That Alabama law and that Illinois law

You may have heard that Alabama has passed a statute that would almost categorically outlaw abortion. You may have heard that Illinois has passed a law that affirms the right to abortion. The passage of both laws and the very real possibility that Roe v. Wade may be overturned, remind me why I'm pro-choice and why being pro-choice disturbs me greatly.

When I say I'm pro-choice, I mean that I support women's access to legal abortion at the very least in the first two trimesters. While I believe it may be wise for a doctor to weigh in on the decision, especially after the first trimester, I would not require a doctor's permission [see note #1 below]. I support providing state funds to provide financial assistance to women who may wish to have an abortion but cannot afford it.

Two frames

When I think of why I'm pro-choice, I usually frame the reasons in two ways.

Frame #1: Policy

I would not trust the state to get it right. Maybe I would trust it if I wanted to outlaw all abortion, but I think, and most people seem to think, there should be at least some exceptions, and I don't trust the state to draw the appropriate distinctions. I also fear what type of punishments the state might exact and how inequitably the state will likely mete out such punishments. I'll add to that the reality that outlawing abortion will result in a good number of people seeking abortions anyway, but in much less safe circumstances [see note #2 below].

Frame #2: A woman's prerogative

I believe that a woman has a special prerogative to terminate the life of the unborn person inside her. The unborn has an immediate and direct claim on her body, and as long as that life has such a claim, the woman can do what she wants with it and neither I nor the state has any legitimate authority to interfere.

That's as close as I can get to a "moral" (as opposed to merely "policy") stance in favor of the pro-choice position. I say "terminate the life of" because I just can't shake the belief that the unborn is alive and a person with its own self interests. I'm not the only pro-choicer to believe that. Em Carpenter, an author at Ordinary Times who also has a solo blog, has adopted a substantially similar position (and please read the whole thing if you have time):

....by the time at which the earliest abortions are usually performed, there is a heartbeat. It is alive, at that point. No, it cannot survive unsupported, but this is a poor criteria for what constitutes “alive”. People on ventilators are alive. People who require medication, equipment, or assistance in feeding in order to live are alive. This tiny thing is alive. An abortion ends this life. It is homicide.

“My body, my choice” is a popular argument. I agree with this statement, but it is a poor argument for abortion rights. Yes, a person has the right to make decisions about his or her own body. His or her OWN body. The dishonesty here is in the pretense that only one body is being affected by an abortion. This other body is using the woman’s body to live, but it is its own body, nonetheless. An abortion is a decision affecting two bodies. Be honest about that, and then we can discuss why it is still a legitimate choice. (Consider this: in no other situation is a person required to sacrifice his or her body or bodily autonomy for the good of another....)

Em's point is mostly my own. I'll also add that I suspect most pro-choice people deep down do agree with Em's (and my) premise that the unborn is alive. They don't approach the choice for abortion flippantly or in disregard for ethical concerns. For most of them, I suspect it's either a conflicted choice or at least a somber choice, not a "no apology, no regrets" choice. I say "suspect" in this paragraph because I don't know. I am operating under my impressions and a few anecdotes and nothing more. But if you, my reader, are pro-choice, I ask that you be honest with yourself (not with me: you don't have to justify your views to me) about whether you really disagree. [see note #3 below]

Frames, not arguments

I call the above points "frames" and not arguments. I don't offer them in the hope that they will convince someone who doesn't already agree with my conclusion. They're more like intuitions that help explain why I adopt the pro-choice position. These frames don't consider potential counterpoints. For example, I'm ignoring the question of viability.

One "frame" I don't mention (because I'm not sure it counts as a "frame") is my own perceived self-interest as someone who doesn't wish to have children. Of course, I'm a guy, so the stakes are different and lower for me, and as a guy, the choice definitely isn't mine to make. But I mention this self-interest because I want to recognize how closely my pro-choice position matches with my own convenience. I also need to acknowledge my uncomfortable suspicion that the two "frames" I mention above might to some indeterminate degree be rationalizations for what is essentially a selfish position.

The Alabama law and a new frame

The Alabama law brings to light a new frame. According to the AP News account,

The law will make performing an abortion at any stage of pregnancy a felony punishable by 10 to 99 years or life in prison.

The bill contains an exception for when the pregnancy creates a serious health risk for the woman, but not an exception for rape or incest.

In some ways, the law is almost a caricature of what pro-choicers fear, or it would be a caricature if it weren't a real thing. (It's worth noting that the AP News article also notes televangelist Pat Robertson, no friend of abortion rights, believes the law goes too far.)

