Thursday, July 21, 2005

Stigmatized Abortion

Mark Graber

Three positions on abortion seem possible. One view is that abortion should (almost) always be legal. Another is that abortion should (almost) always be illegal. The third is that abortion should be legal, but stigmatized, the stigma being reflected by a lack of other federal funding and various other restrictions (the three positions are probably points on a continuum). Persuading most people of the normative virtues of stigmatized abortion is likely to be worthless. Most people who read this blog have strong feelings on the subject and, my sense is that all of us have run out of new normative arguments that might prove persuasive. Let me instead suggest two political virtues of stigmatized abortion.

First, the empirical evidence suggests that keeping abortion legal has far more powerful effects on access to abortion than any restrictive policy short of outright bans on the procedure. For example, the most conservative estimate I have seen is that 75% percent of persons formerly eligible for aid are able to obtain abortions when funding is cut off. The most liberal estimate is 95%. My best guess on the data is about 85-90%. Many restrictions on abortion are administered in ways that makes their impact entirely symbolic. Very, very few women have partial birth abortions. When abortion is legal, the crucial variable in determining access is whether private parties provides services, not the existence of restrictive laws. Point of emphasis. This is not to claim that restrictive laws do not matter and that many are medically stupid (misinforming people under the guise of informed consent being the best example). The big point is that a heavily regulated abortion right is not a hollow shell, that the vast majority of persons able to obtain abortions because of Roe v. Wade will still be able to obtain abortions if all the standard restrictions become law.

Second, the public opinion evidence suggests that most Americans favor some version of stigmatized abortion, that the overwhemingly disproportionate influence of activists on the Democratic and Republican party explains why neither party can get to the middle on this one. Whether or not it is true in principle, most Americans do not see bans on partial birth abortions as placing them on the slippery slope toward banning abortion altogether. What these means politically is that if debate over Justice Roberts, future judicial nominees, and abortion in general focuses on the immediate issue of partial birth abortions, parental consent, etc., the left loses. If the issue is retaining Roe, the left wins. Having lost more than my fair share of elections over the past years, I think I might be willing to stomach a few stupid consent laws to win some political battles for once. But then again, I am a member of the party and profession that given the opportunity to fight the 2004 election over whether homosexual sodomy should be criminalized, egged on a Massachusetts court to make the decision guaranteeing that the 2004 election would be fought over gay marriage.


"Very, very few" women have partial birth abortions. How many is "very, very few" in your world? Recall that the AMA supported the ban, that their official position is that the procedure is medically not necessary, and that in just one state where it was studied, doctors thought the number was more than a thousand a year. Now, in a big country, that's a small number of women, but that was just New Jersey. So I think it's reasonable to extrapolate that a national number is thousands annually. Is thousands annually "very, very few?" Perhaps. But why not say--"only thousands of unborn children a year die by partial birth abortion if that is the point?" Here's a Columbia Journalism Review piece on the author who broke the story in the Bergen County Record:

This is a bit off subject, but has anyone on the left noticed that conservatives/Republicans haven't been up in arms about the legalizing of civil unions in Connecticut or gay marriage(though it's truly none of our business) in Canada?

I think that this supports the general view of every conservative/Republican that I know: We don't have any animus toward civil unions/gay marriage, so long as it is enacted by the will of the citizens through voting, not foisted upon them by judicial fiat.

T. More, the article says in one place that "some 14,000 [abortions by U.S. doctors] are done after twenty weeks of pregnancy," and in another that "neutral experts estimate only some 320 abortions a year of any kind are performed in the U.S. after twenty-six weeks."

Then the interviewee alleges that thousands of partial-birth abortions are performed per year at individual clinics.

The gist of the article seems to be that the numbers are unclear and often distorted.

If you have a neutral source, with hard numbers, that would be interesting. If Prof. Graber has such a source, that would be even more interesting.

Also, neither of the comments thus far really lays a glove on Prof. Graber's points, which I find interesting.

The number of partial birth abortions are contested. I've always found the Guttmacher Institute to have the best estimates. In 1996, when I wrote Rethinking Abortion[lots of leftover copies remaining!) they believed the procedure was performed 363 times. Five years later, the estimate around 2,000. I think with this figure, I would have said rare, rather than very, very rare, but the general point is that we are talking about less than 0.5% of all abortions. [Long story on why my posting id is sdragon--mgraber]

We could probably be a lot more confident that such abortions were really rare, if the abortion industry didn't fight in court every effort to require that reliable records be kept. As it is, we have the same people assuring us that they're seldom done, and absolutely demanding that we take that assurance on faith.

I think the Columbia Journalism Review does not constitute a pro-life source. The numbers are murky, but it does not appear that the reporter in question was crusading. The New Jersey number suggests that half of the latest abortions in Jersey were done by that method, which contradicts (as the AMA contradicts) the claims that were regularly made by opponents of PBA bans in the past.

As to the broader point of the post I think from a legal point of view it is not fair to say that neither party can find a middle ground. There is no evidence that the Republican party nationally would ban abortion outright; certainly it is hard to imagine that happening in the current Senate, where there are still plenty of Dems and a number of pro-choice Republicans.

Republican activism on this issue is about overturning Roe, which hardly constitutes an extreme position--it is the attempt to abandon the notion that this "stigmatized" practice somehow deserves enshrinement as a fundamental right. Even many pro-choice people (for years, for example, The New Republic) believe that that would be the right way for the Court to go.

I am a member of the party and profession that given the opportunity to fight the 2004 election over whether homosexual sodomy should be criminalized, egged on a Massachusetts court to make the decision guaranteeing that the 2004 election would be fought over gay marriage.

So your brilliant strategy for the 2004 election was to make it about gay marriage. How'd that work out for you? And now your brilliant strategy for 2006 is to essentially give up on abortion. How d'you think that one will work out? ;)

Don't get me wrong, I think it's great that the Dems are finally realizing that they can only be wrong on so many issues, and are thus dropping one of them, and I'm thrilled that the one to go is abortion on demand, but I don't think it's going to be enough to win the midterms for you.

I'm not sure why a lack of funding for abortion would be interpreted as stigmatizing abortion. After all, other choices around reproduction aren't uniformly subsidized by the government; try to have a child and see if the government will pick it up the expense of raising her! And yet no one thinks that child rearing--a reproductive choice protected by the constitution--is stigmatized.

More importantly, if public opinion wants stigmatized abortion, why don't we get the courts out of the way and let the public have what it wants? Democracy isn't a perfect way of implementing the desires of the majority, but I'm guessing it beats the use of politically unaccountable courts.

I don't know why a state the pays for childbirth but not abortion is accused of stigmatizing abortion. How would anyone assume that?

I also know why people are so troubled by China's one child policy. Oh, I'm sorry, the real concern is that it was done in an undemocratic way. If a democratic majority passes such a law, no problemo.

You are serious, right? Just checking.

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I once heard that, the only thing you can do when you no longer have something is not to forget
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