More on Rauch, abortion, and "extreme" claims

First, I want to thank Eduardo, Steve, Michael S. and others for this conversation.  Conversations like this -- i.e., about abortion, slavery, faithful citizenship, law, prudence, etc. -- are difficult, and can easily be or become unedifying.  One of the things we -- all of us -- have tried to do, for several years now, here at MOJ, is to model -- for our students, colleagues, fellow Catholics, and fellow citizens -- what a conversation between and among people with shared basic commitments who disagree about non-trivial things can and should look like.  I hope it is clear, both to my fellow bloggers and to MOJ readers, that strong, and even strongly worded, disagreements are consistent with friendship and respect.

Now, Eduardo writes that "the comparison of abortion to slavery seems to me to be extreme in its implications and, consequently, to open those who espouse it to Rauch's criticism that they do not seem willing to follow their own principles to their logical conclusions, just as does the comparison of abortion to murder."  It still seems to me, though, that the Rauch criticism is misplaced.  As I wrote earlier:

I do not see why those who believe -- as I do, and as Ponnuru does, and as Eduardo does -- that abortion generally involves wrongful homicide, and that our Nation's tolerance (let alone constitutionalization and celebration) of private violence against unborn children is shameful, are therefore required, for consistency's sake, to believe that women who have abortions, or doctors who perform them, should be punished in the same way and with the same severity as are persons who "murder" adults.  Nor do I see why those who believe that abortion generally involves wrongful homicide are therefore required, for consistency's sake, to "fire-bomb[] . . . abortion clinics" or take to the streets.

As for comparisons between abortion and slavery, that the asserted similarities between the constitutionalization of a legal right to abortion and the constitutionalization of a legal right to own slaves might weigh against -- though perhaps not necessarily "rule out" -- the "possibility that the legality of abortion might be tolerable on prudential grounds" does not, in my view, make the comparison "extreme."  I take it that we all agree that slavery is an assault on human dignity, and that a legal regime that tolerates (let alone constitutionally celebrates) it, is -- to the extent that it tolerates it -- unjust.  Abortion is an assault on human dignity and, to the extent our legal regime insulates almost entirely this lethal private violence from regulation, let alone prohibition, that legal regime is unjust.  Making or accepting this comparison, though, does not -- it seems to me -- require one to rise up in armed resistance to that legal regime.

On a related matter, responding to this post of mine, Steve S. wrote:

If I read [him] correctly, Rick is saying that the state-of-mind is different because the perpetrators do not recognize the humanity of the victim. I am wondering whether and how the criminal law ordinarily would take this into account. I would think that at most it would be a mitigating defense, if at all. I am wondering whether Rick is trading on the premise that a fetus is not a human being in the same sense as an adult or baby, and, if so, what that difference is. In other words, I am having trouble determining why first degree murder would not be appropriate (other than for prudential reasons) if the fetus were considered to be a human being in the same sense as a baby or an adult. Of course, one would not have to think that a fetus was the same as an adult or a baby to believe that abortion is a moral tragedy.

I could be wrong, but I do not think my suggestion -- i.e., that the law might, without exposing itself to Rauch-ian charges of hypocrisy, treat abortion and "murder" differently because the mens rea of the actor is likely to be different in the two situations -- trades on the premise that the victim of an abortion is not, in fact, a human being.  (The statement that a human fetus is a human being does not, I think, require "resort to Vatican authority.").  The suggestion does presume, though, that the law might reasonably, and justly, take into account the fact (I agree with Steve that it is fact) that most of those who perform or procures an abortion, like the rest of us (including, I admit, me), do not or cannot really see or think about an unborn child in precisely the same way we think about an infant or an adult.  Perhaps this inability is related to or results from the fact that our constitutional law has, in a sense, "taught" us all that abortion is a basic right.  I do not want to say -- that is, I don't think -- that those who have internalized this teaching, to some extent, are culpable for having done so.  Maybe this is one reason why I can understand why we do not regard a woman who has an abortion the way we regard someone kills his 5-year old son.  (Returning to slavery, maybe we do not regard, say, George Washington as a monster -- far from it -- even though he owned slaves, is because we recognized that he internalized the false moral messages that the law and culture were transmitting.)