On The Possibility of An Abortion Compromise

A fine post from John Schwenkler:

... if the pro-life position on abortion is unpopular, then so is the pro-choice one; or rather, each is unpopular under certain descriptions and popular under others, in ways I'll make more precise in just a moment. When you look at the polling on the issue, what you see is that while there may be a slightly higher preference for the "Always Legal" position than the "Never Legal" one, both of those positions together only make up somewhere between a quarter and a third of the electorate, the vast majority of which occupies the mushy territory in the middle. But - and this is the crucial observation here - the first of these views just is the view of the Democratic Party, since so long as Roe v. Wade and the body of jurisprudence that follows in its wake remains in place it is necessarily the law of the land that there can be no meaningful abortion restrictions whatsoever. And so to the extent that the GOP is the anti-Roe party while the Democrats represent the pro-Roe constituency, it is the latter position that is in fact the extreme one, while the former position is itself a mild step that is pretty much a prerequisite to the sort of compromise that Freddie suggests pro-lifers should be agitating for. (On which more, again, in just a moment.)

Secondly, however, the above observation is complicated by the way voters respond to questions about abortion rights when they are couched in terms of Roe itself: somewhere between a half and two-thirds of the electorate seems to be committed to the claim that Roe should not be overturned, despite the fact that such a position is directly at odds with many of those voters' commitment to the need for legal restrictions on abortion rights and the fact that Roe rules such restrictions out of court. The reasons for this inconsistency are manifold and not worth delving into at the moment, but the crucial point at present is just that the Democratic position in support of Roe is one that is popular despite the incompatibility of such a position with the middle-ground stance on abortion that is occupied by the vast majority of American voters. Put slightly differently, and by way of an entirely reasonable bit of speculation about the source of this inconsistency, the point is that the pro-life position on Roe is one that is unpopular only because voters think that overturning Roe would mean eliminating abortion rights altogether, whereas in reality it would make possible exactly the sorts of compromises that most voters claim to want.

Thirdly, and bringing both of these points together, I for one would be happy to see conservatives couch their arguments against Roe (or for a constitutional amendment that would disembowel it, on which topic see my exchange with reader Ed Baird toward the bottom of the comments here) in terms of the sorts of federalist or possibility-of-compromise language that I've been using here, but the fact is that I think Ross was right when he recently remarked (somewhere; I can't find the reference) that such a position would be politically untenable because it would jettison the support of the "extreme" pro-lifers whose dollars and voices presently keep the movement going. But if Freddie and others like him would really like to work toward some sort of compromise, the fact is that the first step will have to come from the Left, not by way of hollow talk of "reducing the need for abortions" (imagine if Civil Rights leaders were told to focus their attention only on the "underlying causes" of racism!), but by working to actualize the sorts of legal frameworks that would make genuine compromise - that is to say, the sorts of late-term-with-exceptions restrictions that Americans overwhelmingly support - possible.

Actually, I don't think I've said anything about the untenability of pro-lifers speaking the language of compromise, federalism, etc; indeed, I think given how adept many pro-life groups have become at pursuing the very, very incremental goals that are possible within the Roe framework (restrictions on partial-birth abortion, parental notification laws, etc.), it's not implausible to imagine them being willing to talk compromise more often on the bigger issues as well. Obviously it's a movement that tends to attract absolutists, but I think pro-lifers have been far more flexible and pragmatic in how they've pursue their goals - especially over the last decade - than they're often given credit for.

Meanwhile, Schwenkler's larger point is especially worth keeping in mind when confronted - as pro-lifers often are - with arguments like this one, from P.J. O'Rourke:

Take just one example of our unconserved tendency to poke our noses into other people's business: abortion. Democracy--be it howsoever conservative--is a manifestation of the will of the people. We may argue with the people as a man may argue with his wife, but in the end we must submit to the fact of being married. Get a pro-life friend drunk to the truth-telling stage and ask him what happens if his 14-year-old gets knocked up. What if it's rape? Some people truly have the courage of their convictions. I don't know if I'm one of them. I might kill the baby. I will kill the boy.

If we take O'Rourke's hypothetical on its own terms, it reads as an argument for, say, a legal regime that makes abortion available to women/girls below the age of consent - and I think I speak for many pro-lifers when I say that I would gladly entertain that sort of compromise, as part of a broader package of restrictions, if we were drawing up abortion law from scratch. But it's not even close to an argument for the legal regime we have, in which no middle ground is even possible. And so long as Roe remains inviolate, those who urge pro-lifers to "compromise" without providing any legal ground on which a compromise could be forged are effectively telling them to just give up on their movement's goals entirely.