue important is that we need pro-choice judges and politicians to protect us from anti-choice judges and politicians. If we progressives abandon the field, we let them win.

  18. Troops: Thank you for the encouragement. I condensed the post a bit and submitted it to the New York Times as an op ed, and of course it’s an extreme long shot that they’ll use it. But, as they say in the New York Lotto commercials, ya never know.

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