Thursday, August 16, 2012


[This essay first appeared at the old Palace Of Reason, on December 17, 2003. Inasmuch as the Democrats have recently been promulgating the notion that the Republicans are conducting a "war on women," with specific reference to abortion and birth control, it strikes me as especially pertinent today.]

In response to this Curmudgeonly tirade, reader Noah commented as follows:

When the right declaims a new gun control law, and argues that it's the first step along the left's quest to completely disarm the people, everyone laughs. But it's true.

When the left declaims a new abortion control law, arguing that it's the first step towards a complete ban on abortion, or birth control, or indeed the complete nationalization of the bedroom, everyone laughs. But mightn't it be true?

The proponents of each kind of law see them as "common sense", while the opponents see them as utter lunacy, the first step on a slippery slope to open tyranny.

The truth is that there *are* Republicans who would like to see everything but marital/missionary outlawed, just as there are Democrats (and others) who won't rest until every privately owned firearm has been melted down. Take a survey of how many states criminalize sodomy, oral sex, adultery, even fornication and cohabitation (best of all prostitution, 49 states last I checked).

I'm not saying I agree with this woman's ramblings, or advancing a position one way or the other on the partial-birth abortion ban. What I am trying to say is that it would be folly to dismiss her comments as standard leftist trash without sifting them for kernels of truth.

Well, your Curmudgeon isn't about to defend laws that criminalize private acts that involve only consenting adults. But in drawing his parallels, Noah has provided a striking case study in disparates, and in how their juxtaposition can becloud political thought.

The history of sexual regulation by law goes back to the earliest years of European-derived human presence on this continent. Nearly all of the first groups to arrive here were inspired by the New World's opportunity for them to practice their religions without being persecuted for it. Ironically, nearly all of them looked forward to the opportunity to enforce their religious beliefs with the power of the State. It wasn't freedom they sought, but the dominant position in a realm of their own -- if you like, the opportunity to indulge in religious oppression in favor of their own beliefs.

Institutions of religion have always been hostile to sex. Sex is the earthiest of all earthly pleasures. Prior to the Industrial Revolution and what it brought in its train, it was one of the very few pleasures available to everyone. Any institution that wanted men to focus on the next world, rather than this one, would naturally frown on something so temporal, so universal, and so powerful.

Regional political power in the colonial era was usually united with some dominant religious sect, all the way into the early 19th Century. Of the original thirteen colonies, only one, Rhode Island, had no established church and no dictates in its founding charter derived from the doctrines of a particular faith. The clerical potentates of the colonies were quite as hostile to sex as any of their European predecessors had been -- and here, they had the opportunity to stamp the laws with their own preferences.

Alongside that, until quite recently there were substantial extra-legal risks involved in sexual indulgence. So the typical commoner had, not just the law and the admonitions of his local clerics to inhibit him, but also the possibility of rotting away from syphilis or conceiving children that would be his responsibility to feed and nurture. Marriage as it has been traditionally practiced originated to mitigate these risks. Long before religious hierarchies incorporated marriage into their theologies, it was well established as a force for social stability and the norming of sexual conduct.

Then came penicillin and the Pill. Advances in medical technology reduced the risks of sexual adventurism by orders of magnitude. Though new risks, such as herpes and AIDS, have arisen in the most recent years, these can also be held down by judicious choice of partners and attention to obvious signs of danger. With the rise of an ethic of privacy, made possible by the economic advance of the country, the laws against non-marital and non-reproductive sex, which had always been largely unenforceable, fell into neglect. What remained to inhibit us were the dictates of our consciences and the thunderings from the pulpits, neither of which has proved much of a barrier in practice.

Sex laws passed in the 18th and 19th centuries, driven by religious belief and protected from being laughed aside by forces entirely outside the law, dropped into the Slough of Irrelevance after 1960. Except for freak cases such as Lawrence v. Texas, which made news because they were freak cases, sexual regulation by law is dead in America -- and that is entirely as it should be.

Your Curmudgeon will allow that there are a very few Americans who'd like to bring back the whole legal regime, in full force. But they are a trivial rump, who will receive no respectful hearing short of an Islamic takeover. They are ignored by conservatives who appreciate individual rights and the supreme importance of laws that can be evenhandedly and uniformly enforced without violating those rights.

Compare the regulation of sex with the regulation of abortion, and a forest of differences springs up at once.

Sex, apart from rape and molestation, involves only consenting adults, presumed to be competent to make their own decisions and choose their own risks. That there are risks, even between partners who know one another well, cannot be denied, but a competent adult is expected to familiarize himself with them beforehand, make the appropriate mitigations, and shoulder the consequences should the dice not fall his way. Only one possible outcome of a consensual sex act necessarily involves a third party: conception.

