D. Linker on Culture War-Abortion

Damon Linker with a followup on the intra-left argument about whether Obama will end the culture war with a piece today in TNR.  He responds to the question of whether Obama can indeed heal this divide looking at three hot-button issues:  gay rights/marriage (which the League has addressed in various forms, click the series link to the right), civil religion-separation of church & state, and abortion.

I think Linker is strongest (and most sharply critical of some big name voices on the left) when it comes to abortion.

Abortion. And here I think that liberals — including conscientious and fair-minded liberals like Tim and Ed — show that they just don’t grasp the depth of the problem, and how it very well might keep the culture war alive for a very long time to come. The problem has to do with the Constitution — our nation’s fundamental law. It claims to speak with the voice of all Americans — “We the People.” The provisions contained within the document express what all of us (tacitly) affirm to be the ground rules or background assumptions for public life in the United States. It is a statement of our political identity as a nation.

Prior to Roe v. Wade, the Constitution took no stand on abortion. Instead, each state was allowed to resolve the issue (imperfectly) in its own way while the country as a whole — its fundamental law — remained silent on the issue. (This, by the way, is also how the issue is handled in socially liberal Western Europe, where democratically elected legislatures readily place modest restrictions on abortion that would never be allowed to stand under current American constitutional law.)

But all of this changed with Roe. Some Americans believe that an abortion is an act of lethal violence against an innocent human being whose rights (like everyone else’s) should be protected by the state. Other Americans believe that the only legally relevant moral considerations in an abortion are the wishes of the pregnant woman — which of course presumes that the fetus is not a human being in need of protection against lethal violence. These are contrary and incompatible metaphysical assumptions about matters of life and death and human dignity. On January 22, 1973, the Supreme Court declared that the fundamental law of the United States affirms the position of the second group and rejects the views of the first. On that day, the Constitution ceased to be neutral on this matter of metaphysics.***

Linker says that when the issue becomes constitutionalized–i.e. ripped from political democratic electoral process–it becomes essentially frozen.  The pushback or alternative group (the self-identified pro-life in this case) are therefore probably best seen (in Linker’s words) as an identity politics movement. This is an extremely relevant point given that a constitutionalization process is now being deployed for abortion via international law through the language of human rights.

Linker’s answer to the question of how liberals could win and diffuse the culture war simultaneously will not appear to many–either right or left who accept the argument of a right to privacy constitutionally–as a victory but rather a self-inflincted wound.

How could Obama — how could liberals, how could supporters of abortion rights — both win and end the culture war, once and for all? By supporting the reversal or significant narrowing of Roe, allowing abortion policy to once again be set primarily by the states — a development that would decisively divide and demoralize the conservative side of the culture war by robbing it of the identity politics that holds it together as a national movement….

As Ed [Kilgore of Democratic Strategist] notes in his post, the vast majority of Americans fall somewhere in the middle on abortion, leaning toward the pro-choice side, and that’s where the issue would be settled in most states. (Hell, even a state as conservative as North Dakota has recently shown its reluctance to go very far in regulating abortion.) Perhaps a few states — Utah, some in the deep South — would significantly curtail reproductive freedom. But it’s likely that the United States a decade following the reversal of Roe would look much the same as it does now, with many states making the democratic decision to go at least as far as most European nations in permitting women to legally terminate their pregnancies. But there would be one important difference: in this post-Roe America, opponents of abortion would no longer be able to blame their losses on a system unfairly rigged by secular-liberal jurists to delegitimate their views. They would lose, but they would lose fair and square, in the court of public opinion.

That opinion–roughly–is my own.  That the US should (like most Western European countries) have basically available abortions for the first trimester and then increased regulation from then on, reaching very serious (i.e. only in serious medical and/or life-threatening scenarios) restrictions starting by around the time of potential viability (7 months+ or so).   And that instituted via legislatures not the courts.  I’m agnostic on whether that would be better achieved through state legislatures as Linker suggests or federal.  But I just don’t see it happening frankly.

One point Linker doesn’t address but seems to me to be a correlate (or at least a potential one) of his meta-point on the creation of movements.  Would the over-turning of Roe not create a reverse identity politics movement?  I would have a more the courts giveth and the courts taketh away view myself (given that I’m not convinced it was rightly decided or properly handled in the first place), but if the legal judgment brought on this identity politics movement called the pro-life or variously the religious right would not a reversal (via the courts) not propel a similar movement in the opposite direction?  The Society for the Reinstitution of Roe or something like that?  Would in other words, curtailing Roe or overturning it and returning it to the states not potentially only by another inflaming of the culture war?  Or would it mean simply a more kind of stronger-core left rump who argue for abortion as human right to be instituted via law over the top of the legislative while the majority of folks who fall somewhere in between would roughly be ok with the way the votings turn out in the states?

I don’t know.  I do know that as short term as it may seem for those potentially on the left (or perhaps libertarians of various strains as well) that the idea Linker proposes would be crazy, any state where say a Prop 8 like unexpected victory takes place for identified social conservative view on abortion would lead to a massive popular movement towards voting in pro-life legislation.  A true Pyrrhic victory for the right.

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***  See Freddie’s important critique on this point and my response in the comments.