By Kevin D. Williamson
Tuesday, July 19, 2022
In Chron, the website of the Houston Chronicle,
there is a charming (but journalistically incompetent; see below) story about a
Texas woman who took the HOV lane, apparently solo, and explained to the police
officers who pulled her over to cite her that she was carrying an unborn
daughter — and that is a person under Texas law, no?
No, no, quoth the po-po, and they wrote her a ticket —
but advised her that she’d probably prevail if she were to fight it in court.
On the narrow technical question: No, an unborn child is
not a legal person under Texas law for the purpose of HOV-lane arithmetic. The
issue of abortion and legal personhood has not yet advanced to that distant
horizon.
In fact, there isn’t any need to define the unborn as a
person at all in order to prohibit abortion — the procedure can be prohibited
per se independent of the question of legal personhood. To take a ghastly
parallel case: Just as there are people who suffer from “gender dysphoria” (a
strong sense that a man or woman’s true and authentic self is at odds with his
or her sex), there are other kinds of body dysphorias, including something
called “body integrity dysphoria,” a disorder in which a person comes to
believe that his or her true and authentic self is not a member of the opposite
sex but is an amputee. Because we are high-tech barbarians, genital amputations
and mutilations are generally medically countenanced as therapy for gender
dysphoria, but we as a society have not — yet — accepted as legitimate the
practice of amputating other body parts — limbs rather than members — in the
service of what I suppose we would have to call “amputee-status-affirming” care
modeled on “gender-affirming” care. (Gender-affirming care is, in most cases,
sex-denying care, but never mind that for now.) But there are surgeons who will amputate healthy limbs as
“therapy” for body-integrity dysphoria, and the issue of permitting or
prohibiting such procedures is a live one. It would, of course, be entirely
unnecessary to define a healthy leg as a person to prohibit
the amputation of it. Likewise, the question of abortion need not necessarily
involve the issue of personhood.
Personhood is, of course, an intellectual and
moral dodge when it comes to abortion. The facts of the case are clear enough
in that what is put to death in an abortion is a (1) living (2) human (3)
organism at a very early stage of development. That the tissue in question is
living is a given — no need to kill it, otherwise; that it is human is a
question that can be answered definitively by genetics; that the tissue is
arranged into an organism (as opposed to a fingernail that may be trimmed or a tumor that
needs to be removed) is a fact of elementary biology. The issue of personhood is
intended not to illuminate or reflect these facts but to obscure or deny them —
to make the question of abortion a matter of legal and ethical abstractions
rather than a matter of physical facts. There is some irony in this: For
centuries, the question of “ensoulment” was a subject of theological debate and
inquiry, and the people who see themselves as protecting what they wrongly imagine
to be liberal values in our time from “Christian fascists” have in effect
reinvented a medieval Christian doctrine and repurposed it for their own brutal
and antihuman ends.
Apologies — this started with a lighthearted issue, but,
when the subject is abortion, it is difficult to stay lighthearted for very
long.
That being written, I do hope the mother in Texas gets
her HOV violation thrown out by the court. Texas law does not treat the unborn
as a person under the traffic laws, though Texas is among the 38 states that
treat the unborn as a person under certain homicide laws. Perhaps that should
change, and that HOV-outlaw mom is on to something.
We have as a society long encouraged a certain
solicitousness of pregnant women as a matter of courtesy and etiquette:
standing to offer a pregnant woman your seat on a crowded train, for example,
that sort of thing. Allowing pregnant women to use the HOV lane seems to me
like an obvious and easy accommodation to make, an extension of existing
principle. And while pregnancy, contrary to the rhetoric of some of the
pro-abortion people, is not a disease, it does in many cases inflict a
temporary disability; as such, it would seem entirely sensible to allow
pregnant women to use parking spaces for the handicapped and to make use of
other conveniences intended for the disabled. I imagine there are many other
such amenities that could be offered and access to them formalized where
needed.
I am not quite ready to sign off on Elizabeth Bruenig’s
demand in That August Journalistic Institution that we
make pregnancy and childbirth care another federal entitlement for the
population at large. (The headline says “free,” but this is National
Review, and we know that somebody is paying the bill.) Bruenig cites the
case of a young mother who was surprised to learn that her parents’ insurance —
because, of course she’s still on her parents’ insurance — didn’t cover most of her pregnancy-related medical bills, a
situation she blamed on “misogyny.” College-educated middle-class women
lingering on their parents’ insurance and complaining that it is misogyny when
they don’t get their way in life are, for some inexplicable reason, Bruenig’s
main journalistic interest. (It seems to me rather specific.) I take a
dissenting view, that we have enough entitlements for well-off college-educated
people and should conserve our social-welfare resources in order to provide
more generous benefits for the poor, particularly on the poor who are most
likely to be stuck in poverty, as tender as my feelings are toward
college-educated young people enjoying parental subsidies into adulthood,
married life, and parenthood. (You wouldn’t believe what an MFA in creative
writing costs these days!) But maybe that is the country-club Republican in me.
Low-income people are a disproportionately fecund bunch —
though this is in part a reflection of the fact that fertility and low incomes
both are correlated with youth — and the ugly historical fact is Planned
Parenthood and the rest of the eugenics movement were founded to counteract the
effects of that conjunction by killing the children of the poor before they
could become public burdens or, where possible, to prevent their ever being
conceived in the first place. The correlation between low incomes and
motherhood is even stronger than you might expect: About 42 percent of the
births in the United States in 2020 were to mothers who were receiving
Medicaid. That number is even higher in many Republican-leaning states, which
tend to be younger, more rural, and home to large immigrant populations: 50.2
percent of mothers were on Medicaid in Alabama, 50.7 in Texas, 61.4 percent in
Louisiana, 60.1 percent in Mississippi, etc. Culture matters: Only 22 percent
of mothers in Utah were Medicaid recipients.
