Ross Douthat Makes No Sense

by hilzoy

Ross Douthat has a very peculiar column on abortion in the New York Times. In it, he asserts, falsely, that "under current law, if you want to restrict abortion, post-viability procedures are the only kind you’re allowed to even regulate": in fact, it is possible to regulate abortions before viability, and the Supreme Court in Casey upheld precisely such restrictions. He claims, also falsely, that "Americans aren’t permitted to debate anything" besides post-viability abortions (which would surely come as a surprise to the First Amendment), and that abortion needs to be "returned to the democratic process." As Freddie at the League of Ordinary Gentlemen notes:

"Setting aside the banal fact that the judicial system is a part of our democratic process, there is a clear, straightforward and well-known way to overturn Roe v. Wade– pass a constitutional amendment criminalizing abortion. That’s how you override Supreme Court decisions; that’s how Dred Scott was effectively overturned. That’s how the federal income tax was passed. There’s a method for overturning Supreme Court law you don’t like, it’s well known, it’s time tested, and it’s as open to abortion foes as it is to anyone else."

But what's really odd is his reasoning. Try, if you dare, to make sense of this:

"The argument for unregulated abortion rests on the idea that where there are exceptions, there cannot be a rule. Because rape and incest can lead to pregnancy, because abortion can save women's lives, because babies can be born into suffering and certain death, there should be no restrictions on abortion whatsoever.

As a matter of moral philosophy, this makes a certain sense. Either a fetus has a claim to life or it doesn't. The circumstances of its conception and the state of its health shouldn't enter into the equation.

But the law is a not a philosophy seminar. It's the place where morality meets custom, and compromise, and common sense. And it can take account of tragic situations without universalizing their lessons."

First of all, the claim that "where there is an exception, there cannot be a rule" does not make sense as a matter or moral philosophy. If it's possible to distinguish clearly between the exceptions and the other cases, there's no problem at all with having a rule. This is why we can have such rules as: No parking in a handicapped spot, unless you have a handicapped badge. When it's not easy to tell the exceptions from the rest, whether or not it's OK to have a rule depends on how bad it is to miss those exceptions, and how bad it is not to have a rule. 

There are surely circumstances in which it would be fine to drive on the left, but we do not normally think that these should prevent us from having a rule about which side of the street to drive on. On the other hand, the existence of people who have been falsely convicted of capital crimes is a much more compelling argument against capital punishment: even one mistake is a horrendous injustice.

More importantly, consider this sentence:

"Because rape and incest can lead to pregnancy, because abortion can save women's lives, because babies can be born into suffering and certain death, there should be no restrictions on abortion whatsoever."

How on earth is that supposed to be evidence for this?

"Either a fetus has a claim to life or it doesn't. The circumstances of its conception and the state of its health shouldn't enter into the equation."

The whole point of bringing up cases of rape and incest is to argue that the circumstances of a fetus' conception are relevant to the question whether abortion should be legal. If we were convinced that a fetus was a full person, they wouldn't be: we do not think it's OK for a mother to kill her five year old child on the grounds that it is the product of rape or incest. Likewise, the point of bringing up the fact that "babies can be born into suffering and certain death" is to say that the state of the fetus' health is relevant, not that it isn't. 

What Douthat wrote makes about as much sense as saying: "The argument for not hitting yourself on the head with a hammer is that it would cause you a whole lot of pain. As a matter of moral philosophy, this makes a certain sense: hitting yourself on the head with a hammer is either right or wrong regardless of how it makes you feel." To which the only possible response is: Huh???

Douthat's column begins with a rather lovely meditation on the hard cases that George Tiller had to deal with: abortions on "women facing life-threatening complications, on women whose children would be born dead or dying, on women who had been raped, on "women" who were really girls of 10." He doesn't actually say much about how we should deal with these cases, other than the part I already quoted: the law "can take account of tragic situations without universalizing their lessons." How it should take these cases into account, and why it shouldn't universalize their lessons, are left shrouded in mystery.

