Tuesday, July 10, 2007

Victim Politics, Pro-Life Style

In the United States Supreme Court's recent decision upholding the federal ban on partial-birth abortions, the majority opinion was famously rendered by Justice Anthony Kennedy. In the 5-4 decision in Gonzalez v. Carhart, Kennedy emphasized, as The New Republic Legal Affairs Editor Jeffrey Rosen termed it, the "abortion trauma syndrome." Although he conceded "no reliable data to measure the phenomenon," Kennedy wrote "it is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child..."
Justice Ginsburg termed this "an antiabortion shibboleth for which (the Court) concededly has no reliable evidence: women who have abortions come to regret their choices and consequently suffer from severe depression and loss of esteem." The decision, she continued, "deprives women of the right to make an autonomous choice, even at the expense of their safety (and is) thinking (that) relects ancient notions about women's place in the family and under the Constitution- ideas that have long since been discredited."
Given that the partial-birth abortion controversy involves not whether an abortion should take place, or even when one may take place, but rather a procedure (intact dilation and evacuation), the emphasis placed on the issue has always struck me as slightly odd. Indeed, Justice Ginsburg noted the Court referred favorably to "Congress' purpose as to differentiate 'abortion and infanticide' not on whether a fetus can survive outside the womb but on where a fetus is anatomically located when a particular medical procedure is performed." Admittedly, a woman opting for this method of termination of pregnancy might find it traumatic, given that insincere (more on this later) pro-life activists and politicians try mightily to convince her that she is committing "murder" and in these instances, in a brutal way.
But the condescension directed by Justice Kennedy toward women has its parallel in another abortion controversy, that of the appropriate punishment when an illegal abortion takes place. Allow me this disgression: In 1982 New Jersey enacted a death penalty statute. The New Jersey Death Penalty Study Commission noted that although juries returned death penalties in 60 cases, the New Jersey Supreme Court overturned 57 of those sentences. Finally, in 1992 the Court for the first time upheld a death penalty: that of Robert O. Marshall, a businessman who hired a man to kill his wife, subsequently murdered in 1984 in a picnic area on the Garden State Parkway. (After a federal appeals court judge decreed that Marshall had not enjoyed competent counsel and deserved a new hearing, the county prosecutor gave up and agreed to life in prison for the defendant.) The New Jersey high court had insisted that a particular defendant had clearly intended not to injure, maim, or debilitate a victim, but rather to kill him/her. So they finally found an eligible culprit- and it was no one who had committed a murder, but rather someone who had contracted for a killing.
So if Roe v. Wade is overturned and a state prohibits abortion, a doctor performing the procedure will be violating the law and committing murder. At the request of the woman who is pregnant. And for a fee. And what is the typical reaction of the pro-life advocate when asked if the woman, as well as the doctor, should then be prosecuted? Well, no, goes the usual response: she is a victim.
Let's go over this again. Declaring the fetus a human life, the state decrees abortion as murder. An individual travels to a professional and requests a baby be murdered. The pro-life community, viewing this murder-for-hire, declares the woman: a "victim." This is condescension fit for Justice Kennedy. It also must call into question the sincerity of much of the anti-abortion rights movement, which is adamant that abortion is killing- but believes the main culprit should not be held accountable.

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