Fair-Mindedness
Posted on June 16th, 2008
by Daniel Larison |
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Jim Antle wrote a post critiquing Kmiec’s latest today:
If Kmiec wanted to explicitly argue that he was supporting Obama in spite of his pro-choice views because of the war or some other proportionate reason, that would be one thing. But instead he wants to pretend that a vote for Obama somehow advances pro-life goals on abortion in some meaningful sense.
It seems to me that Prof. Kmiec tried making that first argument, and he was bludgeoned and mocked by quite a few critics for ignoring Obama’s position on abortion. Since then he has been advancing the argument that Obama is fair-minded and willing to engage others’ ideas, which theoretically means that he will be open to pro-life proposals such as those Kmiec keeps offering. That’s all very well, except that it just isn’t so, as I was saying over a year ago:
The rest of the excerpt is the recounting of another story related to abortion politics, where we are again treated to just how fair-minded (and pro-choice) Obama is (”I understand your deep conviction on this matter, which I am now going to dismiss with stock soundbites about the safety of women”), which apparently ought to make other “fair-minded” people happy enough to notice that he hasn’t really addressed the central question of whether abortion can be morally justified or not, whether it is right for a Christian man to sanction or tolerate the constitutional fraud that gives legal protection to the murder of unborn children.
Of course, it can’t be justified and it isn’t right, which is why “fair-minded” Senators who might one day like to be President have to engage in roundabout justifications for their position, saying that they support “choice” for the sake of poor women everywhere. The phantom of the back-alley abortionist, whom the pro-choice pol has summoned from the ether, hovers nearby and is supposed to cloud the judgement of people who recognise a moral abomination when they see it. But the phantom just provides a comforting excuse to endorse something that it would be politically dangerous for a Democrat in most places to oppose. All of this is supposed to show us that Obama is thoughtful, rather than callous, profound rather than predictable, but it does not. It is the tactic of the man who says, “I appreciate your point of view,” when in fact he does not appreciate it and wants to neutralise your criticism by deflecting the question in an entirely different direction.
If Obama wants to discourage abortion, he could start by not supporting public funding of it. That would discourage the practice. But we all know that isn’t going to happen. He couldn’t bring himself to vote for legislation protecting children who survived botched abortions. Opposing the legislation in committee, he then audaciously voted present when the bill came to the floor, which is as good as voting against without incurring the same political risk. Here was his argument against it:
Number one, whenever we define a pre-viable fetus as a person that is protected by the equal protection clause or the other elements in the Constitution, what we’re really saying is, in fact, that they are persons that are entitled to the kinds of protections that would be provided to a — child, a 9-month-old — child that was delivered to term. That determination then, essentially, if it was accepted by a court, would forbid abortions to take place.
I mean, it — it would essentially bar abortions, because the equal protection clause does not allow somebody to kill a child, and if this is a child, then this would be an antiabortion statute. For that purpose, I think it would probably be found unconstitutional.
His campaign’s own fact check page does not dispute this, but says that he would have supported the federal Born Alive Infants Protection Act because “the difference between the state and federal versions, Obama explained, was that the state measure lacked the federal language clarifying that the act would not be used to undermine Roe vs. Wade.” Of course, opposing legislation with which he substantively agreed (if we are to believe this unverifiable claim of support) because it lacked this technical language is the most obvious dodge. Wouldn’t the great and fair-minded negotiator and bridge-builder have proposed amending the legislation to make it more broadly acceptable? Of course, he had no incentive to go against pro-choice interest groups when he was in Springfield, and he has and will have none in Washington. It’s not clear to me why anyone should entertain the notion that Obama is going to break with key Democratic interest groups to heed pro-life proposals.
But the real problem is that Obama’s analysis of the bill was quite astute and his logic impeccable–if a child born alive after a botched abortion is entitled to protections under the Constitution, it becomes exceedingly difficult to justify denying those protections to unborn children, which would render the “right” to terminate their lives moot. Qualifying language saying that the legislation in question does not undermine Roe does not undo the reality that the rationale for the legislation voids the entire concept of a “right” to abortion. If the child is deserving of protection at a particular moment, why not before that? In order to keep the Roe regime intact, even the most straightfoward, pragmatic legislation designed to protect the weakest among us must be defeated, because it might lead to those protections being extended even to the unborn, which Obama and his campaign make clear is unacceptable to him.
