Empathy and abortion

[Lynne Henderson]

    In response to Eugene's post:  Sure, one can empathize with the pro-life
arguments and feelings.  It's hard when one is villified as a murderer or a
Nazi  by those arguing for the unborn,  because it is difficult for me at
least to understand and empathize with such hatred.  But I work on it, which
is all I can do. . .Do I respect and take seriously those who truly believe
aboriton is evil?  Of course.  That doesn't mean I just give up trying to
point out that perhaps in this less than perfect world, leaving the choice
to the woman is the best alternative we have right now.
     What authoritarians right or left have is a confidence of moral
certainty and superiority that is tied ot obediewnce to commands by some
constituted authority.  This certianty if combined with the stance that
those who disagree are moral cretins and deserving of punishment for
deviance or what have you is what constitutes authoritarianism. Prejudice
against subordinated groups is also a component of authoritarianism.
Perhaps because the United States has a long history of authoritarianism,
and because lawyers deal with authority and power all the time, it is
difficult to distinguish from our day-to-day thinking and beliefs. Legal
discourse itself is pervaded with a "thin" kind of authoritarianism.  (I
distinguish between procedural and substantive authoritarianism, perhpas I
shold explain that distinction?)
       The notion that the Left is authoritarian has deflected from any
discussion of right-wing authoritarianism.  Pro-choice folks  (the ones I
know) don't go around blowing up Operation Rescue offices or trying to
assassinate pro-lifers.  I may be wrong, there may be some misguided fools
who do.  The sincerity of their commitment to women's concerns in heckling
at clinics seems stretched--for example (I know anecdote is bad, but. . .) I
had a dear friend whose baby died during pregnancy.  Her doctor thought it
would be cruel and not healthy for her tocarry the dead fetus to term.  SHe
had to run a gantlet of protesters nonetheless.  THe Pennsylvania statute
requiring doctors to advise about child support, etc. was, as Blackmun
pointed out, just cruel in the case of say a rape victim.   That there is a
refusal toacknowledge that *Roe* may indeed have changed women's lives for
the better is another . T hat is the authoritarian streak.  There are also
many thoughtful pro-choice and pro-life people seeking just what EUgene
says--common ground,  including lessening the need for abortion by improving
contraception (though some oppose even that) , ending sexual coercion, and
improving women's lives.   There's lots of good work to be done there.  But
when knees start jerking at the mention of *Roe*, dialogue becomes
impossible. . . .

       Lynne
on 12/16/00 1:37 PM, Volokh, Eugene at VOLOKH at mail.law.ucla.edu wrote:


       I realize that abortion debates can be endless, and at some point
they depart considerably from pure con law questions.  Nonetheless, I
hesitantly want to suggest the following, largely because I haven't heard
much about this point before, and because it does seem quite closely
connected to the empathy and abortion question.

       It seems to me that one group with which fair-minded pro-choice
people (and I'm most certainly pro-choice, at least as a political matter)
should seriously empathize with are pro-life forces.  Here are people who
want to be loyal Americans, and believers in our legal system, and yet they
have to live with what they think is mass government-protected, sometimes
government-perpetrated, slaughter of innocents, on a scale whose total
volume since 1973 rivals the total deaths (including the deaths of
non-innocents) perpetrated by the Nazis, by the Soviet Communists, or by
Mao.  They are faced with the choice of violence, which they may think is
just but which will lead them to be severely punished, and will probably
hurt their movement, and with peaceful resistance, which has been almost
entirely futile because of Roe and Casey.  They don't even have the
consolation that the anti-slavery forces had, of being able to abolish the
evil against which they complain in many states and territories; their
battle, with the exception of a few mostly symbolic victories that do little
to stem what they see as the tide of murder, has been largely futile.  And
yet we still expect them (quite correctly, I believe) to be loyal citizens,
to obey the law, to pay their taxes, and to respect the authority of their
government.

       What's more, while I can disagree with the pro-life forces, I can
hardly dismiss them as so unreasonable that their beliefs are mere delusion,
and their pain is something that's entirely caused by their own folly.
While I do not believe that human life and personhood begins at conception,
it's not by any means a silly argument.  To my knowledge, the overwhelming
majority of Americans believe that aborting, say, an 8 1/2-month old fetus
is immoral and should be criminal (whether or not outright murder).  While
one need not slide down from there to concluding that aborting any fetus is
immoral and should be criminal, it is not an irrational slide.  Pro-life
people are just like you and me, and may share most of our moral views
(including the presumption that the government ought not constrain human
liberty unless such constraint is needed to prevent harm to others), though
they differ on this very important moral axiom.

       It is true that the harm that they have to suffer -- the knowledge
that they are standing by while what they think is mass murder is being
sanctioned by their own government, or the criminal penalties that are
imposed when they take criminal action, even relatively minor action, to
defend what they think are the lives of innocents -- is a lesser harm than
that which I think women who are denied access to abortions have to suffer
(generally the burden of bearing a child whom they do not wish to bear).  It
is, of course, also true that the harm that the women who are denied access
to abortions must suffer is generally less than, in the pro-life forces'
eyes, the harm that the unborn child must suffer.  What is important to me
is that the harm of having to at most peacefully resist the slaughter of
innocents is harm enough that it really should call for my empathy.

       What of all this?  It seems to me that it should lead us to two
conclusions.

       First, while empathy is a very important trait, it is hardly
dispositive; and one can oppose someone's actions, and even seek to
criminalize them (as I think is quite probably done with regard to, for
instance, the actions of those who vandalize abortion critics).  I support
laws allowing abortions, and punishing those who interfere (through
trespass, vandalism, or violence) with people's ability to get abortions,
even though I empathize with those who take a different view.  Likewise, it
seems to me that many people support abortion bans, even though they
empathize with the suffering of women who must deal with unwanted
pregnancies.

       Second, I think that our empathy should lead us to deal especially
respectfully with those who disagree with us, in part because it reminds us
that the health of our social fabric requires such respect even more when
people are understandably alienated by some aspects of our legal system.  I
think it is far wiser for pro-choice people to tell pro-life forces "We
disagree with your views, but we do understand the pain you feel, and we
hope that you can continue to support the legal system even despite your
bitter moral condemnation of one important aspect of the system's operation"
than to tell them "We disagree with your views, and we think that you are
authoritarians, oppressors, and bigots, since obviously the views that you
support are wrong and ours are right."

       Eugene


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