A Political Detante?

A recent thread on Vox Nova has given me some interesting thoughts regarding politics. Politics is a topic I wish I didn't have to think about; but, then, concentrating purely on ones private morality and disregarding the social questions of collective action...is, in itself, to shirk ones responsibilities and to thus be selfish, no matter how "privately" ethical one is otherwise, so we must think of politics, even if holding our noses while doing so.

I wrote in that post some things about the real meaning of "democracy," and how I wish there was some word other than "democracy" to describe the political ideal of properly diffuse power (because the d-word has so much liberal baggage), and about how the essence of it certainly doesn't consist in the voting, which is really just a sort of procedural ritual to show force without having to actually use it. I may write about that more later, about how "democracy" (or whatever we want to call this concept) is actually more about the structure of the social network as regards how power is distributed, and not the "procedural" or constitutional details.

However, I do want to quickly share here one thought I expressed in that thread. Basically, one of the posters made the claim that a Catholic confessional State would have to, by its own logic, require the "absolute criminalization" of abortion, even if this was against the will of much of the populace, even if people would still desire abortion it in spite of the law (because a mere law does nothing to change the culture of promiscuity that leads to unwanted pregnancy), and even if it was leading to more deaths through continued illegal abortions and such. The provocative question was asked, "American Catholics are commanded to support the legal realization of the absolute criminalization of abortion through constitutional republicanism. And yet, would constitutional republicanism survive if abortion criminalization were realized?"

I answered basically disagreeing with the premise that Catholics are commanded to support the legal realization of the absolute criminalization of abortion.

In reality, the State is allowed to be "pragmatic" to a certain degree. It cannot command positive evil, and it does have a duty to protect each and every human being, every human being has a right to be protected by the State's policing power. But the State does not have criminalize each and every immoral or even unethical (ie, unjust) act, nor does it have to necessary fulfill a sort of "ideal" justice. No, the State is supposed to maximize the common good, and sometimes peace and order require letting people get away with things, even horrible things. That's why governors and presidents can pardon even murderers.

Now, as this applies to abortion, I thought...perhaps recognizing this is a way to reach a certain political compromise, then, between conservatives and liberals. Because this abortion issue has made the entire political atmosphere toxic, has worked as a polarizing issue that has been a huge part of making the discourse shrill. 

Even liberals admit this; my dad (an attorney, who personally has no particular opposition to abortion in itself) is always saying how the Supreme Court should have left that question to be resolved by the constitutional process in each and every State, which would perhaps have created a constantly shifting landscape with different laws in different jurisdictions (ala the current gay marriage landscape), but at least one in which people could feel that consensus was creating a tolerable compromise. Imposing it by decree on everyone in the form of judicial activism, on the other hand, far from settling the question, has just made it a national flashpoint that has become all-consuming at the heart of the culture wars because it doesn't feel like a compromise that was reached by the democratic process, but rather something enforced from on high. 

And ever since then, I'm not sure our elections really give a good sense of where the country stands on other issues when this one is out there creating so many one-issue voters like myself who (reluctantly) vote for candidates because they are pro-life, even when they disagree on so many other things (though I know, really, that I don't have to, and that perhaps that is an ethical cop-out for me; if you don't think a pro-life candidate will really effect anything, then you are free to vote even for a pro-choice candidate, as long as you don't vote for them because they are pro-choice. But sometimes one feels so powerless on this question, taking a symbolic stand is all you can do.)

But, I mused in the thread, perhaps something like the following could at least be tolerable to both liberals and conservatives:

A) The "life of the mother" idea should be taken off the table. As I've explained before, I am convinced that there is no case in which removal of a fetus as necessary to save the mother's life (especially if they would both die otherwise) actually constitutes the moral object of "abortion," even when death results as a foreseen but unintended side-effect of the removal (because, presumably, if transfer to an artificial womb or something like that was possible, they'd do that in such cases; so the death is clearly willed neither as an ends nor a means. It is the removal, not the death, which is necessary for the intended end.)

