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.

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6 Responses

  1. Micha says:

    All I know is, we had triplets born at 27 weeks gestation. (BH they’re as healthy as anyone else, and today are celebrating turning 11.) Would it have been legal to abort a fetus a day younger than they were at birth? What about a full-birth-abortion the day after they were born?

    Poseqim are more split about whether abortion is murder than when it’s prohibited, and when permitted.

    But how does one pass an abortion law that complies to the morality that seems to emerge from studying the halakhah? Can we risk even a single mother that halakhah would require we save to prevent millions of abortions that most poseqim do NOT hold is necessarily murder? How does one codify “speak to your rav” as law?

  2. Dan says:

    Just so people understand the significance of the number of abortions in the US every year, there are approximately 4 million births a year. That means over 20% of pregnancies in this country are terminated via abortion, a horrific moral statement!

  3. Toby Katz says:

    Micha you don’t have to worry about that. If Roe vs Wade were overturned, the abortion issue would go to the fifty state legislatures, where it belongs. There, poliitical compromises would be hammered out between the All and the Nothing parties, and in between you can be certain that abortion to save the mother’s life would be legal and readily available in all fifty states.

    Why can you be so certain? Because over 90% of the American people, including the overwhelming majority of devout Christians and pro-lifers, favor allowing abortion to save the mother’s life. Most if not all states would also permit abortion in a range of of other circumstances: mother’s health, mother’s mental health, rape, incest, birth defects and so on. In practice it might always be possible to find a doctor to sign that an abortion is “medically” necessary, and it might be almost as easy as it is today to have an abortion. But the law would at least state–in principle–that abortion is not to be taken lightly and is not the mere removal of a tumor.

  4. Micha says:

    Toby, You two-dimensionalize the pesaq and therefore assume we and the Xian right agree.

    For example, I know the parties in a she’eilah where the Satmar Rav zt”l was asked on behalf of a rape victim asked the Satmar Rav zt”l about getting an abortion. It was before day 40. The Satmar Rav permitted. Lehavdil elef alfei havdalos, Billy Graham or the pope would not. To them, there is no line between 40 days and after, there is no measure of insanity that is considered no longer having a meaningful life.

  5. Neviah T. says:

    Toby Katz’s point about Roe v. Wade kicking the issue back to the states still stands. The day after Roe gets overturned, abortion will be just as legal in NY as it was the day before. And that is how the debate should be conducted – by letting those who want to live in abortion-free states have that option, and those who want to live in abortion states likewise having the option. And additionally, if we live in a state where we don’t like the rules and we don’t want to move, then give us the freedom to persuade our neighbors that our position is correct. To decide in a voting booth or a state legislature whether abortion stay or goes – now that’s giving the people choice….

  6. Ori Pomerantz says:

    Toby Katz and Neviah,

    The day after Roe vs. Wade got overturned abortion will go back to state courts and state legistlatures. However, it won’t necessarily stay there. If a state were to pass a law legalizing the murder of babies until they are three month old under certain circumstances, we can assume that law would be struck down by the supreme court. For many US anti-abortionists, a fetus a day before birth does not have a different status from a day old baby.

    Of course, in cases where the pregnancy risks the mother’s life, there are other extreme options possible even if abortion was completely illegal in the US. Last time I checked, it was still possible to drive to Canada.


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