First, Peter Robinson passed along Jeff Hart's comments in which Hart specifically addressed some issues brought up by a Fr. Murray. For the sake of clarity, I'm posting Fr. Murray's email first (as provided by Kathryn Jean Lopez):
Jeff's treatment of the abortion crisis in America is seriously flawed. Let me elaborate:Thus prompted, Hall responded:
He writes: "Roe relocated decision-making about abortion from state governments to the individual woman, and was thus a libertarian, not a liberal, ruling."
"Decision making about abortion" is a phrase that masks the reality: The Court decriminalized the killing of unborn children, and created a "right" of the mother to put her offspring to death at her discretion and without any justification for this act beyond that she thinks she needs to do it in order to be happy. The descriptive "libertarian" serves to deflect the stigma of endorsing what most liberals have long sought, and almost all conservatives have resisted, that is, the abortion license.
The libertarians justify almost anything in the name of personal freedom, but that presumes in the case of abortion that an unborn child is not a person, entitled to personal freedom not to be killed before birth at the request of his mother. Science tells us who is human as opposed to non-human animals; legal reasoning by the justices in the majority can either affirm this reality, or drift into bogus abstractions about legal personhood not being a correlative of being human. They've done it before in the case of slaves. By the way, what is the libertarian position on slavery?
"Planned Parenthood v. Casey supported Roe, but gave it a social dimension, making the woman's choice a derivative of the women's revolution. This has been the result of many accumulating social facts, and its results already have been largely assimilated."
If Jeff means by "its results have been largely assimilated" that abortion is a non-topic of social discussion and political battles, I suggest a phone call to the people opposing Judge Alito would reveal major anxiety caused by the plain fact that that the ranks of those who have not assimilated the "social facts" are large and influential, and that the will of the non-assimilationists may soon carry the day.
"Roe reflected, and reflects, a relentlessly changing social actuality."
Roe was pure judicial power of the Warren Court sort that legislated liberal preferences from the bench at a time when the prospects of legalizing abortion through the legislative branch of the various states were growing dimmer as the anti-abortion movement did the good work of alerting people to what abortion is, the killing of children (not the mere elimination of human tissue). The use of "relentlessly changing social actuality" to describe the ever present assault of liberalism upon the just laws fostering a social order that protects the lives of unborn children sounds like a capitulation without a struggle to the liberals' dogged fight to legalize abortion.
Relentless forces can become attentuated; so-called irresistable social forces can be effectively resisted; what is needed is will. A social revolutionary movement only becomes a social actuality, as opposed to an insurgency upon the reigning order, when it overthrows that order. I suggest that the success of the conservatively and religiously led anti-abortion movement in keeping abortion at the center of American politics reflects that legalized abortion does not enjoy the status of a social actuality, meaning an unassailable and fixed social arrangement, legally protected, reflecting the will of the American people. We live under a legal regime created and imposed by liberal justices who rejected the will of the people expressed in the laws passed by their representatives, and "discovered" a previously unknown right to abortion in the Constitution. This legal regime is fragile and under constant assault.
"Simply to pull an abstract "right to life" out of the Declaration of Independence is not conservative but Jacobinical."
There is nothing abstract about an unborn human being, and likewise the metaphysical laws that govern human life are not abstractions, but rather the solid ground that makes a just society possible. My right not to be killed, without justification, at the discretion of another person is not an abstraction, it is the fundamental condition of the existence of any justly ordered community of persons. What is an abstraction is Roe, in which unborn human are not persons, and the killing of such non-persons is legally sanctionned and protected by the state against any interference.
Babies before birth are people, and to treat them in any other way requires entrance into the horrible world of evil ideas (lies) that result in evil (unjust) actions. The Roe justices that gave us abortion would have liked the country to march into that world with them; they have been and will be unsuccessful as long as we do not concede the fight.
Jeff is wonderful friend and my admired teacher, but he has gotten this wrong, and will no doubt hear the same from numerous bewildered fans. I will be interested in his response to criticisms.
Fr. Gerry Murray
[ed: I've edited the original format as posted by Lopez for better blog reading]
My brief discussion of abortion in the edited "Wall Street Journal" version of the final chapter of my recent book was a political, repeat political, analysis. The "polis" here is the very large one, the United States. When I stress "political" analysis, I mean of course what is and not what some people wish might be.Kate O'Bierne also joined in the fray:
Here we should ask why there existed no large demand for abortion in 1900, indeed not in 1950. Something major must have intervened between then and now.
There intervened the changing situation of women, first slowly and then more rapidly. Women's suffrage in 1912 was advocated by only one of the three political parties in contention, Theodore Roosevelt's Progressive ("Bull Moose") party. In 1920, women received the vote.
A number of social realities drove the changing situation of women. Anyone can name many of these, since they changed much else as well.
There is the familiar fact of the movement from farm and farmhouse, to the city, and with it labor intensive farm production -- offspring useful as workers -- to office and factory. Today only about 3 percent of the population lives on farms. Family accommodations are very different in the city than in the more spacious farm house. Offspring are no longer needed for labor intensive farm work. Medical advances reduced infant and child mortality. Fewer children perpetuated the family, a widespread goal. Women joined the workforce in large numbers during World War II.
