Strengthening Constitutional Self-Government

No Left Turns

Abortion is About Equality

With the Supreme Court upholding the constitutionality of a ban on Partial Birth Abortion, debate about what it will mean is now raging. Cass Sunstein argues that Ginsburg’s dissent founded in an argument about female equality rather than in a so-called "privacy right" offers pro-abortion forces a better footing for their position and that she is likely to get support for that view in future court appointments. About that last point, I believe he is likely to be correct. But I do not despair. I would like the debate to shift to a real argument about the meaning of equality rather than focus on this nebulous concept of "privacy." Why? Because it seems to me that a fair hearing of the case will lead a rational person to conclude that equal rights for women does not mean we can or must change nature so as to make women’s access to sex equally devoid of consequences as that of men’s. Equality does not demand that we become the same. If there is an argument to be made on behalf of equality, it must be in favor of the equal right to life that a baby has as well as its mother. So bring it on, Ruth.

Earlier this week when the decision was handed down, there was some question about how conservatives should respond. I argued here that we should be cheered by this turn of events and welcome the shifting ground in this too-long inert debate. Kathleen Parker has taken exactly the kind of step I had hoped to see conservative commentators take. We have to keep the momentum going, insist on precision in the language, and refuse to shrink in the face of offending people’s feelings or sensibilities . . . at least for awhile. People have grown tired of the abortion debate precisely because it has been so successfully characterized as a dry and dusty debate about privacy and rights. Let’s talk about equality and what it means to be a human being. It is long, long overdue.

Discussions - 15 Comments

Sunstein and Ginsburg are both WAY off course.

I mean, even if you concede for argument purposes that an equality understanding would require some type of health exception, how does sex equality at all justify the right to abortion in the first place? Equality has nothing to do with anything, as it is well accepted (at least I thought) that where there are legitimate differences ( e.g., a woman can get pregnant whereas a man cannot) legislating according to those differences (i.e., banning a procedure relating to one's being pregnant) does not offend any sense of "equality." So, in response to Cass's question -- In our society, isn't there an equality problem if laws target only women's bodies and leave men's bodies alone? -- no, idiot.


What then seems to be the crux of the right to abortion, according to Cass and Ginsburg, is "a woman's autonomy to determine her life's course." This is stupid for two reasons. FIRST, I can think of no greater protection of someone's (man or woman, we have to be "equal" of course) "autonomy to determine [their] life's course" than the right to actually be born. This of course runs into the problem of when life begins. The fact of the matter is, we don't know -- nobody knows what the "right" answer is, or if there even is one. Is it when the fetus can feel pain? Is it upon conception? Is it when you bring the baby / fetus into the birth canal to crush its skull? Or is it only when the baby is born to a welcoming mother? These would all, in varying degree, seem to be reasonable answers to when someone's right "to determine [their] life course" should be protected by requiring birth. So, to protect this right of determining one's life course, the answer of when this right should kick should invariably arise. And, once again, there is NO reason for entrusting this decision exclusively to the clowns on the Supreme Court. SECOND, how is requiring a woman to carry a baby to term, upon which time she could put it up for adoption, robbing a woman of "determin[ing] her life's course"? Not only is that a rather small burden to bear in comparison to actually giving a baby a chance at life, but was it not that woman who decided to have the sex that led to her becoming pregnant in the first place (with a few rare but obvious exceptions)? Is it really so unreasonable to ask a woman to live with the consequences of her actions for nine months? In fact, it seems to me that giving a woman a constitutional right to abort the baby, thereby relieving her of the natural consequences of her actions, actually undermines her right to self-autonomy. A key aspect of self-autonomy and the ability to determne one's course is the notion of self-responsibility. A notion that the right to abortion does nothing to promote, and everything to undermine.

Ginsburg’s dissent founded in an argument about female equality rather than in a so-called "privacy right" offers pro-abortion forces a better footing for their position and that she is likely to get support for that view in future court appointments.

