Abortion and Reproductive Rights
Abstract and Keywords
This article discusses critical debate about individual control over the beginnings of life that has sprawled across the fields of academic law, philosophy, politics, religion, the life sciences, and the self-christened field of bioethics from the 1960s up to the present. The subject has formed in and around a cascade of popular pressures; biomedical advances; legislative, judicial, and public policy initiatives; media attention; and the boiling politics in which, at least in the United States, the whole series of enterprises has been bathed. The present undertaking will train on the law. It covers contraception in the United States, abortion law and policy in the United States, and contraception and abortion in Europe and the United Kingdom.
This chapter will discuss critical debate about individual control over the beginnings of life that has sprawled across the fields of academic law, philosophy, politics, religion, the life sciences, and the self-christened field of bioethics from the 1960s up to the present. The subject has formed in and around a cascade of popular pressures; biomedical advances; legislative, judicial, and public policy initiatives; media attention; and the boiling politics in which, at least in the United States, the whole series of enterprises has been bathed. The present undertaking will train on the law.
The normative tensions that have formed the basis of critical inquiry dilute the emphasis that might alternatively have been placed on the loose but resilient partnership that has developed amongst regulators; market actors—especially those in the pharmaceutical industry; and the multi-millions of individuals who have endorsed one or more of the reproductive choices that we will explore. It is these forces, not, as some court critics would have it, constitutional decision-making or ‘judicial legislation’, that have generated a consistent and progressively forward line of march toward ever-more-comprehensive varieties of life-cycle control, including (p. 673) reproductive control, for individuals in the American and European democracies to choose. Despite the emphasis on critique that will cause us to attend primarily to the resistant edge of these developments, the shaping forces of industry and market demands have hardly been banished from this account. Nor could they be, for they have been highly influential and genuinely irrepressible. And so will be their presence, in and out.
I should introduce an additional grab-bag of elements that have played a substantial role in the construction of this chapter. First, the actual controversies that have swirled around the topics we will consider have tended to attract single-issue debaters. Secondly, within each precinct of authorial interest, commentators have tended to lavish their attentions on the law and policy of a single sovereign state: comparative work across the subjects we will consider has been stingy, to say the least. Thirdly, academic commentators have articulated their claims largely to members of their own disciplines. Few have tried to influence discussion across fields, let alone to guide the public's views. Taken together, these forms of insularity have reinforced cultural, disciplinary, and subject-matter divides, lending an untidy disunity to the kind of sharp-profile analysis that best suits the short-essay form. More crudely: I am not able to reconstruct in these pages a singular debate about reproductive regulation in the developed democracies simply because there isn't one. I have substituted, instead, a sampling of related topics with my own version of their cross-cutting ties. These ties consist of the popular recognition, in the developed democracies, that reproductive control for men and women alike should be a matter of personal choice that is not subject to the overriding control of the state—an understanding that has fostered, even as it has been fostered, by the marketplace development and distribution of safe, cheap, and effective, though still imperfectly reliable, aids to that end. Together with these features of a common landscape has come the recognition in law of a right to abortion—especially, to early abortion—that has, as of this writing, succeeded in surmounting moral and religious critique as well as oppositional political force. Lastly, it is a fact that, while the ideal of self-sovereignty, shaped around concerns for autonomy and privacy, together with a practical concern for women's economic freedom and equality have helped to sculpt into democratic culture a sense of ungendered entitlement to reproductive freedom, the legal warrant for abortion has required considerable intervention by the courts. Beyond these commonalities, lies a region of private and public thought and action that has been rendered highly susceptible to divisive political choice.
