"You feel that you're sacrificing your inhumanity..."

I misspeak, back in 2006:



This is part of a discussion of the oral argument in the partial-birth abortion case, Gonzales v. Carhart. (I'm teaching the case this week in conlaw2.) What I'm worrying about when I misspeak there is the way one seems inhumane when framing a profound moral question in legal terms. I meant to say that legal analysis makes you seem, to laypersons, as though you are sacrificing your humanity. I hate to misspeak — especially when it comes, as it so often does, in the form of saying the opposite of what you meant.  But misspeaking may reveal something you actually believe, even if you didn't want to say it. Perhaps, deep down, I think the structures imposed by legal analysis really are the best of humanity. And yet, I feel that for general audiences, I need to apologize for being a lawyer.

"Pelosi annoyed on abortion."

Headlines Politico. 

"I will not have it turned into a debate on (abortion)... Let me say it clearly: we all agree on the three following things. … One is there is no federal funding for abortion. That is the law of the land. It is not changed in this bill. There is no change in the access to abortion. No more or no less: It is abortion neutral in terms of access or diminution of access. And, third, we want to pass a health care bill."

You can tell how annoyed she is by the way she says there are "three... things," then lists them as: "one," a somehow implicit two, and — switching to the ordinal — "third."

I wonder if her expressive annoyance pushes her antagonists more in line or if it fires them up. I know when I read "Pelosi annoyed on abortion," my first reflex was something along the lines of: and millions of fetuses really pissed off. And I support access to abortion.

AND: Here's another example of headline deafness. Over at TIME, Amy Sullivan writes "Is This An Abortion Whip Count?" and one of the first comments is: "Thanks for your post, Amy, but what does an abortion whip look like? (please don't say a coat hangar [sic]…)."


Sullivan — who may not have written her own headline (do MSM bloggers write their headings?) —has some good substance:

... Pelosi has got to do a better job of hiding her exasperation with her pro-life colleagues. When asked about Stupak's concerns, she has on three separate occasions in the past week flatly dismissed them as unfounded. "There is no federal funding of abortion," says Pelosi. By that she means two things: 1) the Hyde Amendment prohibits the use of federal funds, with some exceptions, to pay for abortions; and 2) she does not interpret the Senate's version of health reform as allowing federal funding of abortion.

As it happens, a lot of people — including a number of pro-life politicians and religious leaders — share Pelosi's interpretation. But some don't, and it's not as if they're suddenly going to smack themselves in the forehead and say, "By golly, she's right! I hadn't looked closely enough at the bill, but now that the Speaker points that out, I see that it doesn't fund abortions at all!" It wouldn't kill her--and it just might help negotiations with some wavering Democrats — if Pelosi would try saying something more like: "I understand that's how some of my colleagues interpret the language of the Senate bill. I see it differently, but I do respect their concerns."

How do you look closely enough at something that's over 2,000 pages long? I think if you genuinely want to exclude abortion, you have to have an express provision that takes precedence over anything else that might be in the bill. You can't rely on some earlier statute (the Hyde Amendment) along with the whole text of the new statute (and what's not in it). There's no reason why people who really care about abortion should accept Pelosi's assurances. I take it that she's mainly saying, put aside your pet issue and help us finish this big project.