An Abortion of a Law

The last thing I want is for this blog to become another battlefield in the abortion wars. While I recognize the critical importance of the issue to many on both sides of the debate, the issue itself doesn't resonate deeply with this particular middle-aged male. I don't intend to even declare my position here. Some folks who know me may think they have reasons to guess one way; others may guess the other way; I ain't saying either way. I find that the mere mention of the issue tends to banish clear thinking from the conversation.

And that's exactly why even though I don't want to talk about abortion, I do want to talk about South Dakota's new abortion law, which passed the state's senate last Wednesday and appears on its way to full passage and signature.

The emotion that surrounds abortion has long distorted politics and governance in this country in ways that extend far beyond the boundaries of this one issue. It polarizes the both the electorate and our leaders (and office-seekers), leading to votes and appointments and decisions that are driven by the abortion issue but whose impact is much broader. For instance, how many religious folk who fundamentally agree with Democrats on issues of social justice nevertheless feel morally compelled to vote against the pro-choice party? And given the closeness of the last two presidential elections, how difficult is it to imagine that people voting against their own broader principles because of this one issue swayed the outcome? How many times has the selection of judges and high-level officials been colored by the abortion "litmus test"? (I believe that metaphor is now mandated by federal law.) How often has our national debate about important public policy issues such as medical research, health care, education, public hygiene, etc., been hijacked by abortion concerns, often things that are trivial and peripheral to the real issue.

This is not just a rant about the current Republican administration, either: For the more than 3 decades since Roe v Wade (and no doubt for years before that), abortion has provided the axis around which American politics has rotated... too often, to the detriment of the other legitimate business of the people.

The thing is, the most committed people on both sides might think it's right and just that this issue dominates our politics, because fundamental principles involved are so important. But this new law, and the arguments around it, hint that neither side is truly committed to their ostensible principles. Here's what I mean:

The principle on which the anti-abortion position stands is the assertion that a fetus is a human person, and that each abortion is a homicide, and that a public policy of legal abortion constitutes a horrifying holocaust. OK, let's follow that logic.

South Dakota law defines first-degree murder -- a Class A felony -- in part this way: "Homicide is murder in the first degree when perpetrated without authority of law and with a premeditated design to effect the death of the person killed or of any other human being...."

...and an abortion is clearly a "premeditated design" to terminate the life of a fetus. If we stipulate that a fetus is in fact a person, and remove from abortion the "authority of law," it follows as night follows day that an abortion is an instance of first-degree murder as defined by South Dakota's existing law. Further, in South Dakota a Class A felony is punishable by death, if certain aggravating circumstances obtain:

"Pursuant to §§ 23A-27A-2 to 23A-27A-6, inclusive, in all cases for which the death penalty may be authorized, the judge shall consider, or shall include in instructions to the jury for it to consider, any mitigating circumstances and any of the following aggravating circumstances which may be supported by the evidence:
. . . .
(5) The defendant caused or directed another to commit murder or committed murder as an agent or employee of another person;"

That is, as either the instigator or the so-called triggerman in a murder for hire... which, if you stipulate that the fetus is a person, means both the mother and the doctor in an abortion scenario, not to mention possibly any third party who knowingly paid for the abortion. Another aggravating circumstance is if...

"(6) The offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim. Any murder is wantonly vile, horrible, and inhuman if the victim is less than thirteen years of age;" [emphasis added]

...and a fetus is certainly less than 13 years old. Once you declare, as a matter of law, that a fetus is a person, it's logically impossible to view in abortion as anything other than a murder-for-hire conspiracy... a serious crime punishable by serious sanctions, up to and including death, against all members of the conspiracy. So what does the proposed South Dakota law provide? Well, it provides for a maximum sentence of 5 years in prison for the doctor... and no punishment at all for the mother.

Excuse me? 5 years max for a hit man?!? Hired to kill a baby?!? And the person who hired him walks?!? The anti-abortion movement wants us to believe that a baby has the same fundamental rights 5 months before it's born as it does 5 months after, but the sponsors of this law clearly don't believe that: Try to imagine the outcry if anyone suggested a mother could hire a hit man to kill her 5-month-old infant and get off scott free. And that even the hit man could get no more than 5 years in prison. No, this law fundamentally fails to do justice to the very principle that is its ostensible justification... and in so doing, it casts doubt on whether its supporters actually believe what they claim to believe. Are anti-abortion activists, their opponents might wonder, really all that concerned about defending life, or is it all just a hook on which they hang their attempts to enforce a conservative public policy regarding sexuality?