(Wait — isn’t the GOP the old-people party? Are red
states really younger? More than you might expect: The youngest state is Utah,
followed in order by Texas, Alaska, North Dakota, Nebraska, Oklahoma, and
Idaho, while the median age in Connecticut is a full decade older than the
median age in Utah. The only solidly Democratic states with
younger-than-average populations are California and — just barely —
Washington.)
Low incomes correlate with many unhealthy habits and
unhealthy situations as well: Some 20 percent of Medicaid mothers smoke during
pregnancy. A federal study (based on 2002 data, N.B.) found that one in 20
preterm deaths and almost one in four “sudden infant death” cases were
smoking-related. The grievously misnamed Affordable Care Act was supposed
(among its many alleged virtues) to reduce smoking among pregnant women, but it
does not seem to have had very much effect; in fact, mothers who haven’t
finished high school were a little more likely to smoke in
2017 than they were in 2010, the period studied by these scholars. Between the good intention and the good outcome
falls the shadow.
While I do not agree with my colleague Ramesh Ponnuru about child tax
credits, I do agree with Benedick that “the world must be peopled,” and it
makes some sense for our public policies to take at least some account of who
is doing the peopling. For example, benefits received through Medicaid for
Pregnant Women or the CHIP Perinatal program generally stop 60 days after
birth, a policy that probably should be reconsidered.
But we should keep in mind the complexities involved: As
it stands, many doctors will not accept new Medicaid patients, partly because
of reimbursement rates but also because the program is an administrative
pain in the ass of nightmarish proportions. (Doctors lose 17 cents on the
dollar to billing problems with Medicaid patients, as opposed to 3 cents on the
dollar with private insurance.) The grievously misnamed Affordable Care Act (I
might start capitalizing that whole phrase: Grievously Misnamed Affordable Care
Act) was supposed to help with that, too, but physician availability for
Medicaid patients has budged only a very little bit in the right direction, with
about one-third of Medicaid patients still unable to secure sought-after
appointments.
As so often is the case, the most urgent problem is not
the availability of resources to deploy but intractable bureaucratic
dysfunction. I suspect that most Americans would be happy to support more
spending on services for mothers in need — if we could be assured that $1 in
spending would produce something closer to 94 cents in real benefits than to 11
cents in real benefits. Bureaucratic dysfunction imposes costs on taxpayers,
but it imposes heavier costs on the people who are intended to be beneficiaries
of the programs taxpayers fund. It is not only cranky libertarians who have
come to the conclusion that the best way to help the poor and the needy is
directly, without the involvement of the federal apparatus at all, at least to
the extent that this can be avoided.
None of what’s needed to address these concerns requires
getting into the abstraction of legal personhood. But irrespective of what the
law says, if we start thinking of the unborn person as a person in
the full and most meaningful sense — and we should do so — then this must
change our attitude toward the unborn, toward pregnant women, toward new
mothers, and toward mothers categorically. There remains much work to be done
on the legal front when it comes to abortion, and much work to be done — on
many fronts — when it comes to the interests of children. We have an
unfortunate tendency to mire ourselves in sentimentality when it comes to
children, but the facts of the case are not sentimental: Children are at the
top of the list of those who cannot help themselves and who have the first and
highest claim on our help and care. The most helpless children of all are those
who have not yet been born and those who are newborns, and the best thing we
can do to help these children is to help their mothers. Some of that help may
take the form of federally administered entitlements and benefits, but much of
it won’t.
And to the original point: Opening up the HOV lanes to pregnant
women seems obvious enough. I like it on symbolic grounds even if the practical
benefits are modest. It is time for a fresh attitude toward pregnancy and
motherhood, which are blessings, not pathologies.
And Furthermore . . .
As mentioned, that Chron report is a mess. The author
claims:
In Texas, all abortions are now
illegal following the Supreme Court’s overturning of Roe and pending
enactment of state trigger laws on the practice. Prior to the high court’s
ruling, all abortions past six weeks of pregnancy had been outlawed by
the Texas Heartbeat Act. This prior measure had been modeled
closely after language crafted by Christian anti-abortion group Faith2Action
Ministries, which has defined the presence of a fetal heartbeat as a marker
of “an unborn human individual,” according to The Texas
Tribune.
That just is not true. Texas law forbids most, but not
all, abortions. As in most similar laws, the Texas statute includes a narrowly
tailored exception in cases in which pregnancy threatens a mother’s life or
would impose “serious risk of substantial impairment of a major bodily
function.”
And it is not only Christians who believe that what is in
the womb is an “unborn human individual.” That isn’t even a matter of opinion
— it is a plain physical fact.
One of the basic problems in U.S. journalism is that most
people who get into journalism do not get into journalism because they care a
great deal about journalism, meaning fact and context — they are moral
crusaders, people who want to use journalism as a tool to shape public policy
and public life. There isn’t anything inherently wrong with that — National
Review offers more than just the facts, ma’am — but when advocacy
journalism or opinion journalism involves claims of fact, those facts need to
be . . . facts. That they so often are not when it comes to the
issues that are the most emotionally resonant for progressives — abortion,
guns, the environment — has done more to undermine public confidence in
journalism (including purportedly neutral straight-news newspaper journalism)
than all of the conservative critiques of media bias put together ever have or
ever will. Sustained over time, bad journalism can substantially deform our
politics by deforming public opinion with fake “facts” — some Americans really
do believe that Texas bans all abortions, that you can walk into a
sporting-goods store and walk out with a machine gun, etc.
Bad journalism is bad news, indeed.
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