Even more awkward is the size and shape of the US abortion debate. Not just its bloated presence within both politics and law but its tentacular quality accounts for its aggressive presence here. Why so bloated? In part, because both national parties cater to single-issue constituencies by maintaining a major ideological divide over abortion when, on an increasingly wide swath of issues, their positions tend to converge—this, while polls have steadily demonstrated wide support amongst voters (p. 674) for early abortions, at the least. Single-issue groups can swing close elections; efforts by the parties to woo them over the abortion issue have mesmerized the process of federal (and in some states) judicial selection for many years. This long-standing interjection of the politics of abortion into the judicial selection process is widely understood to have distorted the relationship between politics and law. Hence, a major cause of bloat.
Why tentacular? Not only because abortion issues have breached the divide (for those who believe that there is one) between law and politics, but because abortion has come to represent so much to so many: a matter of moral principle; distributive justice; gender justice; social policy; constitutional decision-making gone right or gone wrong; liberalism or libertarianism or populism, translated from theory to application in the right way or the wrong; federalism, correctly understood or misapplied, and so on. And on. In the United States, abortion is a free-standing issue—in some ways, the isolate of all isolates in its ability to dwarf other social policy debates. But the many fragments that the subject has fallen into have also managed to intertwine themselves with a host of other concerns.
Two last items warrant mention. One is that I have not sought to disguise my identity as a liberal-progressive feminist, albeit one of a contrarian stripe. The second item is that the saga of life-cycle choice, including reproductive choice, that has been enacted as a significant chapter in contemporary social history and institutional life within the Western democracies has come about largely because the baby-boom generation has made insistent demands on the social and political institutions of our times to make life-cycle choices possible. It is no accident of history that the contemporary law and policy of reproductive choice was launched as our generation came to be of reproductive age, or that the technologies that have extended the age of female child-bearing have been discovered in time to benefit our generation's range of choice. Nor is it an accident that the ‘second wave’ of feminism—the liberal feminism that predominated from the 1960s until the 1980s—remained highly identified with the relationship between economic inequality, coercive construction of the family and women's role in it, and reproductive choice.
Indeed, feminist theorizing moved on to its current, more expansive and self-critical phase only when the basic value of reproductive choice seemed well-established within democratic life. Despite the congeniality of the market for reproductive control and the regulatory lenity that has accompanied it—the two secure, and, therefore, unexamined background conditions of this account—my 1960s feminist conditioning and the highly perturbed state of abortion law and politics within the United States have left me hyper-vigilant toward the subject of reproductive legal and policy developments, overall. These elements—a liberal-progressive-feminist historical allegiance, the occasional contrarian tendency, and a hyper-vigilant attitude borne of abortion-related strife—have combined to produce interpretive biases that must have influenced this account.
(p. 675) 2 Contraception in the United States: Introductory Remarks
From an Olympian view, the law and policy of contraception in the United States consists of two diachronic episodes. The first, like its English analog, was about a century long. It blended the regulation of contraception into a host of efforts, made in the name of collective morality, to regulate intimate social relations, including sexual conduct and reproductive choice.
The second episode, which took place during the 1960s and 1970s, thoroughly disrupted the prior regime. On the reproductive front, it consisted of an attempt—waged in bedrooms; in a slightly farcical way, in the streets; and, more soberly, in the courts—to cast off the regulatory yoke so that a safe and effective oral contraceptive for women, embracingly referred to as ‘the pill’, could be easily acquired and used.
Looking back on these events, the late English novelist Angela Carter is said to have remarked that there were only ten years in human history when sex was both safe and fun—the ten years when the pill first became available and before the advent of AIDS. Her compatriot, the poet Philip Larkin sought to capture the zeitgeist still more closely with the news: ‘Sexual intercourse began | In nineteen sixty-three’.
In the United States, the mood was neither as insouciant nor as elegiac as the English literati cared to suggest. The sexual revolution, as we who were in its infantry preferred to heroize it, was accompanied by the senseless tragedy of the Vietnam War. ‘Make love, not war’, we demanded. But the first half of our incantation proved easier to accomplish than the second, since the Supreme Court proved an ally only of our bid for reproductive freedom, but not of our efforts to end the war. The state regulatory regime the Court spent a strenuous decade dismantling included the wholesale derogation of entire groups of people—‘illegitimate’ children and ‘miscegenating’ couples, among them—quite apart from those aspects that reflected exertions of intended power and influence over sexual relations in the name of the post-Victorian secular state. The undoing of these excesses of moralistic Zeal by the least democratic, though arguably the least dangerous branch of government divided the ranks of close observers into enthusiasts as well as abiding critics of the Court's work. Contraceptive freedom rode in on this controversial reformist wave.
