Ross Douthat Makes No Sense

Ross Douthat Makes No Sense

Ross Douthat has a very peculiar column on abortion in the New York Times. In it, he asserts, falsely, that “under current law, if you want to restrict abortion, post-viability procedures are the only kind you’re allowed to even regulate”: in fact, it is possible to regulate abortions before viability, and the Supreme Court in Casey upheld precisely such restrictions. He claims, also falsely, that “Americans aren’t permitted to debate anything” besides post-viability abortions (which would surely come as a surprise to the First Amendment), and that abortion needs to be “returned to the democratic process.” As Freddie at the League of Ordinary Gentlemen notes:

“Setting aside the banal fact that the judicial system is a part of our democratic process, there is a clear, straightforward and well-known way to overturn Roe v. Wade — pass a constitutional amendment criminalizing abortion. That’s how you override Supreme Court decisions; that’s how Dred Scott was effectively overturned. That’s how the federal income tax was passed. There’s a method for overturning Supreme Court law you don’t like, it’s well known, it’s time tested, and it’s as open to abortion foes as it is to anyone else.”

But what’s really odd is his reasoning. Try, if you dare, to make sense of this:

“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.

As a matter of moral philosophy, this makes a certain sense. Either a fetus has a claim to life or it doesn’t. The circumstances of its conception and the state of its health shouldn’t enter into the equation.

But the 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.”

First of all, the claim that “where there is an exception, there cannot be a rule” does not make sense as a matter of moral philosophy. If it’s possible to distinguish clearly between the exceptions and the other cases, there’s no problem at all with having a rule. This is why we can have such rules as: No parking in a handicapped spot, unless you have a handicapped badge. When it’s not easy to tell the exceptions from the rest, whether or not it’s OK to have a rule depends on how bad it is to miss those exceptions, and how bad it is not to have a rule.

There are surely circumstances in which it would be fine to drive on the left, but we do not normally think that these should prevent us from having a rule about which side of the street to drive on. On the other hand, the existence of people who have been falsely convicted of capital crimes is a much more compelling argument against capital punishment: even one mistake is a horrendous injustice.

More importantly, consider this sentence:

“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.”

How on earth is that supposed to be evidence for this?

“Either a fetus has a claim to life or it doesn’t. The circumstances of its conception and the state of its health shouldn’t enter into the equation.”

The whole point of bringing up cases of rape and incest is to argue that the circumstances of a fetus’ conception are relevant to the question whether abortion should be legal. If we were convinced that a fetus was a full person, they wouldn’t be: we do not think it’s OK for a mother to kill her five year old child on the grounds that it is the product of rape or incest. Likewise, the point of bringing up the fact that “babies can be born into suffering and certain death” is to say that the state of the fetus’ health is relevant, not that it isn’t.

What Douthat wrote makes about as much sense as saying: “The argument for not hitting yourself on the head with a hammer is that it would cause you a whole lot of pain. As a matter of moral philosophy, this makes a certain sense: hitting yourself on the head with a hammer is either right or wrong regardless of how it makes you feel.” To which the only possible response is: Huh???

Douthat’s column begins with a rather lovely meditation on the hard cases that George Tiller had to deal with: abortions on “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.” He doesn’t actually say much about how we should deal with these cases, other than the part I already quoted: the law “can take account of tragic situations without universalizing their lessons.” How it should take these cases into account, and why it shouldn’t universalize their lessons, are left shrouded in mystery.

And yet, somehow, he ends up here:

“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.

The result would be laws with more respect for human life, a culture less inflamed by a small number of tragic cases — and a political debate, God willing, unmarred by crimes like George Tiller’s murder.”

Because, as we all know, giving terrorists what they want is the surest way to prevent more terrorism.

There are arguments for making abortion illegal. I don’t accept them, but they exist. Douthat should try making them sometime.