For me, the law is notable for what it suggests about the prospects for overturning Roe v. Wade and for how it reminds me of the issues at stake in the abortion debate. It seems clear that an anti-Roe majority is forming on the Supreme Court. Whether the Court will overturn the decision is less clear. It will less likely do so when faced with a law like Alabama's than when faced by a less draconian law.

But the Alabama law does make one thing clear. I'm not going to tell a woman she must carry a child to term when she doesn't want to. I'm also not going to endorse the state telling a woman she must carry a child to term, either. I have the image in my mind of someone who's uncertain about her prospects for the future, whose life will be uprooted or perhaps put in danger by an unplanned pregnancy, and it just doesn't seem like my place to interfere.

That is framing, not an argument. In a sense, it's a doubling down on the position I've had for quite a while. It's different, though, because the stakes seem more immediate than before. And if I'm also honest, I'm bringing some ageist, condescending assumptions to the fore. The woman I have in mind when I say "I'm not going to tell a woman she must...." is usually a very young woman who may have made some poor or less-than-informed decisions and not one, say, in her 30s. In other words, my own assumptions here are a bit paternalistic and not necessarily praiseworthy.

The Illinois law and necessary fictions

Given my "frames," my overall position on abortion, and the real possibility that Roe v. Wade may be overturned, an obvious move is to endorse state laws that ensure abortion's legality. But that "obvious move" comes at a disturbing cost. Illinois, for example, has very recently enacted a law to reaffirm a woman's right to choose abortion. Given everything I've written in this post, I should support the law--and I do support it. But the law contains the following language that I find jarring:

A fertilized egg, embryo, or fetus does not have independent rights under the laws of this State.

That language is probably necessary. If you want to create a law that ensures access to legal abortion, it's a good idea (even if not 100% absolutely necessary) to stipulate that what is terminated by an abortion does not have any legal claim ("independent rights") against that procedure. I also realize that in order to govern, a state has to adopt certain fictions, and those fictions aren't illegitimate just because they're fictions. [see note #4]

And yet I do find that language jarring. It's a declaration that something I believe to be morally entitled to a claim on this earth nonetheless has no such claim and in fact cannot have such a claim. It's a denial of something I believe in my heart to be true. It bears a relationship to other instances in the history of this country and world in which the dignity of persons have been written off. While I won't insist that relationship is analogous in all morally relevant respects, the relationship is more than superficial.

Of course, the language I find so problematic is the logical restatement of the position I have advanced earlier in this blog post. I still stand where I stand, and I believe I am probably right in my stance. But I can't claim any moral high ground.

Notes.

Note #1: The "abortion is best left as a decision between a woman and her doctor" may work as a slogan, but in my view it's main function is to flatter health care professionals by offering them a theoretical veto into their patients' most personal decisions. It doesn't matter that (as I assume, but don't know for sure) most doctors would automatically sign off on an abortion if the patient wants one. I suspect there would be a lot fewer of the "socially conservative physicians who nonetheless support the right to abortion" if the pro-choice movement focused more on the right of choice than on an alliance with medical doctors.

Note #2: That said, the claim "people will have abortions anyway so we might as well keep it legal" is at best only half true. Outlawing abortion will almost definitely decrease the number of people who seek abortion.

Note #3: Here I'm doing what I criticize some pro-choice advocates for doing. I'm referring to the argument I'll sometimes hear (some of) them make, to the effect that pro-lifers don't really believe the unborn is alive. Those who advance that argument seem to be claiming that pro-lifers have misaligned priorities. Under that claim, pro-lifers should be more concerned about helping people once they are born and helping their mothers, or more concerned about the rate of spontaneous abortion and other problems that develop during pregnancy, than they are about abortion itself. That claim is good as far as it goes, and I do believe pro-lifers should rearrange their priorities. (And for what it's worth, many do. I've known at least a few of pro-lifers who walk the walk). But the same charge can be lodged pretty much at anyone. For example, the number of people who really care about Muslim fundamentalists' treatment of women in Saudi Arabia and who actually act as if it's a pressing concern are pretty small, but I don't think it's fair to say they don't really care about the problem. Mutatis mutandis for pretty much any moral concern that doesn't directly and immediately affect the person who has that concern.

Note #4: One of the most annoying things about some liberals' commentary is the "ohmygawd, that judge said corporations are PERSONS!!!!!" It's especially annoying when the commentator is a lawyer who should realize that basic idea of a corporation is to create something that for some legal purposes is a "person." The pattern of thinking is not only a "liberal" thing, but the liberal version is the one I personally encounter the most often. None of that is to say that fictive personhood is the only way to understand corporations or that the courts and the law haven't assigned too many prerogatives to corporate personhood.