Last month’s passing of Supreme Court Justice Ruth Bader Ginsberg has sparked a furious contest on Capitol Hill over the nomination of Federal Judge Amy Coney Barrett to the Supreme Court. For many Americans, at the center of this controversy is the fate of the landmark decision in Roe v. Wade, which with an additional conservative presiding on the bench looks increasingly susceptible to an overruling. Reemerging now are the customary talking points, familiar slogans, and equally galvanized proponents respectively belonging to the “pro-life” and “pro-choice” camps. Despite the current spotlight focused on the Supreme Court and the ramifications of a successful confirmation, I would like to step back from this debate about the impacts of a conservative majority in the Supreme Court and redirect attention to the broader conflict of competing sensibilities towards abortion and the ongoing conversations, or lack thereof, between two camps divided over abortion’s legality, morality, and practicality.
Most abortion activists, irrespective of their stance, consider their argument as irreproachably true and correct, founded in underlying and bedrock convictions that stand diametrically opposed to its antithetical argument championed by the competing side. On account of this “tenacity of beliefs” and intense division, both camps believe they are in an existential fight in which each must protect its foundational principle at all costs. While this anti-rhetorical and absolutist attitude towards this contentious debate is the prevailing one in contemporary battles over abortion, I contend, with respect to Stanley Fish’s rhetorical interpretation of the world, that there exists an unexamined common ground despite the foundationalism of our beliefs, “bounded spaces” of our arguments, and “constitutive rhetoric” perpetuating polarization. As a result, even though my application of Fish’s rhetorical perspective of political arguments will prove that argument is inevitable, recyclable, and persistent throughout this debate, I hope that by shedding light on the matter political discourse can become less stifled and conversations about abortion can become more civil.
Because abortion tugs at people’s deepest and most sentimental chords, conversational debates are typically unproductive and shallow, yet very passionate. On the staunchly pro-life side, the argument lay upon the premise that life begins at conception and that the principle of preserving life, especially lives that are vulnerable and innocent, must be maintained over any other considerations. On the opposite side, pro-choice proponents argue that life does not begin at conception and that even if it did the principle of bodily autonomy, especially as it pertains to the female’s biological predisposition to singularly give birth to our species, supercedes the “right to life” principle.
From the outset, each camp brandishes its foundational beliefs which serve simultaneously as safety nets, which reassures the debater in ideological defeat, and as offensive weapons, which become the springboard for compounded arguments. It is this foundationalism of these ideas which perpetuate the shallowness and polarized sentiment of this debate. For example, a pro-lifer’s charge that abortion is murder will instinctively be answered with a pro-choicer’s exclamation that the fetus is not human, and therefore it is impossible to technically murder something that is unhuman. At which point the pro-lifer may quote the bible, and then the pro-choicer may reference a scientific journal. This back and forth continues, moving the conversation nowhere substantive, only cyclically. Fish acknowledges this tendency when he states that “at the present moment . . . arguments go nowhere except in circles, and are rarely, if ever, won outright” (Political Arguments, 9). In other words, for Fish, then, because the act of debate is far too often obscured by the “underlying and bedrock convictions that determine where one will come down on an issue even before it emerges,” debates about abortion will never successfully persuade argumentators and achieve so-called “victory” (Political Arguments, 8).
Now, of course, these sorts of conversations are crude and reductive compared to the intricate and scholarly work on the matter. However, for a majority of typical Americans passionate about this issue, the rhetorical and logical legwork of academics and politicians alike who parse out the many nuances and subtleties of this debate are largely ineffective at changing preconceived convictions, or are rejected outright. This lack of persuasion can be attributed to the “constitutive rhetoric” of each group, which simultaneously “(1) provide a collective identity for an addressed audience; (2) construct the audience as a subject in history; and (3) demand that subjects act in accordance with their identity as enacted in history” (Political Arguments, 29). In this case, the creation of the “pro-life” and “pro-choice” movements and agendas qualify as that constitutive rhetoric, which established the divided camps, largely based on religious vs. non-religious persons; staked the debate as existential and immediate; and expected of each side’s members to participate according to the tenets of their identity. This extreme polarization, the “us vs. them” mentality, which purportedly pits Christian-church-goers against their atheist-individualists counterparts only further calcifies the abortion debate. It is this hyper-polarization which makes Fish’s claim that even if “you were forced to the wall by a skillful debater…[that] when the pressure of the experience is relaxed you snap right back to your original position” ring so true (Political Arguments, 23). Even the slogans of each camp serve as arguments in their owns rights. Just as Fish rightfully points out that “marriage equality…begs the question it preemptorily answers,” so too do the resonant “pro-life” and “pro-choice” banner names (Political Arguments, 16). After all, if the central point of contention is whether conducting an abortion is the murder of a human being or an expression of female individuality and freedom, then each slogan directly and profoundly captures the argument of the most extreme positions in each camp.
