Let me begin by saying how honored I am to be here. And to be perfectly honest I'm rather intimidated by the prospect of being put in the role of an authority to a group that has probably spent a good deal more time laboring in the vineyards. But I'll let you be the judges of whether I've earned my keep.
I wanted to begin by connecting my remarks to what Hadley Arkes has just said. The focus of this panel is to connect an unqualified belief in the sanctity of life with an approach to legislation that is qualified and partial. Hadley has already explained why that makes sense. My purpose is to show that it is important to work for legislation that treats abortion as an option, but one that ought to be rarely chosen.
My first task is to reassure you that, while I'm going to sound like I can get along with Hillary Clinton for a while here, I'm really not such a bad guy. After all, if Mother Teresa and Hillary Clinton can walk arm in arm to open a home supporting adoption, then I think it's worth considering a cooperative as well as a confrontational approach. In my outline I distinguish between coercive and non-coercive approaches. On the plane it occurred to me that a better way to explain this would be in terms of confrontational and cooperative approaches. We need to have the courage to stare a pregnant woman in the eye and say, "No, you may not have that abortion, however badly you may want it. And we are prepared to impose criminal punishment for committing murder if you disobey that command." If we're not prepared to do that, then we have a hard time maintaining intellectual, not to mention moral, credibility.
But there is no reason that we should confine ourselves to that approach. Indeed, there are good reasons why we should look for other avenues to express our commitment to life. In my outline I rely upon the analogy to slavery. The reason for using that analogy is not to convince you that abortion is an evil, but rather to point to another time in our national history when we confronted an evil practice. We ended the evil, yes, but we did so in a profoundly traumatic way, and we never really got it--"it" meaning the relation between the races--right. After the Civil War black Americans were no longer slaves, but it would be hard to say that they inherited the full stature of American citizenship. And we've obviously paid many times over for that incomplete victory.
In a similar way, I suggest that we have to look forward to the day when the votes are there to outlaw abortion in the same way that the 13th amendment abolished slavery.
To think about this problem, I propose a thought experiment that you have been airlifted to a hitherto-undiscovered civilization that practiced infanticide, and that you were magically installed in the role of governor of this civilization, with authority to make laws. Suppose further, however, that your authority was of limited duration, and that within a space of time your rules could be repealed by another set of rules. What laws would you enact?
My guess is that you would be immediately seized with the need to protect as many children as you could from the practice of infanticide. As well you should. But you would also recognize the importance of shifting the culture away from its perception of infanticide as an acceptable practice. If your law suddenly identified large numbers of the population as murderers (however accurate that description might be) it could have catastrophic results both for the obedience to the laws you promulgate and to the prospects that those laws would remain after your brief reign came to an end. If possible, you would like to enact laws that would maximize the potential that infanticide would disappear, not just fall under legislative proscription.
Well, it's obvious that, aside from the dramatic part of it, the thought experiment comes pretty close to describing our situation. The practice of abortion is really a form of infanticide, and at the moment pro-life forces really have an opportunity to enact legislation. But even though a majority of the public consistently reports in surveys that they believe that most abortions are morally wrong and express disapproval of them, they seem strangely reluctant to reflect that belief in law. Perhaps the reason is that it would involve recognizing an extraordinarily unpleasant truth.
By coincidence, when I left Spokane yesterday I had just finished my daily law school teaching. I teach Torts and one of the cases dealt with the question of whether a woman's consent to abortion would operate as a defense to a claim for a wrongful death claim against the abortionist. Out of my class of 25 students it is almost a statistical certainty that one or more of those students has either had an abortion herself or has assisted or recommended in someone else having an abortion. If we can't call upon the infinite mercy of our crucified Lord, it becomes impossible to talk about abortion in real terms. We have to pretend it's a delicate issue fraught with many value questions. In effect, we have to become pro-choice in our rhetoric because the reality of what abortion represents is too awful to call by its real name.
The same thing tends to happen in our public discourse. As Michael Jones recently put it in an article in Culture Wars, we have a rule of discourse in two parts. The first part is "Everybody knows it [and here you can substitute for "it" a variety of phenomena, from abortion to homosexuality to divorce] is wrong;" but part 2 is "but nobody can say that it's wrong." Thus, the closer we get to actually putting the abortion issue on the top of the political agenda, the closer we come to a nerve that is too painful to touch.
In Garry Wills' book, Lincoln at Gettysburg, he quotes a speech of Lincoln that has almost eerie parallels to the phenomenon I just described. Lincoln complained about the Democratic politicians who claimed they were not in favor of slavery, but refused to ever breathe a word of criticism of those who engaged in it. The position of "I'm personally opposed, but--" rings hollow when the individual making that statement doesn't do anything to demonstrate a personal belief that abortion is morally wrong.
