Responding to a Claim: Women Who Miscarry Will be Targeted if Roe Goes?

I was tagged in a post on Facebook to which I've decided to respond, though in my own way and place. I don't really feel like subjecting myself to the name-calling and verbal abuse the original poster and his or her fans are known for. So instead I will share here the original post, the comment in which I was tagged, and my response.

​First of all, here is the original claim:

10-20% of pregnancies spontaneously miscarry. Every single woman who suffers that will be liable for a possible charge of 'negligent homicide' and have to prove her innocence if the MAGA nuts get their way. This is what happens when you have one monomaniac goal and absolutely no plan for what happens after that.

​Under this, I was tagged, with the simple statment, 

Joe Grabowski, this sort of thing is happening.

So, let's take a closer look, shall we?

​Before getting into it, I will say up front that I'm prepared to accept the underlying premise about the rate of miscarriage. I have actually heard higher figures in some places. Let us pass over that without argument.

Turning then to the controversial stuff, we need to distinguish that there are technically two different claims. The original is about something that will be happening, whereas the comment claims that it is happening. I am goign to focus primarily on the second claim, not only as the more immediate, but also because I think my answer there will suffice in addressing the primary one.

Now, if there really is evidence that this sort of thing is going on with frequency and in a marked number of cases, I can think of some people who would love to see the data. I, for one, for my own reasons, which I'll get to. But there are others, for their own reasons, who would probably pay good money for this information. I'm thinking, of course, of the very well funded pro-abortion lobby, groups like Planned Parenthood and NARAL. These groups have hosts of legal advisors, researchers, interns, as well as very good relationships with Congress critters and their staffers, as well as reporters and media types. Needless to say, this is the kind of data about which they'd be able to make great use in arguing in favor of the legal status quo under Roe and Casey. They'd be wrong—again, something I'll get to—but they'd definitely not let something sensational like this go to waste.

But, see, the odd thing is, I follow those groups and their talking points pretty closely. And though I can't claim that I read every single amicus brief on the pro-choice side in the Dobbs case, I reviewed a good number of them. The thing is that this simply isn't one of their talking points or arguments—or, if it is, it is so low down in the pecking order, possibly because it is based on so rare a frequency of incidence, that it hasn't achieved any real saturation in the discourse around the issue of abortion.

So, that leaves me wondering, is this really the remarkable threat it is supposed to be? Or is this a bit of rhetorical hyperbole, some Margaret Atwood fan fiction intended to gin up fear and worry without a great foundation in fact? I make no bones about saying I think Planned Parenthood, NARAL and others who support broad, lax abortion allowances are wicked and mendacious. But I've never claimed that they're simply stupid. And missing a convenient talking point like this would be stupid. Even if it had a pretty thin basis in fact, given their willingness to lie, I'd imagine they'd run with it. But they don't. That, to me, is somewhat telling.

However, in the interest of fairness, I could conjecture an alternative reason why they might simply forgo use of such an argument even if it were available to them. It would be, perhaps, an outsized cost to them in view of the potential gain. Because talking about spontaneous abortion or miscarriage runs the risk of reminding people of what we're really talking about in this debate, namely unborn human life. After all, women don't tearfully call up friends and family to ask for sympathy and support for their loss of a clump of cells. No, they say they've lost their baby; and it is a tragedy, worthy of sympathy. And that's a hard thing to allow into a conversation when your aim is to show why women should be allowed to hire a doctor to kill a baby at the same age under different circumstances.

So, let's allow at least for the sake of argument that this actually is something that is happening, and liable to happen more often—anyway, proving a negative is always hard. I said above that I would be interested to know about this happening for my own reasons, and that what Planned Parenthood and their ilk might do with data showing this to be happening would still be wrong. So, we can proceed onto that discussion regardless, and make the full allowance of the benefit of doubt. We needn't even quibble over frequency, either, though it is worth noting that I'd doubt very much whether the number of women being legally compelled to justify their spontaneous miscarriages even begins to approach the number of elective abortions done each day. For parity, we'd need to reach the full dire situation of the original claim above, and all 10-20% result in this, since it seems according to the CDC that somewhere between 10-20% of pregnancies are terminated in legal induced abortions. But all this is a digression; as I said, we don't need to quibble over frequency. Let's just suppose the truth of what has been presented, and go from there.

The simple and obvious answer here is: "That's bad, let's try to stop that from happening, either now or in the future." This is why I'd be interested to see some data, because data can help in figuring out how to more finely tune and hone laws to target more precisely the negative outcomes they seek to inhibit. Now, of course, we need to allow that the law is always an imperfect instrument, and a blunt one. But we don't often just throw away good laws based on their minor imperfections. (If you want to geek out on this a bit, check out Thomas Aquinas on the mutability of human law in ST Ia-IIae, Q. 97 passim.)

Consider, for example, gun control legislation. It may be the case that, in a place with more strict gun restrictions and higher goals of enforcement for police that it will happen more frequently that a law-abiding citizen, legally within his rights to carry a weapon, will be subjected to vexatious detainment and questioning to establish his right to possess his firearm, and indeed that this burden will fall disproportionately upon members of minority populations. But I don't think the supporters of the gun control laws would say that, therefore, the laws need to be thrown out. We may need to work to reform them and refine them, of course. But they'd probably argue that the benefit outweighs the cost, because the goal is to save lives by getting illegal firearms out of their communities. How many lives should be left unsaved by throwing out the imperfect statute?

Before anyone throws a fit, I realize the above analogy is of far lesser weight than the instant considerations. But that's true on both sides of the question: that of the privacy and emotional burden concerns on the one hand, and of the cost to human life and innocence on the other. But where the analogy works is at the level of principles and fundamentals. Imperfect implementation and inadequate refinement are not just cause for the wholesale dismantling of a fundamentally just legal dispensation. Where failures in a system propagate, the reasonable thing to do is look for reasons amongst the data as to what risk factors and commonalities cause these failures and plug in fixes, in the same way that it is more reasonable more often to patch imperfect masonry rather than knock down the whole edifice and rebuild it anew from scratch. That’s the kind of legal process I’m willing to work with anyone of good will in order to achieve.

I repeat: any system is going to be imperfect. But, well, while we're on that observation, let's get something else clear: it would be gross understatement indeed to say, for instance, that the status quo of Roe and Casey has its own glaring imperfections. I mean, even leaving aside the mountain of dead children this legal establishment has left in its wake, what about all of the cases of pimps or abusers or other malefactors who coerce women to have abortions against their will? If the logic above followed, wouldn’t people have been calling for the overturn of Roe and Casey based on these exceptional cases as well? Yet, they haven’t; and here is where I’ll actually extend something of an olive branch and say that they wouldn’t have necessarily been wrong on that score. Because a law may be fundamentally sound even when it allows for exceptional aberrations and gross injustices.

The question needs, then, always to go to the fundamentals of the thing. And it is on that ground of fundamental justice and the basic principles of the dignity and inviolability of human life that Roe and Casey went astray, and why therefore they need to go. Exceptions and lacunae under the new established legal order will exist, unfortunately. I, for one, would like to be able to spend my energy fixing those problems and filling in the gaps. But whether I will be able to do so or not will be more a question of whether I’m allowed to do so, however. For I fear that instead I’ll still need to be spending my breath arguing against people calling for the wholesale allowance of the murder of innocent children. Which makes me think that maybe those people against whom I’ll need to argue aren’t as concerned about those exceptional injustices as they might pretend to be.