In offering an alternative headline to the one put forth by Rick Garnett describing President Obama’s policies with respect to abortion overseas, Michael Perry reminds us of what we all learned on the first day of law school – that there is more than one way to characterize the same set of facts.  As Hohfeld made clear nearly a century ago, one person’s “right” is another person’s “duty” and someone’s “power” is another’s “liability.”  Similarly, the proponent of a particular government program may describe it as “affirmative action” while those opposed to the same program may refer to it as state sanctioned “racial preferences.”  Crafting such turns of phrase in service to the interests of one’s client is central to the lawyer’s art.

Thus, on a certain level, Michael P.’s description “The Obama Administration opposes the criminalization of abortion as, all things considered, a fitting way to respond to the tragedy of unwanted pregnancies” seems at first blush on par with Rick’s description “The Obama Administration calls for increased abortion access at the UN.”  Each reflects a different perspective, but each seems to be a legitimate way of describing the same reality.  As Michael P. says, “Beauty, and ugliness too, seem to be in the eye of the beholder.”

Although reality is always susceptible to multiple descriptions, that does not mean that every use of words to describe an object, event or set of circumstances is equally valid.  There must be a truth that underlies our iteration of it against which the use of words can be judged accurate or not.  If this were not the case, then we should all be equally welcoming of the views of Holocaust deniers as the views of those who decry the horrors of the Shoah, and equally solicitous of those who say that the earth is round as those who say that the earth is flat.

And here is where Michael P.’s description simply doesn’t match up with reality, indeed, with the very article to which he links.  That article says that the Obama administration has introduced language that calls for “universal access” to “sexual and reproductive health services including universal access to family planning.”  Here, “universal access” means not only the absence of criminalization.  It means financial support from the state for those women who want to obtain abortions but cannot afford them.

Moreover, Obama has already shown his commitment to an abortion policy that goes far beyond the mere absence of legal prohibition regarding the procedure.  In reversing the Mexico City Policy the Obama administration instituted a policy whereby American taxpayer dollars are now used to pay for abortions performed by Planned Parenthood and similar NGOs in foreign countries.  Likewise, in its current form, the Obama health care reform plan will likely mandate public funds for abortions, albeit in a surreptitious but nonetheless effective way (a fact that has alarmed pro-life House Democrats).  Similarly, action in the House is taking place (presumably with the President’s support) that would nullify the Dornan Amendment and fund abortions in the District of Columbia with federal taxpayer dollars.  All of these actions go well beyond mere “oppos[ition] [to] the criminalization of abortion, all things considered,” that is, based on prudential grounds.

It would be one thing for a state to decide simply not to criminalize the use of heroin, but it would be something else altogether if the state were to subsidize the habit of heroin junkies.  It might be possible, I suppose, for a government to be opposed to the criminalization of child abuse in the home based on prudential grounds.  If the government instituted a policy that paid a third-party to go into the home and beat the child, it would, I think, be fair to say that the government had gone beyond mere opposition to criminalization on prudential grounds.

Words matter – both their use and their misuse.  In our hands they should be more than instruments used to score points, or to show that a match of verbal wits has ended in a draw.  Rather, they should reflect the underlying reality that actually exists.