by Michael Dorf
Whenever I write something for or appear in the general-purpose media, as opposed to the self-selecting group of people who read DoL, Verdict, or, even more self-selectingly, my academic work, I am reminded of how lucky I am to have such terrific readers. Even when readers disagree strongly with my views, comments on this blog are of high quality and on the merits. As for the broader truck (not a series of tubes) that is our mediaverse, let's just say that the principle of charity--whereby one reads others' statements in their best light--is not universally observed.
Accordingly, after my most recent 15 seconds--in which I expressed concern about the potential chilling effect of the indictment of the makers of the anti-Planned Parenthood videos--I expected to take some heat from people who are pro-choice on abortion. And as I noted on Monday, I did. But I've also gotten some blowback in the other direction.
For example, one line of criticism arose in the comments section of a conservative blog that excerpted a couple of paragraphs from the CNN op-ed, in which Prof. Colb and I repeated a point I made last summer in a Verdict column: that the pro-life Center for Medical Progress (CMP) could potentially face civil liability for defamation for misleading editing of the videos. The commenters angrily pointed out that the CMP released the unedited videos alongside of the edited ones, so, they asked rhetorically, how could that possibly be defamatory?
I addressed just that question in the Verdict column, where I argued that simultaneously releasing a non-defamatory statement alongside of a defamatory one does not necessarily eliminate the possibility of defamation liability. That's clearly true with respect to words. To use the example I gave in the column, if Deirdre falsely accuses Peter of murder, the fact that she also makes statements saying that Peter is not a murderer might mitigate damages but does not eliminate the possibility of liability for the defamatory statement. There's no reason in principle to treat video differently.
Now it turns out that my column may have been too generous to CMP in characterizing the longer videos as "unedited." Planned Parenthood hired independent analysts to look at the longer videos, and they concluded that the supposedly unedited videos were in fact edited significantly. Some of these cuts were hardly subtle, as when the counter shown in the video jumps forward by 30 minutes. Because of this analysis, Prof. Colb and I thought it fair in the CNN op-ed to refer to misleading editing as a possible basis for civil liability, without including a disclaimer about the simultaneous release of ostensibly "unedited" video.
Meanwhile, an article on a pro-life website discussing our CNN op-ed appeared under the headline "Why Prosecuting the Center for Medical Progress Leaves Even Pro-Abortion Activists Worried." Although the attention is flattering, the "pro-abortion" characterization rankles, because we have written an entire book in which we take care to note the moral seriousness of the abortion of sentient fetuses and also respectfully examine the argument that abortion of pre-sentient fetuses is morally problematic. Moreover, even less reflective supporters of abortion rights cannot fairly be characterized as "pro-abortion." I do not know anyone who is pro-choice who thinks that women ought to be coerced or even encouraged to have abortions they don't want.
More generally, the "pro-abortion" language provides an opportunity to think about the inadequacy of the terms we have for talking about social and political movements with respect to abortion.
There is a sense in which both "pro-life" and "pro-choice" are carefully crafted terms like "death tax"--designed to appeal to listeners at a subconscious level that biases the conversation. Indeed, "pro-life" is practically the mirror image of "death tax," in suggesting that those who are not pro-life must be pro-death. "Pro-choice" is also loaded, because, in our generally libertarian society, choice is almost always seen as a good thing. By omitting what one chooses when one exercises the right to choose, pro-choicers seek to bypass discomfort about abortion.
In our book, we nonetheless generally use the terms "pro-life" and "pro-choice" to refer to the respective positions. After all, that is what the groups themselves want to be called. There is clearly less at stake here than there is in referring to historically disadvantaged groups by terms that many of their members now deem offensive (as I discussed here), but some of the same logic applies. Other things being even close to equal, members of a group, rather than outsiders, should be the ones to say what their group is called. Thus, our desire to be even-handed led us to use the terms "pro-life" and "pro-choice." No doubt members of the pro-life movement would prefer that the pro-choice movement be described as "pro-abortion," just as members of the pro-choice movement would prefer that the pro-life movement be described as "anti-choice."
Our terminological decision is not entirely satisfying, however, because, as noted above, both "pro-life" and "pro-choice" are somewhat tendentious. "Anti-abortion" is sometimes used to describe the pro-life movement, but that is not entirely accurate either, insofar as it suggests that people who are not anti-abortion are--as Prof. Colb and I were described--"pro-abortion." Perhaps the closest we can come to a neutral description of the two movements would be to describe them, respectively, as "anti-abortion-rights" and "pro-abortion-rights." But each of those terms is a mouthful, and if they were to enter into common usage, I suspect they would be shortened to "anti-abortion" and "pro-abortion," leaving us back where I started.
Finally, I am aware of a certain (postmodernist) view that says that the quest for a neutral description is in vain. Just as there is no "view from nowhere," there is no non-perspectival language. Words have embedded assumptions, including ideological ones. I think this critique is technically correct but generally unhelpful, because we do need to have conversations. My bottom line is that we ought to have those conversations in ways that minimize the use of rhetorical dice-loading as a substitute for argument. I just haven't been able to land on a way to do that very well when talking about views about abortion, and so, by default, I have adopted the terms of the contesting positions.