That may be true as a political matter. But it illustrates again, for anyone who cares, that the pro-abortion position was not and is not based on the Constitution. Whatever else may be said of this constant flailing about for some politically popular abortion argument, it is not a legal process in any sense.

Let’s talk about equality and what it means to be a human being.

That is probably the weakest ground from which to attack abortion, but I suppose its one which the underlying assumptions of Ashbrook commit it to.

The problem with Sunstein's essay is that he needs to think more carefully about what we mean by equality. Equality means treating similar things equally, right? There's no problem in the law treating men's and women's bodies differently precisely because they are different. That's why it's fine that there are maternity wards in public hospitals that only treat women - because only women have babies. Seems pretty obvious to me - wonder if I can get hired at Chicago?

Sunstein's op-ed represents the road map for liberals on abortion. It is also ominous. I disagree with Julie here. We DO NOT want the abortion debate to be recast in terms of equality. Because in real politics, as distinct from philosophical discussions, the true meaning of equality simply cannot be established.
The concept, in practice, is not at all a clear one, but is inherently political -- inherently contested and subject to self-serving interpretations. For the soccer moms (female and male) who determine the political course of our republic, equality is generally interpreted in terms of the liberal culture they have been fed. If the liberals can get people to see abortion as an equality issue, they, not the pro-lifers, will win the "argument," to extent one even occurs. The "equality" argument for the radical "pro-choice" position is more politically powerful than the "privacy" argument. It is also far more in keeping with the left's statist, anticultural ideology. Pro-lifers are well advised to keep the argument on the ugly specifics of abortion -- to be particularistic, in the language of political theory.

There seems to be a misconception here that the argument over abortion will play itself out in the public square, and that the best and most reasonable arguments will win. At which point the court will take note of public opinion and follow it.

The reality is that the only opinions which count are those of the people on the court. And in making their decisions they often look to past court precedent. Public opinion is not a factor.

Words such as "equality" and terms like "due process" have very different meanings within the context of the legal system than they do to the average person. Ginsberg is correct is arguing that the court has a large amount of effort already invested in building on the "equal protection of the laws" foundation. Sunstein is most likely correct in claiming that the court is one vote away from finding a "right" to abortion on equality grounds. It would be pretty implausable, but a lot less so than its prior efforts involving emanations and penumbras.

David, if we're going to be purely political about it you must see that the debate on terms of equality will come whether it is the best bet for conservatives or not. Sunstein is right to point out this difference between Ginsburg's argument and precedent. Kennedy is unreliable in the end and, in any case, another appointment (if we lose the '08 elections) very easily may not go our way.

Besides, the focus of the argument being pointed in a direction you think more favorable got us almost nowhere in more than 30 years of tedious debate. That's precisely because it did not get to the heart of the matter and did not leave a rational opening for the kind of graphic discussion we both agree is necessary to turn hearts and minds. This kind of graphic discussion has always appeared emotional and sensational in contrast to the legal penumbras discussed by the elites. But it does not seem so strange when we are discussing the real question--which is what is a human being?

I disagree with you about the political efficacy of a hearty fight about the real meaning of equality and humanity--particularly as it pertains to men and women. I don't know this to be true, but I'd be willing to bet I know more "soccer moms" than you do. Even the liberals among them secretly know and openly discuss the real differences between the sexes. Very few actual people (as opposed to academic elites) are so stupid as to believe this tripe--even if they do have the unfortunate luck to have been educated in our universities.

The debate will move from its current stalemate if it is so re-cast. I'm willing to take the chance of losing it because I really believe that it is the only way to win it. I am open to the argument that now is not the time. But I doubt that there will be a better time. Much more of Parker's type of writing will be necessary, however, to make the ground ready for these seeds. I think we, at least, agree about the need for that.

5: Right on all counts, John.

