9/20/2004
How Best Defend
Life?
Recently I asked a committed pro-life advocate, “Would you prosecute a woman who has had an abortion?” He answered without hesitation, “Of course not.” My reply to him was: “why not?” In fact, if abortion is really murder, a woman who has an abortion should not only be prosecuted, but she should be subject to the death penalty. Yet I have never heard a pro-life advocate argue for that ultimate penalty. Why not?
The pro-life cause has its most persuasive argument in the reality that law educates. If the law does not forbid something, the implicit lesson is that the thing not forbidden is good. When the law forbade interracial marriage, most people concluded that interracial marriage was inherently bad. The same was true when the law disenfranchised former slaves. If former slaves are not allowed to vote, it must be because all former slaves without exception are inherently unqualified. If the law permits abortion, the argument goes, people will learn that abortion is perfectly acceptable.
I will leave aside the argument that Catholic moral theology does not require the law to criminalize every morally evil action. For example, in some Catholic countries, prostitution has been legal. The argument was that criminalizing it would result in greater evils than allowing it to exist without legal prosecution. That argument has merit, but I presume that pro-life advocates have long ago rejected it. Furthermore, it can be argued that legalizing prostitution does not reduce the overall level of evil in a society, so that the basis of the argument dissolves. I would like to approach the abortion debate from an angle that I have not seen in print. I take my start from the fact that pro-life advocates do not talk much about the legal penalties that should be visited on the woman who has an abortion.
Years ago a theology professor of mine who had studied in Spain maintained that Latin cultures, such as the cultures of Spain and Italy, treat law as moral exhortation, an ideal meant to be aimed at but not rigidly enforced. Anglo-Saxon cultures treat law as a statement of the minimum—if you step over the line, you are to be punished. Latin cultures see the most important function of law as that of moral education. Anglo-Saxon cultures see it as the deterrence of evil acts.
Perhaps what has happened is that pro-life advocates are reasoning from a Latin frame of mind regarding abortion, a not-unlikely possibility, given that many pro-life people are grounded in a Roman Catholic tradition of mercy toward sinners. They are saying, implicitly, that abortion should be illegal, but we will not prosecute the woman who has an abortion. We will prosecute abortion providers, but what we most want is for the law to communicate that abortion is an evil thing.
People less familiar with a Latin approach to law, people grounded in the Anglo-Saxon approach, reason that if the law criminalizes abortion, then the woman who has an abortion must be, and in fact will be, prosecuted, convicted, and punished. They therefore argue that abortion must not be criminalized, but looked at as a moral decision not subject to the law.
Pro-life activists focus on abortion providers, who are easily cast as villains, murderers for hire. They are people willing to kill for the sake of monetary gain. But providers need customers. If there were no customers, the providers could not stay in business. It can be argued that it is the customers who need to be prosecuted, not just the providers. We prosecute users of illicit drugs, not just the providers of such drugs.
The
When people use Hitler as an arguing point, rhetoric is heating up, and reasoned debate begins to descend into naked political struggle. That is where we have arrived at in this country. Naked political struggle is poisoning our entire political discourse, driving reasoned debate out of the public discourse. The struggle has made it easier for radicals on both sides to demonize their opponents, and has contributed to the atmosphere of polarization that hinders constructive approaches to other issues such as response to terrorism and concern for the poor.
Saul Alinsky was an independent and
creative advocate of oppositional politics. He believed that people respond
only to political pressure, and that if you want action, you must devise ways
to make life difficult for your political opponent. He achieved some of his
most famous early successes by allying himself with Protestant and Catholic
pastors in the Back of the Yards neighborhoods of 1930s
Pro-life strategists have adopted Alinsky tactics. I assume they reason thus: the law should not permit abortion. The law is formulated by politicians. Politicians respond only to pressure. Therefore we must pressure politicians to do what is right. That means: vote for politicians who agree with you, vote against those who do not agree with you.
Few would disagree with this reasoning. It has been the basis of Catholic political life in this country from the beginning. But the strategy has not proven to be as successful as the Alinsky model would predict.
How Successful Has
the Pro-Life Strategy Been?