And yet, somehow, he ends up here:

"If abortion were returned to the democratic process, this landscape would change dramatically. Arguments about whether and how to restrict abortions in the second trimester -- as many advanced democracies already do -- would replace protests over the scope of third-trimester medical exemptions.

The result would be laws with more respect for human life, a culture less inflamed by a small number of tragic cases -- and a political debate, God willing, unmarred by crimes like George Tiller’s murder."

Because, as we all know, giving terrorists what they want is the surest way to prevent more terrorism.

There are arguments for making abortion illegal. I don't accept them, but they exist. Douthat should try making them sometime.

Comments

[wonkie]

I think that he is trying to say that if abortion is murder under one set of circumstances, then it must be murder under all circumstances. Which is true. Either it is murder or it isn't.

But he did not say that. I'm not sure why not.

[Paulk]

I'm beginning to wonder if Ross's promotion has gone to his head. I know he's made bad arguments in the past, but his record since going to the times has been embarrassing, frankly. We know he CAN make better arguments than this. For some reason, he seems to have decided there is no need.

Sad. You think von would take the gig?

[wonkie]

Actually it strikes me as being an essay written by someone who doesn't know what he thinks on the subject. It is as if his head is full of the usual "pro-life" plaititudes and rightwing assumptions which are in collision with some insights and empathy. He seems to be trying to come to a conclusion about something he is no longer sure of.

[Point]

"Because, as we all know, giving terrorists what they want is the surest way to prevent more terrorism."

This point could not be stated better; I know this, because it's been argued about to death in Sebastian's last post.

Given how much we've all already covered this turf, can we at least agree to focus our arguments on responding to the rest of the article?

[someotherdude]

He seems to be trying to come to a conclusion about something he is no longer sure of.

I've been there. Many times.

[FashionablyEvil]

The argument for unregulated abortion rests on the idea that where there are exceptions, there cannot be a rule.

Actually, I was fairly certain that it rested on the idea that women are fully autonomous beings with the right to make their own medical decisions.

[North]

He seems to be trying to come to a conclusion about something he is no longer sure of.

Yes, but what I find kind of upsetting about this article is that he's not willing to admit that, and instead comes down - as before - on the side of shaming women and restricting our choices. Dude should stop that.

[sarah]

he has a long history of wanting to control women's sexuality. but the times would probably make a frowny face if he said that flat out.

[RepubAnon]

"Return to the democratic process" is code words for "constitutional rights." You know, like the constitutional right Mr. Douthat is exercising by writing his opinion piece.

As for "unregulated abortion" - "some say" that nobody seeks "unregulated" abortion. However, there are plenty of people advocating an absolute ban on abortion even in cases where both mother and child will inevitably die (such as ectopic pregnancies, or in cases where the fetus is already dead). He's trying to set up a false equivalency and come up with a "middle road" where most abortions are flat-out illegal, and the barriers to access are so high for everyone else that only the rich and well-connected can obtain them.

[Spiny Norman]

"The result would be laws with more respect for human life, a culture less inflamed by a small number of tragic cases -- and a political debate, God willing, unmarred by crimes like George Tiller’s murder."

God's not willing. Ask anyone in the hardcore pro-life movement. They'll tell you: conception begins at fertilization, and God loves this shit.

Douthat's an imbecile.

[Pithlord]

Freddie's argument is terrible. If the Supreme Court does it, it must be democratic, because you could conceivably have a constitutional amendment to overturn the Supreme Court. The fallacy would be obvious if the Supreme Court did something you didn't like.

The "giving terrorists what they want" line is worthy of Bush himself. The argument you need to meet is that blocking the democratic process for changing law radicalizes people who might otherwise use that process. Works in the Middle East.

[kenB]

I think there was a misreading here -- when Douthat says:

The argument for unregulated abortion rests on the idea that where there are exceptions, there cannot be a rule.

he isn't giving his own reasoning, he's referring to an argument made (or at least implied) by some pro-choice advocates who use the sorts of hard cases that he mentioned to object to *all* restrictions on late-term abortions.

[russell]

"The argument for unregulated abortion rests on the idea that where there are exceptions, there cannot be a rule."