The cumulative result of all these has been the "women's revolution," which Diana Trilling correctly said has been the only successful revolution during the Twentieth Century. National Socialism failed, so did Communism.
The result of the women's revolution has been a social reality utterly changed from what it was in 1950, let alone 1900. Women are all through the colleges and universities, appearing earlier as students, then as faculty, now numerous faculty. Dartmouth did not become co-educational until the 1970s, and now is about 50 percent women.Women now are in occupations of all kinds, medicine, law, executives, CEO's the military, even astronauts. We have assimilated the women's revolution, take these results for granted. But they are spectacularly different from what prevailed fifty years ago.
That is the social actuality. In thinking about that, Edmund Burke provides a model of the thinking process. He is the origin not only of conservative thought, but of all realistic thought about society. In his "Reflections on the Revolution in France" (1790) he attacked abstract political theory in the form of the Rights of Man, seeing this as one cause of the French Revolution. Against that he put an analysis of actual English society, seeing that actuality possesses a complexity beyond the reach of such theory (we would say "ideology"). Such theory, such ideology, abbreviiates and de-rails thought. Burke refused to re-rail thought.
In 1791, he analyzed further. In effect he turned the social structure of the "Reflections" into the social process of "Thoughts on French Affairs."
He recognized now that the complex forces bringing about the French Revolution had accumulated to the point, had acquired such irresistible power, that the ancien regime was doomed. In a passage Matthew Arnold celebrated as one of the great moments of intellect ("The Function of Criticism at the Present Time," 1865) Burke wrote:
"If a great change is to be made in human affairs, the minds of men will be fitted to it; the general opinions and feelings will draw that way . . . and then they who persist in opposing this mighty current in human affairs, will appear rather to resist the decrees of Providence itself, than the designs of men. They will not be resolute and firm, but perverse and obstinate."
That this was a painful admission by Burke is shown by what immediately preceded it: "I have done with this subject [the French Revolution], I believe forever. It has given me many anxious moments these past two years."
The philosophes of the Rights of Man had not caused the Revolution. Nothing abstract could have brought about such an upheaval. The accumulating social forces has brought it about. It should be added that Burke achieved the realization contrary to his own preferences. Only a year before, in the "Reflections," he had eloquently mourned the march of the Paris mob on Versailles, the humiliation of the Queen, the fact that at Versailles "chivalry" had not leaped to her defense. He proclaimed: "The glory of Europe is gone forever." Now Burke, against his deepest preferences, recognized the inevitable. That is why Arnold celebrated this as a great moment in the history of thought, a triumph of fact and analysis.
In the successful women's revolution we now stand at such a moment as Burke did in 1791. Women in the educational process, pursuing careers that may take years of preparation and also are later very demanding of their time, are going to demand -- in fact are demanding -- control of their reproductive capability.
For a free people, such as ours, who make the laws under the Constitution through their representatives write the laws, it follows that as a derivative of the women's revolution the demand by women for control of their reproductive capability will be reflected in the laws.
No one is "for" abortion; nor do women seek it to "make them happy," as Father Murray avers. To use that phrase is to trivialize the woman's decision. That phrase stands at a distance, in fact a galactic distance, from the actuality of her decision. It is clearly intended to make discussion useless. And discussion is the basis of American government, from the main cabin of the Mayflower and the Compact, to the new England town meeting, and to the Congress of the United States. I do sympathize in a way with Father Murray's preference for no discussion.
The actuality in elective abortion is that the woman is not willing to derail her life because of an unwanted pregnancy, a life she had worked for many years to shape, perhaps studied and worked. That now is an actuality different from the situation of most women fifty years ago. The women's revolution has happened. And in the "town meeting" the women's voice, and that of those who understand what the women's revolution means, will be heard and heeded.
Father Murray uses the term "unborn child," apparently meaning anything back to the first fertilized cell. But the woman knows what a "child" is and what it is not. Killing a child can be penalized as murder. Even when abortion was illegal it was never penalized as murder under United States law. Such use of language as "unborn child" does not advance analysis. For analysis to get anywhere, there must be agreement on the meaning of the words being used.
Now, no woman is obliged to have an abortion if her convictions are opposed. The convictions of many women, no doubt a majority, are not opposed. There is the political problem for those who would outlaw abortion. And of course the women's revolution has happened. We are living with its results. The year 1950 is not going to be restored, any more than the ancient regime was going to be restored after the Revolution. I didn't think I needed to say that revolutions have consequences. As Burke said in effect, to resist the inevitable effects of revolution is to throw sand into a urricane.
The facts of the social reality have changed a great deal, and actual people make actual decisions within the actuality they inhabit. The taking of interest once was banned. So was cadaver dissection. And so forth . Who remembers what was in the Syllabus of Errors? Who cares? Historians.
