Banning Subterfuge

Resisting elisions in pro-choice positions in the search for compromise

In every U.S. state a woman can get an abortion in the face of a life-threatening emergency for the mother (usually defined in terms of a major bodily function). In every state but Alabama and Arkansas abortions are legal in the case of rape or incest. In states such as Kentucky and Louisiana abortion is legal for the first six weeks in pregnancy. (There are lots of tables summarizing these laws; I found this one useful.) In no state is there in fact an outright abortion ban—a term widely used in common discourse. Restrictions? Sure. Severe, even impractical ones? Yes. But actual proscriptions (like, say, the deeply sensible one against civilian purchase or possession of assault weapons by civilians in ten U.S. states)? No.

I realize this enumeration of abortion rights is cold comfort to those deeply convinced of a woman’s right to choose: Indeed, it could be regarded as laughable if not monstrous. I myself favor a more expansive policy on abortion—the current French standard of limits after fourteen weeks, with the usual exceptions thereafter, strikes me as plausible. Such a policy would recognize both the excruciating ambiguities in existing abortion laws (just what counts as a major bodily function?) and the reality that intelligent, sensible, and morally-minded individuals can have legitimate differences on abortion as an essential civil right independent of health or rape considerations. 

But I would like to make two requests of anyone who would like to have a fair-minded discussion of the subject in quest of a workable compromise—which, I realize, many people don’t want, though I strongly suspect they are in the minority.

The first is a request for Orwellian language in the best sense of the term: plain prose that avoids euphemism or evasion. We can agree that a state like Utah has a virtual abortion ban; we might fairly call Idaho draconian. But across the United States there is a range of abortion rights that cuts across middling cases like Kansas (abortion up to twenty-two weeks) to expansive ones in Vermont and Oregon, which put no time limits on when a woman can terminate a pregnancy. The landscape is complex. We should be precise in talking about it. I was pleased to hear the progressive Ezra Klein and his guest Mary Ziegler do so in a recent episode of his podcast.

The other request—and this is something I have yet to encounter in mainstream discourse—is to have an abortion rights advocate identify the point, if any, when an abortion should illegal: when an embryo, fetus, or whatever you care to call it reaches a threshold at which it has rights a pregnant woman is bound to respect. That may be because once you eliminate conception as a candidate it’s difficult to say when viability can be legally determined (especially since medical technology is making that earlier and earlier). This silence may also be a matter of political protection: It leaves room to maneuver in our highly charged political environment in which the political right can be too doctrinaire and punitive. But really: How many of us believe that anyone should have the absolute right to abortion on demand at thirty-nine weeks? Is there no point before birth at which we are obliged to recognize and protect a child? Never mind religion: An atheist can make this case as a matter of human rights.

We should also acknowledge, amid heart-wrenching accounts of the gruesome outcomes for women prevented from having abortions, that the aborted have no voice. I wish there was more enterprise reporting about people who, amid some doubt, were not aborted and went on to have productive lives: 

As in so much else in life, what you learn is a matter of what you ask.

Finally, I acknowledge the visceral potency of women claiming the right to control what happens to their own bodies. This is indeed a powerful moral claim. But I will also note that men have also been denied bodily autonomy for thousands of years: They have been drafted to fight in wars whether or not they consented, including “good” American ones like the Civil War and World War II, which could not have been won without it. In this regard, it’s telling that the U.S. Selective Service ended the draft five days after the Roe v. Wade decision; in fact, I’m a little amazed that so little has been made of these two deeply entwined rulings regarding bodily autonomy that happened simultaneously. But stretched ever thinner and less equitably, it is by no means clear that the United States can rely on an all-volunteer military indefinitely. To this day, men but not women are required to register for the draft. The right of bodily autonomy has never been absolute—or perfectly fair.

I grant the legitimacy of a right to an abortion. I just wish we could have a conversation about it in which the opposition was treated with more attention, respect, and clarity in mainstream discourse.

Jim Cullen teaches at the Greenwich Country Day School in Connecticut. His latest book is the revised and updated third edition of Born in the USA: Bruce Springsteen in American Life.

^{‘My Body, My Choice’, Rossauer Lände, Donaukanalradweg, #9878, © Ewald Judt}