Well, I'm afraid I'm not telling you anything you don't already know. I'm here to suggest some positive alternatives. But it's at this point that it seems to me that the importance of an incrementalist approach proves its value. The greatest challenge that we have is somehow to convince our culture that abortion really is murder, but not to have 20 million women (and men) shatter with the guilt of it all. We believe on an individual basis, through groups like Project Rachel, that there can be healing and forgiveness for those who have participated in abortion, but we need to pursue that idea on a national level as well. So I have formulated my recommendations into three parts:
First, I suggest that we ought to pursue what I call a "research agenda," in an attempt to identify exactly what abortion is, which we all know to be not just a great moral evil but a horrific public health problem. And the first item that I mention under that heading is the idea that we should be frank in recognizing the connection between widespread abortion and widespread sexual irresponsibility. And I raise this issue because I think people in the wider community will actually accept this notion, even those that are not strongly pro-life in their thinking. Since the publication of Barbara Dafoe Whitehead's article in Atlantic Monthly (October 1994), my perception is that large numbers of people are coming to accept the notion that "safe sex" and contraceptive approaches have been a failure. We have been in a state of denial on the issue of the need to come to grips with our own behavior and its consequences. The attempt to have an ethic of sex without consequences has run aground on the shoals of reality.
And this leads me to suggest my main notion of urging legislation and hearings that would identify the damage to the public health that has occurred because of the widespread practice of abortion. Forget hearings on Waco or Whitewater; focus on the damage done to our society by a million and a half abortions a year. Again, this is a point that even the most dedicated pro-choice politicians are hard-put to oppose, at least publicly: even the President suggested that abortion ought to be safe, legal, and rare. What we ought to focus on is the damage done when it is not rare, but shockingly common. The most showy aspects of such hearings would be the risks to women from substandard medical procedures. We all know that the men and women who choose to become abortionists rarely do so because of their commitment to their patients. Quite the contrary. And it is not surprising that they are involved disproportionately in negligent diagnosis, distorted counseling, bad operative technique, and practically non-existent follow-up care. Those doctors should be held up to public scrutiny and identified for the medical pariahs that they are.
Similarly, much work is being done on an individual basis to pursue tort compensation for the victims of medical procedures that are substandard even as measured by the abortion industry itself.
But the broader point needs to be made as well. Even if there are no physical scars, there needs to be a public recognition of the terrible costs that abortion imposes on the women (and men) who are involved in it. We are all familiar with the research showing how devastating abortion is, but this information is not publicly acknowledged. We should make it a high priority both of the legislative branch and of the Surgeon General's Office (if there still is one) or of the State Departments of Health, to conduct careful research that addresses this issue and reports back to the public about how abortion affects our society. At the same time there is no reason that we shouldn't commission studies on how to help the large number of women who have had abortions recover from those effects. If as a society we can recognize the agony of drug addiction and salute those who are helping people recover from that living hell, can we not also identify the living hell that arises from having taken an innocent life?
Finally, to finish out the research agenda, there is a demonstrated risk of breast cancer that is less significant compared with the totality of the harm of abortion, but because it has a direct connection to the public health issue it may provide important leverage in suggesting the need for further study.
I think this public health research is logically prior to, but should not delay, the implementation of protection for women who are now being sold abortion as a medical procedure. We know that the "information" about abortion being distributed by abortion providers is terribly inadequate, and informed consent statutes, which the Supreme Court approved in Planned Parenthood v. Casey, would provide an important lifeline to women who are deeply conflicted about whether to proceed. Again, private litigation may also raise the issue of whether a woman was given adequate information when she is whisked through an abortion mill and later suffers grievously from it.
The next item identified in my outline is a funding agenda. Some might say that this is largely symbolic, because women who decide to have an abortion will rarely be deterred by the cost. But it is precisely because it has symbolic value that it is important. The Hyde amendment has served as an important reminder that, while Americans seem willing to tolerate abortion, they can't quite bring themselves to approve of it, or at least to pay for it. Going back to my opening point, we have to look for opportunities to say in a public way that abortion is wrong. Not that it is regrettable or unfortunate, but that it is wrong. And while the public will to eradicate may be lacking, we don't want it to spread any further. It's analogous to the issue of slavery in the New Territories. The thought of ending slavery in the South was an idea few thought was realistic, at least in the near term; but the idea of extending it to even more of the nation was recognized as a step in the wrong direction.
The Congress has already made strides in this direction, but we need to keep looking at areas where the public statement can be made. I noted in my outline that there is an analogy to the way in which South Africa was isolated from respectable international society, and eventually the will to continue simply dissoled. The forces of abortion need to be denied those badges of respectability that allow people to continue supporting it.
My final item is a support and healing agenda. In this political climate it might seem unwise to suggest that government should expand rather than contract its power. But there are two critical areas where I think this would be appropriate. First, we need to make a concerted effort to reduce the overhead that accompanies adoption. In addition to encouraging women to choose adoption rather than abortion, we also need to make it less debilitating for the couples that choose to adopt. In a way that seems distinctly hostile to the interests of the child, court decisions have favored the rights of biological fathers over the interests of a child to nurture and support. As I mentioned before, this is an area where there seems to be widespread agreement even among those who are not traditionally pro-life. By emphasizing the child as a unique person rather than as a possession of the parents, we would not only save lives in the short run but also reinforce the point that the child is deserving of protection at all stages of life.