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Unnecessarily Evil

Reclaiming the morality of abortion and the overdue change to the Democratic platform.

Justice Anthony Kennedy

The Democratic Party platform of 2008 finally dropped its old abortion language (“safe, legal and rare”), which had asked that women not have abortions unless they absolutely must. The 2008 platform, just announced, says instead, “The Democratic Party strongly and unequivocally supports Roe v. Wade and a woman’s right to choose a safe and legal abortion, regardless of ability to pay, and we oppose any and all efforts to weaken or undermine that right.” Should a woman desire to bear her child, the Dems advocate prenatal care, income support, and adoption programs to help her there, too. But in the world of the new Democratic platform, it’s the woman’s decision to make.

In 1973, the Supreme Court ruled by a margin of 7-2 in Roe v. Wade that women—not their husbands, their doctors, or their legislatures—must be the ones to decide whether to bear or beget a child. Edward Lazarus, who clerked for the author of that opinion, Justice Harry Blackmun, called the decision “the Emancipation Proclamation for American women.” But if Roe was Emancipation, the past three decades have felt like the Jim Crow South. Unable to repeal the decision itself, opponents made abortion as illegitimate as possible. The Hyde Amendment pulled Medicaid financing for the poorest and most desperate women. In 1992, the Clinton campaign reframed abortion as an unpleasant last resort. Last term, the Supreme Court finally broke, affirming the criminalization of certain late-term abortions. And Democratic candidate Barack Obama, in TheAudacity of Hope, compared women’s regrets over their past abortions to white people’s regrets about past bigotry. This Clintonian compromise—that abortion was a necessary moral evil—had become the most progressives could hope for.

With the release of the new platform, and so long as the Obama campaign doesn’t cast the platform into purgatory and pick an anti-abortion candidate—like Virginia Gov. Tim Kaine—for vice president, the emancipation of women may once again become a legitimate political position. It is time to revive the moral argument for protecting a woman’s right to choose: Abortion is about the value of women’s lives.

Liberals have never won anything by reframing moral questions as pragmatic ones; they end up looking shifty and evasive. Whatever else it has been doing, the Supreme Court has always framed its decisions about the legality of abortion in moral terms. The decision in Roe to protect women’s reproductive choices grew out of earlier cases protecting ordinary means of birth control as a matter of “privacy.” It was only over the course of its long philosophical evolution on abortion that the court silently changed the meaning of privacy from the morally neutral secrecy to autonomy, a moral claim for the individual’s right to shape her own life.

When, in 1986, Justice Byron White attempted to argue that disputed questions of abortion were best resolved by referring these questions to the states, Justice John Paul Stevens insisted that the only proper decision-maker in such a crucial matter was the mother. Similarly, in their landmark 1992 abortion decision in Planned Parenthood v. Casey,Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter agreed that “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

The gay-rights movement best illuminates the need to emphasize the role of morality in politics. In 1986, the Supreme Court decided Bowers v. Hardwick, upholding the constitutionality of criminal penalties for gay sodomy. Choice, said the five-justice majority, although available for a wide range of decisions (including abortion), was not available for conduct we consider really, really icky. (They didn’t say that explicitly; they put the words in the mouth of the “Judeo-Christian” tradition and let the priests say it for them.) Just as Bowers was decided, however, the AIDS epidemic motivated and enabled gay people to tell the world why their behavior was moral. As gay men began to die, they and their loved ones began to write about their relationships, their shared homes, and their desire—going back to Homer—to bury those they loved. At the same time, lesbians, who had been fighting for their children after divorces and for the families they were creating with donor insemination—publicly told the story of their own moral commitments.

By the time the Supreme Court faced the previously sinful gay litigants again in Lawrencev.Texas, 17 years later, the decision went the other way. It is impossible to read the two opinions and ignore the change in moral climate that produced the legal shift. And although recent polling fails to reveal a majority supporting gay marriage, the numbers have been steadily improving.

After 30 years of ghastly representations of abortion by the right and weak-kneed defenses by the left, one would expect public support for abortion to have plummeted. Although most polling experts contend that American beliefs about abortion have been roughly stable, the deeper picture is ominous. About 20 percent of those polled believe abortion should never be allowed, and about 20 percent think it should always be allowed. About 60 percent think it should be allowed under certain limited circumstances.

If you unpack that crucial 60 percent, however, even these “centrists” only firmly support abortion in cases in which there is rape, incest, or a threat to the mother’s life or health. Just over half of them support abortion in the case of physical or mental defects in the prospective baby. And when asked whether a woman should abort if she or her family could not afford to raise the child, the support for abortion drops to 35 percent.

This polling data represents the price of progressives’ refusal to make the moral argument. Women bear the overwhelming majority of child-rearing responsibility in this society. Yet barely more than half of the moderate centrists would allow them to decide whether to abort—even in face of a physical or mental defect in the prospective child. Women, whose economic prospects plummet with the birth of a child, now face 65 percent majorities who would support criminalizing their decision to abort because they are too poor for parenthood. Guttmacher Institute abortion numbers reveal that these same poor women are disproportionately black and Hispanic. It is fair to conclude that a lot of abortions, regardless of race, are about women seeking the flourishing life prospects that our current morality-free discourse completely conceals.

In the 30-some years since Roe v. Wade, somewhere between 18 million and 30 million American women—15 percent to 20 percent of the female American population—have terminated their pregnancies. More than 10 years ago, a movement I’ll call the Post-Abortion Syndrome movement began to shift the argument against abortion to the harm done to women. Not surprisingly, in a population of many millions, the PAS movement found a few thousand women who signed affidavits about their regrets at having had abortions.

Last year, in Gonzalez v. Carhart, the Supreme Court, for the first time, upheld the constitutionality of a federal law criminalizing a type of abortion. In his opinion for the court, Justice Kennedy wrote that “Respect for human life finds an ultimate expression in the bond of love the mother has for her child … it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow.” In Kennedy’s view it was best to spare women such regrets. Indeed it was better still not to allow doctors to perform these procedures at all.

Others have dissected Justice Kennedy’s bizarre logic in detail. But what most have missed is that his opinion in Carhart rested on the assumption, ceded so long ago by liberals, that abortions are a necessary evil. There is no serious scientific evidence for any of the justice’s findings that a remotely cognizable percentage of the 18 million to 30 million living American abortion recipients have suffered regret, severe depression, and loss of esteem. The American Psychiatric Association has directly refuted any such claim time and again. Why, then, did Justice Kennedy feel so comfortable—indeed, “unexceptionable” —in asserting it? Why, more interestingly, did the Democratic candidate for president similarly invoke the image of the “middle-aged feminist who regrets her abortion” in The Audacity of Hope?

Because they suspect abortion is morally wrong. In the absence of a robust description of the value of women’s lives—their ability to develop their capacities through education, to use them to achieve economic independence and political citizenship, to take on only the relationships they can manage—there is no moral argument for their “choice” to have an abortion. Set against the sound of nothing, the smallest moral claim of the potential human life looms large. Such an immoral act, moral thinkers conclude, must always be a mistake, the product of incomplete information or logic, and, in time, must produce regret, depression, and loss of self-esteem.

The wrong question will always lead to the wrong answer. Not coincidentally, the founding text of the Post-Abortion Syndrome movement is called “Making Abortion Rare.” The Democratic platform of 2008 offers an opportunity to put an end to this self-destructive cycle of Safe, Legal, and Rare, otherwise known as regret, depression, and self-denigration. In its place, it can finally argue for the value of women’s lives. Above rubies sounds about right to me.