In light of recent developments—the death of Jack Kevorkian, the indictment of late-term abortionist Kermit Gosnell, and the Republican campaign to defund Planned Parenthood —Ross Douthat has challenged me to consider some parallels between abortion and assisted suicide.
I accept. Let's look at Douthat's arguments.
1. Abortion is a model of unregulated killing. Douthat, responding to my previous comparison of abortion to assisted suicide, writes:
If the right to die really became "a lot like" the right to abortion in America, there would be Swiss-style thanatoriums in most American cities, the Hemlock Society would be a major lobbying group (boasting, no doubt, that most of its resources go to palliative care rather than assisted suicide), and Kermit Gosnell-style thanatists would prey on the elderly while the courts looked the other way.
That can't be true, because the courts didn't look away from Gosnell. He's facing trial on eight counts of murder: one for killing a patient and seven for killing born-alive babies, as alleged in the indictment. Abortion is regulated, starting with the line drawn at viability. Pro-lifers have long protested that cops and courts don't enforce this line. Gosnell's case proves otherwise.
2. Assisted suicide is tightly regulated. Why not abortion? Douthat asks:
If we treated abortion the way, say, Oregon treats assisted suicide, it would only be legally sanctioned in rare cases—involving, say, severe fetal deformity or a threat to the life of the mother—and even then it would have to be approved by two physicians and hedged around by waiting periods. That kind of regime would represent an enormous victory for pro-lifers, and it's obviously not something that Saletan would support. But it's arguably where his analogy points …
Here Douthat has a much stronger case. Assisted suicide laws show how abortion could be regulated much more strictly than it is. From my standpoint, assisted suicide deserves tighter regulation than abortion because a person is more than a fetus. On the other hand, you can argue that abortion deserves tighter regulation than assisted suicide because in assisted suicide, the victim's death is voluntary. But let's not overlook a third distinction: inertia and presumption. If you're 70 or 80 years old, and you ask for lethal drugs, you're proposing to end a life that until now you've chosen to live. You're changing your mind. By imposing a waiting period, we're asking whether you really want to overrule your prior will.
Abortion isn't like that. Generally speaking, a woman who wants an abortion didn't want to be pregnant in the first place. She isn't changing her mind. So there's no presumption of prior will that would justify a waiting period.
That distinction captures my intuitions. But I don't think it's a sufficient answer to Douthat. Maybe, in order to be consistent, I should withdraw my support for Oregon-like restrictions on assisted suicide. I'm uneasy with that step, for reasons Douthat articulated in his column on Kevorkian. But I might have to go there.
3. Assisted suicide has more gray area than abortion. Douthat writes:
Saletan's account of his own father's passing suggests a sense in which abortion is very unlike assisted suicide. It can be hard to tell exactly what counts as assisted suicide and what doesn't, because there are obvious moral gray areas with end-of-life care—places where the line between easing pain and easing passing gets blurry, places where it's unclear where reducing suffering ends and abetting suicide begins. Whereas with rare exceptions (certain versions of the morning-after pill, perhaps), abortion is much more of an either-or: You either kill the fetus/embryo or you don't, and there's rarely any doubt about what just happened.
This is an area in which the assisted-suicide analogy sheds useful light on the abortion debate. In end-of-life care, the gray area is blurry in practice but not in principle. The moral line, as Douthat notes, is clear: It's OK to ease suffering and thereby hasten death, but it's not OK to hasten death deliberately and unnecessarily.
Conceptually, we could draw a similar line in abortion ethics: It's OK to end pregnancy and thereby kill a fetus, but it's not OK to kill a fetus deliberately and unnecessarily. Strictly speaking, the woman has a right to bodily freedom, not a right to terminate life. So, for example, she can have the fetus removed from her body, but once it's removed, she can't have it killed. This is not an idle distinction. It's the line Gosnell crossed.
But the much more common parallel is the one to which Douthat alludes: morning-after pills. My bet is that the practice of preventing unwanted births will continue to shift from surgery at the fetal stage toward chemical interference with fertilization and implantation. In that respect, abortion will become grayer, like assisted suicide. And that, in turn, may persuade more people that it's too subtle to merit prohibition.
4. Legalization is legitimation. Douthat argues:
But it's possible to accept that no government can "stop" assisted suicide or abortion completely (and that no government should create the kind of deeply- invasive mechanisms required to try) without believing that either practice should therefore be legalized and legitimated. Avoiding the police-state scenario doesn't require treating self-slaughter as a protected right, and effectively licensing the Jack Kevorkians of the world to cater to anyone who wants to die badly enough to take the plunge.
To me, this equation of legalization with legitimation is a big mistake with perilous implications. A government that prohibited every illegitimate practice—adultery, greed, cruelty, lying, Anthony Weiner's sexting—would be horrific. A free society needs space in which to sort out our values. It needs to tolerate the legality of practices whose legitimacy we can thereafter debate.
When Douthat uses the phrase "protected right," I think he's suggesting that there are two categories of rights: those that pertain to practices we deem legitimate, and those that pertain to practices we deem illegitimate. He believes, if I understand him correctly, that abortion has wrongly been deemed legitimate, and therefore the right to abortion has become a "protected" right: Abortion isn't just legal; it's protected by courts from various restrictions, such as previability gestational limits. And if I thought abortion were inherently illegitimate, I'd agree with him that it shouldn't be protected in these ways. But I don't. I think the legitimacy of abortion, like the legitimacy of assisted suicide, varies from case to case. And this makes me leery not of public debate, but of presumptive government intervention.
5. Planned Parenthood represents abortion run amok. According to Douthat, one sad result of our treatment of abortion as a "protected right" is the rise of "a kind of abortion industry—in which the country's largest abortion provider doubles as a major Democratic interest group." He's talking, of course, about Planned Parenthood.
I've said it before, and I'll say it again: If your definition of pro-life is preventing abortions, Planned Parenthood is the most effective pro-life organization in the history of the world. And the assisted suicide analogy drives home this point. Think of a doctor who devotes her career to promoting health and extending life but, when all else has failed, honors a patient's request for lethal drugs. Is she a killer or a healer? I'd judge her by her goals and her life's work. She does everything possible to forestall decline and death, until her efforts have failed.
That's exactly how Planned Parenthood treats abortion. Family planning is the goal. Abortion is a backup option when family planning fails or is made inaccessible by self-styled pro-lifers. To the extent that Planned Parenthood succeeds in its mission of preventing unplanned pregnancies, the abortion rate goes down. Defunding Planned Parenthood to prevent abortions is like defunding doctors to prevent assisted suicide. It's insane.
Douthat is right: Looking at assisted suicide and how we regulate it can help us rethink our assumptions about abortion. But that challenge cuts both ways.