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Of Sad Defeats & No Progeny

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There was a time when the idea that the law would make it possible for women to rent out their wombs would have struck most everybody as a moral horror — especially Catholic Democrats. Now, for the Catholic Democrat who is governor of New York, commodifying childbirth is progress, especially because it makes it possible for gay couples to have children.

We’ve come a long way, baby. New York’s Catholic governor just signed landmark legislation expanding LGBT rights. [6] He signed a law guaranteeing that abortion would be legal in New York up until the point of birth. [7]

Cardinal Dolan this past weekend said that the legislation was “grisly,” but is resisting calls to excommunicate Gov. Cuomo, saying in a public letter [8] the New York archbishop had read at masses that Catholics “should not respond with more bitterness and divisiveness.” Okay. I wonder what, exactly, Cuomo would have to do before Dolan abandons what Ross Douthat calls his “bingo hall winsomeness” [9] on the matter.

(Can anybody point me to any public criticism other religious leaders in New York issued of Gov. Cuomo for his abortion legislation? I can’t find anything that Eastern Orthodox bishops said, aside from giving Cuomo a human rights prize (!) a couple of years back. [10] Even though the only religious leadership that matters politically in New York State are the Catholic leadership, it would have been good to have others in the state on record condemning Cuomo’s barbarity.)

I was thinking about Cardinal Dolan last night as I was re-reading Ryszard Legutko’s book The Demon In Democracy. [11] Legutko, a Polish philosopher and statesman, writes about the uncanny similarities between communism and ideologically militant liberal democracy. The former Solidarity activist found the idea for the book when he observed former communist apparatchiks moving smoothly to embrace liberal democracy. When he looked into the similarities more closely, Legutko found that the two philosophies have more in common than most people think.

In the book’s final chapter, on religion, Legutko talks about how both philosophies have eviscerated the power of the Christian religion. One did it through the power of the state’s applied force, but the other has done it much more peacefully. Legutko writes:

If the old communists lived long enough to see the world of today, they would be devastated by the contrast between how little they themselves had managed to achieve in their antireligious war and how successful the liberal democrats have been. All the objectives the communists set for themselves, and which they pursued with savage brutality, were achieved by the liberal democrats who, almost without any effort and simply by allowing people to drift along with the flow of modernity, succeeded in converting churches into museums, restaurants, and public buildings, secularizing entire societies, making secularism a militant ideology, pushing religions to the sidelines, pressing the clergy into docility, and inspiring powerful mass culture with a strong antireligious bias in which a priests must be either a liberal challenging the Church or a disgusting villain. Is not — one may wonder — this nonreligious and antireligious reality of today’s Western world very close to the vision of the future without religion that the communists were so excited about, and which despite the millions of human lives sacrificed on the altar of progress, failed to materialize?

It seems to me like he’s exaggerating a bit for rhetorical effect. The communists did not crush religion in Legutko’s country, Poland, but they did a great job of it in the Soviet Union and other Eastern European countries. Still, his point is a good one: the West did not need atheism in power to bring the church to its knees; it only needed time in a culture dedicated to pursuing pleasure and individual choice as its greatest good.

Legutko goes on to say that “the only option left for Christians to maintain some respectability in a new world was to join the great progressive camp so that occasionally they would have an opportunity to smuggle in something that could pass for a religious message.” This is a big mistake, he contends. Those Christians who believe that Christianity will get a hearing if it appears more conciliatory and accepting of changing norms in post-Christian society are deluding themselves. This cannot happen, because the anti-Christian foundations of modernity are part of liberal democracy’s DNA.

Legutko warns that the relationship between churches and liberal democratic institutions “is reminiscent of the dialogue their older colleagues conducted with Marxism.” In communist days, he says, churchmen tried to find good things to say about the Marxist system, for the sake of dialogue. All this did was to show the weakness of the Church’s hand. Marxists conceded nothing, or if they did make concessions, they were along the lines of, “Let’s admit that the Church’s program does have some aspects of Marxism in it, so the Church isn’t entirely bad.” In the old days, with the Marxists, as today with liberal democrats, Churchmen who take up this “dialogue” fail to understand that the relationship between the Church and representatives of the secular liberal order is inversely proportional: that the more favors the dominant power grants to the Church, the weaker the position of Catholicism (and Christianity in general) is.

Legutko says that Christians today who think they can compromise with liberal democracy are fooling themselves:

[L]iberal-democratic ideology has long since ceased to be open (if it ever was) and has entered a stage of rigid dogmatization. The more conquests it makes, the less the victors are wiling to show clemency to anyone outside the winning forces. The Christians who put on humble faces and declare their readiness to seek a common ground of action for a better world stand no chance to survive, regardless of how far in their self-repudiation they go. Sooner or later they will have to sign an unconditional surrender and to join the system with no opt-out and no conscience clauses, or, in the event of a sudden declaration of non possumus (“We cannot”), they will be instantly degraded to the position of a contemptible enemy of liberal democracy. So far, nothing indicates that the regime will lose its ideological momentum.

I predict the ultimatum is going to come when the non-state institutions of liberal democracy compel Christian schools to fully accept and affirm LGBT ideology. The First Amendment will likely protect Christian schools from state orders, but there is little a Christian school can do if a private accrediting organization refuses to accredit a Christian school on grounds that it’s a bigot factory. There is little a Christian school can do if other private institutions shun them and their graduates, thereby rendering a diploma from that school worth much less.

