NY Times Opinion: Should Virginia law really make 'fine-grained moral distinctions' about life and death issues?

Writing at the NY Times, Michelle Goldberg writes that the concern over a Virginia abortion law is “fake news.” Goldberg’s piece is big on moral posturing but in the end, she can’t really obscure the fact that there is something deeply troubling with the bill she is defending. She also sidesteps evidence, which has been circulating online, which suggests late-term abortions are not generally about non-viable infants or fetal abnormalities discovered at the last moment.

Goldberg starts by noting that VA Delegate Kathy Tran proposed a bill which would remove a lot of restrictions in place for women seeking 3rd trimester abortions. She then argues that the hypothetical scenario presented to Tran was unfair:

Tran handled the moment poorly. She might have pointed out that legislation is not generally written with an eye to prohibiting ridiculous and unprecedented scenarios. It is inconceivable that a doctor would certify a need for an abortion while a woman is in labor; some doctors won’t even let a woman turn down a C-section if they think a baby’s health is at risk. But Tran’s impolitic answer to a ludicrous question gave abortion opponents grist for an explosion of self-righteous outrage.

This strikes me as intentionally missing the point. The question put to Tran was never meant to present a common real-life scenario, it was meant to probe and highlight a glaring flaw in the bill, i.e. that it took no notice of the viability of the child whatsoever. Under Tran’s bill, if you can find one ghoulish abortion doctor willing to sign off, producing a dead baby from a live one becomes legal on the doctor’s say-so alone.

Goldberg does allow that there are some critics who are genuinely horrified by this and not looking for a political wedge issue, but even then she says they are concerned about something that would probably never happen. It would never happen she assures us because the moral standards of late-term abortionists are too high:

“No matter what the law were, in real life, these things don’t happen,” said Frances Kissling, president of the Center for Health, Ethics and Social Policy and the former head of Catholics for a Free Choice. “I am not saying that there would not be one woman out of 20 million who decided at the 33rd week of pregnancy that she needed an abortion, and I would suggest that she probably does have mental health problems. However, this woman is not going to find anyone who will do this.”

Kissling is well known in the pro-choice movement for thinking deeply about the ethical gray areas surrounding abortion. As she points out, there are only about a dozen doctors in the country who perform third-trimester abortions at all, and she’s spoken to several of them, asking specific questions about patients they’ve turned down. “What I have learned is that all of them have limits and have declined to do abortions in certain circumstances for certain reasons,” she said. (The murderous abortionist Kermit Gosnell, serving a life sentence in prison, is an exception, but he was operating outside the law.)

That last parenthetical is golden. For one thing, it should give everyone pause about the fine line between late-term abortion and infanticide. For another, it overlooks the lesson that Kermit Gosnell represents. The story of Gosnell doesn’t exist without the larger framework of pro-choice politicians in Pennsylvania who allowed his clinic to go unregulated for years because they feared to tread on a woman’s right to choose. And other abortion clinics were sending him patients they didn’t want to handle.

It’s also worth nothing that the law Kathy Tran proposed in Virginia would have gone a long way toward shifting the legal line on what Gosnell did. Late term abortions like the kind Gosnell performed would no longer be illegal. Gosnell could simply have signed off on the medical necessity of them. He still wouldn’t have been able to snip the necks of infants already born, at least not legally, but he could have ended the same infants’ lives while they were still in the womb. The results would have been the same, only the procedure would have been a bit more inconvenient.

Eventually, Goldberg gets around to admitting that something like what conservatives are worried about could happen:

This is not to say that there aren’t third-trimester abortions that many people would find morally objectionable. Abortions after 20 weeks of pregnancy are quite rare — such procedures make up just over 1 percent of all terminations, according to the most recent Centers for Disease Control and Prevention figures — and there’s little solid data about the reasons women have them. Thus much of the debate relies on anecdote…

“Our talking point is, most of these procedures are on women who discover abnormalities late in the pregnancy,” Kissling said. “We don’t know if that is true.”

There is some research on why women seek late-term abortions which has been circulating online the past coupld days. It states, “data suggest that most women seeking later terminations are not doing so for reasons of fetal anomaly or life endangerment.” So the argument made by Delegate Tran and Gov. Northam that this is something that primarily happens when a baby is non-viable or deformed is not true.

Conservatives might see vindication in this admission, but it leaves us with the question of whether we want to use the law to make fine-grained moral distinctions, particularly in the absence of good information about the life-or-death choices we’re regulating.

The murder of a viable baby is not a “fine-grained” moral distinction. This is about as basic as legal distinctions can get. If the baby is viable, i.e. it has a good chance of survival outside the mother on its own, then aborting it should only happen under extremely rare and tragic circumstances, such as when the mother’s own life is at risk. This seems self-evident to most Americans which is why, despite American being majority pro-choice, an overwhelming percentage of people (>80%) are against late-term abortion in all but those very rare circumstances.

When human life is on the line, it makes perfect sense to make the threshold for crossing those lines fairly high. As Jonah Goldberg (no relation to Michelle btw) pointed out today, this is exactly how progressives argue about a host of other issues where “if it can save one life” is often the standard applied:

In almost every other sphere of debate where progressives claim the moral high ground, they are categorical. “If it saves just one life, it’s worth it,” they say about gun control, health-care reform, police abuse, etc.

Imagine if I were to argue that since lynchings are so rare, we don’t really need strict laws against lynching. Infanticide, like racism, murder, and rape, is a moral category. It’s not less evil if it’s rare. It is rare — thank God — because we’ve agreed to treat it as evil…

In debates over the death penalty, there is one thing virtually everyone agrees upon: It’s profoundly wrong to execute the innocent. Our criminal-justice system is rightly crammed with all manner of checks to minimize the risk of a terrible mistake. Well, a viable baby is surely innocent, too. And yet, among abortion-rights maximalists, it is considered the morally sophisticated position to remove as many checks as possible from preventing infanticide. If you think it’s worth tolerating a certain number of baby killings to protect abortion rights, you should say so. But please don’t pretend the moral ground you’re standing on is very high.

The law should strive to protect the innocent from death and in this case, that means setting the bar for the abortion of a viable infant very high. To do otherwise is to invite abortion extremists, like Kermit Gosnell, to step lightly across lines that should only be crossed in extreme and carefully regulated circumstances.