The Centrist Pro-Choice Position Is On A Collision Course With Itself

Yet another argument about abortion by William Saletan. Whether it deserves more time than Elton gave it is I suppose debatable, but I can’t resist. A lot of his points and rhetorical feints are familiar, so I’ll dispense with them quickly, and get to the core of his argument. We first of all see his familiar tactic of talking a lot about contraception to sell his arguments about second-trimester abortions; as I wrote recently about this kind of bootstraping, the idea is to “weld attractive policy proposals to moralistic finger-wagging, and pretend that the latter is somehow necessary to achieve the former although there’s no logical connection between the two.” Since as far as I can tell no pro-choicers of any influence oppose abortion-rate-reducing policies like widely accessible contraception and rational sex ed, the value-added of these arguments is zilch. Once you boil off all the diversionary broth, the core of his argument is his claim that “[m]aybe the best way to end the assault on Roe is to make it irrelevant.” So let’s talk about his apparent claim that reproductive rights should be limited to first-trimester abortions. There are many problems with this argument, which recur constantly in pro-choice attempts to compromise with anti-choicers. Let’s go through them one by one:

• The Exaggerated Hope of Technology. Saletan approvingly cites Sandra Day O’Connor’s claim that Roe v. Wade‘s now-abandoned “trimester framework” (which prevented the state from banning abortions prior to roughly the end of the second trimester, to coincide with viability) is “on a collision course with itself.” But there is very little reason to believe that viability is anywhere close to being pushed for enough back to affect many second-trimester abortions. For the most part, the survival rates of fetuses in the 23-8 week period (let alone 13-22, when Saletan apparently would be OK with the state banning abortions from being performed) is still very low, and not getting a great deal higher: “Fewer infants in all ELBW [extremely low birth weight (1000 g~23-28 weeks] subgroups are dying, compared with a decade ago, and the improvement has been most prominent for BWs of 450 to 700 g, at which mortality was and remains to be greatest. 2) This progress seems to have slowed, or even stopped, by the end of the decade.” Technology does not seem anywhere close to making second trimester abortions “obselete” even accepting Saletan’s terms. But that’s another issue: there is an additional problem with the concept of vialbility itself. As ema writes via email, “An abortion terminates a pregnancy, not a fetus. There’s no free-floating unborn American child in utero.” Saltean largely sideteps these questions by asserting that second-trimester abortions are becoming “harder to stomach.” This claim is more projection than evidence–“As in the past, approximately 88% of all abortions for which gestational age at the time of abortion was known and reported adequately (44 reporting areas) were obtained at <12>13 weeks’ gestation) have varied minimally since 1992“–but is also beside the point. Keeping second trimester abortions safe and legal does not require any woman to obtain one.

• Sidestepping The Difficult Legal Issues. But even if we assume arguendo that second-trimester fetus will soon become “viable” in the traditional sense, Saletan completely ignores the difficulties in writing the state’s arguably greater interest in regulation into a workable law. As Saletan notes, abortions after the early second trimester represent a small fraction of those performed. But more importantly, as the pregnancy advances, a smaller percentage of abortions become elective, and this is the key issue with the Roe framework. In cases where an abortion is necessary to save the mother’s life, even the most stringent abortion bans contain an exception, even for late-term abortions. But what about cases where a woman would face grave health risks that aren’t life-threatening? Roe, as many of you know, permitted bans on abortions for post-viability fetuses, but required a health exemption (a requirement which is likely to be jettisoned soon, although Saletan doesn’t seem unduly bothered by this.) To pro-choicers, this is the best solution: permit doctors to exercise their medical judgment and act in the best interests of their patients. Pro-lifers generally object to this, however, objecting that this permits too many abortions they consider elective. And, in a sense, this is right–given that the law is a crude instrument, you have the choice of banning abortions even in cases where a mother faces dire (but non-life threatening) health consequences, or accepting that a few women may get elective abortions after fetuses are arguably “viable.” Saletan, however, completely ignores these concerns, which are the main focus of disagreement. Like many pro-choicers, I can accept in the abstract that the state has a greater interest in regulating post-viability abortions, but in practice I don’t trust legislation–almost always passed as part of a Trojan horse project to restrict abortion access–to do it in a way which protects access to later-term abortions that present a danger to a woman’s health. Which brings us to the bigger problem:

• Ignoring How Abortion Law Works In Practice. This, more than anything, is I think the defining characteristic of the Vichy pro-choicers. Saletan argues that ideally we should be doing everything we can to ensure that most abortions occur in the first trimester. But there’s an obvious problem: all of the regulations generally favored by the “abortion is icky and immoral but should remain legal in the first trimester” crowd quite clearly work against this goal. (In fairness, Saletan may not support all of them, but once–as he is arguing–you whittle abortion rights down to saying only that the state can’t ban abortion in the first trimester, an increasingly complex web of regulations in most states is virtually inevitable.) All of the regulations commonly favored by the public make it harder to obtain first trimester abortions; some, like waiting periods and consent forms do so directly, and because the cumulative sum of these regulations generally makes it harder for clinics to operate, they make it even harder to obtain abortions in a timely manner. (See, for example, Mississippi, where because of the dense layer of regulations second trimester abortions among women who rely on the in-state provider are up more than 50%). So, in fact, the “centrist” pro-choice position is on a collision course with itself. Moderate pro-choicers like the idea of emphasizing keeping first-trimester abortions legal, but in doing so the grease the skids for regulations that make them much harder to obtain for many women. If we want more first-trimester abortions to ease the moral qualms of the Saletans of the world (although frankly I think they deserve no weight in policy outcomes at all; it’s the moral judgements of the woman carrying the pregnancy that matters), the solution is to keep abortion a decision between a woman and her doctor with a minimum of state regulation. Saletan’s acceptance of many anti-choice premises inherently undermine his dream of a compromise made possible by technology.

In addition to all these problems, I also have broader issues with the attempt to find some magic compromise on the abortion position. It’s not just that such compromises have a distinct tendency to magically coincide with a pundit’s a priori position on the abortion issue, or that the various strands of the compromise position are both incoherent in theory and generally work at cross-purposes with each other in practice. I’ve made this argument at greater length before, but I’m baffled by the people who think that there must be some way of finding a middle ground even between clearly incommensurable positions, who just refuse to accept that conflict is at the heart of politics. I don’t think volunteering to give up significant ground to people who refuse to accept a woman’s fundamental right to reproductive freedom is either theoretically desirable or good politics (focusing on the small number of elective second-trimester abortions is playing on the anti-choicer’s field.) And it tends to lead to this kind of sloppy ice-cream-castles-in-the-air reasoning, assuming that technology can somehow solve intractable moral conflicts. This is a fool’s errand.

[Most of the links to data in this post were provided by ema, an ob-gyn who blogs at The Well-Timed Period, an invaluable resource.]

UPDATE: More about the “viability” dodge from Mahablog here and and Amanda here.