Legutko says that Christians today

should act as an energetic and full-blooded group, strongly committed to their cause, openly determined to imprint their mark on the world. The opposite strategy — obliterating the boundaries, diluting their message in liberal jargon, cajoling the idols of modernity, paying homage to today’s superstitions, self-effacing their identity — condemns Christians to a sad defeat with no dignity and no progeny.

“A sad defeat with no dignity and no progeny.” Searing words. I’m reminded of a story a young Catholic in Madrid told me last month. In 2018, Madrid’s Catholic cardinal archbishop endorsed a militant feminist march, telling the marchers that they should be proud of what they’re doing, because even the Virgin would have marched. They paid him back by spray-painting anti-Christian graffiti on churches in the city. [12] The city’s chief representative of Catholic Christianity suffered a sad, undignified defeat, all right, and he will have no progeny, because which Christians want to follow a leader who grovels like that in the public square?

If Catholic and other traditional Christian leaders (and their followers) stand up for what they know is true and just, they’ll probably be driven out of the public square. Fine. As Legutko asserts, it’s delusional to think that bingo hall winsomeness in the face of this anti-Christian ideology is going to give any church leader any influence over those in power. If you’re bound to be defeated anyway, then go down fighting with dignity, within integrity, with honor. You might then inspire people in coming generations that the Christian faith is something worth fighting for, and dying for, instead of aspiring to be nothing more than the prayer auxiliary of a ruling class that hates it anyway.

UPDATE: A reader points out that Carl Lentz of the hipster megachurch HillsongNYC denounced the law as “shameful and demonic.” [13] I’ve been critical of him before in this space, for being a squish on sexuality issues, but I’ll give him credit for this. That’s not an easy position to take in New York City. And, just to be perfectly clear, Cardinal Dolan did condemn the law in no uncertain terms. At issue is whether or not the cardinal should put some force behind his condemnation, given that the governor is a Roman Catholic under his spiritual authority.

UPDATE.2: A reader posts this condemnation of the law by the Archons (which is to say, the Greek Orthodox) [14]. I wish they would rescind the human rights award they gave Gov. Cuomo in 2016.

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139 Comments To "Of Sad Defeats & No Progeny"

#1 Comment By Giuseppe Scalas On February 5, 2019 @ 3:44 am

Go watch this movie

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#2 Comment By galanx On February 5, 2019 @ 5:40 am

Canada allows surrogacy but bans commercial transactions. Of course this would be a tough proposition in a country which buys and sells human blood.

#3 Comment By Mark VA On February 5, 2019 @ 6:04 am

Rod Dreher wrote:

” If you’re bound to be defeated anyway, then go down fighting with dignity, within integrity, with honor. You might then inspire people in coming generations that the Christian faith is something worth fighting for, and dying for, instead of aspiring to be nothing more than the prayer auxiliary of a ruling class that hates it anyway.”

Not bad, not bad at all! I subscribe to this one hundred percent. This is pure, unalloyed, Polish Romanticism – that won in the long run, against seemingly insurmountable odds;

The anti-Christians have a ready made, mocking response to this. It will go something like this:

“Go ahead, send your Christian cavalry against our Panzers”;

Also, the “Non possumus” has a definite meaning in 20th century Polish history:

[16]

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#4 Comment By John Spragge On February 5, 2019 @ 7:16 am

Reality check: here is the description of the relevant law by the New York State Senate, who presumably know what they passed.

Section 2 of the bill creates a new Article 25-A of the Public Health Law (PHL), which states that an abortion May be performed by a licensed, certified, or authorized practitioner within 24 weeks from the commencement of pregnancy, or there is an absence of fetal viability, or at any time when necessary to protect a patient’s life or health.

So: this law states a woman cannot be forced to carry to term at the cost of her health or life, and cannot be compelled to carry a fetus to term if giving birth will bring a child into the world who cannot survive outside the womb.

The cases where abortions are provided or indicated in these circumstances that I have read about are wrenching. In several of these accounts, the news the woman will give birth to a child who cannot live out side the womb comes as a terrible blow. I can think of several possible ways to describe a law that allows a woman and her caregivers to determine the least painful way to get through a tragedy such as this. Failing to coerce a woman into going to term and give birth to a child who can only live a few painful minutes or hours after birth does not, however, strike me as “grisly”, as Cardinal Dolan evidently believes, or “barbaric”, as Rod seems to think.

#5 Comment By JonF On February 5, 2019 @ 7:47 am

Re: Homosexualists hate women.

I assume “Homosexualists” refers to gay activists (correct me if I am wrong). If so a large fraction of them are women, e.g., lesbians. It’s a stereotype but maybe with some truth in it, that lesbians tend to be the serious side of the GLBT conglomeration while gay men tend to be party boys.

#6 Comment By JonF On February 5, 2019 @ 8:11 am

Re: The new gay senior partner is going to put his hands all over the male junior partners

I’ve actually had a gay boss (who was “married”– it wasn’t legal then hence the scare quotes). Nothing of the sort went on in the office. The guy was one my better bosses.