Filed under: politics
Ideologically speaking my stance is almost identical to Obama’s and I don’t think rehashing those arguments (which are over 30 years old) will achieve anything. I am, however, curious to see if you are open to any sort of political compromise on this issue.
For example, I’d be willing to do away with state and federal funding for abortions, if contraceptives and sex education were provided in their place. I’d be willing to support restrictions on 2nd and 3rd trimester abortions, if there were no restrictions on first trimester abortions.
What would you be willing to compromise on with this issue, if anything? Or must this be Nixonland?
Certainly, I would prefer a more comprehensive set of restrictions, but I would be glad if we could see restrictions on second and third trimester abortions and an end to public funding. I, for one, would be willing to make those concessions if it could help significantly reduce the frequency of abortion, and the concessions you’re asking for don’t strike me as onerous. All of this assumes that elected representatives are in a position to make such deals, and I think we would agree that the room for maneuver left open to elected officials at the present time is very small.
Here’s a further compromise: turn the matter back to the states, and let each state set its own policy that best conforms to local standards of what people are willing to accept. The compromise hashed out in South Dakota will look different from the one in California, but that is how a more decentralised system is going to operate.
I completely agree with you that there is no room left for elected officials to maneuver on this issue. But I am unsure of whether delegating the question of abortion back to the states would solve anything.
Here’s why: what happens when South Dakota wants to pass a law that forbids a woman from traveling to a different state to obtain an abortion that is illegal there?
What I see happening is interstate legal war far that could potentially be more contentious then our current political regime, which would almost certainly lead to the federal government stepping in to settle the question.
I’m anti-abortion, but I suppose I am torn because anti-abortion voters have refused to really hold their elected officials accountable after they vote them in on anti-abortion platforms. We have moved away now from a situation where the so-called Party of Life had a majority in Congress, the Senate, and the Executive and while they had this majority, they did nothing. So maybe it is time to start dealing with the “pro-choice” Left. This hard line litmus test stuff looks to me like a means for people to feel righteous about doing nothing.
I disagree with Obama’s (and by virtue of your agreement, your) analysis of the logical implications of banning the destruction of children of botched abortion. Almost every abortion argument, and most importantly, the Supreme Court’s interpretation of the issue first recognize that the fetus has some right in this question which progressively increases. The overriding right of the mother which permits abortion is some version of self-defense: hardship, emotional distress, damage to life prospects, etc. However, these complaints are inextricably tied to the “suffering†of pregnancy itself (which is why we don’t jump on board with Singer and permit the killing of babies who pose the same burdens). However, after the baby is born, the specific hardships of the mother no longer fully apply. The logical conclusion which you and Obama draw fails for the same reason that we cannot justly kill someone who attacked us who now lies immobile—a threat once does not always allow us to treat them as a threat even if very little time has passed. Of course, some may claim that the hardship of putting the baby up for adoption justifies the destruction of the baby, but that is invoking a different set of rights that is far more extreme.
To respond to the comments, the overwhelming majority of abortions are performed in the first trimester, and as it is a lot of counties in the United States don’t have an abortion provider (some NARAL statistic) yet that doesn’t prevent a million some abortions a year. The places most likely to endorse strict restrictions are the places least likely to actually perform the abortion. I sense in your resolution of this issue the uneasy compromise brought by the conflict of your minimalist conservative instincts when confronted with a (based on your viewpoint) horrible rights infringements that seems only able to be comprehensively reduced at the federal level.
“: what happens when South Dakota wants to pass a law that forbids a woman from traveling to a different state to obtain an abortion that is illegal there?”
Absolutely nothing, which is a cause to celebrate. I have absolutely no desire to live in, say, San Francisco for a whole host or reasons, but part of me is quite pleased that somewhere in America there is a shining citadel to decadent hedonism, freely chosen by the inhabitants thereof. I suppose the residents of S.F. feel the same way about my little burg in Ohio, and there is nothing wrong with that.
“interstate legal war”
I have no idea of what you mean by that. States already have different legal regimes on a whole host of issues (death penalty, gay rights, taxes, etc.) that hasn’t led to a ‘war’ or anything remotely like it.
Daniel,
I’ve really appreciated your blog for months now, and generally have little to differ with you on. However, I think there is a little more to the “back-alley butcher” argument than you allow.
