Incrementalists win. That’s the take-away message from today’s NYTimes article on the aftermath of Gonzales v. Carhart, where the Supreme Court upheld a ban on partial birth abortions:
The court did not talk about big concepts and issues like privacy, but about the small, gripping details of how abortion works, said Professor Hendershott, author of “The Politics of Abortion” (Encounter, 2006). Focusing on such details, she said, is how so-called “incrementalists” are trying to chip away at the availability of abortion. These opponents try to make women, doctors and other health professionals talk more, in some cases a lot more, about the actual consequences and mechanics of abortion. With the court’s ruling and the new fuel it gives to the strategy of encouraging those discussions, Professor Hendershott said, the incrementalists have won the debate — if not over abortion, then at least over how to fight it. “This case changes the conversation,” she said. “The battle between the incrementalists and those who wanted a constitutional amendment was won by the incrementalists.”
That sounds right to me, up to a point. In this case, pro-lifers managed to snag a pretty broad ruling from a procedure that is extremely uncommon: Dilation and Extraction (D&X) is only used in about 1% of abortions in the US. But the moral indignation of breaking the holy line of parturition, killing an organism that has passed out of the womb, and so is no longer completely an embryo in many eyes, has overridden both the safety of mothers, the restrictions of viability, and the arguments for privacy rights. The strategy is ingenious, but as I’ve been arguing for some time now, it will backfire.
First, the pro-life movement has lost its poster-child case, the weird liminal moment when a baby is partially delivered and then destroyed. All their allies in that case will be a lot more wary when it comes to Dilation and Evacuation (D&E) or Dilation and Curettage (D&C), both of which don’t suffer from D&X’s tendency to break the traditional barrier between fetus and baby. Those procedures account for the vast majority of abortions, and I don’t really believe that the legislatures or the courts will support their banning.
More importantly, every woman I know is outraged. Maybe they don’t like D&X, but they also don’t like the overt paternalism of Anthony Kennedy’s majority decision: ‘mere preference’ is going to get him into a lot of trouble. Nor do they like the loss of the ‘life of the mother’ exception. These are women who have mostly ignored the question of abortion since they settled their opinions in their late teens, and yet now they’re up in arms, militant. It seems sad that the peace and quiet of the last few decades, the partial gag rules we’ve had on abortion talk in polite society, have been torn asunder: it is now a proper topic of discussion in legislatures and will undoubtedly be an election issue. But previously the only militants were on the right: most women could afford not to care about the issue, since their rights were apparently secure. Groups like the National Organization of Women, NARAL Pro-Choice, Emily’s List, and Planned Parenthood were bearing the brunt of the attacks by pro-lifers, and they bore them well. The average female college student could afford to be indifferent, disgusted by the title ‘Feminist,’ bored by the debates over women’s treatment in the workplace or the risks of sexual assault.
Now? Not so much. Now, they’ve got something to lose. And they won’t accept incremental gains; they’ll go for the jugular. So… which do you like better: another pass at the Equal Rights Amendment, a Privacy Amendment, or maybe just an Women’s Right to Choose Amendment?