A Matter of Choice

Some time back there was a fellow in the news named Matt Dubay, a man who was claiming that Michigan's paternity law is unconstitutional because it didn't give him any 'choice' in whether to become a father.

The interesting thing about this suit is that it points out the inherent contradiction's in the current legal understanding of sex in the United States. On the one hand, a woman must be given a 'choice' as to whether or not to be pregnant after she has already conceived, and so abortion is legally mandated. On the other hand, a man is considered to have already made himself financially liable for any children conceived from the moment that he has sex. Thus, in the man's case, US law recognizes a traditional understanding of what sex is (an act that can naturally be assumed to be fertile) while in the woman's case sex is merely considered an act which may bring on a transitional condition in which a woman has conceived yet has not yet decided whether or not she wants to actually be pregnant.

Clearly, being pregnant (and caring for a child) is a far, far greater burden for a woman than for a man, so one can see how (thinking with its heart rather than its head) our country got itself into this position. But it's still a pretty untenable position to be in. Clearly, one must say either than sex is an act which has the inherent potential to create another human person, or it is not. One of these positions, of course, has the benefit of being true, while the other might be convenient for some, but is quite provably false.

However, while I do believe that the law should protect a newly conceived human being from her mother's second thoughts just as thoroughly as it does from her father's, it does seem to be that there is a hierarchy of claims to parenthood of the child in situations where a man and woman conceive outside of wedlock. Currently (at least from what female coworkers who have dealt with these situations tell me) if a man can prove that he is the father of your child, he has (unless this is somehow considered dangerous) both financial duties to you and visitation rights to the child.

This seems to me a little off. If a woman is willing to claim a certain man as the father of her child (and if there is any question about it, if tests prove her right) then it seems fair to me that he be both required to take some financial responsibility for the child and also allowed to have visitation rights or shared custody. However, if the couple have never been married and the woman wishes to refuse to acknowledge the man as the father of her child (even if biologically speaking he is) it seems to me to be reasonable to allow him to exclude him from the child's life, assuming she also does not try to seek money from him.

This may not be 'fair' in the sense that many use the term (as in, treating everyone equally regardless of whether that makes any sense) but it does seem to me to make a certain degree of sense.

Though on the devil's advocate side (or the libertarian side -- in this case they are one and the same) there is a certain sense in which allowing any demand for child support from a man to which one has never been married weakens the importance of marriage as an institution. If a woman need not be married to a man in order to be assured that she can hold him financially responsible for any offspring she may have with him, than being married before having sex is at least somewhat less urgent.

In the words of The Hitchhikers' Guide to the Galaxy: "To summarize the summary, people are a problem."

Abortion, Clean and Dirty

Via Matthew Lickona, this essay by Caitlin Flanagan in The Atlantic, a book review of The Choices We Made, in which women tell their stories of back-alley abortions before legalization:

In the middle of a hot New York summer 60 years ago, my mother and her two roommates were invited to spend a weekend at Fire Island. The three girls, recent nursing-school graduates, worked together at Bellevue and were sharing the rent on their first apartment. When a fourth young nurse of their acquaintance overheard them talking about the trip, she asked if she and her young man, a resident at the hospital, could borrow the apartment while they were away. In those days, lovers had to seize on those kinds of opportunities to be alone together. The apartment key was given to the friend, no big deal, and my mother and her roommates left for the beach.

They returned late Sunday evening, in a commotion of kicked-off shoes and set-down carryalls and switched-on lights. One of them pulled the string on the kitchen bulb, and her cry brought the other two. At first they thought a crime had taken place. Strictly speaking, one had: The boyfriend, a kid with a year or two of medical training under his belt, had performed an abortion on his girlfriend. Literally, a kitchen-table abortion. There was blood on the table and the floor, and there were wadded-up bloody towels in the sink.

Or, consider this:

The quality of the criminal abortion that a woman received depended largely on where she lived and how wealthy she was. Reports a woman who got pregnant while a student at Barnard in the 1930s: “The actual abortion was comfortable, clean, the absolute tops.” On the other hand, here’s a description of an abortion the actress Margot Kidder had as an 18-year-old in the mid-1960s. Her boyfriend, John, made the arrangements, “all done with great secrecy and a great sense of evil and sordidness”; the couple were told to check in to a certain hotel room where the abortionist, a woman, would meet them. After gaining their assurance that they would never go to a hospital if something went wrong, she began the procedure.

I was told to undress and lie in the bathtub, which I did. John was in the other room. There was no anesthetic, of course. She jammed something through my cervix. It was incredibly painful. I was screaming and crying; I had no idea what was happening to me. Then she used what looked like a douche to shoot some sort of solution up through my cervix.

The woman had filled Kidder’s uterus with Lysol.

The horror of both these stories is compounded by the fact that in each case the woman's boyfriend, the father, was present. What did John think, what did he do, when he heard his girlfriend screaming in pain and fear? Did the young nurse continue to see the boyfriend who performed an abortion on her and left the bloody mess for her friends to find?

