Legal Rights, Moral Wrongs

Last week’s Forward reported that Washington lobbyist David Saperstein, director of the Reform movement’s Religious Action Center, called on liberal religious and political leaders to launch a campaign to cut in half the number of abortions performed, currently estimated to be as high as 1.3 million per year, within two years. Saperstein told the Forward that such a campaign would help liberals “take back the moral high ground” on this highly divisive issue.

Saperstein’s call to action is deserving of praise not only on its own merits, but also because it so very politically incorrect and, thus, vanishingly rare, for a pro-abortion activist to put aside the issue of whether abortion is legal and acknowledge that the procedure itself, stripped of its legal protections, is morally problematic. In fact, while Saperstein urged liberals to “take back the moral high ground,” Joshua Halberstam, in an insightful essay in the Forward earlier this year, argued that on this and a host of other issues, “the rightists did not hijack the moral high ground — they found no one standing there.” Written from a liberal perspective, the piece is worth reading in its entirety; the following is an excerpt:

For years I’ve tried to get my students to talk about “it.” “It” can be almost any controversial issue, but we never get there; my students, like most of my academic colleagues and New York City Upper West Side friends, and the American left in general, have long ago ceded actual moral judgments to others, i.e.,moral conservatives. And all of us , red and blue, pay the price.

Say the topic is pornography. I gamely ask my class: “Do you think pornography is degrading? Ignoble? Liberating?” The hands go up: “People have a right to see what they want.” Three other hands: “Who decides what counts as porno anyway?” I say: “Okay, let’s agree, censorship is absolutely wrong: Now about pornography… what do you think about it? ” Another hand: “According to the First Amendment….”

This refusal to address “the thing itself,” has been going on for decades and is systemic, ranging over issues of sexual morality and moral education to ascriptions of good and evil, dignity and decency. But if social liberals are to regain their moral voice, they need to examine how it became so muted.

Perhaps the most common form of moral reticence is the liberal habit of transforming value judgments into legal judgments. Consider, for example, the asymmetry in our long-standing national dispute about abortion. “Right-to-lifers” seek legal restrictions on abortions, but also declare the procedure a moral wrong. In contrast, the liberal side of this debate refuses to render judgments about abortion itself, preferring to withdraw behind the barrier of legal rights. But suppose we acknowledge, insist even, on women’s sovereignty over their bodies. What then of abortion itself? Is it ever a moral imperative to have an abortion? Is it ever morally wrong? Do liberals have anything to say that is not about the “right to choose” but about the choice itself? Similarly, assuming that prostitution should not be illegal, is its moral opprobrium deserved? Are there circumstances in which prostitution should even be encouraged? Again, what moral, not legal, reflections are appropriate here? You’ll find further examples of this legalistic turn away from moral judgments with regard to hate speech, drugs, gambling, chastity, privacy, security policy… the list is painfully long.

Halberstam’s analysis helps explain how it is that otherwise decent, reasonable people can bring themselves to vote repeatedly against legislative bans on horrific procedures like partial-birth abortion (PBA). During my tenure as counsel at Agudath Israel of America, I co-authored an amicus curae brief defending before the U.S. Supreme Court the constitutionality of a Nebraska state ban on PBA. Among those petitioning the court in opposition to our position were several Jewish groups, both secular and “religious.” Now, we know that for these latter groups, that antiseptic euphemism, “reproductive rights,” has bizarrely morphed into a foundational tenet of Judaism, but partial-birth abortion ?

Sure, in some instances, the proposed legislation comes with other riders appended to it that pro-abortionists find unacceptable. And, yes, I’m aware of the old slippery slope concern that ceding even an inch on what is claimed to be the infrequent practice of PBA will someday lead to the rollback of basic abortion rights. (Arguments like that are enough to give a liberal Jew an appreciation for Chazal‘s fencing-building around Torah prohibitions . . .) But at the end of the day, what enables a conscientous individual to go on public record as acquiescing in a “procedure” (another tidy euphemism) the precise description of which I don’t even feel comfortable setting forth on a site such as this one, for its sheer barbarism?

Or consider the absurd extremes to which some will go to preserve the sacrosanct right of a woman to do as she wishes with her body (and all who happen to dwell within it): The Associated Press reported that in October 2004, a Wyoming woman was arrested on charges of child endangerment when blood tests taken after she gave birth showed both she and the newborn infant had the highly addictive drug methamphetamine in their bloodstreams. The American Civil Liberties Union criticized the prosecutor for bringing the case, arguing that the law shouldn’t apply since “a fetus is not a child.” As James Taranto observed

A fetus is not a child. This story encapsulates how pro-abortion absolutism has warped American liberalism. Perhaps liberalism’s greatest virtue is its professed concern for the most helpless and vulnerable members of society. But here we have the ACLU, the premier liberal organization, taking the position that we have to tolerate what amounts to (alleged) child abuse in the name of dehumanizing the “fetus.”

To my mind, the best, perhaps the only, way to explain such logical and ethical absurdities is by reference to the sort of intellectual confusion between the existence of a political or legal right and the essential morality of the act it protects, that Mr. Halberstam describes.

During the Schiavo saga, I referred in a posting here to Peggy Noonan’s wonderment at the seeming absence of any significant revulsion at what was transpiring to Terri on the part of some who are so passionate about protecting life in other contexts, such as advocates for wildlife preservation.
A reader commented thus:

Oh, c’mon. Most of life is not black and white, and, certainly, to a secularist who cares both about “life” and “rights”, this was a case of balancing acts. The Florida Constitution has a “right of privacy”. Included in that right is the right of self-determination as to treatment and/or withdrawal of that treatment.

And so, the answer to Peggy Noonan’s disingenuous loaded question: many of those arguing on behalf of Michael Shiavo’s actions were concerned that Terri Schiavo’s rights of self-determination were preserved. (This, of course, presumes that Michael knew, precisely, what Terri would have wanted, but whether that is a correct assumption is not the issue here).

I never did get around to responding to him, but what I had thought to say at the time, very much in line with Halberstam’s thesis, is that hiding behind the figleaf of “rights” will simply not do. That just begs the question, which is: But where is the revulsion, the emotional turmoil? Why are you so sanguine in the face of horror, albeit a legally protected one?

Moreover, “whether [Michael knew, precisely, what Terri would have wanted] . . . is a correct assumption” is entirely germane. After all, we ought to recall that the courts, in allowing the husband to act as guardian and in crediting his representations of Terri’s wishes, were leaning on some very slim reeds indeed. The question thus begs even further: If we turn somersaults to find any possible exculpatory angle for death-row inmates or potential statutory protection for spotted owls, and if, again, we are prepared to come to grips with the unfolding horror of it all, how can we possibly not err on the side of precious, blameless, human life? Only once the natural wellsprings of human compassion have been constricted by a confused exaltation of rights, dubious or otherwise, above all.