The center-liberal boilerplate on abortion has been “Safe, Legal and Rare”… and yet it seems the “rare” part gets short shrift. However, the conservative retort to this has been “sanctity of life,” which when evaluated seems to boil down to “Illegal, and by the way we ignore the fact that some will seek abortions anyway and they will most certainly NOT be Safe, and we have no way to prove they will be any Rarer.”
There is no good answer, I suppose… although I appreciated a post on Takimag a few days ago talking about how utterly empty GOP promises of cleansing “activist judges” has really been, considering the results of the judges appointed by GOP leaders. In my view, morals (as opposed to universal “ethics”) must be the result of a convinced mind, convinced of God’s truth and Christ’s call… sadly this is not the country we live in, and may never be. Pragmatism must therefore take the day, and the pragmatist in me sees that abortions, while legal, decrease significantly when root problems of poverty and social construct are changed, and records suggest Democratic administrations lead to fewer abortions than Bush administrations. Make of it what you will, but I don’t see McCain or Obama having any considerable effect… at least not considerable enough to factor in to my decision come November.
I take the point about women’s safety, and despite the polemical tone in the earlier post I am not saying that it isn’t important or that it is just a rhetorical device, but I find it remarkable that we talk about abortions being “safe,” when they are necessarily extremely dangerous, indeed fatal, for the child.
We are in agreement that neither candidate will have much effect if elected. My purpose here is to drive home just how far-fetched it is to expect Obama to be accepting the proposals of pro-lifers. There is certainly an argument to be made (I have made it a few times) that the GOP does not deserve reflexive support from pro-lifers considering the party’s record, but if I am going to protest the GOP I still plan to do it by voting for another pro-life candidate.
I suppose then that the real disagreement between us is this: Pragmatism or Idealism? As a Kentucky voter, I realize no argument even needs to be made… Obama will not win here and in fact cannot win here, unless John McCain is suddenly outed, and the race would still be too close to call.
There is something in me that appreciates the die-hard idealist, whether he votes for Barr or Nader or writes in Ron Paul… but at the end of the day, at this moment, I’m left with this… Should idealistic conservatives vote for third-party instead of Obama, who might be their best-of-the-lessers choice, and McCain wins and continues this ridiculous war and continues down his League of Democracies path of madness… how will I answer my children, when in sixth-grade history they learn of the first real black contender, one who at least intimated he would get us out of the war—when they ask me who I voted for, and who I tried my hardest, in my own modest way, to get elected? I shudder to think of that day, and think it worth taking the chance on Obama despite my myriad objections to his worldview, in hopes that he brings a shift significant enough from this current administration to make some kind of difference for our country and for my sons.
Why is Kmiec working so hard at this?
One possibility (and the one I believe) is that he’s not very pro-life at all…
I mean, he seems to have abandoned the Iraq War ground effortlessly without a loss of interest in the candidate…
That indicates to me he isn’t/wasn’t terribly attached to the argument in the first place…
The same with abortion…
Of course, I don’t know what is driving Kmiec on this. If this story about being denied communion is true, he could be personally aggrieved and wants to prove his critics wrong in a more thoroughgoing way. I think he is mistaken in his arguments, but from everything I understand about him he has been impeccable and strong in his pro-life views and is widely respected in conservative legal circles, which is what made his support for Obama so remarkable in the first place. Had he been some long-time moderate on the question, it would have hardly been worth mentioning. No one talks about Lincoln Chafee’s support for Obama, because no one is in the least surprised by it. At bottom, I think Kmiec is pressing so hard on this because he believes what he is saying is true, or at least he hopes that it is true when it comes to Obama. This could serve as Exhibit A for why this sort of hope and the trust in a politician that it requires is very misleading.
I agree, and think we can say, at the very least, that his views on the Iraq War and abortion are losing out to his infatuation with Obama….
What is being ignored in this discussion, I think, is the essentially theological position behind the anti-abortion crusage. Daniel and many others believe with theological certainty that the soul of a child is created at conception, and that therefore all abortion is murder. Therefore, they wish to promote a morality and a legal system based on that theological notion. They consider anyone performing an abortion at any stage of pregnancy to be “murdering innocents:, and claim Christ’s moral authority in doing so. But of course Jesus never commented on abortion at all, so there is no authoritative Christian basis for the claim. It’s just people claiming authority based on their own sense of how things ought to be.