The raw squalor of these stories stand in stark contrast to the carefully sanitized tone of this piece from The Atlantic dating back to 1965, in which "Mrs. X" writes in chillingly clinical, impersonal language about her decision to obtain an illegal abortion.

I set out recently to find an abortionist in the large Eastern city where I live. My husband and I are in our mid-forties and have three children. When I discovered that I was pregnant for the fourth time, my husband and I considered the situation as honestly as we could. We both admitted that we lacked the physical resources to face 2 A.M. feedings, diapers, and the seemingly endless cycle of measles, mumps, and concussions of another child. Years of keeping a wary eye on expenditures (a new suit for my husband every two years and one for me every five) had allowed us to set up a fund which we felt would enable the children to attend reasonably good colleges away from home if some financial assistance in the form of grants or scholarships could be obtained. Since my husband's income has reached its zenith, it was plain that one of the four would have to forgo all or part of a chance at higher education. The part-time secretarial work which I had been doing for some years to augment our income would have to stop since the revenue it produces would not cover baby-sitting fees. We have no rich uncles likely to make our children their beneficiaries. We have also had sufficient experience living to acknowledge that while the Lord will sometimes provide, He may be busy looking after somebody else when you need Him most.

...The operation was successfully concluded as scheduled. Forty-five minutes after I entered the doctor's office for the second time, I walked out, flagged a passing cab, and went home. Admirably relaxed for the first time in two weeks, I dozed over dinner, left the children to wash the dishes, and dove into bed to sleep for twelve hours. The operation and its aftereffects were exactly as described by the physician. For some five minutes I suffered "discomfort" closely approximating the contractions of advanced labor. Within ten minutes this pain subsided, and returned in the next four or five days only as the sort of mild twinge which sometimes accompanies a normal menstrual period. Bleeding was minimal.

Did Mrs. X ever regret her decision? Did she ever lay awake at 2 AM and cry, since baby wasn't there to do it for her? Did her children ever discover the true cost of their college education, and would they have thought it worth the sacrifice? And here once again, the father of the child is involved and is complicit in the abortion.

Mrs. X waxes as eloquent as she gets about the marvels of medical technology which moves abortion from a sordid, back-alley business to a efficient, sterile procedure:

My operation at least was performed with what seemed to me incredible proficiency, speed, and deftness, with sterile instruments designed for the purpose for which they were used.

But Caitlin Flanagan finds herself struck by another, newer kind of technology, one that puts a human face on the matter:

But my sympathy for the beliefs of people who oppose abortion is enormous, and it grows almost by the day. An ultrasound image taken surprisingly early in pregnancy can stop me in my tracks. In it is much more than I want to know about the tiny creature whose destruction we have legalized: a beating heart, a human face, functioning kidneys, two waving hands that seem not too far away from being able to grasp and shake a rattle. One of the newest types of prenatal imaging, the three-dimensional sonogram—which is so fully realized that happily pregnant women spend a hundred dollars to have their babies’ first “photograph” taken—is frankly terrifying when examined in the context of the abortion debate.

This "human face", this "beating heart", these "waving hands" were on the business end of that syringe of Lysol, or the gleaming scalpel. We must never lose sight of this fact. Clean or dirty, abortion has the same outcome: a woman is bleeding and a child is dead.

The Abortion Issue as Pressure Without an Outlet

I have an reflexive admiration for writers who writers who actively think through questions and come to conclusions which are not necessarily indicated by their initial commitments -- even though this effect is usually achieved by the writer disagreeing with me on at least some basic elements of worldview. Megal McArdle, who blogs for The Atlantic, is often one such, and she has a very interesting set of posts dealing with the murder of abortionist George Tiller.

The War on The War on Abortion

A Really Long Post About Abortion and Reasoning By Historical Analogy That is Going to Make Virtually All of My Readers Very Angry At Me

One More Post on Abortion

There are a couple more as well, but these struck me as the most fascinating. McArdle is basically pro-choice, and an economic libertarian, though in most ways was more an Obama supporter than a McCain one. But her take on this is event is a characteristically interesting one:

if you actually think late-term abortion is murder, then the murder of Dr. Tiller makes total sense. Putting up touching anecdotes about people he's helped find adoptions, etc, doesn't change the fact that if you think late-term abortions are murder, the man was systematically butchering hundreds of human beings a year--indeed, not merely butchering them, but vivisecting them without anaesthetic. I'm sure many mass murderers have done any number of kind things over the course of their lives, to which the correct response, if you're trying to stop the murders, is "so?"

Imagine a future in which the moral consensus has changed, and our grandchildren regard abortion the way we regard slavery. Who will the hero of history be: Tiller, or his murderer? At the very least, they'll be conflicted, the way we are about John Brown.

McArdle is the kind of writer who thinks historical analogies through, and she she sees she doesn't like:

But in this case, I think the analogy to slavery is important, for two reasons. First of all, it was the last time we had an extended, society-wide debate about personhood. And second of all, as now, there were structural political reasons that it was much harder--nearly impossible--to change slavery through the existing political process.