But before the abortion-rights folks start feeling smug, let me note that there's plenty of sauce for both the goose and the gander here. Consider that the arguments against the South Dakota law began with complaints that the law lacked exceptions for rape or incest, and that it lacked a sufficiently broad exception to protect the mother's health. I confess I've never understood the rape-or-incest issue: If the fetus is not a person, all talk of exceptions is moot, but if it is a person, well... at what point did we decide it was alright to kill a child as long as you can show that the child's father is a rapist? The very idea that the sins of the father should be visited on the child even unto death seems positively medieval. Yet abortion rights activists often base their attack against proposed restrictions on the technical question of exceptions, and in the process risk implicitly conceding the underlying proposition. In effect, they're arguing for a law that defines abortion as killing but includes sufficient loopholes that anyone who wants to can get away with murder.

I'm sorry, but on the question of exceptions, the South Dakota law has it right, at least in terms of internal logic: Once you stipulate that the fetus is legally equivalent to a born child, you logically can't allow any exceptions other than to save the life of the mother. As a society, we recognize individuals' right to kill to save their own lives, but not to save themselves from embarrassment or inconvenience or even non-life-threatening illness. Can you imagine anyone saying it was OK for a mother to kill her 5-month-old sick infant to avoid catching the flu? Or to avoid the psychological pain of being constantly reminded of the man who raped her? Surely not... yet these are precisely the sort of mother's health exceptions that invariably come up in these debates.

Look, I understand that politics is the art of the possible, and at some level these are positions of political pragmatism. Abortion foes know people won't stand for a law that treats friendly small-town OB/Gyns like mob hitters and sweet college girls-next-door like stone killers. Abortion rights activists similarly realize that large segments of the country can't reconcile themselves to a totally permissive legal regime. So both sides make compromises, working for the future, and for a law that embodies as much of what they believe in as they can get.

The problem is that when your position is grounded in absolute principle, any compromise at all invalidates your whole argument. At the core of this debate, a fetus either is or is not a person. To say, on the one hand, that it is a person but you're willing to negotiate away a big chunk of its personal value to get your way or, on the other hand, that it's not a person but you're willing to pretend it's sort of one to mollify your opponents... well, either way, it's as ridiculous and unjustified as counting slaves as 3/5 person was. (Note that I do think it's logically and morally possible to assert that we can't know for sure whether/when a fetus is a person, and then argue about what sort of notice, if any, the law should take of that uncertainty. But in my experience, neither side ever takes this tack.) For some issues -- and this is one of them, I think -- the politics of "whatever works" just doesn't work.

Aside from the failure of either the law or its opponents to honor their ostensible underlying principles, there's another thing about this story that should concern even people who aren't deeply concerned about abortion: It's happening in South Dakota, and it's happening now.

The abortion ban law passed the South Dakota senate with just 23 "ayes." Earlier, there were 47 yes votes for the house version. Presuming the bill makes it through conference and the governor signs it, that'll be a total of 71 people -- just 71 citizens of a sparsely populated state (ranked 46th in population, with only one city of more than 100,000 people) -- who will have put their names to a measure that might well change the lives of nearly 300 million Americans. Why South Dakota? I can't prove it, but it's not hard to imagine that an out-of-the-way (and not incidentally, out-of-the-media-glare) state with a small, accessible legislature makes a perfect launching point for a stealth-bomber mission against "settled law."

I'm no constitutional lawyer, but even a layman can see that the South Dakota law, as written, is unconstitutional under Roe and a raft of supporting decisions, including some recent ones. So why bother? And why now? Did South Dakotans experience a wave of fervor around the issue? Maybe so, but it's equally probable that somebody noticed the membership of the U.S. Supreme has changed just a skosh recently. Most of the press accounts about this legislation frankly admit that its purpose is to provoke a showdown over Roe.

Now, there's an honorable tradition of creating test laws or test cases to effect change in the legal landscape... but in this case, we're talking about a tiny number of legislators representing a (relatively) tiny number of voters tipping over the first domino, and all the other dominos will fall within the courts, out of reach of voters in the rest of the country. I'm not sure there's fundamentally anything wrong with that, but it makes me distinctly uneasy. I would think other concerned non-South Dakotans -- on both sides of the issue -- would feel similarly queasy.

I guess we'll learn earlier rather than later what to expect from our remade Supreme Court. That's one thing....



Unit of the Day: galileo, the CGS unit of acceleration, is used primarily by geologists to measure tiny local variations in surface gravity due to geologic formations. Abbreviated Gal, the galileo (yes, it's named after that Galileo) is equal to an acceleration of 1 centimeter per second per second. As small a quantity as that is (approximately 0.0010197 g), it's still large compared to the variations geologists are trying to measure; they typically work in milliGals.