#7 Comment By Furor On February 5, 2019 @ 9:06 am

@Thomas Hobbes
“None of those other Eastern European nations (to my knowledge) had a unified Catholic culture the way Poland did nor did they have quite as much unified anti-Russian animosity. All those countries had lots of reasons to appose communism or Russians but no common religion to unite around nor the immediate anti-Soviet resolve”

But it only shows that your view that religiosity in Poland was motivated by anti-Russian politics is too simplistic. If Poles could gather around a unifying religion, it was because religiosity there existed before and regardless of politics, which was not the case in the rest of Eastern Europe. Eastern Europe had all the same experiences more or less as Poland, yet it didn’t spur some religious revival

#8 Comment By John Doe On February 5, 2019 @ 10:22 am

Here’s the problem. Religious leaders got used to having actual power over people (via legislation), that they forgot a simple truth: Religion, in it’s purest form, is a personal communion between a person and God. It is not physical – it is mental. Using physical force to spread religious teachings is barbaric – and totally unchristian. Forget the religious hierarchy – they long ago replace the art of preaching for the art of politics. And now they are grasping at straws to reclaim at least some of that lost power.

The only thing we need to fear is if those in power end up “feeding us to the lions”, so to speak, for professing religious beliefs. And, for now at least, to my knowledge only China and some muslim countries do that. For whatever the reason may be, at this time in history people in the West have rejected Religion in their lives. Why? I can think of some reasons – mainly related to the thirst for power I mentioned above. The pendulum may swing back – who knows? For those who still believe the way forward is simple. Jesus did it thousands of years ago. We can do the same.

#9 Comment By Giuseppe Scalas On February 5, 2019 @ 10:35 am

JonF

I assume “Homosexualists” refers to gay activists (correct me if I am wrong). If so a large fraction of them are women, e.g., lesbians. It’s a stereotype but maybe with some truth in it, that lesbians tend to be the serious side of the GLBT conglomeration while gay men tend to be party boys.

I mean ideologists, naturally. Not by any means individual gays.

#10 Comment By Hector_St_Clare On February 5, 2019 @ 10:55 am

The Czech are a good counter example. They viewed Soviets as liberators at the end of WWII and Prague at least was mostly spared by liberation. Thus, they were not immediately against Soviet influence. Poland was invaded by the Soviets along with the Germans in 1939, the Polish Home Army was stabbed in the back by the Soviets when they revolted against the Germans to retake Warsaw (which was essentially burned to the ground), and the Soviet “liberation” was characterized by mass rape. On the religious side, Catholicism was somewhat forced for the Czechs after the Hussite and 30 years wars and was hardly a unifying force. The Poles, for reasons I’m not clear on, seemed to have mostly escaped the late unpleasantness of reformation and were remarkably free of minority groups or religions post WWII.

I think these points are very well taken. I’d also add that Poland had more reason than just about anywhere else in Eastern Europe to ressent Russian domination. Russia was an imperial occupying force in Poland going back to 1772, whereas in the rest of Eastern Europe she didn’t show up in force until 1945 (and in the Orthodox parts of the Balkans Russia was historically seen more as a protector / liberator against the Turks and Austrians than as an occupier).

As far as Czechoslovakia goes it’s also worth pointing out that the Communists originally won power there through a free election and that generally Communist rule there had many fewer casualties than it did in other Warsaw Pact countries, especially Poland (e.g. the number of deaths from the Soviet invasion of Hungary in 1956 was several thousand, the number of deaths from the invasion of Czechoslovakia in 1968 was IIRC a couple of hundred).

#11 Comment By JonF On February 5, 2019 @ 11:18 am

Furor, if you go back a ways in history, Poland’s history does have some fairly unique awfulness. Poland was originally a religiously diverse- and tolerant- nation. I wonder if the 17th century Deluge, in which Russia and especially Sweden savaged the country with immense loss of life resulting, cemented in
Catholicism. The miracle of Czestochowa was an incident on that period.

#12 Comment By Siarlys Jenkins On February 5, 2019 @ 11:32 am

I’ve actually had a gay boss (who was “married”– it wasn’t legal then hence the scare quotes). Nothing of the sort went on in the office. The guy was one my better bosses.

Duh-uh. A lot of women employees have had male supervisors who acted with complete propriety too. Even in the 1950s. I was talking about an atmosphere that tolerated those who chose to be more pushy and imposing, and how adding gays to that mix might make people feel.

EVERYONE wasn’t rude and overbearing to people of African descent during the Jim Crow era. But those motivated to do so could get away with it, there was little to no recourse. One of my areas of specialty in American history (no degrees, no academic affiliation, but I know material most Ph.D’s don’t) is how the army treated soldiers of African descent during the military training of 1941. It was all over the map. Some officers prohibited use of “an ugly little epithet” on base, by soldiers of ANY color. Others covered up actual firefights where elements of the “Dixie” division fired at barracks occupied by black soldiers. The thing is, there was no STANDARD that soldiers in segregated units could count on, so those who felt like belittling and mistreating them could do so.

So: this law states a woman cannot be forced to carry to term at the cost of her health or life, and cannot be compelled to carry a fetus to term if giving birth will bring a child into the world who cannot survive outside the womb.

I think that’s sound, and such a law is entirely appropriate. I’m open to moving 24 weeks back to 20, to be on the safe side of self-conscious cognition and ability to survive outside the womb, but otherwise, I don’t see any problem.

#13 Comment By Hector_St_Clare On February 5, 2019 @ 12:01 pm

Here’s another thing I don’t get, and I’m speaking from the left. In current political or moral thinking these days, renting a fully consenting woman’s vagina by the hour is a crime against women and society in general; we call it prostitution, and many on the left say that it’s a terrible abuse and evidence of rape culture, patriarchy, toxic masculinity, male entitlement, etc.