The germination of a new life brings a new character onto the stage, one who was not allowed to read the script beforehand and is powerless to affect its ending. There is no question that he is a distinguishable presence; his DNA signature, his abilities, and his vulnerabilities differ radically from those of his parents.

The competent actors might not want him there. Indeed, they might have taken stringent precautions against his creation and were simply the "victims of bad luck." But there he is. The question before us is no longer about sex; it's about the rights of that third character, and what responsibilities the first two have toward him.

If the developing embryo is rightless tissue, morally no weightier than a tumor, then excising it and discarding it are morally neutral deeds. Surely a woman has the right to control her own body if in doing so she injures no one else's rights, just as she has the right to swing her arms freely if no one else's nose is in the way.

But if the presence in the womb is a human being with the same right to life as his mother, then to abort him -- to kill him -- is murder. It can only be justified in a "lifeboat scenario," where either the mother or the baby must inevitably die, regardless of anything that might be done by any involved party. The mother's prior intentions, and her disinclination to be a mother, are just as irrelevant as they would be once the baby has been born.

There are intermediate positions. Some argue that, until the baby is capable of living on his own, without support from the mother's body or some technological substitute, he cannot be held to possess rights, for no man has a right to the coerced support of another. Others argue that, even if all abortions are murder in principle, nevertheless, respect for the right of privacy requires that we not criminalize abortions before a certain point in gestation, as to do so would either require massive invasions of privacy, or would open the door to selective prosecution at some district attorney's sole discretion.

Let all of that pass. The central fact is that abortion has nothing to do with sex. The crux of the abortion debate is when the developing baby's right to life begins, and what can be done to protect it without incurring unacceptable costs.

If abortion has nothing to do with sex, then the debate over the legal status of abortion need have nothing to do with the legal status of sex.

Are there pro-lifers who seek the re-criminalization of abortion because they hope that it will inhibit sexual license? Yes, indubitably. But that particular motivation is not part of the political / legal debate. Indeed, your Curmudgeon cannot name even one person, public figure or private party, who's ever expressed that motive. He would regard such a position as unworthy and insincere, as would every other pro-lifer he knows. If the baby's right to life and the legal protection thereof are not the issues under discussion, there is nothing to discuss. We have had enough of laws against this because it "leads to" that.

It is illuminating to note that, while laws that regulate sexual conduct have had a controversial aspect for nearly two centuries, laws concerning abortion have only been actively discussed for about forty years -- that is, roughly since the development of oral contraception. Prior to that, the near-universal conviction was that abortion was absolutely wrong at any stage of gestation. If a man impregnated an unmarried woman, he was under an absolute obligation to do the right thing and marry her. If he would not do so and could not be compelled, the woman would simply have to bear the child, contriving as much privacy for her illegitimate birth as she could, and then arrange for the baby to be adopted.

The shift in attitudes arose because, once high-quality contraception that didn't interfere with sexual pleasure was available, sexual indulgence was inhibited solely by the possibility of contraceptive failure or negligence in contraceptive use. If only abortion could be legalized, even the remotest possibility of having to endure the shame of illegitimacy could be averted. The fear of the illicit abortionist, nicely dramatized in the movie Dirty Dancing, would cease to confine sexual appetites.

Herein lies the seed of the prevailing obfuscations. The crux of the abortion issue has never been sex, but interest in the thing has been driven from the first by sexual desire. All Palace readers will know the history, from the critical 1973 Supreme Court decision to the present day.

Some day, another topic will relieve abortion of its "most contentious" title, because it will engage a desire even more powerful than the sex drive: the desire to live. The topic will be human cloning.

Imagine that it becomes possible for a human to reproduce himself parthenogenetically -- that is, without a contribution of DNA from another party -- and therefore to replicate his body perfectly. Human bodies are usually equipped with human brains and minds. The brain is the only portion of such a clone that would not be medically useful to its progenitor.

The clone would be a perfect source for every sort of transplant. If the law were to treat clones as having no rights of their own, they could and would be disassembled at will, to extend or improve the lives of those whose DNA signature they share. Imagine how strongly men will desire that such a resource be available to them.

But if we omit the possibility of artificially induced brain death, such a clone would be human, in all relevant ways indistinguishable from any other. If he is acknowledged as such, to treat him as an organ farm for another person, denied an acknowledged right to life, would be clearly wrong: murder for medical reasons, under color of law.

The abortion controversy prefigures the cloning debate in its core issues, but will be a pale shadow of it in intensity.

So your Curmudgeon will ask: If the development of the clone were to involve a human womb, would the debate be about sex?

The rest, as they say, is an exercise for the reader.

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