Since 1972 the social science community has been the beneficiary of the General Social Survey (GSS), an all-purpose national survey conducted every year or two, which includes factual information and opinion information about a wide range of important human concerns. The GSS differs from traditional polls like the Gallup Poll in that it includes extensive information about respondents such as their age, ethnic origins, religion, political preferences, and the characteristics of their family backgrounds. The GSS has included seven questions about abortion in every administration of the survey from 1972 through 2002.
In the entire 30 years of the survey, there has been almost no movement in public opinion concerning abortion. The questions all begin as follows: “Please tell me if you think it should be possible for a woman to obtain a legal abortion if. . .” Then follow seven cases (I will follow each case by an abbreviation, for easy reference):
--If there is a strong chance of a serious defect in the baby? (defect)
--If she is married and does not want any more children? (no more kids)
--If the woman’s own health is seriously endangered by the pregnancy? (health)
--If the family has a very low income and cannot afford any more children
(poverty)
--If she became pregnant as the result of rape? (rape)
--If she is not married and does want to marry the man? (unmarried)
--The woman wants it for any reason? (any reason)
To put it briefly, over 30 years there has never been a year in which less than 75% of the public have thought that abortion should be legal in the “hard” cases (defect, health, rape), and never a year in which more than 55% of the public thought it should be legal in the “soft” cases (no more kids, poverty, unmarried, any reason). These percentages have changed very little over the 30 years. Here are percentages who answer “yes” for 1973 (the first year after Roe v. Wade) and 2002, for each of the seven items:
Item 1973 Percent “Yes” 2002 Percent “Yes”
Defect (hard case) 82% 76%
No more kids (soft) 46 43
Health (hard) 91 90
Poverty (soft) 52 43
Rape (hard) 81 78
Unmarried (soft) 48 41
Any reason (soft) 32 42
From one standpoint, these figures prove the truth of the principle that law instructs. Since abortion is legal, most people believe it is permissible in at least some cases. But why is there a difference in opinion between “hard” and “soft” reasons for abortion? If the law has instructed, it has not instructed the same way for all cases. Yet there is nothing in the law itself that distinguishes between hard and soft cases. Roe v. Wade is across-the-board—all abortions are legal.
However, any politician looking at numbers such as these will conclude that there is almost no public support for a blanket prohibition on legal abortion. A politician who has voted pro-choice has nothing to lose by continuing to vote pro-choice, but a lot to lose by changing his or her position and being charged with waffling. Public opinion is simply not behind a blanket pro-life legal stance.
The GSS asks people “what is your religious preference?” Their answers may not reveal much about personal faith, but that is true whenever one looks at religion and politics. Here are the comparisons between self-identified Catholics and Protestants on the seven abortion items for the 2002 survey:
Item Protestant Percent “Yes” Catholic Percent “Yes”
Defect (hard case) 73% 73%
No more kids (soft) 35 40
Health (hard) 89 86
Poverty (soft) 35 38
Rape (hard) 75 75
Unmarried (soft) 33 37
Any reason (soft) 34 38
Catholics are often seen as more pro-life than Protestants, yet on all of the “soft” reasons for abortion, Catholics are more likely to approve of abortion than are Protestants. The only reason for which Catholics express less of an approval of abortion than do Protestants is for the hard case of health. All of the efforts of the last thirty years by the United States Conference of Catholic Bishops to educate the Catholic public on the issue have not had much of an effect.
I am not presenting these figures to argue that public opinion should dictate morality. I am presenting them to argue that thirty years of the present pro-life strategy have not succeeded in the one area where success is essential if law is to change in a democratic polity: the area of public opinion.
Neither Democratic nor Republican politicians are likely at this point to walk away from their positions, but it might be helpful if each side could acknowledge a basic decency on the part of the other, and appreciate the validity of the opposing position. Pro-choice advocates could concede that the law can educate, and that legalizing abortion implicitly teaches that abortion is acceptable. Pro-life advocates could acknowledge that many, and possibly most, pro-choice people are not using the term “choice” as a euphemism, but that they are people concerned with the very real problems that will be created when we imprison women who have had abortions.
The bottom line is that most of the