Now, while stagnation and calcification accommodate most political disagreement, even Fish agrees that occasionally consensus and agreement can be achieved, but almost exclusively when “an event enters the argumentative arena sideways and produces an unexpected resolution to [the] dispute” (Political Arguments, 9). In the abortion debate, this event was hoped by many to be the Supreme Court’s ruling on the (in)famous Roe v. Wade case. In a 7-2 decision, the Court ruled in favor of Norma McCorvey, the plaintiff, and agreed that the Texas law banning all abortions expect those performed to save the life of the mother was unconstitutional. While this ruling did in fact legalize abortions throughout the country, overturning about twenty states’ abortion policies and regulations, it certainly cannot be considered a decisive victory for the pro-choice movement. Instead, just as the Supreme Court’s declaration in Brown v. Board of Education that segregation was unconstitutional falsely convinced civil rights activists that their fight was won, so too Roe v. Wade’s ruling established a false confidence in the hearts of pro-choicers. Proving that the “career of argument is incalculable,” pro-lifer states began enacting red-tape and legally incredulous policies aimed at limiting or obstructing a women’s access to an abortion (Political Arguments, 10). Therefore, the core of the abortion debate – whether it is right or wrong – did not simply disappear after a judicial ruling. In fact, the debate was only fueled with an introduction of a new point of contention: the Supreme Court.
As many activists on both sides of this debate will tell you, it is the language in Roe v. Wade’s majority opinion which inflamed continued controversy. The court’s ruling that a women’s right to an abortion is superior to the state’s right to regulate the procedure up until the point of viability for the fetus is the main grievance many on both sides of the debate have with the ruling. For pro-lifers, this ruling entirely ignores, even disrespects, the humanity of the fetus and permits the murder of the prenatal organism. At the same time, as argued by more refined minds, this language is extremely vague, and susceptible to technological advances which continue to push the point of viability outside the womb ever closer to the point of conception. On the pro-choice side, this decision, while celebrated as a victory, still is insufficient at championing bodily autonomy over state and patriarchal regulations over the female body. Additionally, as aforementioned, the court’s decision to permit state’s to regulate abortions out of concerns other than the prenatal organism’s life left the door open for red tape and other restrictive legislation. It is quite counterintuitive that the hearing intended to settle the dispute over abortion in America, ultimately, falling suceptable to the very forces of argument Fish presents in the Monty Python sketch, becoming an argument in and of itself (Living in a World of Argument, 3). Justice Scalia, in his dissent in Obergefell, provides one of the most poignant arguments against court rulings, specifically in culturally divisive and complex matters such as abortion. For Justice Scalia, and many Americans for that matter, particularly pro-lifers, is that the ruling in Roe v. Wade was a “result handed down by five justices rather than by the democratically expressed will of the people in the course of public argument” (Political Arguments, 17). For Scalia, then, this suppression of democracy is antithetical to American values and especially so to the principle of state’s rights. For many, Roe v. Wade had no business seeing the inside of the Supreme Court, and the American public would have been better served if states and small government was responsible for determining the legality of abortion within its own jurisdiction. The marginal transition from public discourse centered on morality and personal conviction to legal review and criticism has created a bounded space for abortion arguments. While moral sentiments still largely comprise the debate on public streets, the transition of the debate into the legal world prioritized “liberal principles” over morality and completely reconfigured the conversation surrounding abortion (Political Arguments, 15). Foundational convictions borne from religious or non-religious beliefs became instantly irrelevant once the debate moved into the courtroom. However, once again, this transformation neither settled the dispute nor mitigated it, but only changed the language and permissible arguments pertaining to it.