It's my observation, FWIW, that exceptions define the rule, rather than nullify it.

"If abortion were returned to the democratic process, this landscape would change dramatically."

What he means by "returned to the democratic process" is "removed from any constitutional protection", so that local, state, and ultimately the federal legislature could pass laws about those aspects of it which Roe currently prevents them from doing.

Were that to happen, the resulting change in the landscape would be that folks like Roeder would go to the places (if any) where abortion remained legal and would blow clinics up and assassinate people there.

People who kill, assault, and threaten other people because they participate in the medical procedure of abortion don't do so because those people are performing abortions in their particular town or state. They do so because they are performing abortions *at all*.

[Loneoak]

First of all, the claim that "where there is an exception, there cannot be a rule" does not make sense as a matter or moral philosophy. If it's possible to distinguish clearly between the exceptions and the other cases, there's no problem at all with having a rule. This is why we can have such rules as: No parking in a handicapped spot, unless you have a handicapped badge.

It's in this claim that we find the core of Ross' ambivalence about abortion. He realizes that there are circumstances in which it is inhumane to force women to carry a fetus/child to term. (This might be the silver lining in the Tiller murder—the light shined on late term abortion stories.) But he simply cannot give up his desire to force 'consequences' on sexual behavior that he doesn't approve of, most specifically female sexual behavior. I'd call it 'slut shaming,' but you can call it something less aggressive if you're more sympathetic to Ross' attitudes. So what he wants is to have rules that limit abortions except when he deems them to qualify for exemptions.

I support the claim that, in the case of abortion, if there are exceptions there cannot be rules. Because who will choose the exceptions? Who will judge whether a woman meets those exceptions in each case? Ross Douthat? Sam Alito? If you trust women as full moral agents capable of making informed choices then it is morally inappropriate, and functionally impossible, to impose rules with exceptions on abortion availability.

[curtis]

I think Douhat's post is more deeply cynical than any of this. Basically, the right to life group has to fight about something; otherwise, people would stop sending them money, and we couldn't have that.

But there is relatively little contraversy about many abortion issues - a broad spectrum of folks feel like it should be legal early on, and there should be restrictions later on, and exemptions for rape, incest, and when continuing a pregnancy threatens the life of the mother. There are certainly some things to fight about around the edges of this, but most people fit in here somewhere.

Ross knows the extraordinary cases are really tough. Andrew has done a fabulous job the last couple of weeks presenting letters from folks all over the abortion debate highlighted the anguish that many families go through in deciding these very tragic cases.

Reaching for understanding would aid the fundraising. So rather than fight a constitutional battle they couldn't win, they would rather demonize these families and caricature their situations because it raises money.

Maybe I am completely off base, but I read Douhat as a cynical reflection on the state of the pro-life movement.

[mythago]

Douhat's whole schtick is that he is the Golden Mean, the Voice of Reason, the one sane man who stands between the clash of extremes to set us all on the middle path of righteousness. You see this argument over and over, no matter what the subject, no matter how shallow and facile the pitch that "hey, nobody but me ever though of this compromise before".

The fact that he isn't a moderate and isn't always right, much less original, doesn't stop him. If he has to warp facts and make incomprehensible arguments to play his role, then by cracky that's what he'll do.

[david kilmer]

I think that he is trying to say that if abortion is murder under one set of circumstances, then it must be murder under all circumstances. Which is true.

What makes it true? It isn't true of other things -- a rose is only red when there's light, a street is safe during the day and maybe dangerous at night, etc.

[The Crafty Trilobite]

Pithlord, the Supreme Court does lots of things I don't like. I have listed some of them frequently on this blog. Nonetheless, it remains part of our process. I'll agree with you just this far: the Court's absolute veto is a very indirect part of the "democratic" process, but nobody (smart) ever said that every facet of our system had to be directly democratic. In fact, exactly the opposite is true: we have no direct democracy at all at the national level -- there is no national referendum process -- and a lot of our Constitution is designed to hinder even indirect, representative democracy. For good reason.