I agree that sex work and commercial surrogacy aren’t that morally different, but to my mind neither of them are morally objectionable, rather than both being objectionable. I think both prostitution and commercial surrogacy should be legal and destigmatized. More than anything else I get deeply uncomfortable when I see people insist that sex, or childbearing, are somehow sacred processes into which financial considerations shouldn’t intervene. They are deeply personal processes, for sure, but precisely because they’re deeply personal, it’s important (to me) that we let people come to their own decisions about how much sex, or childbearing, mean to them, and whether they want to place a financial value on them. A lot of women enjoy and take pride in sex work and find some level of meaning in it, I would be surprised if the same wasn’t true of surrogacy.

I also think you’re mistaken about the degree to which people think prostitution is a crime against women and/or society, and also about how much of this comes from “the left”. Americans are split about 50/50 on whether they think prostitution should be legal or not, but Democrats are more likely to approve of it than Republicans. i’d be surprised if the same wasn’t true of commercial surrogacy, although again it’s not something I’ve really looked into.

#14 Comment By C. L. H. Daniels On February 5, 2019 @ 12:29 pm

So: this law states a woman cannot be forced to carry to term at the cost of her health or life, and cannot be compelled to carry a fetus to term if giving birth will bring a child into the world who cannot survive outside the womb.

It sounds fine, until you ask yourself what constitutes a threat to the patient’s health. Does that include mental health? Could someone sufficiently desperate to abort their otherwise healthy late-term pregnancy come up with a spurious mental health justification for doing it? You know that, somewhere, there’s a doctor who would enable this, especially if the patient in question has enough money.

I’m sure I sound horribly cynical, but if life’s taught me anything so far, it’s that there’s always someone who will try to take advantage of loopholes that any decent person would never contemplate using. You can argue that the procedures this law enables are incredibly rare and wrenching all you want, but in the end you don’t know that will always be true; those were just the legitimate cases used to justify the law. Maybe the next Kermit Gosnell will set himself up in New York as the guy who will abort any pregnancy, no matter how advanced… For a price. And he’ll have an on-the-payroll specialist or specialists ready to provide whatever medical justification is necessary to constitute a threat to the health of the patient in order to do so, not that I expect New York to actually be keeping a close eye on these things – they almost certainly don’t want to know. They will look the other way, because putting an abortion clinic out of business is not their idea of what a government should be doing (again, see Gosnell, Kermit – Pennsylvania in that case had ceased inspecting abortion clinics years before in order to reduce a perceived deterrent to abortions, and that was under Republican Governor Tom Ridge).

You don’t want to think this sort of thing will happen, but I promise you, it will. There’s always someone willing to break the bounds of decency – if that weren’t true, we wouldn’t need a criminal code in the first place.

#15 Comment By peter On February 5, 2019 @ 12:35 pm

I’d like to push back a bit on Legutko’s argument as sketched. First, I agree that me-too positions from the church are self-defeating, mainly because they are logically strained and radiate insincerity and weakness, which are repulsive qualities. The church should be capable of showing as much courage of convictions as fringe political groups did before they gained mass acceptance. That said, I deny that liberal democracy is premised on acceptance of hedonism, thereby tending to marginalize religion with its anti-hedonistic morality. First, the liberation movements for women and gays are premised on an appeal to equality, tolerance, and sympathy rather than the wish to remove needless constraints on pleasure. While the wish to enjoy previously forbidden pleasures may be an ulterior motive, it is not the only motive at work. Indeed, the secularist left seems to delight in revoking earthly pleasures indulged in by the older elite, such as football, driving, drinking, meat-eating, Christmas, and flirting. So maybe the war against traditional religion is in fact war against an older elite that championed it.
Secondly, prior to the invention of birth control and effective treatments for STDs it was clear that sexual laissez-faire was a bad idea from a purely hedonistic viewpoint. New technology has altered the cost/benefit ratio for indulgent and non-reproductive sexual behavior, making it less damaging than before, but not to a point where the old rules are discredited, as opposed to requiring adjustment. Any reader of Charles Murray can point out well-documented adverse consequences of the new sexual morality, considered from a purely secular viewpoint.
What liberal democracy cannot do is forcibly indoctrinate the populace in a religious creed. But this shouldn’t be required for religion to flourish. If it feels like the liberal state is all but outlawing traditional religion, that is a sign that liberal democracy is drifting away from liberalism and toward something less liberal.

#16 Comment By LFM On February 5, 2019 @ 1:32 pm

Dear Mr Vernon Hughes,
The reason why it was possible to reach a sensible public accommodation over alcohol is that the consumption of moderate quantities of alcohol is neither a venial nor a mortal sin, in fact not a sin at all, and those denominations that regard it as such are a minority. Contraception, divorce and abortion all involve mortal sins and thus generated more controversy among believers as matters of public policy. You’ll notice, however, that two of them have largely faded from the public square. Abortion, however, has remained a matter of concern in spite of the fact that it was legalized in the US almost 50 years ago. That is because it involves the killing of a living human creature.

So stop the hand-wringing and accept that abortion is really not like alcohol consumption.

#17 Comment By JonF On February 5, 2019 @ 2:17 pm

Giuseppe, my point about the lesbians still stands. Again I may be stereotyping, but you’re more likely to find misandry rather misogyny in those particular circles, and yes, I’m talking about the ideological sorts. You can even find lesbian thinkers who disapprove of drag and trans stuff.