Perhaps this movement towards a bounded space which prioritizes scholarship and logic over the passionate arguments proposed by most activists (although even the concept of a purely logical legal argument is suspicious, if not outright impossible) has allowed more nuanced and persuasive arguments to form in the public conversation. Replacing screaming matches over the fetus, better arguments, and not just rhetorically, have begun taking shape in the form of thought experiments, concessions from the premise, acknowledgments of the complexities and subleties of abortion itselfs, and agreeable solutions. For instance, political scientist Hadley Arkes, in his First Things: An Inquiry into the First Principles of Morals and Justice, concedes from the premise that the fetus is, or could reasonably be argued as, a human life. However, even after acknowledging this foundational pro-life conviction, continues by arguing that, in our society, “the categorical proposition here is not that ‘it is always wrong to kill,’ but that it must be wrong, under all conditions, to kill ‘without justification’” (Abortion and Moral Reasoning, 10). Arkes, then, is suggesting that even if everyone agreed with the pro-life tenant that the fetus is holistically human, that this does not immediately disqualify the legality of abortion in our society. Arkes does not stop there, however, but continues to acknowledge potential counterarguments such as that the fetus has no malice intent in harming the mother through birth, right before proposing his own refutation. Additionally, Judith Jarvas Thomson in her publication on abortion in Philosophy & Public Affairs proposes a thought experiment to pro-lifers which asks them to imagine waking up discovering you have been kidnapped by an organization who has hooked you up to a sick and dying memder of their group so as to have your kidneys extract the poisons from both of your bloodstreams. “But never mind, it’s only for nine month,” she then explains, directly revealing the analogy to pregnancy (A Defense of Abortion, 3). While this thought experiment is definitely outlandish, it forces acknowledgement and empathy, as best as it can to push the conversation forward in a civil way.
What is worth noting here is that these scholarly contributions to the abortion debate, with all their subtlties, nuances, and acknowledgment of both side’s sensibilities, is a more effective rhetorical strategy than the simple foundational arguments previously lobbed back and forth between camps. While they provide no definitive answers, and probably pose more questions in their wake, they nonetheless create better discourse in the marketplace of ideas. I would be hesitant to argue, however, that these persuasive texts, for that is primarily all they are, are adequate challenges to Fish’s concept of conversion. Because, fundamentally, one’s position on abortion is so engrained into their identity, changing sides requires reaccessing ones entire “worldview or deeper-than-deep commitments” so as to have an instantaneouse and persistant change of heart (Political Arguments, 21).
In conclusion, the abortion debate, while certainly polarizing and controversial, is not entirely limited by the foundationalism nature of convictions, restricted by the bounded space of the arguments, or entrapped by the constitutive rhetoric fueling division. In fact, once these rhetorical structures are identified and investigated, as I hope I have done sufficiently, Americans can break from the argumentative chains prohibiting progress and substantive debate on this topic. Civility and empathy are necessary for compromise and solutions; and even though nuanced and subtle arguments may not be as piercing as the sound bites or aggressive language currently used, they are the missing pieces to constructive debate in America. Therefore, it is not a matter of eliminating argument all together, but rather how to make it better.
Arkes, Hadley. Firth Things: An Inquiry into the First Principles of Morals and Justice:
Abortion and Moral Reasoning. Princeton University Press, 1986.
Fish, Stanley. Winning Arguments: What Works and Doesn’t Work in Politics, the Bedroom, the
Courtroom, and the Classroom. New York: Harper, 2016.
Morshedi, Mariam. “Roe v. Wade (Decision January 22, 1973).” Subscript Law. Accessed
October 25, 2020. https://www.subscriptlaw.com/blog/roe-v-wade.
Thomson, Judith Jarvis. “A Defense of Abortion.” Philosophy & Public Affairs 1, no. 1 (1971):