[laxel]

"The argument for not hitting yourself on the head with a hammer is that it would cause you a whole lot of pain. As a matter of moral philosophy, this makes a certain sense: hitting yourself on the head with a hammer is either right or wrong regardless of how it makes you feel."

This hurts my head just thinking about.

[Ryan]

"Because, as we all know, giving terrorists what they want is the surest way to prevent more terrorism."

Judging from their response to 9/11, the repubs should now be arguing that Dr. Tiller's murderer wants more taxes on the wealthy and a democrat in the Oval Office.

Seriously, though, they gave the last group of terrorists what they wanted--a war in the Mideast, torture--why stop now?

[Matt Osborne]

I am doubting Douthat.

[Hartmut]

As I said in the last abortion thread, the extremists give a digestive final product (semi-solid) about the democratic process.
And on the day of Mr.Tiller's funeral* they demonstrated in front of abortion clinics with signs saying "The Pill Kills" 'informing' everyone that contraception** is equal to abortion and therefore murder.
Roe vs. Wade could also be overturned by SCOTUS (the court giveth, the court taketh away...)

*coincidence, the demonstrations were plkanned and scheduled before he murder.
**at least the pill, not sure about their offcial position on condoms.

[Eric Martin]

"The argument you need to meet is that blocking the democratic process for changing law radicalizes people who might otherwise use that process."

But the Supreme Court protecting Constitutional rights IS part of the democratic process. An absolutely vital part. Democracy can't exist without protection of minority/individual rights - a protection that can overrule the executive and legislature absent amendment.

Sometimes Supreme Court decisions do radicalize people. It happened with de-segregation and some other civil rights cases, which provided boons to white supremacist terrorists.

But the answer then, as now, is not to overturn the Supreme Court protections, but to establish the rule of law.

[Joe]

Freddie's argument is terrible. If the Supreme Court does it, it must be democratic, because you could conceivably have a constitutional amendment to overturn the Supreme Court. The fallacy would be obvious if the Supreme Court did something you didn't like.

I'm missing the 'obvious' part, particularly since I'm sure Freddie doesn't always like what the SC does. But, I need not guess. From his piece:

"Personally, I would like to see the Supreme Court decision outlawing the DC handgun ban overturned with a constitutional amendment. I have a democratic outlet for that to happen. But it would never pass, I’m sorry to say. That’s American democracy."

I personally like the term 'republican form of government,' which among other things in this country has judicial review. But, 'democracy' works too, particularly because the people in various ways uphold the process in place.

The "giving terrorists what they want" line is worthy of Bush himself. The argument you need to meet is that blocking the democratic process for changing law radicalizes people who might otherwise use that process. Works in the Middle East.

The argument that Roe "radicalized" people has been shown (e.g., by Scott at Lawyers Drugs and Money) to be overblown. Likewise, again, the people can in effect overrule the Supreme Court. One way would have been to vote for people who would have confirmed Judge Bork. Instead they vote for people like George Bush, who admitted the time is not right to overturn Roe v. Wade. There is also the amendment process.

This is not a pipe dream. The income tax and various New Deal programs was once deemed unconstitutional by the Supreme Court. In less time than has passed since Roe, the people passed amendments or voted into power those who brought a change to the law. Democratically.

Problem is for the radicals here that the people at large want reproductive freedom. As with those who committed violence against blacks in the 1950s and '60s and homosexuals now, this can lead to more radical action, including violence.

[kid bitzer]

"I personally like the term 'republican form of government,' which among other things in this country has judicial review. But, 'democracy' works too, "

yes, the word "democracy" works (since it now means enough different things to do the job needed here, too).

but only the phrase "republican form of government" is enshrined in the constitution:

iv.4: The United States shall guarantee to every State in this Union a Republican Form of Government....

[Joe]

Sure enough Kid Bitzer. And, all those school children talk about it every day ...

"and to the republic for which it stands"

[kid bitzer]

huh? i thought we pledged allegiance to richard stanz.

[russell]

"Douhat's whole schtick is that he is the Golden Mean, the Voice of Reason, the one sane man"

I thought that was David Brooks' gig?

[Herostratus]

Excellent post. But the title isn't very descriptive.