#18 Comment By Lee On February 5, 2019 @ 2:44 pm

@ Siarlys Jenkins
“There is a difference between being hit on by individuals who are your type, but not your preference, and being hit on by individuals who are not even your type.”

Or maybe it is just that you are a man. My sons have been hit on by gay men twice each and I’ve been hit on twice by gay women. None of us found the experiences traumatic. OTOH, I have had many traumatic experiences of assault and harassment by men from the age of 12 forward. Everyone is entitled to their own opinion but I will still laugh at the idea of your “genuine” phobia while the accumulated trauma to a woman doesn’t qualify. Those poor phobic men… my heart just breaks for them.

#19 Comment By Augustine On February 5, 2019 @ 3:36 pm

In a way, by failing to declare that Cuomo placed himself, as a Catholic, outside of communion (excommunicated) with the Church, albeit exercising his political office, Card. Dolan is placing Cuomo as an example for other Catholics to follow, albeit to apostasy.

#20 Comment By TOS On February 5, 2019 @ 3:50 pm

C. L. H. Daniels — You are arguing that the mere possibility of a hypothetical bad actor makes the entire law, aimed at entirely real, entirely heart-wrenching cases, not just misconceived but “barbaric” (to use Dreher’s term).

Isn’t that bad faith?

Democrats are trying to have a policy debate about how much legal agency to afford women who are faced with the worst possible ethical dilemma. “Conservatives” seem to want the government to step in and determine which bad outcome is required.

To be more specific: Democrats don’t want to use governmental power to force women to carry brain-dead fetuses to term, which is a real thing that actually happens today. Religious conservatives want to use governmental power to force women to do just that, because to do otherwise would allow the possibility of hypothetical at-will abortions of 36th-week, fully-viable babies (which is a thing that virtually never happens, and on the exceedingly rare instances that it does, the doctor is rightfully prosecuted as a murderer).

When stated as a policy debate, the terms become much more clear.

#21 Comment By Lee On February 5, 2019 @ 5:24 pm

@ Siarlys Jenkins

Harassment in the workplace by a superior or as a student by a teacher/professor is very different from being “hit on” by someone, at least in the general meaning of harassment. It is a violation of personal boundaries, not just physical but also the violation of your autonomy (or at least challenging of it because of the conflict between wanting to keep your job and not wanting to do what is being asked or forced from you) and your personal dignity. It is very debasing to be doing your job and then to have sex demands placed on you as though you are not equally human.

My point simply is that it is these power dynamics and the personal violation that are the primary factors in making it harassment, not the sex of the person doing it to you. I was hit on by a lesbian who was a new friend and she did not take “no” gracefully but pushed at me several times. It was annoying but not in the same league as the harassment I received by multiple employers and it did not make me feel violated. A woman can abuse a man this way to the same effect if she is his boss because the power is that of an employer rather than physical power. It can be opposite or same sex – the personal violation is the crucial factor.

The thing about this stuff is that you think you have put it behind you but you never really do. I am celibate and have no intention of ever being involved with a man again but the man = phobia but woman does not just hit me like another diss, because if harassment does anything, it makes you feel disrespected, dismissed, a nothing. This crap just leaves you forever raw.

#22 Comment By Lamm2 On February 5, 2019 @ 5:30 pm

@John Spragge “Reality check”

Reality checks are important. Consider this one: the worst case scenarios you describe are already allowed under current federal law and applies to all 50 states. There is no need for new laws to allow for the care you describe. It’s already covered. The law NY passed is gruesome and also removes the murder charges related to abortion from the books.

P.S. If in doubt about murderous abortionists, consider Kermit Gosnell’s story. The recent movie about Gosnell, the court dialogue in the movie is verbatim from the court records. Gosnell’s clinic was filthy; women were permanently harmed; several died. He regularly committed infanticide. He was exactly the kind of abortionist women need protection from. The man who made the Gosnell movie is an Irish journalist who was not an activist. Check out this short interview:

Gosnell Filmmaker Changes Mind on Pro-Lifers

#23 Comment By l’autre J On February 5, 2019 @ 5:40 pm

So the inevitable conclusion is that abortion will remain legal in blue states and become all but illegal in red.

The November election created this interim status quo, due to Democrats gaining full control of most Blue State state governments.

Tonight’s Trump speech is reportedly going to be exactly about not accepting and breaking it. Urged to do so by Religious Right people.

Every time Trump has set out to break a status quo for a right wing base constituency, it’s invariably amounted to Croesus crossing the Halys. So far he’s managed to persuade the country to strong fresh pluralities and majorities for PPACA, for more progressive taxation, for a liberal female and possibly non-white President, a liberal Supreme Court, toward more liberal interventionism, for more liberal immigration policies, and more support for trans people.

This time it’s going to be different, of course, and end well for the pro-life movement, the credibility of conservative Evangelical and Catholic leaders, and the carefully built up conservatively biased federal judiciary. After all, the recently tipped cultural liberal majority is going to be passive and concede just how right conservatives were all along. /s

#24 Comment By Siarlys Jenkins On February 5, 2019 @ 5:45 pm

It sounds fine, until you ask yourself what constitutes a threat to the patient’s health. Does that include mental health? Could someone sufficiently desperate to abort their otherwise healthy late-term pregnancy come up with a spurious mental health justification for doing it? You know that, somewhere, there’s a doctor who would enable this, especially if the patient in question has enough money.