2.1 The Historical Underpinnings of Contraceptive Law and Policy in the United States
The law and policy of contraception have their chronological beginnings in the nineteenth century in both England and the United States, when efforts to enforce (p. 676) community morality, most especially, the link between extra-marital sex and sinful behavior, were widely enacted. These measures included the criminalization of adultery; a civil law bar on alimony for adulterous wives in the event of divorce—this, without regard to financial need or the possibility of bilateral marital wrongs; and a wide range of statutory enactments and common law rules intended to visit hardship and opprobrium on children born out of wedlock, and, thus, on their mothers in sin.
To discourage extra-marital sex still further—amongst other rationales—moral reformers successfully campaigned for the criminalization of abortion in England and throughout the United States; and, in 1873, the same efforts accomplished the federal passage of a law named for the legendary zealot Anthony Comstock that prohibited the dissemination of information about abortion or contraception through the mail.
Together with a long and wide skein of laws aimed at the maintenance of two classes of children—the legitimate and the illegitimate; laws intended to derogate the status of women relative to men; and, in a strong minority of states, laws designed to prohibit interracial marriage, these laws contravening reproductive autonomy for women stood the test of legislative and popular acquiescence for almost one hundred years.
2.2 The Legal Regulation of Contraception: The Supreme Court's Response
The regulation of reproductivity by the states went unchallenged as an aspect of American federalism and the regulatory invocation of collective morality from the mid-nineteenth century until 1937, when its initial constitutional challenge went up in flames. Throughout this long period, the states enacted laws shaped by local and, especially in the South, by regional tastes. The regimes that eventuated included several types of laws that pertained to reproduction alone. Three of these types are presented below, in chronological order of adoption. A fourth type—anti-abortion legislation—is, as previously noted, nearly as old as the Type One legislation with which I begin. But its complex unfolding, in the American context, requires separate development in Section 3.
Type One laws criminalized the distribution and use of contraceptive devices, on the foundational premise that contraception was (is) an immoral act. Type Two laws were enacted by the Southern states, primarily, following the Civil War. Their purpose was to criminalize and void marriages between white persons and ‘those of the colored race’—anyone who, according to the statutory definition of racial purity, was insufficiently white. Type Three laws permitted the involuntary sterilization of individuals based on the weak science, but strong social ideology of eugenics. There (p. 677) were two varieties of these. The common one created the authority for mentally retarded individuals to be sterilized after a civil proceeding. A second, uncommon variant called for the sterilization of individuals who were repeat felons—but only those who had engaged in one particular crime. A challenge to each of these types was eventually brought on constitutional grounds.
The Court's initial recasting took up both variants of legislation within Type Three. The first to be heard was the civil involuntary sterilization issue, decided in Buck v Bell, 274 US 200 (1927), where, in the first flush of the Court's re-positioning toward generous deference to legislatures, the procedural regularity built into the sterilization statute left the Justices unmoved by its cruel extremity, while its scientific rationale was treated to no examination at all.
This turn toward legislative deference became the essence of the Court's New Deal and post-New Deal stance, occasioning what became known as rational basis review. Yet, the constitutional challenges of the remaining regulatory types that came after the decision in Buck all managed to attain more careful scrutiny—each, on a different theoretical ground. By 1942, when the Court decided Skinner v Oklahoma, 316 US 535 (1942), the criminal sterilization case from Type Three, its opinion served amply to signal a more flexible, if inchoate, normative stance. Unlike the flaccid response to involuntary sterilization offered in Buck, the Skinner Court was able to opine that ‘[m]arriage and procreation are fundamental to the very existence and survival of the race’—here, the human race. The Court worried aloud, moreover, about involuntary sterilization as being in the nature of a deprivation of a ‘basic liberty’. The Court invalidated the law in the context of an unarticulated standard of review.