[Herostratus]

Sarah's absolutely right that he has a "long history of wanting to control women's sexuality." The about being scared of the Reese Witherspoon looking girl on pill is hilarious

[kid bitzer]

i especially like the final paragraph:

just give up your right to 3rd term abortions, and we'll stop shooting people!

honest--we'll eschew assassinations, and maybe even acts of bombing and arson! really!

if you just agreed to give that up, then we would be all sweet reason in discussing how to restrict your rights in the second trimester.

and you know why? because it's only that 3rd trimester stuff that gets us hot under the collar. if you weren't forcing us to be violent about 3rd trimester abortions, we would be totally different about second trimester abortions.

we *are* capable of making distinctions, you know.

because, after all, "Either a fetus has a claim to life or it doesn't. The circumstances of its conception and the state of its health shouldn't enter into the equation."

oh, wait. maybe we're not capable of making distinctions after all. maybe we're such simple-minded fanatics that we would keep on bombing, burning, and murdering no matter how many of your rights you gave up.

hold on--i didn't want you to read those paragraphs in *that* order.

[here]

I take Douthat on

[Eric Martin]

Odd, looking at her face, I don't

[kid bitzer]

you know, thomas, from looking at your comment, i really think you are a despicable peddler of baseless rumours.

[Larv]

"Thomas Lopez" is posting the same crap on several threads. He's either trolling or trying to propagate a smear. Maybe somebody could ban him?

[kid bitzer]

"thomas lopez" is now also spoofing other commenters' names.

the post at 1:40p is by me, kid bitzer.

the post at 1:45p is very certainly not by me.

kitten, please delete that post instanter--i will not have people posting under my handle.

[Eric Martin]

BJ is doing the same thing. I'm banning them both and will delete what comments I have access to.

[kid bitzer]

thanks, eric.

[Delurking]

I found this claim by Douthat especially disingenuous:

Even the now-outlawed “partial-birth” procedure, which abortion-rights supporters initially argued was only employed in the direst of dire situations, turned out to be used primarily for purely elective abortions.

I do not think "elective" means what he thinks it means. And the Slate article he links to makes a particularly disturbing claim:

Martin Haskell, the Ohio doctor who developed the procedure, asserted in one paper that 80 percent of his patients choose it because it is safer and more convenient than the alternatives. There was no medical necessity.

I guess that's true, if you think that "safety" (meaning a woman's ability to stay alive, with less chance of dangerous health complications, and her ability to bear future children) is not technically speaking a "medical necessity."

It's not a pretty commentary.

[eyelessgame]

I think what he's saying is not that B follows from A, but that B is additional background. Try this on. (I agree with you, not with him, on the issue, but let's be fair about his argument, however badly written.)

Try reversing them, in other words.

- As a matter of philosophy, either a fetus has a claim to life or it doesn't.
- As a matter of practicality, abortion is acceptable to most people at least when there's rape, incest, threat to mother's life, terminal prognosis for the fetus.

Taking those two together: we wish to accede to the practical matter that abortion is acceptable for those cases. If a fetus had a claim to life, we could not so accede. Thus, we must therefore conclude that a fetus does not have a claim to life. It then follows, since the fetus has no claim to life, there cannot be a rule claiming it does.

That's the argument he appears to be describing and then disagreeing with. I don't think it's as incoherent as you make it out to be.

He is basically, I think, arguing for a *limited* claim on the part of the fetus, so that he can still accept abortions in the "good" (i.e. non-slut) cases, but still be against abortion when the circumstances of conception imply slutty behavior.

[Adam]

From a comment by wonkie:

I think that he is trying to say that if abortion is murder under one set of circumstances, then it must be murder under all circumstances. Which is true. Either it is murder or it isn't.

But he did not say that. I'm not sure why not.

This is not a valid argument. Even if you were to claim that a fetus is a life, the termination of that fetus would be "killing." You simply cannot claim that if "killing" is "murder" under one set of circumstances than it's "murder" under all circumstances.

While different people will draw the line in different places, there are always allowances for acceptable forms of killing (perhaps in battle, capital punishment, self-defense).

