Response to Gibson

Over at the Commonweal blog, in his "Notre Dame Reax Roundup", David Gibson writes, in response to this post of mine:

Rick Garnett at MOJ is disappointed in Judge Noonan:

I admire Judge Noonan immensely, but wish — on this particular occasion — he had been a bit more direct.  For the careful listener, intimately familiar with Noonan’s work and American history, there were some powerful thoughts.  I worry that the commencement audience, though, did not hear the challenge to President Obama’s unfortunate embrace of injustice that, in my view, Judge Noonan’s remarks contained.

He then seems to argue that common ground can’t occur without consideration that the unborn must be granted legal personhood–which seems to be a winner-take-all approach. But then he later seems to phrase the request that a legal approach to abortion be part of the package more modestly, and Obama has said he is open to that as well, esepcially on the state level, as is Justice Scalia et al.

So, I said (and was, I think, right to say) this:

 At some point, it is inescapable:  either the unborn child is a human being, and therefore entitled in justice to the protection of the laws, or (s)he is not.  The possibilities for, and parameters of, "dialogue" are, it seems to me, closely connected to the answer given this question.

Is this a "winner take all" approach?  Maybe, but not necessarily.  Sure, the basic pro-life claim is that the unborn child is a human being and is therefore -- as a human being -- entitled to the protection of the laws.  Any legal regime that refuses to extend this protection to unborn children -- that singles out one group of persons for exposure to private violence -- is an unjust one. 

One can say this, though, while still acknowledging the reality that we live in a world of deep disagreement, and that this disagreement is not, this side of heaven, likely to disappear.  One can say this and also agree to settle -- with sadness, I hope -- for "not quite all."  The question I have for Gibson, though -- and for the President -- is what, exactly, the abortion-rights "side" is willing to concede, or to give up?  To say, "join us in supporting increased social-welfare spending, which we would support in any event but which we are happy to admit might reduce the number of abortions" is not really to colloborate in a search for common ground.  To say, "we win, but feel free to come along" is not to compromise.

I accept the fact that, in a non-Roe world, my pro-life position would not likely win out (though, as Judge Noonan said, eventually, the Truth will out.)  However, I think Gibson fails to appreciate the fact that, without Roe, pro-life policies that I and healthy majorities do support could be enacted, and now -- because of Roe -- they cannot.  It is Roe and Casey, not pro-lifers' "winner take all" approach, that prevents a political compromise, one that reflects the realities of pluralism and deep disagreement.

Gibson says that "Obama has said he is open to" having a "legal approach to abortion be part of the package", but I'm not sure that's right.   It is true that the President has, from time to time, suggested that he might support the regulation of late-term abortions, but only if such regulation is hobbled by  "health" exceptions that are so broad they swallow the rule.  Has the President (either since or before he was elected) ever supported any *other* regulation of abortion (e.g., parental-notice, informed-consent, waiting periods, fetal-pain-awareness disclosure, etc.)?  I do not mean this as a rhetorical question.  If he has, I would like to know.

It seems to me that the suggested comparison between Justice Scalia's view and the President's does not work.  Justice Scalia believes (correctly) that the Constitution does not preclude political communities from deciding whether (or not) they want to regulate abortion, and to what extent.  President Obama believes that the range of permissible legislative action -- the size of the arena within which "compromise" and "dialogue" is possible -- is very, very small.  And, he has made it quite clear that he will select judges and Justices with an eye toward maintaing the current constitutional regime, which disables the political process from working toward the kind of compromise that his "dialogue" talk purports to welcome.

It is clear that the President is willing to support policies that could have the effect of removing some of the incentives that lead some women to choose abortion.  Fine.  Is he also willing -- if he is genuinely open to "common ground" solutions, he should be -- to support policies that (to use Sunstein's word) "nudge" women to (what he believes to be?) the correct decision?  And, is he willing to actually give something up, to concede something, to the pro-life side, by supporting laws that actually (even if not perfectly or entirely) give effect to the pro-life view that the unborn child is loved by God, has dignity, etc.?  

To talk, as the President did at Notre Dame, as if one "respects" the other side, and welcomes their arguments -- indeed, he encouraged pro-life citizens to continue making their case -- while at the same time committing oneself to a legal regime that precludes these arguments from having any real-world policy effects is, it seems to me, a bit disingenuous.  To welcome dialogue only when one is sure that one's conversation partner's views have no chance of actually being reflected in real-world policy is not really to welcome dialogue.  It is just to strategically humor that partner.