Julie, the whole thrust of liberal ideology is anti-nature. I don't see us getting very far in the abortion debate by following your recommendation. Sure, soccer moms know that men and women aren't equal in the lunatic, Ginsburg sense of being interchangeable. That does not mean, however, that a public argument which in the end rests upon on the different natures of men and women, yet also insists that this is "true equality," is going to be helpful to us. The sorts of Americans who will decide this issue have been absorbing liberal propaganda on just about every issue their whole lives. In regard to abortion, they are unlikely to be turned around by a few conservatives trying to enlighten them about the true nature of equality. Is the argument not worthwhile for that reason? No. But let's not put all our eggs (no pun intended) in that basket.
I think you are absolutely wrong to say that a focus on the physical horror of abortion has gotten us nowhere. What got us nowhere was categorical, biblical or Christianist absolutism -- all abortions are equally horrible, the Human Life Amendment (all abortions outlawed, throughout the U.S., at all stages). No, I'm firmly convinced that blood and guts is the key to this. The partial-birth abortion argument is about blood and guts. It took years to make it so, but the pro-lifers have finally gotten through to large sections of the public what it is. The abortion extremists lose when we focus on the CONCRETE humanity of the fetus. They win when we play their "equality" game. Equality rightly understood -- as, for instance, by Western Straussians -- is a wonderful thing. But letting "equality" frame the abortion debate is an invitation to feminist domination of that debate, which kills us politically. You're damned right I see this politically. But I also see it culturally. The pro-life movement has had significant success not only in getting the PBA ban and other (state) legislation passed, but also, culturally, in making abortion less popular and less prevalent. It has not done so by getting women to think of themselves as a different kind of, but still equal, human being. The entire thrust of our liberal culture is toward the interchangeability of all people and against involuntary, "prescriptive" differences including gender. It's crazy, but that's the way it is. The blood-and-guts strategy is right for pro-life because it BEATS the liberals at the compassion game, one we can win because the physical facts of abortion help us, not the abortion ideologues.
In contrast, playing the equality game
forces us to promote an understanding of equality that, while I believe it correct, is just as abstract as the liberals' understanding. With the disadvantage that the liberal version of equality, not the Jaffa version, has been taught in the schools and almost everywhere else for decades -- something that ain't gonna change anytime soon.

Julie, one more point. Let me boil this down for others, who may not have patience enough to read my entire analysis. Americans on the whole are almost pathologically impatient people, and have become more so, not less, under the liberal dispensation. They also don't like to be told that, due to accidents of birth (e.g., gender) or almost anything else, there are certain things they either must do or can't do -- that their "natures" require some things, and forbid others. This is deplorable, it flies in the race of the true nature of things, but it's also a cultural reality. In the political arena or elsewhere, I would not want us to be telling those women for whom abortion is a significant "liberty" and "equality" that they don't understand these terms. It's a ticket to political oblivion for pro-life.

Sheesh, I need to clarify my last post. By referring to Americans' congenital impatience, I mean that we should not be telling women that a nine-month pregnancy is an insigificant burden. Americans, by and large, heartily dislike any burdens that they do not choose. They don't like to wait for nine minutes, let alone nine months. Deplorable, perhaps, but reality. Oh, and for "race" in the last post, read, "face."

David, there is so much wisdom in your post that I find it difficult to disagree with you and I think, at bottom, we don't really disagree about much. I am sensitive to and share your concern about the prudence of shaping debate on these terms. But one thing you did not address above is my suggestion that Ginsburg's work shows that the fact of its changing is coming whether we are ready for it or not. It cannot be completely insignificant that we are in the right about the true meaning of equality. I think the blood and guts of this debate are helpful--now--precisely because it shows in no uncertain terms just how human and equal an unborn baby is. When it is o.k. to obliterate the right that child has to life, how much can we hope for the protection of our own rights? You may be right that we may not win in the end. But we must fight and it must be, I am both afraid and cheered, on these terms. But it must be done carefully, you are correct.

