Rauch & Penalver: There is no Moderate Pro-Life Position


Update: Ramesh points us to his own explanations of why it's reasonable to favor abortion restrictions without wanting to throw women in jail.

They are here, here and here (already cited below).


There's been an interesting back and forth over at Mirror of Justice that was sparked by this Jonathan Rauch review of Ramesh Ponnuru's Party of Death.

Rick Garnett starts here
Eduardo Penalver replies
Back to Garnett
Garnett also quotes a bit of Ponnuru's own refutation of the Rauch/Penalver critique (the piece he quotes can be foud here.)
More Penalver
One last bit from Garnett

The critique in Rauch's review that fails to impress Garnett but which finds support from Penalver is this:

“Eight-week-old fetuses do not differ from 10-day-old babies in any way that would justify killing the former,” [Ponnuru] writes. “The law will either treat the fetus as a human being with a right to be protected from unjust killing or it will not.” If those are the only choices, and if the right position is that an early-term fetus is a full-fledged person, why not impose jail terms on women who seek abortions? After all, they are taking out a contract for murder. Instead of confronting that question, Ponnuru equivocates, mumbling that “the pro-life movement” does not necessarily seek jail time for women and that fining doctors and revoking medical licenses might suffice.

He believes that discarding or destroying embryos should be forbidden, but should it be punishable as first-degree murder? If not, why not? If an embryo is morally indistinguishable from a newborn, then killing it is surely a heinous crime. If human life is “inviolable,” then why should it matter whether a hopelessly vegetative patient — someone like Terri Schiavo — left instructions not to be fed? Surely, from Ponnuru’s perspective, the doctors caring for her cannot ethically conspire to starve her to death even if she would prefer to die. If every abortion is infanticide, could even the most life-threatening pregnancy be ended? We don’t have a “health exception” to the murder laws.

This argument is being increasingly used against pro-lifers, especially since the release of Ponnuru's book. As pro-lifers succeed in making it more and more clear that abortion is an unjust killing, abortion supporters shift the debate and accuse them of not having the courage of their convictions. Rauch, indeed, does not express much disagreement with Ponnuru's arguments in Party of Death. If abortion is murder, then why not the death penalty for mothers who abort? Since pro-lifers don't generally support any criminal sanctions for these women, then they must not really believe that abortion is murder, or else there is some other inconsistency that makes pro-lifers wrong. Whatever the answer is, pro-lifers are wrong, wrong, wrong.

Penalver says:

I agree with Rick that the LAW treats all sorts of homicides differently, but usually not based on the mere identity of the human victim. (Imagine a law, for example, that classified the killing of very old people as a less serious form of homicide than the killing of someone in the prime of life.) If anything, we normally think of the killing of the very young and defenseless as a particularly egregious form of murder, not as something worthy of lesser forms of punishment.

Without asking what he thinks of the death of Terri Schiavo, I'll grant his premise that "we normally think of the killing of the very young and defenseless as a particularly egregious form of murder." However, the idea behind refusing to legally sanction the mother is not to render a lesser degree of justice; rather the idea is to take into consideration circumstances that alleviate the moral culpability of the mother (and even the doctor).

I am not a lawyer, so I leave this open to correction, but the law seems to have many provisions that absolve the accused of guilt if there are extenuating circumstances. Given that the cultural left has largely succeeded in its goal of making us believe that the fetus is a blob of tissue that isn't human yet, a real case can be made that those who procure and perform abortions lack awareness of their crime. Indeed, the judicial environment of abortion on demand itself has done the most damage to respect for unborn life in this culture. It's simply common sense to say that a woman whose conscience is formed in this culture cannot be held fully responsible for viewing the unborn as less than human and acting on that view. For decades we have been bombarded with the idea that the unborn child is a piece of property, and now we're supposed to throw people in prison for holding that view?

This is all made even more frustrating by the fact that Ponnuru (whose book, remember, started this discussion) specifically says abortion is not murder precisely because of these considerations.

And then there's this from Penalver:

Abortion opponents should be taking to the streets to prevent the ongoing murder. Catholics are not pacifists, so perhaps armed intervention would be justified. (In light of the equation to murder, I think it is apt to ask what our faith would require of us were we to have lived in Nazi Germany. I assume armed resistance would have been morally permitted.) The destruction of property (e.g., the fire-bombing of abortion clinics at night after delivering a warning to ensure no loss of life) would seem like an easy case.

First of all, pro-lifers do "tak[e] to the streets." Annually, on the anniversary of Roe v. Wade (though you wouldn't know it by the non-coverage it gets from the mainstream media) and in hundreds if not thousands of local protests. They take to the streets in front of abortion clinics (at least they do where unjust laws do not forbid the practice) to personally witness and offer help to women considering abortion. But lets put those present-day examples aside.

Penalver says this is only a thought experiment, but just by bringing it up he shows either an ignorance or a disregard for the history of the pro-life movement. Some pro-lifers once felt that violence was indeed justified, some went for a more passive sit-in style approach and still others were "Operation Rescue" types who blocked doors and dismantled equipment. What happened to them? They were vilified by the cultural left, many went to prison, and irreparable harm was done to their reputations and families. Since Joe Scheidler only this year had his ludicrous conviction on mob-style racketeering charges overturned (the case isn't really concluded yet), we're still feeling the effects of this.