B) The police (and, if necessary under the principle of defense of innocents, even private citizens) are empowered (and, indeed, duty-bound, if possible) to protect the unborn through stopping imminent abortions they learn are going to occur, to restrain the aggressors from following through on their intended harm. This would also include, probably, shutting down clinics specifically aimed at providing abortions (or which publicly advertise themselves as such, etc.) The State has a duty to protect all people, and that should at least mean that if I learn an abortion is going to occur, I shouldn't be helpless before the law to defend that life. The policing power should at least be able to stop abortions through restraining intended aggressors before the fact.

C) Nevertheless, after the fact, no particular punishment need be attached to abortion. If the State thinks this would lead to more civil unrest, or would lead to more lives being lost in "illegal" abortions, it does not need to slavishly apply the logic by which they are equal to every other murder, because it is not the State's job to enact God's Divine Justice (in Whose eyes, they are equal to any other murder), but rather to maximize the common good. And if the State prudentially judges that this sort of criminalization is not an effective deterrent, but rather makes things worse, then the State is free to decide that it will not attach any particular punishment to the action, or only a token one, or will not pursue prosecution, etc.

I imagine what this would wind up looking like in practice, is that abortion mills and abortionists would be put out of business, but hospitals and gynecologists would continue to provide abortions discretely or with a wink-wink attitude under the umbrella of their wider practice, and as long as it was kept discrete (but not "back alley" mind you), the State would not probe into the private dealings between doctor and patient. If someone (like the father of the baby, say) learned of an imminent abortion, the police could stop it from happening by restraining the aggressors, but there would not be any prosecution for attempted murder or anything once the child was born safely. The government would not do "sting" operations trying to "catch" doctors, and would not probe, based on mere hearsay or suspicion, respecting doctor-patient confidentiality.

Perhaps such a compromise could be tolerable to liberals and conservatives and return some sanity to the situation, could make the discourse more civil again. Pro-lifers would get to know that abortions before the fact could still be stopped, that we are not helpless to defend the innocent, that the State is still fulfilling its duty to protect innocents by restraining imminent aggressors with its policing power, and that explicitly self-identified death-mills are not allowed to just brazenly continue their work so openly. 

But pro-choice folk would get to know that, after the fact, doctors or mothers were not being punished, that there would be no legal penalty for abortions which had already occurred, that the government was going to respect doctor-patient confidentiality and not probe (ie, the police might be bound to act on reports they receive, but would not actively seek out abortions to stop), and that there would be no criminal prosecution of the abortions that would remain available discretely in hospitals and ob/gyn practices.

It goes without saying that the government should not actively fund abortions or require their funding. But funding a specific procedure is not necessary to fund hospitals or clinics (which may be providing it discretely and confidentially among other services). And insurance companies should not be allowed to publicly list "abortion" as a service on plans. But perhaps that's part of the discretion that would be tolerated; something like "elective gynecological procedure" could be listed instead that might describe a few different things (or maybe doctors would "wink" by listing it officially as "removal of a miscarriage," etc, and no one would ask any further questions). The point being, I guess, liberals would be expected not to flaunt, but conservatives in turn would be expected to take on a sort of "don't ask, don't tell" attitude.

If we did get to a point in the culture where some prosecution did start to become more acceptable, then we should agree that the regular legislative process (without judicial activism or executive obfuscation) should be the means for deciding just when prosecution does or doesn't occur, or to what degree, under the above principle. So, we might find that partial-birth abortion is treated as cold blooded murder legally, but maybe that abortions in the first trimester or which happened due to the mitigating factor of rape...are not treated so harshly or even prosecuted at all. If we could get to this point, this question might vary from state to state, etc.

However, for now, couldn't we all agree to a compromise of having the State stopping abortions before the fact when a specific report is received (either from a third party, or because a clinic blatantly advertises its intent that way)...but then not prosecuting or punishing people after the fact and refraining from probing into private doctor-patient dealings or from actively seeking abortions to stop (in the form of "stings" based on mere suspicion or hearsay or whatever.) But, maybe things are already too polarized for that sort of solution. But, personally, I could tolerate something like that. Then the onus would be taken off the State, off the political question, and put back onto building a culture of life.