Most pro-choice people do not believe that the soul is created at birth, that early abortion is murder, pr that theology should be allowed to become the basis for laws governing how women decide upon their most intimate issues of reproduction. They believe instead that there is a very gradual process by which a zygote grows into a human being, and that this process is not complete until quite late in pregnancy. They resent having theological notions of law and morality imposed upon their views and actions. In a secular democracy, that is not supposed to happen.
Now, of course one can vote to impose theology upon others. One can even vote to repeal the constitution and enact a theological form of government upon our states. One can pass Amendments to the Constitution outlawing abortion. That doesn’t make it right, but it can be done. But until that is done, we live in a nation with a secular government that is not supposed to enact laws based on theological beliefs, especially when they impose on others some extreme burdens, such as bearing unwanted children.
“But of course Jesus never commented on abortion at all, so there is no authoritative Christian basis for the claim. ”
Except for centuries of church teaching and canons.
Equality is entirely mythical and imaginary (and some people think it has theological foundation because of the florid language of the Declaration), but no one seems to object to acting as if this were true when it comes to every other sort of person. We constantly enact laws that enshrine this myth and these laws often impose burdens on others in order to protect the myth, when there is even less reason to believe in it than in the humanity of an unborn child. The pro-life position merely requires that we acknowledge that the child is genetically a human being, which the child obviously is. Questions of ensoulment don’t enter into it. There does seem to be a strong correlation between believing that unborn children have souls and are persons and objecting to their killing, but one should be able to object to killing unborn children even more easily if you have no assumptions about whether or not these children possess souls.
The secular humanist should be even more outraged at the killing of unborn human beings than the theologian, because unlike the theologian he does not assume that there is any salvation or hope of resurrection for those children. That this is frequently not the case is a problem for the secular humanist, not the theologian who might appear to attach almost too much importance to material life in the body. Of course, it isn’t just a question of life, but of our just treatment of others. We don’t quibble about whether people have souls when we say we shouldn’t bomb civilians or when we say we shouldn’t torture people. We assume that as human beings they should not be treated in a way that denies them humanity and dignity.
Daniel,
That’s a very creative and imaginative defense of the Pro-Life position, and I think it’s worthy of a lengthier reply than is suitable here, but I don’t think it really washes. Equality does not impose anything like a direct burden on others, and it’s a social policy, not something regulating the most intimate and private aspects of our sexual and reproductive lives. It’s not based on religion in any case, it’s simply a social ideal that our founding fathers felt was important for a democracy to uphold under the law. .
A fetus is of course genetically human, and so is my foot, my hair, my kidneys, my blood. We don’t generally consider it murder when a foot is amputated, or when I give blood at the bloodbank. Yet every one of those cells could be turned into a baby with a little bit of genetic twiddling. A fetus is not an independent human, it is a part of a woman’s body, it is grown within her body, from out of the stuff of her body, and like every one of her cells, it contains the genetic code of a human being. When it becomes independent of her body, you can treat it as a unique and independent human being. Until then, it’s part of the woman’s body, it’s feeding off her blood and food like any other organ or limb. So I’m sympathetic to the notion that an aborted live fetus should be treated as having rights, while one inside the woman does not. The fetus inside a woman’s womb is not an other, so the argument for “just treatment for others” doesn’t wash. The woman has the right to decide what she does with every part of her own body, including a growth that might turn into an independent human being some day.
I agree that it’s logical to say one doesn’t have to be religious to be against abortion, but it’s simply the case that most of the support for the pro-life position comes from strongly religious people acting on their strongly held religious beliefs. It’s really that simple. You can argue that secular atheists should be even more pro-life than religious people, but that only suggests that you don’t understand them very well, and the weakness of your argument for that view, absent the emotional and spiritual belief in a soul, should tell you why it doesn’t go very far.