This is one public debate wherein science makes the point for conservatives. 3-d ultrasound technology allows women to see their unborn children at earlier ages, and to understand them as living beings in early stages of development. Women taking home ultrasound videos of the contents of their wombs in the first trimester of pregnancy make nonsense of those who argue about "fetal tissue". My daughter-in-law's obstetrician will record the ultrasound at every check-up. The girl is upset that she didn't know to bring the VHS tape to record this one, showing the lively six week-old bit of "fetal tissue" flipping around inside of her. This brings a whole new meaning to the idea of baby pictures, recording every stage of a child's development. My hope is that the sort of social pressure that this understanding of the "liveness" and humanity of the unborn might engender will change the terms of the debate. This turn of the pro-abortion argument to "equality of the sexes" means that the argument that there is no person in the womb, but only tissue, has been lost. This is good news.


Equality of the sexes comes down to "fairness" as in it is not fair that women are the only ones to have to carry the product of conception, but what is to be done about that? Contraception was supposed to have leveled that field, and yet, here it is, an issue still. The logical end of that argument is voluntary sterilization for women who would be equal to men in not becoming pregnant. Why should women go through the trauma of abortion? Sterilization: it's the only way for a woman to be sure she is truly equal.


Anyway, these pictures of the unborn make the processes of the various forms of abortion recognizably horrible.

Kate, as always, you make a very clear, sensible and correct argument. I agree. The fact that the other side feels compelled to move the argument to different ground does indicate that they sense they're on indefensible ground right now. So we press forward on this ground and, so emboldened, welcome the fight on the new turf.

My obstetrician did not have 3-D technology when I was carrying my two children but he did have an ultrasound in his office and I could see them every time I went in for a visit. I have a picture of my daughter at 3 weeks. I could never make sense of these fuzzy images, but the fact that the doctor could and that he could tell me where the head was, etc. always fascinated me. Then one week the ultrasound showed a perfect little hand. So I have this great picture of a perfect hand at 9 weeks. It was unmistakable and it was very moving. The intersection of reason and compassion is here on our side when you see these kinds of images.

12: Julie, thanks for the compliment.
It's true that the Blob will make its "equality" argument regardless of which approach we use ourselves. And yes, we will need to answer it in part with an alternative understanding of equality. But equally, we'll need to argue common sense -- that equality is not the only value. The Ginsburg Constitution is one lost presidential election away from full enactment. One reason, incidentally, why I have little patience for righter-than-thou zealots who vow that they will never vote for Giuliani, should he be nominated. Anyone who doesn't understand the difference between the confusion of an Anthony Kennedy and the rigid, anti-democratic, anti-cultural leftism of a Ginsburg doesn't deserve the time of day. Ditto for anyone who doesn't understand the difference between a partially ajar door to the Oval Office and a firmly shut, locked and deadbolted one.

David--and here our common ground is more firm than divisive is our small wedge! I agree, agree, agree, agree! There is a vast practical difference between a Kennedy and a Ginsburg--even if the very clever among us wish to demonstrate the similarities at their cores. The very clever have a point that should be heeded--but never without heavy doses of practical wisdom. I am very disappointed in Guiliani because of his abortion position--particularly as to gov't funded abortion--but if he is the nominee I certainly will not be voting anything other than Rudy in Nov. 2008.

Yet, while I understand and sympathize with your hesitancy to take up the abortion argument on the basis of equality, you do at least see that it is coming and that we're going to have little choice in the matter. That being the case, why cower in fear? Continue punching where it has hurt them before--but go for the knockout blow. Conservatives need to be bold and to embrace this opportunity to clarify the meaning of equality as their rightful inheritance. One important practical effect this will have, I believe, is that it may completely discombobulate the opposition. They do not expect this defense; it will be foreign to them, and we may find them totally unable to respond. If done correctly, we could make them look very foolish indeed. They are the ones, after all, that have the hard task of defending the indefensible! All of this means, of course, that conservatives will have to understand the meaning of equality for themselves and--as I am continually reminded on this blog--that is no given. No given, indeed!

So we have a bit of hard work in front of us, don't we? No matter. That is hand we've been dealt and so it must be played. "Let us have faith that right makes might, and in that faith let us, to the end, dare to do our duty as we understand it." --he whose name must not be said (Cooper Union, 1860)

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