Moderate by Moderate Left
The problem with the cult of moderation is that it requires there to be two extremes equidistant from the middle line of wisdom, or else it must define the two opposing groups as the extremes, no matter where they actually lie. To present his — certainly welcome — “compromise” position of sending abortion policy back to the states, Radly Balko must write as if the current advantage to one side is not relevant in comparing the two and as if neither of the two supposed extremes has ever promoted such a solution.
Consider this instance of ostensible even-handedness on his part:
Hendershott criticizes the pro-choice movement for trying to suppress information that might injure its cause. In one particularly interesting passage, she discusses General Electric’s remarkable “4D” ultrasound imaging system, a technological innovation that renders striking images of fetuses in the womb. In 2002 G.E. marketed the product in a national campaign aimed at young women, showing expectant mothers bonding with their unborn children while Roberta Flack sang “The First Time Ever I Saw Your Face.” The technology was enormously popular. 4D ultrasound stations even began to appear in shopping malls.
Abortion rights proponents leapt into action, fearing that too-real images of unborn fetuses might cost them popular support. After pressure from pro-choicers, G.E. pulled the TV ads, pulled testimonials from its website, and began marketing the technology solely for medical purposes. Several states banned the use of ultrasound for “nonmedical” purposes, including New York, where then–Attorney General Eliot Spitzer subpoenaed 34 anti-abortion crisis pregnancy centers for “practicing medicine without a license” because they used the technology.
The 4D controversy is a striking example of how one side of the abortion debate used the law to suppress the flow of information to expectant mothers out of fear of what that information might do to their cause. But Hendershott has little to say about similar efforts on the anti-abortion side. Pro-life lawmakers, for example, repeatedly have attempted to prohibit physicians who receive federal funding from even discussing abortion with their patients, particularly at overseas military hospitals.
On one side, a major private company was cowed into minimizing the marketing of an “enormously popular” product, and an attorney general undertook a campaign against the product’s users. On the other side? Some lawmakers “repeatedly have attempted” to attach strings to federal funds to doctors. Why, the two sides are practically mirror images! (Perhaps in a funhouse.)
The reality is that the federalist argument as been an organic part of the pro-life movement for at least as long as I can remember. That is why there is so much emphasis on simply overturning Roe v. Wade. Because of his desire to cleave a middle road, however, Balko insists that no mere erasure of the ruling would suffice:
For such a scenario to emerge, the Supreme Court would need to do more than overturn Roe. It would have to make it clear that the regulation of abortion is a police power reserved to the states, and that it will no longer entertain attempts to override abortion policy made by the states. That approach wouldn’t be perfect, and it wouldn’t satisfy the hard-core activists on either side of the debate, but it would be far preferable to what we have now. As it stands, the Supreme Court is one vote from overturning the decision, with two pro-Roe justices — Ginsburg and John Paul Stevens — generally considered the members most likely to retire.
Unfortunately, judging from the Court’s recent ruling in Gonzales v. Carhart (which upheld a congressional ban on “partial birth” abortions) and the fair-weather approach to federalism taken in cases like Gonzales v. Raich (which upheld a federal ban on medical marijuana), a decision overturning Roe probably would leave the door open to a national ban. The divisive debate would continue.
Divisive debate would continue, no doubt, upon the striking of Roe, but the method of abortion’s nationalization must be considered: Only the judiciary can create laws without broad political wrangling. That is what makes it such a dangerous body once it becomes a tool for activism. The Supreme Court does not need to find compromise positions across the spectrum of opinion on a particular issue in order to decide its cases; it merely dictates the law.
The medical marijuana reference exposes Balko’s inclination to make immoderate equivalencies: The legislative process came first, with the Supreme Court merely permitting it to stand. There’s quite a difference — which one might call “democracy” — between legislative activism and judicial, and the same sequence of events when it comes to abortion is unlikely.
The fact that pro-life groups are constitutionally barred from significant successes at the state level has created incentive for them to act nationally. Were abortion to become a state matter again, the incentive would shift toward activism at that level. There would, no doubt, be a concerted push on both sides for the national solution that each favors, but here, it is the issue’s divisiveness that ensures that it will stop at the states. At least in the near term, the only consensus that is likely to emerge via the democratic process is that the federal government oughtn’t meddle.
And that’s fine by me. I believe that the allowance of abortion is a horrible moral stain on our society, and I will argue against it at every tier from the personal to the international. At the same time, I believe in the process of public discourse and gradual change as the most effective way to minimize the stark manifestation of evil in our society. When the abortion debate levels out into a lower-key cultural battle for hearts and minds, with local victories achievable through discourse, grace can begin to show the maggotted bride called self-deception for what she is.
Let’s assume that the Supreme Court were to retreat from the “reasoning” (cough, cough) in Roe and were to open the door for state-by-state regulation of abortion (I believe that the seeds have been planted for this result and that C.J. Roberts has “watered” them in a number of different ways . . . more later on that, maybe).
Are we ready, at the state level, to persuade state legislatures to ban abortion on moral grounds?
At the intellectual and legal level, the pro-life movement has exerted so much energy over the past thirty years on the federalism argument that I wonder how prepared we are to make and WIN the moral argument in fifty jurisdictions?
And if we really believe the federalism argument — that this matter must be left to the states — why would we support a FEDERAL ban on partial birth abortion?
Don’t get me wrong, I think abortion is a gross evil and must be banned in all but the most extreme circumstances.
But I do worry about “leaving it to the states” . . .
The real answer is, as Pres. Bush said 8 years ago when he was a candidate, that the pro-life movement needs to work to change a lot of hearts before we will ever achieve a ban on abortion.
My question is, if we win the federalism argument and get rid of Roe, are we ready to change the hearts necessary for abortion bans in every state legislature?
That’s what I wonder . . .
My sense is that it will be easier to persuade people in a context that is removed from the national races. Right now, abortion is bound up with every other quasirelated issue (related to everything from sex to medicine) on a candidate-by-candidate basis.
With regard to partial-birth abortion, the procedure is just so clearly a travesty that there was sufficient national will to ban the procedure. I mean, even look at Radly Balko’s description of it in the above-linked article:
Similarly, if the efforts became pointed at the states, there’s a chance that the consolidation of political will would not exist on the pro-abortion side to force, say, GE to roll over with its 4D technology, and it is exactly the effect on hearts and minds that led them to fear the technology so.