The end result of these efforts was to entrench abortion even more deeply in society because the NARALs, NOWs and Planned Parenthoods benefited from the PR of having an enemy - the violent Christian - to use as a scare-mongering tactic. Legislation was passed banning some abortion protests and creating bubble zones around abortion centers and more children died.

The pro-life community, proving that they are anything but fanatics, responded. They realized that peaceful protest and one-to-one help are more effective tools in this debate, and thus the sidewalk counseling approach grew more popular where they weren't hampered by law. Pro-lifers realized that offering real alternatives to abortion would help eliminate the need for abortion, and thus the crisis pregnancy center came to be. Politically, an incrementalist approach was taken up to go along with the abolitionist approach.

In sum, the pro-life community realized that the way to end legal abortion is to convince individual women and society at large that abortion is wrong, that it is a bad choice, and that the fetus is a human life deserving protection, while simultaneously passing reasonable common-sense restrictions that all people could tolerate.

It's working. The conventional wisdom is more and more in favor of restricting abortion rights and even the Supreme Court is becoming more reasonable. The best evidence that it is working comes from the reaction to Party of Death. Almost nobody has battled Ponnuru on the merits of his arguments. Instead, there have been three main critiques:

  1. The Jon Stewart critique: change the subject. instead of discussing abortion during Ponnuru's Daily Show appearance, Jon Stewart railed against the war in Iraq, implying that unjust killing should be opposed everywhere. He practically granted Ponnuru's premise while ignoring the conclusions.

  2. The Tom Ashbrook critique: judge a book by its cover. On his On Point radio show, Tom Ashbrooke attacked…. the title of the book - for 45 minutes, Ashbrook would not let the title go. At one point, Ponnuru called him on his refusal to engage the arguments in the book. Ashbrook's response was to suggest (without irony) that the title of the book is akin to an incitement to genocide.

  3. The Rauch/Penalver critique: pine for fundamentalism. Penalver and Rauch say that Ponnuru - and pro-lifers by extension - can't *really* believe that abortion is unjustified killing without favoring criminal sanctions for women who procure them. The only credible pro-lifer is a clinic-bomber.

Penalver's posts also contain some odd views of politics. He says:

If abortion is the murder of millions of innocents that dwarfs all other issues, then there is no room for compromise or delay (including by your own favored politicians, who, despite control over all branches of the federal government and a majority of state governments, seem to be taking the slow road to the promised land).

Neither the Supreme Court, nor the filibuster seem to exist in Penalver's world.

Finally, here's Penalver's take on what pro-lifers should be doing, if they really think abortion is an unjust killing:

Why don't the actions of those who engage in this heated rhetoric match their words? The United States fought a war over slavery (among other things) that killed half a million people. John Brown went to the gallows for attempting an armed abolitionist uprising. These actions seem justified to me in light of the gravity of the injustice. But if abortion is murder, then the scale of the injustice being perpetrated on a daily basis in our country alone (not to mention the world) is truly staggering. Over six million innocent human lives have been intentionally taken in the United States under the Bush presidency alone. Why does President Bush get a pass for this? No doubt some will point towards his rhetoric of life and the limited actions he has taken, which admittedly would not have been taken under a different administration. But if abortion is mass murder on the scale of a Holocaust every eight years, shouldn't he be doing more? Where is the sense of urgency? If abortion is mass murder, the President should be filibustering, refusing to talk about anything else, shutting the federal government down until he gets his way, not taking his eye of the ball and fighting wars in Iraq, negotiating trade agreements, cutting taxes, or making speeches about the problems with social security.

Is there a clearer case of "damned if you do, damned if you don't"? Kill an abortionist, you get thrown in prison, hurt your cause and more children die (not to mention that eternal consequences). Don't kill an abortionist, and you're branded as weak in the knees and a Catholic lawyer implies that you are a hypocrite. And surely, nothing would advance the pro-life cause as much as a civil war. Who exactly should the pro-life militias attack? NARAL headquarters? California? Should Congress spend time passing laws that are doomed to be stricken down?

So... we should be rioting in the streets, shutting down Congress. For what? To end up on the 6 o'clock news and send the DNC's fundraising skyrocketing while condemning the unborn to further dehumanization and death. We should also be punishing Republicans for being too slow on abortion by… electing Democrats! Who will then give us more Breyers and Ginsbergs. The only strategies pro-lifers can legitimately employ are those that are destined to lose.

What's disturbing about the Penalver/Rauch argument is that pro-lifers are portrayed as incapable of compassion for women. Penalver and Rauch's critique ultimately is that pro-lifers don't view Eric Rudolph as a hero. That might seem harsh, but reading Rauh and Penalver, you get the feeling that Ponnuru's position makes them uncomfortable because it makes so much sense. It's very convenient to argue that pro-lifers have to want to throw post-abortive women in jail. This aim of employing the argument is to turn the sensible pro-life position into John Derbyshire's right to life cult. It attempts to cut off a full and truly beautiful vision of the dignity of human life and stunt it, permitting only that which can be mischaracterized as repressive. One expects this kind of argument in the New York Times. To find it lauded at "A blog dedicated to the development of Catholic legal theory" is reprehensible.

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