That’s a legitimate question. I’m constitutionally pro choice, but that’s reserving for separate discussion whether abortion is wise, good, rational, prudent, let along moral. Constitutional law is about jurisdiction — who gets to make the final call.

Yes, every good, wise, rational, prudent and appropriate thing can and will be scammed. Yes, there will be women who just couldn’t make up their mind until week 27 and then want to have an abortion, and there will be doctors who will manipulate “mother’s health” if the price is right.

So, there should be more accountability than “if a doctor says so, go for it.” On the other hand, a doctor should not have to fear that any reasonable evaluation will be second guessed later by a zealous DA out to make a name for himself. THAT power can be abused also.

Two Supreme Court rulings on “partial birth abortion” bans provide some guidance. The court struck down one law because it did not clearly and precisely inform doctors what behavior was in violation and what behavior was in compliance. So, congress wrote a second law specifying that if more than X centimeters of a baby’s length protruded from the birth canal, and it was viable, destroying it would be a criminal violation.

I know that, on its face, will sound cynical to a sincere and passionate pro-life advocate. But we can certainly err on the safe side. Since we do not have a flat ban on any abortion whatsoever, we need to specify what is permitted and what is prohibited. It may take a page or two to properly spell out what is a legitimate threat to a mother’s health. Certainly anything that would leave her crippled, septic, in severe danger of blood poisoning, anything that imposes a greater risk than the known risks of pregnancy itself…

#25 Comment By Thomas Hobbes On February 5, 2019 @ 6:10 pm

Furor says:
Eastern Europe had all the same experiences more or less as Poland, yet it didn’t spur some religious revival

This is very disconnected from any history I have read of the regions. Eastern Europe is not a homogenous block. Even Lithuania had very different experience pre WWII than Poland. As far as I know, Polish animosity towards Russia was much stronger pre 1939 than in any of the other “Soviet Block” countries. Did you mean they all had pretty much the same experience under Soviet rule (also highly dubious)?

#26 Comment By Moone Boy On February 5, 2019 @ 7:09 pm

John Spragge:

Section 2 of the bill creates a new Article 25-A of the Public Health Law (PHL), which states that an abortion May be performed by a licensed, certified, or authorized practitioner within 24 weeks from the commencement of pregnancy, or there is an absence of fetal viability, or at any time when necessary to protect a patient’s life or health.

I had almost this exact same discussion in Ireland in the lead up to the Abortion referendum, because of the almost exact same way that liberalisers phrased and framed the necessity:

The entire passage is ultimately defined not by what you want it to be from the bulk of the text, but by the final clause: “or health”.

I.e. – there is effectively, functionally, no limit.

Pregnancy by definition creates risk to a woman’s health. Unless you can functionally define “or health” as having an actual limit, there is no limit.

This is actually why I voted against the repeal of the right-to-life clause, despite thinking women should have the power to terminate pregnancies in some circumstances: because of the utter bad faith politically in limiting abortion at all.

#27 Comment By Lee On February 5, 2019 @ 11:21 pm

@ C. L. H. Daniels
“I’m sure I sound horribly cynical, but if life’s taught me anything so far, it’s that there’s always someone who will try to take advantage of loopholes that any decent person would never contemplate using.”

So what then should be done with a woman who has complications in the third trimester that involve a non-viable fetus or threaten her life/health? Should she be forced in the first case to care the baby to full term? Should she in the second case be forced to die? Your stance says that women in these situations should be sacrificed in order to make sure that those bad people who take advantage of loopholes will be duly punished. The problem is that our justice system does not take that approach with anything else – we have tons of safeguards to prioritize not punishing an innocent person.

#28 Comment By njoseph On February 6, 2019 @ 8:04 am

@Hector St Claire- we actually agree more than we disagree re: prostitution and surrogacy. My point was that it’s a strange contradiction to say that women are absolutely in control of their own bodies when it comes to abortion and surrogacy, but they have no right to rent their bodies as they choose for money. The right is actually more consistent than the left- it doesn’t want to give women the right to choose abortion OR prostitution, though I’m not sure where mainstream anti-abortion activists stand on surrogacy.

I disagree that the Left (again, I’m a liberal Bernie-voting Jewish vegan from upstate New York) wouldn’t be strongly against liberalizing sex work. In fact, we have evidence of this: the anti Backpage laws,FOSTA and SESTA were bipartisan efforts framed as being anti sex trafficking (which everybody agrees is a terrible evil) even though actual sex workers pleaded with Democrats not to pass laws that they felt kept them safer (by allowing them to advertise on the internet.)

There is not a chance in heck that any national Democrat would propose decriminalizing sex work- they’d be pilloried faster than Ralph Northam can moonwalk by the base. So the contradictions continue.

#29 Comment By Lee On February 6, 2019 @ 1:31 pm

@ njoseph

Consider that these are complex issues.

I remember a story of a mother whose daughter had viable eggs but due to a health condition could not carry a baby. The mother was a surrogate using her daughter’s egg and her daughter’s husband’s sperm. Is this the same thing as a stranger being a surrogate for money? Or a surrogate for a gay couple with eggs and sperm from unrelated donors?

Same goes with sex work. A woman who got into it in college to help pay for her education and decided she liked it is different from a girl trafficked from the time she ran away from home at 12. A recent court case involved a 67 yo man on trial for the statutory rape of 2 underage girls who went to his home for sex arranged online. The judge was very lenient in sentencing and said that the girls (I think 12 and 13 yo) were “the aggressors” because they went to him and that the girls weren’t hurt because they took money for the acts. I guess he hasn’t heard of trafficking and thinks that, contrary to the conclusions embedded in our laws, that girls that young can make informed, rational decisions when it comes to sex.