Yes, murder is always murder, but you have to define under what set of circumstances killing is categorized as murder.

[EdGi]

You're right; it was senseless to base an argument on exceptions = no rule. Only dictatorships of omnipotent rulers have no exceptions. In abortion the issues are whether the fetus has equal standing and then the set of circumstances when killing is murder. The fact that advocates twist terms to justify outcomes does not mean all rules are bad things, but that other advocates must challange the twisted justification.

[Moff]

@eyelessgame: That's how I'm reading it, too. He certainly expressed it a bit convolutedly, though.

[Nothing to see here]

I will totally understand if this comment goes bye-bye. I know it's not helpful to call people names. But every time I read "Douhat", my brain parses "Douche hat". That happen to anyone else?

[Warren Terra]

@8:23 PM
If your inquiry is actually sincere, you may find Google helpful as you seek out people with similar inclinations. Having seen the appellation you ask about in less decorous parts of the blogosphere, I assure you that they are there to be found.
But this isn't really a site for that sort of thing. You are correct: it's not helpful to call people names. It's doubly unhelpful when there's no real message being conveyed other than the calling of names. And I rather suspect it's a violation of the commenting rules, in that it is not "reasonably civil" and it disrupts the conversation for its own sake.

[russell]

Plus, it's "Douthat". Two t's.

[flenser]

Setting aside the banal fact that the judicial system is a part of our democratic process, there is a clear, straightforward and well-known way to overturn Roe v. Wade– pass a constitutional amendment criminalizing abortion. That’s how you override Supreme Court decisions; that’s how Dred Scott was effectively overturned.

Freddie needs to bone up on his history, where he will find that Dred Scott was "effectively" overturned at gunpoint.

[Jenavir]

"The argument you need to meet is that blocking the democratic process for changing law radicalizes people who might otherwise use that process."

No, the argument we need to meet is that limiting (not "blocking") the democratic process for important individual rights MAKES PEOPLE VIOLENT. Not "radical." Violent. Murderous.

And that the correct way of dealing with these violent people is giving them what they want, politically.

Right now antiabortion people aren't "blocked" from the democratic process. Far from it. They can, and do, agitate for democratically-passed laws restricting abortion in all kinds of ways. About the only thing they can't do is an outright ban or a husband-notification law. And if they want either of those things, they can agitate for a constitutional amendment against abortion--which they do.

That's not an easy thing to work for, but it's not my responsibility to make their job easy. The ERA isn't easy to push for, but you don't catch me killing people over it.

And since the anti-abortion radicals are killing people over the fact that their democratic options are somewhat limited, that proves they ought not to be taken seriously and the correct response is to squash them with state power.

The analogy to the Middle East is foolish because squashing terrorist sympathizers in foreign counties (especially when past squashings are often the reason why they turn to terrorism in the first place) is very different from squashing a handful of domestic radicals who are inflamed purely by extreme religion and have no history of violent oppression. The latter is easier.

[wonkie]

Hi Adam,

Actually I was not making an argument. I was trying to understand Douthat's argument.

I do think that abortion is the termination of a life, but I am pro-choice. I do not think that moral issues involved in terminating the life of a person who has no cogitive fuction due to the brain not being sufficiently developed are not as compelling as the moral issues involved in killing the sentient. In other words I get a lot more upset over unneccesary wars or the death penalty than abortion.

[Gary Farber]

"I do not think that moral issues involved in terminating the life of a person who has no cogitive fuction due to the brain not being sufficiently developed are not as compelling as the moral issues involved in killing the sentient."

If I might suggest, I think you've got at least one too many "nots" in there. I think, at the least, you don't want the last one.

Even simpler would be "I think the moral issues involved in termination of a person with no cognitive functions are less compelling than the moral issues involved in killing a person with cognitive function."

Even simpler: "I think killing someone with no cognitive function is less troubling than killing someone with cognitive function."

Something like that, perhaps?

[wonkie]

Yes, thank you, Gary.

[Snarla]

Reminds me of John McCain's "health of the mother" air quotes.