Legal Commentary

I am always sorry that Robert George does not allow comments on his posts on Mirror of Justice, since I often find them worthy of commentary, but not necessarily worthy of a great deal of commentary.  Still, I thought I'd link to something of his.  Here, first, is President Obama's statement on the anniversary of Roe v. Wade:

Today marks the 38th anniversary of Roe v. Wade, the Supreme Court decision that protects women?s health and reproductive freedom, and affirms a fundamental principle: that government should not intrude on private family matters.  I am committed to protecting this constitutional right.  I also remain committed to policies, initiatives, and programs that help prevent unintended pregnancies, support pregnant women and mothers, encourage healthy relationships, and promote adoption.  And on this anniversary, I hope that we will recommit ourselves more broadly to ensuring that our daughters have the same rights, the same freedoms, and the same opportunities as our sons to fulfill their dreams.

And here is George's response:

It is hard to say what was worst about President Obama's statement on the 38th anniversary of Roe v. Wade.  Was it his silence on the plight of the tiny victim whose limbs are torn off, or whose skin is burned off, or the base of whose skull is pierced and whose brain is suctioned out, with the precise objective of ending his or her life?  Was it his reliance on tired (and increasingly futile) euphemisms such as "reproductive choice" to shuffle the victim out of view?  Was it his glaring unwillingness even to say the word "abortion" -- a word not mentioned at all in his encomium to the Supreme Court decision that manufactured a constitutional right to it?  Or was it--taking these things all together--President Obama's betrayal of his own call, at Notre Dame, for "open hearts, open minds, and fair-minded words" in the debate about abortion?

I actually agree with some of what George says.  I expect little from any presidential statement, especially one of this length, but it is true that the President relies on tired euphemisms and does not mention abortion by name.  He should have: if he cannot describe what he's defending, he has little business defending it.  

But "frank" is not always synonymous with "graphic."  Being graphic, like being euphemistic, can be a rhetorical device that conceals as much as it presents.  So it is with George's post and his description of abortion.  I am reminded of Richard Posner's statement in Planned Parenthood of Wisconsin v. Doyle: "Partial birth abortion is a gruesome procedure.  But all abortion procedures, and indeed a vast number of surgical procedures unrelated to the reproductive process, including forms of cosmetic surgery that strike many people as frivolous, are bloody and horrible."  I would hate to have been awake for the bloody carnage of my hip replacement surgery, in which my surgeons treated me (thank God) like a ragged piece of meat.  And I could describe the ways I dismembered last night's chicken dinner in ways that would make George's language seem like an ode.

My point is not to weigh in on the morality of abortion or abortion rights.  It is that George does not object to the nature of the violence done to the fetus, any more than he objects to the bloody assault on a human body that all surgery involves: he objects to any violence being done intentionally to a fetus.  If abortions were performed as gently as the death scene in Soylent Green, he would still object.  What is morally salient in his post, and all that is morally salient, is the language "with the precise objective of ending his or her life."  That stately language is not upsetting to most people.  Perhaps it should be.  (Again, I'm not entering that thicket here.)  But George, perhaps knowing it is not, resorts instead to "description" as invective: description that does not enlighten so much as it attempts to use emotion (specifically disgust) to persuade rather than reason.  

I suppose he has every right to do so.  Indeed, he is not so different from some animal-rights activists, who would use emotionally loaded descriptive language to argue that what I did to my chicken last night is as bad or worse than what doctors to do fetuses.  But what counts is whether the act is morally salient, not whether it is gruesome.  In that sense, his words are accurate, but I'm not sure they're "fair-minded."