Politicians and parties pick their position depending on the overall opinions of the groups they represent and hardliners on all sides ignore the nuances, pick their slogan and have at it. The huge majority of individuals of both sides struggle with the morality and balancing the various interests of people they deem moral in motivations and those they deem immoral.

Why you would expect otherwise is what puzzles me.

#30 Comment By Lamm2 On February 6, 2019 @ 3:10 pm

@Lee “So what then should be done with a woman who has complications in the third trimester that involve a non-viable fetus or threaten her life/health?”

Surely, you realize that in these hard medical cases, it has never been illegal to make every effort to save a mother’s life or deliver a dead child? Before Roe, it was understood that there were two patients’ lives at stake and the mother’s life took priority. Thankfully, doctors can now do surgery on a child in the womb when a child is in distress and saving the lives of premature babies has become routine. The hard cases argument is sophistry.

Surely, you realize that abortion, by definition, means the child must be dead (killed) in the womb prior to delivery? Roe vs Wade is federal law which made abortion legal in all trimesters, including the third trimester, in all 50 states. It is already legal to kill a child in the womb instead of trying to save the child’s life in any trimester.

The question is why don’t people understand what the argument is about? Pro-choice wants the freedom to kill children in the womb for whatever fig leaf reason* up to the point of a natural delivery. Pro-life doesn’t want a legalized death sentence and murder of a class of unwanted people**

*Don’t @me about mental health. People who kill others because of mental instability are placed in psyche wards because they are a danger to others.

**the unwanted class of people in this situation is people who are in the fetal stage of development. In Germany, the unwanted classes of people given the death sentence were the disabled, gypsies, jewish race…

#31 Comment By Lamm2 On February 6, 2019 @ 3:26 pm

@Lee “Consider that these are complex issues.”

Your “complex issues” are specious. Do you understand you’re playing Calvinball?

#32 Comment By Lee On February 6, 2019 @ 4:43 pm

@ Lamm2
“Roe vs Wade is federal law which made abortion legal in all trimesters, including the third trimester, in all 50 states. It is already legal to kill a child in the womb instead of trying to save the child’s life in any trimester.”

I’m not going to attempt to discuss this with someone who is this ill-informed. You are dead wrong about what Roe v. Wade did and about the thousands of laws dealing with abortion in the US which vary greatly state by state. Similarly, I’m not going to accept your definitions of what anyone “wants”.

#33 Comment By Vern Hughes On February 6, 2019 @ 6:45 pm

LFM urges me to ‘stop the hand-wringing’ on abortion and acknowledge it as a sin. This is the end of the conversation for many Roman Catholics on the issue, but it misses my point, and, if I may say so, the point of BenOp. Since a plurality of views exists in the wider culture on abortion (and that is not going to change any time soon), what do BenOp supporters want the state to do on abortion? Prohibit it? Individual persons of faith may indeed hold that abortion is a sin, but are BenOp supporters really in the business of using the state to impose that view on the whole of society? Surely not. The whole point about Constantinian Christendom is that it is over. BenOp is a recognition that it is over. But some of us still want to reserve the right to use the state to impose our views on others. And we wonder why the secular world seems so hostile to the Christian legacy.

#34 Comment By njoseph On February 6, 2019 @ 7:42 pm

@ Lee.

Yes, I do get that these are complex issues. I’ve worked in hospitals, halfway houses and jails, and seen every variation of human messiness. But raising trafficking as a nuance when pointing out that women either have bodily autonomy, or not, is a red herring. Most things that are, or should be, legal, are crimes when you force somebody to do it.

In any event, although, as a citizen, I probably believe sex work should be decriminalized, simply because we put people in cages too easily these days, I’m not proposing any policy change. I’m just saying- again, from the left- I don’t get our apparent inconsistency

Over and out, on to the next discussion. Thanks for your reply.

#35 Comment By Lamm2 On February 6, 2019 @ 8:24 pm

@Lee “I’m not going to attempt to discuss this with someone who is this ill-informed. You are dead wrong about what Roe v. Wade did and about the thousands of laws dealing with abortion in the US which vary greatly state by state. Similarly, I’m not going to accept your definitions of what anyone “wants”.”

Well, we both agree on one thing: we each believe the other is dead-wrong and ill-informed. Let me help you:
#1 — Third-trimester abortions are already protected by federal law.

On January 22, 1973, the U.S. Supreme Court issued rulings in the cases of Roe v. Wade and Doe v. Bolton. Roe has become more famous, but Doe is equally significant. As Justice Harry Blackmun said at the time of the rulings, both Roe and Doe “are to be read together.”

The Court’s opinion in Doe stated that a woman may obtain an abortion even after viability (i.e., the period when the fetus could potentially survive outside the womb) if necessary to protect her health. The Court defined “health” as follows:

“Whether, in the words of the Georgia statute, “an abortion is necessary” is a professional judgment that the Georgia physician will be called upon to make routinely. We agree with the District Court, 319 F. Supp., at 1058, that the medical judgment may be exercised in the light of all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the well-being of the patient. All these factors may relate to health.”

In 1992, the Supreme Court reaffirmed Roe in the case of Planned Parenthood of Southern Pennsylvania v. Casey. The ruling replaced the trimester formula in Roe with an emphasis on viability:

Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure. Second is a confirmation of the State’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman’s life or health.