We hear of a "right to life," those three words taken from the Declaration, where they are accompanied by the other "unalienable" rights, to liberty and the pursuit of happiness."
But the Declaration was written in 1776, the Constitution in 1787, and ratified. All such "unalienable" rights are made effective only through the constitutional process, the deliberate sense of the people, based on their collective experience. Until such "rights" become law they are only theoretical rights. It will not do the condemned man on his way to the gallows much good to assert his "right to life." And it will not do the conscript much good to demand his "right to liberty." Until such rights are defined and become effective under law they remain a abstractions. Under the Constitution, such "unalienable" rights in fact become alienable, as men are hanged and conscripted. To assert such abstractions as if they existed apart from law is Jacobinical, exactly the kind of political abstractionism against which Burke protested so effectively.
How the abortion issue will play out, I do not of course know…. If, as is conceivable, Roe is overturned -- I'm not sure this is really likely, given what seems to be majority opinion -- the issue will revert to 1973 and devolve to the state legislatures. There may be a checkerboard of approaches legislated, many states simply legislating laws that amount to Roe. According to polls, a majority at the present time does not favor the overturn of Roe.
In fact, 83 percent of elective abortions take place during the first trimester. After that, they diminish rapidly, as one would expect. Only a very small number takes place in the third trimester. The statistics are available from the CDC.
The idea that abortions, in a free society, are going to be banned during the first trimester, let alone at the first moment of conception, strikes me as, to put it mildly, extremely unlikely. One American, one vote, period. The Constitution is a majority rule document, though buffered against transitory majorities.
As I said at the beginning, I offered a political analysis, that is an analysis of what is, rather than some idea of what should be. In my edited chapter published in The Wall Street Journal, I offered reasoned analysis, based on fact. The women's revolution happened. It is not going to be repealed. Father Murray's widely circulated missive -- how widely circulated I wonder-- changes nothing. As Lenin said, "Facts are stubborn." Lenin there had a realistic moment, realism also known as conservatism.
[ed: I've edited the original format as posted by Robinson for better blog reading]
The leaders of the modern women's movement recognize what Jeff Hart apparently doesn't, i.e. they lack public support for their abortion-on-demand agenda. Abortion rights supporters fiercely fight to keep the issue in the courts insultated from public opinion, because the majority of Americans oppose the majority of abortions. Feminists prefer judicial fiat to "town meetings" where women's voices would be heard because opposition to their agenda includes a majority of women. It seems that most women don't see their fertility as an enemy of their equality. In 2003, a poll commissioned by the Center for the Advancement of Women found that 51 percent of women thought abortion either should not be allowed or should only be available in cases of rape or incest or to save the life of the mother. Another 17 percent of women thought abortion should be available but with stricter limits. The same poll found that of the top twelve priorities for women, keeping abortion legal was second to last, beating by one point the importance of increasing the number of girls who participate in organized sports (another top priority of the feminist activists whose goals don't enjoy the allegiance of American women).Ramesh Ponnuru adds:
Kate Michelman notes with alarm, "Since 1995, states have enacted nearly 400 restrictions on a woman's right to choose." Gloria Feldt, the past president of Planned Parenthood, complains that the White House and both chambers of Congress are controlled by "anti-choice politicians," and "the state legislatures are overwhelmingly anti-choice." Twenty-five years ago, when Democrats held a 292-seat majority in the House, 125 of those seats were held by po-life Democrats. Michelman, Feldt, and other abortion absolutists seem to believe that some strange alchemy has handed such a poitical advantage to pro-life politicians given their constant claims that their abortion-on-demand agenda enjoys the broad support of voters. They could use a dose of Burke's realism.
Anyone trying to reduce the prevalence of abortion and to impose legal restrictions on it is up against some very powerful social forces and trends, and Jeff Hart is right to point that out--even if he neglects the forces working in our favor. He has offered what he calls a "political" analysis; but as Kate points out, polling data (and election results) allow for a considerably more nuanced verdict than his.
So does history. Hart implies that widespread abortion became a social phenomenon only after the 1960s. This is untrue--read, for example, Marvin Olasky's Abortion Rites for a discussion of the prevalence of abortion in the middle decades of the nineteenth century, and of the largely successful legal campaign to combat it. There was nothing inevitable about the outcome of that campaign back then. If the outcome is inevitable now, it will require more demonstration than Hart has given.
Hart is also quite right about the deliberative nature of American government and about the value of discussion. Would that the courts had not short-circuited the process of deliberation on abortion. But I wonder if Hart's insistence on the value of discussion is in tension with the rest of his analysis, which posits that discussion is pointless because the continuation of abortion on demand is historically inevitable.
One might also question whether the word "Jacobinical" advances discussion. To accept Hart's strictures against "abstraction" would mean that we could never criticize positive laws from a moral standpoint. Burke did not make such a claim, and we would be foolish to follow him on this point if he had. Engaging in such criticism, and trying to persuade our fellow citizens to take the criticism to heart and change the laws, is a crucial part of deliberation. If that were all we criticized Robespierre for, we would not have much of an indictment.