Arguing For The Muddled Middle

He starts with his own summary of the book's purpose:

It is fairly certain that a book titled "The Party of Death" is not calculated to bridge differences, find common ground or in any other way still the controversy that has roiled American politics for more than 30 years.

To the contrary, Ramesh Ponnuru, a gifted polemicist and a sharp thinker, aims to deepen the divide between pro-lifers and pro-choicers, because he believes that the differences are clear-cut. Compromise, he contends, is little more than capitulation to the culture of death enshrined in American abortion law.

Where Berkowitz sees nothing but an angry polemic, I see some actual possibilities for the common ground that Ramesh supposedly despises. First, as I mentioned in my review, Ramesh devoted several chapters of the book to non-traditional pro-lifers, especially the not-dead-yet Democrats for Life. He sees the strident pro-abortion-at-all-costs position to be a significant liability for the Democrats, and he has continued to elaborate on this theme in other writings. (H/T: ProLifeBlogs)

Berkowitz says a few nice things about The Party of Death, but then begins his criticism of it:

Opinions on abortion, according to the AEI study, have been "remarkably stable" over the past 30 years, and they reveal a "deeply ambivalent" America. A solid majority believe that abortion should be a matter of personal choice. They wish to uphold Roe while favoring restrictions such as parental consent for minors (usually including a judicial bypass), spousal notification (also including a judicial bypass) and 24-hour waiting periods.

Opinion surveys--AEI's study relies on a variety of polls--suggest that Americans are antiabortion but pro-choice. Mr. Ponnuru blames this seemingly confused outlook on commentators who misrepresent the law laid down in Roe. (He briefly takes me to task, among others.) Although it is common to say that Roe permits states to prohibit abortion in the final trimester, in fact the court's decision provides an exception when the pregnancy poses a risk to the mother's health. This health exception, Mr. Ponnuru argues, swallows the rule: Doctors and women routinely twist it to cover the anxiety and depression that can accompany the prospect of an unwanted child. The result, Mr. Ponnuru declares, is an abortion-on-demand legal regime.

In his criticism, Berkowitz seems to have made one of the big mistakes that Ramesh identified in the book: he is confusing support for Roe with support for legal abortion. Yes, a "solid majority" of Americans claim to support Roe (or is it a mere plurality?), but they do not support legal abortion as we currently have in the United States. Once you start asking questions about second- or third-term abortion, that support drops quickly. Furthermore, a recent poll (as cited by Ramesh himself) suggests that a narrow majority of Americans would actually support banning abortion with three exceptions: life of the mother, rape, and incest.

Worse yet, Berkowitz seems to have missed one of Ramesh's main anti-Roe points: while Americans are ambivalent about abortion, our Courts have given us a de facto set of abortion laws that do not reflect any of that ambivalence. As Ramesh stated in the book, American abortion law is among the least-restrictive in the free world. Most European countries, not generally known for being pro-life, have more restrictions on abortion than the United States has. Overturning Roe would return abortion to our elected officials, who would probably create a compromise solution that would reflect our ambivalence. Making this point as he does clearly shows that Ramesh recognizes that the divide is real, not just a product of the Roe mythology.

But then Berkowitz launches his strongest criticism:

Mr. Ponnuru is committed to the view that this deep ambivalence, however persistent, is immoral and unreasonable. At the core of "The Party of Death" is the argument that an embryo has the same claim on us as a newborn child because, from the moment of conception, it contains the genetic structure of a unique human being. It doesn't matter to Mr. Ponnuru that this argument flies in the face of a complex intuition that seems to underlie the American ambivalence: Invisible to the naked eye, lacking body or brain, feeling neither pleasure nor pain, radically dependent for life support, the early embryo, though surely part of the human family, is distant and different enough from a flesh-and-blood newborn that when the early embryo's life comes into conflict with other precious human goods or claims, the embryo's life may need to give way. Deciding just which goods and claims are compelling is, of course, agonizingly difficult but does not, in itself, place one beyond the pale.

First, I don't remember Ramesh describing Americans' ambivalence about abortion as either "immoral" or "unreasonable." He mainly describes it as illogical, which it is when you really take the time to examine it. But then, people have held all sorts of illogical beliefs throughout history, including the belief that humanity could be decided by skin color, ethnicity, religion, gender, or age....

Second, Berkowitz's objection shows that he still doesn't understand the root of the pro-life argument. Let me help him out a little: Yes, pro-lifers acknowledge that there are differences between unborn children and human beings at other stages of development, just as there are differences between toddlers and senior citizens. Certain rights are tied to certain stages of human development. As far as I know, no pro-lifers are arguing that unborn children should be given the right to vote, drink alcohol, or drive a car. However, it has also been a foundational belief of our republic that certain rights are so important, so foundational to human liberty, that they are inherent to all human beings. Among these rights is the right to life. Without a right to life, no other rights matter. No other freedoms can be enjoyed if we are not alive to enjoy them.

Berkowitz's point about "other precious human goods or claims" is a familiar pro-choice counter-claim to the pro-life argument, and one that I have seen from at least one of my commenters. So I'll address it ... when human rights come into conflict, we must have some way of resolving them. Berkowitz and other pro-choicers seek to resolve that claim by judging between the human beings themselves. The unborn child is younger, smaller, and more-dependant, so his/her rights must be sacrificed. But this is inconsistent with the basic claims of human equality. Our basic rights must be intrinsic to our humanity, not determined on some sort of sliding scale.

As Abraham Lincoln once wrote:

If A. can prove, however conclusively, that he may, of right, enslave B.—why may not B. snatch the same argument, and prove equally, that he may enslave A?—

You say A. is white, and B. is black. It is color, then; the lighter, having the right to enslave the darker? Take care. By this rule, you are to be slave to the first man you meet, with a fairer skin than your own.

You do not mean color exactly? You mean the whites are intellectually the superiors of the blacks, and, therefore have the right to enslave them? Take care again. By this rule, you are to be slave to the first man you meet, with an intellect superior to your own.

But, say you, it is a question of interest; and, if you can make it your interest; you have the right to enslave another. Very well. And if he can make it his interest, he has the right to enslave you.

Doesn't this same logic apply to the unborn? If the right to life is determined by age, then what prevents us from embracing legal infanticide? If it is determined by size, then should we euthanize all persons below a certain height? No, the right to life cannot be determined on a sliding scale. Either all human beings have it, or all human beings don't have it ... or we have de facto declared some human-beings to be non-human.

Naturally, this leaves the question of how we should resolve conflicting rights claims. Contrary to pro-choice propaganda, most pro-lifers do recognize that people should have a right to control their own bodies. Obviously, this right includes pregnant women. But abortion places a pregnant woman's right to control her body in direct conflict with her unborn child's right to life. How should this conflict be resolved? If we reject any resolution that uses differences between people, what then?

The key to this resolution is to note the differences between rights and judge accordingly. Some rights are simply more important than others. As our most foundational right, the right to life must be more important than other rights. Our law reflects this notion in how we allow people to use lethal force to defend themselves. While self-defense laws vary across jurisdictions, the general rule is that we are only allowed to take another person's life to protect our own lives or the lives of others. We are not allowed to use lethal force to defend mere property, which implies that the right to life is more important than the right to own property.

While a pregnant woman has an indisputable right to control her own body, the unborn child's right to life takes priority. Just as I am not allowed to kill someone else in the pursuit of my own liberty, so a pregnant woman should not be allowed to kill her unborn child in the pursuit of her own liberty. This is the essence of the pro-life position ... and Berkowitz doesn't seem to get it.

(cross-posted to Naaman the Ex-Leper)