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Jeffrey Feldman Headshot

Safe, Legal and Never?

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Following yesterday's Sojourners Presidential Forum on "faith" in politics (the event was really about "Christianity," not "faith"), it seems like the right time to ask about abortion:

Question: Should Democrats continue to use the phrase "safe, legal and rare"?

Answer:  No.  "Safe, legal and rare" may win some votes, but it invokes a conservative frame and hurts progressives in the long run.  Better to talk about the dangers of "re-criminalizing abortion" and the need to find a "balance."

Is Abortion A Social Ill?
Whether progressives realized it or not, the dominant election language on abortion has finally switched from "pro-choice" to "safe, legal and rare" -- a catchy phrase that appeared in the 1992 Democratic Party platform and -- 15 years later -- has taken hold of the conversation due in large part to Hillary Clinton's presidential bid.

For many Democrats, Hillary's wording seems like an airtight solution. After all, nobody "wants" abortions, right? That old canard is little more than relic of the culture war.  This is the 21st Century. Democrats want less abortions, but we do not want to turn pregnant women into captives of the state. So, we now say that we are against abortions, but really do believe they should be legal.   It made sense, that is, until someone finally questioned the limits of this wording in last night's forum.

That question, was posed last night to Hillary Clinton by the Reverend Joel C. Hunter:

Abortion continues to be one of the most hurtful and divisive facts of our nation. I come from the part of the faith community that is very strongly pro-life. I know you're pro-choice, but you have indicated that you would like to reduce the number of abortions. Could you see yourself, with millions of voters in a pro-life camp, creating a common ground, with the goal ultimately in mind of reducing the decisions for abortion to zero?

In other words:  If we really believe in "safe, legal and rare" are we willing to commit to "safe, legal and never"?

I applaud Reverent Hunter for asking this question because it really pushes the debate to the deliberative issue that should be raised at every dinner table, water cooler and carpool in America:  Is abortion a social ill?

It is not. 

Quite the opposite, in fact.  The social ill confronted by Roe v. Wade was a set of laws that criminalized women -- which in turn led to inequality, suffering and death.  That social ill was not lifted from America lightly, but through onerous deliberative process guaranteeing that it would not give rise to another social ill: widespread harm to human life. 

Unfortunately, the frame invoked by the phrase "safe, legal and rare" is very different than the idea of "criminalizing women."  Instead, it buys into the logic that abortion in and of itself is a social ill.  Why?  There can be only one reason:  because it kills the unborn, because abortion is "murder."

And so Democrats have a big decision to make:  do we march into the 2008 election embracing the "abortion is murder" frame?  Or should Democrats continue to reject that frame and return to the logic of Roe v. Wade in which the fundamental argument was about the social ill of laws that criminalized and endangered the lives of women in America?

A Word About Roe
Taking a quick look at the actual court case helps to clarify what is happening in the debate, today.

Stripped of their rights by state laws banning access to abortion, pre-Roe v. Wade American women suffered the outcome of the social ill created by the legal system: death.  Woman died.  And it was no wonder that the original campaigns to legalize abortion took the form of advocating on behalf of the threat to women's lives as a result of the social ill created laws that criminalize abortion.  Legally, arguments have been made that abortion laws were designed to protect women from abortion when the procedure was dangerous (i.e., before  the advent of widespread antiseptic conditions).  But the Supreme Court ruling that invalidated abortion criminal statutes debunked that idea by arguing that it was the criminal codes themselves that endangered the lives of women. When we read Supreme Court case 410 U.S. 113 (1973),  we see this logic in black and white:

Mortality rates for women undergoing early abortions, where the procedure is legal, appear to be as low as or lower than the rates for normal childbirth. 44  Consequently, any interest of the State in protecting the woman from an inherently hazardous procedure, except when it would be equally dangerous for her to forgo it, has largely disappeared. Of course, important state interests in the areas of health and medical standards do remain. [410 U.S. 113, 150]    The State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient. This interest obviously extends at least to the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that might arise. The prevalence of high mortality rates at illegal "abortion mills" strengthens, rather than weakens, the State's interest in regulating the conditions under which abortions are performed. Moreover, the risk to the woman increases as her pregnancy continues. Thus, the State retains a definite interest in protecting the woman's own health and safety when an abortion is proposed at a late stage of pregnancy.

In other words,  Justice Blackmun was arguing that if Americans have an interest in protecting women, then the answer to abortion is not criminalization, but regulation.  The frame for abortion in Roe v. Wade was not the "murder" of the fetus, but the "mortality rate" of women as a result of laws that criminalized abortion.  And so Blackmun asked: can we prevent women from dying if we revoke these criminal statutes?  The answer:  yes.

Safe, Legal and Often?
But if, then, the decriminalization of abortion saves women's lives, does it follow that widespread abortions are a social good?  Should we say that protecting women will mean that abortions in American will be "safe, legal and often"?

