The Power of Pro-Life Rhetoric

Tomorrow the Supreme Court begins hearing oral arguments in favor of and against the "partial-birth abortion" ban signed into law in 2003 (Gonzales v. Carhart and Gonzales v. Planned Parenthood). The core issue here is whether or not this federal ban is unconstitutional because it does not include a health exception.

I caught an interesting debate on C-SPAN this past weekend on this upcoming abortion case (here is the transcript). While I was particularly pleased with Katharine Hancock Ragsdale (former chair of Religious Coaltion for Reproductive Choice)--in particular because she reminded the audience that over 40 denominations, including the Episcopalian Church, are pro-choice--the speaker who haunted me the most was Helen Alvare, Associate Professor of Law at Catholic University. First of all, she is impressive as hell; I mean, she is smart. Secondly, she is cunning. And thirdly, she deploys the rhetoric of being a pro-life feminist. I take it that she sincerely would find common ground with many feminists on poverty issues, day care issues, and health care issues (perhaps more?). She is, staunchly, pro-life. And, she gives compelling reasons for rejecting late term abortions.

First of all, some background. The federal ban would outlaw Dilation and Evacuation (D&E) abortions and Dilation and Extraction (D&X) abortions, which take place after the 2nd trimester. In fact, part of the ambiguity of the phrasing of the ban lies in which proceudure(s) would be banned.

The pro-life movement calls this "partial birth abortion" for a reason. Even if you read the language of the act, they stress the brutality of the procedure by describing, in full gory details, how the procedure is carried out. The idea here is to suggest that the only thing separating this procedure from infanticide is moving the fetus out of the womb and cutting the umbilical cord. This is a powerful image. The fact is that once you describe the procedure in these terms, it is hard for anyone to support late term abortions. That is why the pro-life movement cunningly adopted this strategy for chipping away at Roe and a woman's right to choose. They have done a marvelous job implanting, in the minds of Americans, the gore of this procedure. In my little town, you regularly see rental trucks with huge posters of bloodly, aborted fetuses drive around the public square in their "shock and awe" campaign.

Listening to Ms. Alvare, I was struck by how incredibly persuasive she is to even pro-choice folks on why we should outlaw late term abortions. The reason why she is so convincing is that she is master of rhetoric. What she does is (1) focus the audience on the repulsive details of the 'intact D&E', (2) compare 'intact D&Es' to infanticide, and (3) point out the frightening consequences of legalizing infanticide. The second move I alluded to above: she points out that the only things separating the fetus from being an "infant" is the umbilical cord and being outside the woman's body. She then points out that it might be "safer" for the woman to deliver the baby, and then take her out back and shoot her. Never underestimate the power of language and framing in moral issues. If this is the only account you hear for late term abortions, you would be a inhumane for not decrying this act. But, of course, this is not the whole story.

What is markedly absent in the Alvare's depiction of late term abortions is any details about the woman seeking the abortion. If she were to take care to tell the stories and describe the brutal details of the lives of women who seek these late term abortions, wouldn't it make the moral question a real question? Instead, you have a strawman: the selfish, inhuman woman and physician who fool themselves that what they are doing is an abortion, when in reality it is infanticide. (By the way, if it is infanticide, as Alvare charges, why is the charge up to 2 years in prision?)

With that framework working, the answer is clear: ban D&Es and D&Xs. But, the fact is that the moral permissibility (and I use that word consciously, we are not celebrating the killing of a fetus, but asking under which conditions it is permissible) of late term abortions is a complicated moral decision. It is complicated because while abortion is not a pretty thing, it is something that many women have to choose to do on pain of their own health. And, that last point is what will be debated to death in the Supreme Court.

What many pro-choice groups will do is point out that the health exception is crucial and point toward medical opinion that substantiates that. Pro-choice advocates will also argue that the ban effectively undercuts the ability of physicians to make the best decisions for their patients, i.e., it amounts to giving Congress a license to be medical experts, without any evidence that they actually are. I fear that this approach is deeply flawed.

On the one hand, the SCOTUS will ask for clear cases of women who, if they cannot access a late term abortion, will die. And, there will need to be a substantial number of those women. More importantly, the burden will be on the pro-choice side to show that the resulting death is linked to a disease, which mean some physical illness. I doubt the SCOTUS will be easily persuaded by the dire mental heath affects of an unwanted pregnancy (think serious depression, such as Andrea Yates). Nor will they necessarily be persuaded by accounts of fetuses with serious birth defects--undetected until later in the pregnancy--serving as the basis of the late term abortion.

Secondly, if the pro-choice side continues to use the rhetoric that "Congress is practicing medicine without a license," they will weaken their case. It is, after all, just rhetoric. We allow Congress to restrict and ban medical procedures all of the time. The built in assumption is that physicians are always to be trusted to know what is best for a patient, which, of course is paternalism, at best.

What the pro-choice side has not effectively done is really depict the moral issue. Abortion certainly isn't a choice, especially in the 2nd trimester (or later), easily made. It is one of the hardest and most painful decisions that anyone would have to make. And, yet, women do have to make this decision. And, they have to for heart breaking reasons. To understand how heart breaking the decision is would require profound moral imagination. It would require putting yourself in the shoes of a woman, understanding the unbearable forces on her life, and asking yourself who has the right to make this decision for her? The real failure of the pro-choice side is to make the public care, really care about the woman who has to make this horrific choice.

The language of rights, laws, medical opinion, stare decisis, and autonomy, will not persuade most people to understand the dire consequences of these bans. And, until we appeal to the hearts and compassion of decent people, this debate will rage on.