By claiming that the “essential holding of Roe v. Wade should be retained and once again reaffirmed,” the Court was claiming that the same standard of “health” applied as before.

As the Guttmacher Institute notes, in Roe, Doe, and Casey the Court has held that:

a. even after fetal viability, states may not prohibit abortions “necessary to preserve the life or health” of the woman;

b. “health” in this context includes physical and mental health;

c. only the physician, in the course of evaluating the specific circumstances of an individual case, can define what constitutes “health” and when a fetus is viable; and

d. states may not require additional physicians to confirm the attending physician’s judgment that the woman’s life or health is at risk in cases of medical emergency.

In other words, if a physician determines that the child is “non-viable” and/or the abortion is necessary for the physical or mental health of the mother, a woman can have an abortion from the moment of conception until the child’s natural birth.

The standard is so broad that the infamous abortionist George Tiller was able to assign a mental-health diagnosis to justify late-term abortions for spurious reasons, including for a woman who wanted to “go to prom” and another who wanted to “avoid hiring a babysitter while attending rock concerts.” Even the pro-abortion Guttmacher Institute admits that “data suggest that most women seeking later terminations are not doing so for reasons of fetal anomaly or life endangerment.”

#2 — State laws restricting third trimester abortions are unconstitutional under the precedent of Doe.

Much of the confusion about this issue lies in the misunderstanding of how Casey affects abortion, and the fact that numerous states have laws that ban or restrict abortions in the third trimester. Because these statutes remain on the books or have not yet been contested in federal court, they may give the public the impression that they are allowed by federal law.

But because federal law trumps state law, no restrictions can be enacted that do not also allow the doctor to determine if abortion is necessary for the “health” of the mother. This is why abortion-rights supporters frequently say the decision to have an abortion must be left up to the “woman and her physician.” As long as a woman can find a doctor who says the abortion is necessary for her physical or mental health, her access to abortion—anytime from conception to birth—is currently protected by federal law.

#36 Comment By LFM On February 6, 2019 @ 10:28 pm

Mr Hughes, it is you who have missed the point. You brought up the subject of alcohol abuse, its history as a public controversy, and its banning and then regulation by the law. You compared it with abortion, and said that abortion could and should be settled as a public controversy in the same way. I merely answsered that abortion was not parallel to alcohol abuse because it involved killing. And thus, although I did not say so, abortion is clearly both a sin and a crime, like murder but unlike, say, receiving the Host without having made a confession.

Merely regulating abortion the way alcohol is now regulated could never satisfy people who understand its true horror. We live with it but will continue to fight to change the law, knowing that we will lose but considering it a necessary point to make, gently but inexorably, until people ‘get it’.

True liberal tolerance of opposing views is only possible as long as killing is not on the table. When it does, previous liberal settlements of deep social and moral divisions become irrelevant, not to the point of leading to civil war or a refusal to negotiate, but to the point of saying, we must continue to emphasize that this is NOT acceptable.

I say this as a liberal of a Burkean type (note that Burke always insisted he remained a Whig/liberal all his life, and that it was the party that had changed) who has spent decades now watching in horror as the post-war left tried to stamp out the liberal consensus.

#37 Comment By Siarlys Jenkins On February 7, 2019 @ 12:20 pm

As long as a woman can find a doctor who says the abortion is necessary for her physical or mental health, her access to abortion—anytime from conception to birth—is currently protected by federal law.

That is pragmatically true, although the legal framework isn’t functioning too badly when less than one percent of abortions are performed during the third trimester. Most people made decisions better than advocates of new restrictions give them credit for.

But its also reasonable to expect that if Dr. Gosnell had the practice he had, there are some other doctors who operate just the other side of the law, and interpret the “health of the mother” criterion so broadly that anything goes.

State efforts to identify and control such abuses would require some careful thought about statutory language, but it could be done without violating any of the precedents cited in recent comments.

#38 Comment By JonF On February 7, 2019 @ 2:55 pm

LFM, the overwhelming majority of women who want an abortion for reasons that have nothing to do with medical need are going to have one asap after they learn they are pregnant. That’s even going to include women who have been raped. Why would anyone go through the increasing physical issues that accompany pregnancy just so they can get a late
abortion? As Siarlys points out, late term abortion is very uncommon, and we can be confident that such abortions which do not involve serious, perhaps even grim, medical issues are rarer as hen’s teeth.

#39 Comment By LFM On February 7, 2019 @ 6:47 pm

JonF, I don’t know why you raise the issue of late abortion in addressing me, because I never mentioned it at all in this thread. I commented on Vern Hughes’s post because I was irritated by its complacent tone and the suggestion that it was pro-life people who are being unreasonable and obtrusive with their point of view.

No doubt the matter of late-term abortion is on your mind because it has been recently a subject of controversy in your country, in response to Andre Cuomo’s recent change to abortion law in New York. It’s worth asking, however, why it was even necessary to pass such a law, because as one commentator here (I think) pointed out, American legal precedent after Doe – not Roe – guarantees that even late abortion shall be available to those who need it for medical reasons. State attempts to restrict abortion cannot supercede the precedent set by Doe at the Supreme Court level, the commentator wrote. If that writer was correct, then surely it is likely that Cuomo’s updating of New York law was merely an effort to rally the troops, a view confirmed by his insistence on celebrating his decision with lights and flags.