Now, I agree with your last part, that we don’t quibble over whether people have souls when we bomb them. That’s because even secular atheists would consider an indepenend human being to have “soul” or “spirit”, if not in the religious sense, at least in the humanist sense of the word. That’s why such people object to murder. It’s also why few of them consider abortion to be murder. A fetus simply isn’t in the same class as an independent human being. Most people know this. Correct me if I’m wrong, but Christianity never even had a policy about such things until quite recently. Recent theological views on the matter are only authoritative to those who belong to authoritative churches. Jesus had no such view, nor did the early Christians. It is only in the recent, materialistic days of Christianity that the literal belief in the life of the flresh, rather than of spirit, has made it seem rational to protect life, brith, etc., at all costs. No such ethic every existed previously. A young child who died was considered fortunate in spiritual terms, if not in living ones, for they would go to heaven that much more quickly. But in our day and age Christianity is not oriented towards heaven, it is oriented towards earth, and the flesh, and fantasies of being bodily resurrected into heaven, and so forth – all materialistic. In fact, I’d argue that such Christians are the only real materialists we have, that the secular atheists aren’t really materialists at all. And that is why they have come to worship the flesh even of fetuses, and strive with all diligence to preserve every brain-dead accident victim, rather than just let them die in piece. They don’t actually value the soul, they value the flesh. Well, no wonder we’re in such a mess.
Yet every one of those cells could be turned into a baby with a little bit of genetic twiddling.
No. “Genetic twiddling” cannot reverse differentiation and specification into somatic cells. You’d have to reverse development and endow that cell with the complete pluripotentiality of the embryo (not just the ability to become any part of the body, but to have the requisite different parts which are further differentiated), which cannot be done.
See Robert George’s Embryo: A Defense of Life, which is an extension of his arguments on the ontological distinctiveness of an embryo that he has given previously in shorter articles.
As for your understanding of the Apostolic Tradition, you should read up on that as well, since your ignorance is obvious. You give a dualistic understanding of the body-soul relationship–Christians do not divide the “body” from the “soul” and “worship the body”–it is because of the soul that the body has life, and we are committed to not taking innocent life away.
“Recent theological views on the matter are only authoritative to those who belong to authoritative churches.”
By recent, I assume you mean within the last 1,600 to 1,700 years? That probably understates how far back church teachings against abortion/infanticide go.
There is no worship of the flesh going on, at least not with generally theologically orthodox Christians, and the belief in the real resurrection of the body is one of the most ancient and fundamental doctrines. Gnosticism came later and has enjoyed a semi-revival in the modern fixation on the fate of the soul apart from the body, while the promise of Pascha is the promise of resurrection.
Daniel,
Yes, there are old church teachings against infanticide. I’m not
aware of any widespread doctrine about abortion from the early days, however. I’m curious what your references are.
Regarding bodily resurrection, yes, I consider these fantasies to be based on materialism, both in the past and especially in the present. Resurrection is a spiritual matter. Heaven is not somewhere else. As Jesus taught, the Kingdom of Heaven is within. Physical bodies decay and die. They cannot live forever or be made perfect. Only the Spirit is eternal and undying. To know oneself in Christ and in Spirit is the true resurrection.
Tedschan,
Genetic twiddling is shorthand for what you said. And yes, pretty soon it will be possible to take ordinary cells and turn them into zygotes. Regardless of that, the point is that each cell has the same genetic material as the original egg-sperm combination. There is nothing sacred about that. The Spirit is not contained in our genetic code. These doctrines, however old they might be, are simply materialism made holy. But you are right, modern Christians do not divide the body from the soul. Instead, they pretend that the body is the soul, which is even worse. That’s where we get the Osteens and the prosperity consciousness and the constant desire to acheive endless comfort and pleasures here on earth in the name of Christ. Daniel seems to understand this to a degree, but I don’t think he’s examined it deeply enough and seen all its implications. Identification of the soul with the body is the root of materialism. How can we argue against scientific materialism if we assume the material body to be the same as the soul?
And yes, the embryo is distinct at the cellular level. But it is not distinct and independent from the mother’s body. But so are all the organs within her body. The embryo grows within it, as a part of it. It does not separate until the placental cord is cut after birth.
conradg —
And yes, pretty soon it will be possible to take ordinary cells and turn them into zygotes.
any evidence to back up your confidence?
As for the rest, read George’s book. It’s not the number of chromosomes that determines ontological individuality, though it is a necessary condition–rather we can know that something is an individual human person from the operations that it performs–in this case development and differentiation into a complete human being, not just parts.
No one makes the error of identifying the soul with the body; they may emphasize material prosperity as a sign of divine election or some other teaching, but your attempt to collapse this into some fundamental error regarding the soul is untenable.
Independent ontologically, even if it depends upon the mother’s body for nutrients and raw material. Big woop. It is not a part of it, as it has a different genetic code. Mere physical continguity does not mean no ontological distinctiveness. Just look at the example of siamese twins and such.