I think many on the left in America get confused at this point because they simply stop reading Roe v. Wade after it declares the importance of protecting women--after Blackmun articulates  the "second" state interest.

The "third" state interest at the heart of 410 U.S. 113 (1973) is about the "life" of the fetus:

The third reason is the State's interest - some phrase it in terms of duty - in protecting prenatal life. Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception. 45  The State's interest and general obligation to protect life then extends, it is argued, to prenatal life. Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail. Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to live birth. In assessing the State's interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone. [410 U.S. 113, 151] 

How fascinating it is to find that long before the "pro-life" advocates took over the conversation, there was a full discussion of the fetus in the court ruling itself. A liberal court justice agonizing over the question of life origins in reproduction?  Clearly,  just knowing that this  discussion took place is a threat to the common-place pro-life arguments that liberals just want to murder babies.

But beyond Blackmun talking about "life", how did the court resolve the issue? 

It did so by making a distinction between the state's interest in protecting "life" and the state's interest in protecting "persons".  Up to a point, individuals must be left unhindered to decide on their own whether a fetus is a "life" that they want to protect.  After that point, the state has an interest in "balancing" the need to protect the woman and the fetus/person.  And it is not because Americans do not value life, but because our system protects both persons at all time--not one or the other.

What follows from this logic, of course, is a quarter decade of the re-criminalization movement attempting to convince the American public that every zygote is actually a person--such that they can be "adopted", "cared for", and "murdered."  And the great failure of the "pro-life" movement is that it never let go of the word "life" to lay claim to the word "person."  And so they did little more than walk the country into a stale-mate conversation about "murdering" the fetus.

Safe,  Legal and Always Some
What follows from Roe v. Wade is that we cannot rid American society of the social ill created by the criminalization of abortion if we make the decision to strive for zero abortions.   

The answer to Reverend Hunter's question is:  No.  We will not join you in that goal because it is a goal that itself sets us on a course for returning women to a situation of suffering and death as a result of social ill.

We cannot have "zero" abortion in society because there can never be a situation where pregnancy does not cause some complications that threaten the life of the women--thereby invoking the state's need to protect the legally recognized person.

An arbitrary definition of a "life" as that which the state has an interest in protecting is fundamentally flawed.

If it is known,  for example, that the life of a mother will be hindered by bringing a fetus to term, then the state has a compelling interest to turn to abortion to protect that woman.

So there will always be some abortions in American society -- never will we reach "zero" unless we are willing to tolerate the institutionalization of a social ill that endangers women. 

Democrats should not be wiling to tolerate that.

But how many should there be?

Re-framing Abortion:  What Is The Social Ill?
At this point in the debate, I would advocate rejecting the premise of the entire question.  When asked if a Democrat would work  towards "safe, legal and never," the initial response should be a simple "No", followed by an explicit attempt to restate the question.  That might look like this:

I would not work towards zero abortions because that goal would bring back the social ill that once caused the widespread suffering and death of so many women in America.

The question is not how to eliminate abortion from America, but how best to balance the safety and equality of women with the safety and well-being of children.

The Democratic Party, in other words, must not advocate for the idea that abortion is a social ill unless they also believe that America must return to a system of laws that endangers women's lives.  Democrats do not believe that -- Americans do not believe that.

What do Americans really believe?  They actually believe in what Blackmun wrote in Roe v. Wade -- that the complex issue of abortion requires that:

  • laws criminalizing abortion lead to the harm and death of women and, therefore, must be invalidated
  • our system must seek a balance between the safety and well-being of the woman and the safety and well-being of the child

Moving the discussion to this frame in debate could involve using these phrases as starting points:

  • re-criminalization of abortion
  • suffering and death of women
  • balance between safety of mother and child

Effectively, this different way of talking about abortion is about much more than words.  It is an attempt to redefine the debate in terms of the actual principles that underlie this issue.  Conservatives may shout back, "So you advocate murder!"  But the new frame has a powerful response:

Murder?  Not at all.  The issue here is that we must not as a country go back to a system of criminalizing abortion because that system led to the suffering and death of women.  The principle at stake her is not the re-criminalization of abortion, but continuing to find the best way to balance the safety of mother and child--to continue to build a society free from the social ills that threaten their lives.

"Pro-Choice" Becomes  "Balance"
At the end of the day,then,  the phrase "safe, legal and rare" is a problem because it does not advance the principles that American's adhere to.  Instead, it reacts to the political campaign waged by those who seek to re-criminalize abortion and throw our legal system dangerously out of balance.

The solution may be to not simply go back to the "pro-choice" wording, but to embrace a new wording focused on the word "balance"--a word lifted directly from the Roe v. Wade ruling itself.

Using the phrase "safe, legal and rare" may win some votes in the short run, but in the long run it will advance the logic that abortion is a social ill--a fundamentally consevative idea that is not only contrary to what Democrats believe, but contrary to the core principles that guide Americans on every side of the political debate.

(cross posted from Frameshop)