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The Personal Choice Public

June 9, 2009

Ross Douthat’s move to the New York Times from The Atlantic Monthly, replacing Bill Kristol, has added a welcome moderate, conservative voice to their opinion pages. And while I often disagree with his assertions, I am often persuaded that there is a reasonable argument supporting even conclusions with which I disagree. And that is why I found it so disappointing to read his editorial about the status of the abortion debate in the wake of the murder of Kansas abortion provider, George Tiller.

Douthat, a former colleague of Andrew Sullivan at The Atlantic, has linked to Sullivan’s emotionally powerful collection of remembrances written by women and their partners who have had to make the often treacherously difficult choice about whether to abort a third trimester pregnancy. I’ve read many of these recollections and the feeling one comes away with is, first, gratitude that one has not had to make such an impossible decision and, second, an appreciation of a legal and ethical culture that allows these choices to be made by the people with the most emotionally immediate connection to the consequences of the decision. Contributors to Sullivan’s collection of remembrances aren’t all in favor of these types of abortion (or of abortion at all) or happy with the decision they or their loved ones have made. But there is an almost universal acknowledgment of the impossibility of making a choice in such difficult circumstances, like those where the pregnancy may cause severe harm or death to the mother, where the fetus suffers from a fatal genetic flaw (I had never read so many descriptions of the occurrence of trisomy) or where, as Douthat puts it, those seeking an abortion are “‘women’ who were really girls of 10”. These categories of abortion have been discussed exhaustively elsewhere, but in the outpouring of sentiment arising after Tiller’s murder, there has been a uniquely detailed revelation of the profound emotional cost that these abortion debates impose whether one ultimately decides to have the procedure or not.

But Douthat, while acknowledging the senstitive and difficult nature of the late term abortions that were at the heart of the controversy over Dr. Tiller’s actions, concludes that the difficult choice made by these women and men should be shifted from the final trimester of pregnancy to the second trimester.

If anything, by enshrining a near-absolute right to abortion in the Constitution, the pro-choice side has ensured that the hard cases are more controversial than they otherwise would be. One reason there’s so much fierce argument about the latest of late-term abortions — Should there be a health exemption? A fetal deformity exemption? How broad should those exemptions be? — is that Americans aren’t permitted to debate anything else. Under current law, if you want to restrict abortion, post-viability procedures are the only kind you’re allowed to even regulate.

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.

His presumption that abortion’s return to the “democratic process”–despite the fact that judges are part of the democratic process, whether elected or appointed by elected officials–would move the debate to the allegedly more reasonable and less difficult question of aborting a pregnancy in the second trimester is misleading. His call for a return to the democratic process is, in fact, a call for overturning Roe v. Wade. If that is what Douthat intends, he should state it explicitly, along with an honest assessment of the consequences, and not couch it in more palatable terms like a “less inflamed culture” or a reduction in “tragic cases”.

Overturning Roe would allow state legislatures to outlaw all abortions…in the first and second trimesters as well as the third, the “easy” as well as the “difficult”, and transform a personal choice into a public one. Douthat implies that subjecting the legality of abortion to state review would potentially reduce harm by allowing a change in the focus of the debate to the second trimester. This proposal simply avoids the moral complications that make third trimester procedures so philosophically challenging to most people who are not on the extreme ends of the abortion debate. Of course, most people of good will would like to see the alleviation of the emotionally devastating consequences of necessary third trimester abortions. But his proposal would do nothing to alleviate the challenges that these parents face. Instead, Douthat’s proposal would potentially increase the number of people with obstacles to overcome in securing their legal right to the procedure.

By Douthat’s own account, only ten percent of all abortions in the US occur after the first trimester, with a vanishingly small number being performed in the third. It is unfortunate that, after hearing about the difficulty experienced by those women contemplating late term abortions where procurement requires (a) an agonizing personal and moral debate, (b) travel to one of the few locations where they are performed, (c) running a gauntlet of sometimes vocal protesters and (d) hastened decision-making sometimes forced on them by legal time constraints, he concludes that American law should now potentially open all pregnancies to the restrictions that are now imposed only on that very small number whose pain and confusion was so eloquently portrayed in the personal stories that caused Douthat to express such sympathy in the first place.

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