Wednesday, September 17, 2008

"Separate But Equal" Redux - Pro-Life Edition

The next time a Catholic tries to argue that they support the Democrat Party's "strategy" for allegedly reducing the so-called "need" and incidence of abortion, but which leaves in place a legal regime that denies protection for the unborn in law (and, in fact, calls for the evisceration of what few legal protections exist via passage of the Freedom of Choice Act), point out that by their reasoning the "separate but equal" reading of the Equal Protection Clause would be just fine.

Recall that in the days before Brown v. Board of Education, the rule of "separate but equal" promulgated in Plessy v. Ferguson was the law of the land. The Plessy case posited that segregated public accomodations on the basis of racial differences were constitutionally licit as long as the accomodations were "equal".

Now, in reality, the accomodations were never equal. Whites had better schools, had better seats on the train, had nicer public bathroom facilities. The reason isn't hard to grasp: a legal regime that enforced segregation on the basis of racial distinction - the requirement of "equal" accomodations notwithstanding - implicitly, if not explicity, had at its core a view of racial superiority for one set of people and racial inferiority for the other. And, in that climate, public and private resources were never going to spent to ensure equality of accomodations to those deemed inferior.

The same can be said of a legal regime that eliminates all legal protections for the unborn. You can talk a good game all you want about reducing the incidence of abortion, but as long as you vote for candidates who continue to posit that the right to life is wholly dependant upon whether that life is "convenient", and who will eliminate what few protections do exist for the unborn, and who will make public money available to pay for the decision to abort, you, by your vote, will contribute to a climate where the unborn are seen as something inferior and unworthy of legal protection.

Now, let's go back to the "separate but equal" example. Let's suppose that in Brown v. Board of Education the Supreme Court, rather than ordering integration of the public schools, had ordered true funding "equality" and that they had been able to enforce it. And let's suppose that, as a result, public education for black children did improve to such a level that there was true "equality" of results. Nevertheless, the segregation regime was left in place and set in stone, providing for separate but truly equal public accomodations. Would you be comfortable with that?

Isn't that, in essence, what the Democrat Party "abortion strategy" calls for? Let's assume, for a moment, that those supporting the "strategy" are correct (which, as Mark Stricherz points out, they clearly are not) , and that their rosy scenario plays out. We get a reduction in the incidence of abortion. How much? My guess is that even in their rosiest of scenarios it would be minimal, but let's assume, for the sake of argument, that abortions are reduced 20%. That would be significant, but we'd still have upwards of 800,000 abortions performed every year in America. And worse, we'd still have an abortion regime left in place and set in stone (perhaps for generations) that views the legal status of the unborn as unworthy of legal protection. I'm certainly not comfortable with that.

The "separate but equal" regime of Plessy was wrong because implicit in its premise is the legal inferiority of blacks. Policies providing them "equality" of results weren't going to change that. The abortion regime of Roe is wrong because implicit in its premise is the legal inferiority of the unborn, deemed unworthy of legal protection. Policies claiming to reduce the incidence of abortion while leaving Roe in place aren't going to change that.

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At 9/17/2008 2:30 PM, Anonymous crankycon said...

You're exactly right, Jay. I think it's abominable that we have Catholics getting snowed by the flimsy argument that Obamian politics is somehow going to reduce the number of abortions, and we should somehow be satisfied with that.

I also want to reduce the number of abortions - to zero.

At 12/06/2008 9:10 AM, Blogger Daniel said...

Your argument seems to be based on the assumption that the implicit legal inferiority for minorities under "Separate But Equal" laws is equitable to the explicit legal inferiority of unborn fetuses. If one accepts that assumption, then I think your argument is valid. But pro-choice people don't accept that assumption. Most of us don't like abortion any more than you, but we aren't interested in having the government intrude on, what usually amounts to, incredibly difficult medical decisions that should be made between a doctor and a woman. Most of us aren't against restricting abortion on viable fetuses. But when the pro-life crowd tries to restrict abortion on pre-viable fetuses, we believe it to be an invasion of privacy.

It all really comes down to whether or not an abortion falls under the implicit constitutional right of privacy. If one believes that it does, then abortion should be safe, legal and rare. If one believes that it does not, then abortion could be made illegal.

The better compromise, in my opinion, would be to adopt substantive measures that give women an incentive to have their baby. Catholic Charities USA, Nurses for Newborns, and other programs like this serve as illustrative examples of outlets of which women can take advantage without having to have an abortion. We need more programs like this, and more government funding for them.

But, in my opinion, the pro-life crowd needs to further emphasize the post-birth benefits of having a baby, rather than just trying to outlaw abortion, implying that women who have abortions are murderers, and ending the conversation there.


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