Listening to the debates about abortion, it seems to me that really broad swathes of the pro-choice movement seem to genuinely not understand that this is a debate about personhood, which is why you get moronic statements like "If you think abortions are wrong, don't have one!" If you think a fetus is a person, it is not useful to be told that you, personally, are not required to commit murder, as long as you leave the neighbors alone while they do it.

Conversely, if Africans are not people, then slavery is not wrong. Or at least it's arguably not wrong--if Africans occupy some intermediate status between persons and animals**, then there is at least a legitimate argument for treating them like animals, rather than people.

The difference between our reaction to the two is that now we know Africans are people. It seems ridiculous to think that anyone ever thought they might not be people. They meet all the relevant criteria for personhood in twenty-first century America.

But of course, those criteria are socially constructed. The definition of personhood (and, related, of citizenship) changes over time. It generally expands--as we get richer, we can, or at least do, grant full personhood to wider categories. Except in the case of fetuses. We expanded "persons" to include fetuses in the 19th century, as we learned more about gestation. Then in the late 1960s, for the first time I can think of, western civilization started to contract the group "persons" in order to exclude fetuses.

But that conception was not universally shared. And rather than leave it to the political process, the Supreme Court essentially put it beyond that process. Congress, the President, the justices themselves, have been fighting a thirty-five year guerilla war over court seats. Presidents try to appoint candidates who will support their theory of Roe, Congress strategically blocks change, and the justices refuse to retire until they know they will be replaced by someone who supports their side. To change the outcome, a pro-life political coalition would have to gain a supermajority in Congress for twenty years--long enough for a few liberal justices to die in office.

It is theoretically possible that this could happen, just as it was theoretically possible to come to some political accomodation over slavery. But a combination of supreme court rulings and the peculiar federalist structure of American meant that the only way for either side to gain decisive results was violence. At every turn, the pro-slavery forces no doubt slyly congratulated themselves on their political acumen, while also solemnly and sincerely believing that they preserved an important right. But they made war inevitable.

If you interpret this murder as a political act, rather than that of a lone whacko, than this should be a troubling sign that the political system has failed. So why do so many people think that the obvious answer is simply to more firmly entrench laws that are rightly intolerable to someone who thinks that a late term fetus is a person?

And yet the reaction she sees among many fellow urban elite pro-choicers seems to run counter to this historical indication:

Still, I am shocked to see so many liberals today saying that the correct response is, essentially, doubling down. Make the law more friendly to abortion! Show the fundies who's boss! You know what fixes terrorism? Bitch slap those bastards until they understand that we'll never compromise!

Well, it sure worked in Iraq. I think Afghanistan's going pretty well, too, right?

Using the political system to stomp on radicalized fringes does not seem to be very effective in getting them to eschew violence. In fact, it seems to be a very good way of getting more violence. Possibly because those fringes have often turned to violence precisely because they feel that the political process has been closed off to them.

We do not punish murderers by changing large sections of American law. We certainly don't punish them by, in essence, shouting "nya, nya, nya, we're killing more babies!!!!"* We punish murderers by sending them to jail, where they belong. If any of these changes to current law are justified, they're justified on their own merits, not because they'll piss off Tiller's nemesis.

* I understand that those advocating such changes do not perceive themselves to be saying this. But if you're trying to punish the gunman, and deter others, it's their perception that matters. And what bothers them is that they think you're killing more babies.

I think that McArdle rightly identifies why abortion has remained such a toxic issue for so long -- Roe used judicial fiat to create an abortion regime significantly more liberal than that of any country in Western Europe, and did so in such a way as to put the issue effectively beyond the democratic process. In doing so, it closed the pressure valve that democratic action usually provides to out polity. If you feel passionately about a topic, you can campaign to have the law changed. Except that around abortion, our ability to do that is signficantly reduced because we either need to flip the Supreme Court majority (and even so get only a potentially temporary victory) or pass a constitutional ammendment, which requires a massive super-majority of national support. This removes the ability to compromise, and when the ability to compromise is taken away, it necessarily empowers the extremists. As pro-lifers, we may not like the anology, but I don't think her comparison to the Middle East is entirely misplaced:

My argument is that abortion, like slavery, is becoming in this country an issue upon which people have no reasonable political recourse. I'll go further, and say that the process by which 7 judges enforced their consciences on the American public was itself borderline illegitimate; it was first, not in their proper job description, and second, a bad way to run a government.

Yes, in theory pro-lifers could pass an amendment. And in theory, the Palestinians have access to the political process too, as right wing blogs often point out--all they need to do is elect a coherent government that Israel is willing to negotiate with. Most Obsidian Wings posters and commenters don't have much trouble discerning that a sufficiently remote possibility of political access is not political access, and that the individual Israeli actions which might be justified in a democratic government acting on an enfranchised population, are problematic when Israel does them to the Palestinians. After all, we bulldoze peoples' homes, too--we just call it eminent domain.

Historical analogies can only take one so far, but I think that the comparison that McArdle is making in regards to slavery and abortion is good enough that it ought to be in the interests of all Americans to get the issue back into the democratic process and allow it to be fought out with ballots rather than bullets.