By the time the Court decided Loving v Virginia, 388 US 1 (1967), the landmark representative of Type Two, its agenda had come to include a separate major turn toward basic justice for the racially oppressed. In striking down Virginia 's criminal ‘miscegenation’ ban, the Court negated the very idea that state supervention over the legitimacy of marriage and marital offspring could be grounded on race, consistent with the Equal Protection clause of the Fourteenth Amendment. To demonstrate the force of its conviction—as of the time of its decision, some sixteen states still maintained a ban on interracial marriage—the Court added to its Equal Protection holding an alternative one based on a substantive due process theory of liberty. The Court re-attached the ideas of a ‘natural’ right to marry and to procreate—Skinners ‘basic civil rights of man’—to the substance of liberty that, on due process grounds, must be constitutionally guarded from unwarranted deprivation by the states.
The Court's move toward a natural rights-based justification for ‘heightened’ scrutiny served as the grounding of its analytically unguarded opinion in Griswold v Connecticut, 381 US 479 (1965), the case that finally choked Type One legislation to death. In Griswold, the Court struck down a Connecticut statute that banned the use of ‘any drug, medicinal article or instrument for the purpose of preventing (p. 678) Contraception’. For the purpose, Justice Douglas infamously pasted together an ungainly pastiche of a rationale, reliant on a vision of ‘specific guarantees in the Bill of Rights [which] have penumbras, formed by emanations from those guarantees that help give them life and substance’ (367 US at 480). Far clearer than this hazy abstraction was the fact that the state's long-standing reach toward the imposition of a governing reproductive orthodoxy offended the liberal majority on the Court.
2.3 Critical Responses to the Contraception Cases
The Supreme Court's pre-abortion reproductive jurisprudence includes one case—Buck v Bell—that amounts to a clear embarrassment to the liberal ideal of equal individual regard. Yet, never having been overruled, Buck has not been formally repudiated by the Court. Perhaps its outcome is best understood strictly as a period piece, the personal triumph of Justice Holmes, whose paeon to legislative deference in his dissent in Lochner v New York, 198 US 45 (1905) was simply ahead of its time. Still, the unfeeling disdain of Holmes's eugenics-based rationale (‘Three generations of imbeciles are enough’, 274 US 200, 207 (1927)) remains a monument to poor judgment that Holmes's many adulators have had to step around. Together with his non-adulators, they can focus, instead, on the procrustean analytic sensibilities of the late nineteenth-through-early-twentieth-century Court.
The jurisprudence we have considered includes two cases, Skinner and Loving, that fill the modern liberal bill by treating as the basis of heightened scrutiny, whether or not called by that name, instances of a narrow, overbearing, and fundamentally unfair use of the state's coercive machinery against ‘discrete and insular minorities’, to borrow an earlier constitutional phrase (United States v Carolene Products Co, 304 US 144 fn 4 (1938)). The anti-miscegenation statutes held unconstitutional in Loving represent the apotheosis of that approach. Even the Warren Court's most devotedly hostile detractors—including those who attack Griswold root, branch, and stalk—tend to leave Loving alone (see Berger, 1977; Bork, 1990; and Ely, 1980).
Griswold commonly falls prey to charges of Warren Court result-driven ad hockery, in that the spasmodically deployed statute at its base, aimed, as it was, at the general populace, held no discrete or insular groups in its scope. Fittingly, a Yale Law School theorist has risen to the task of defending the Court's honor in the Griswold case, while serving to conjoin this example of Type One unconstitutionality with those of Types Two and Three. His position is that the Court should stand willing to patrol for statist abuses signaled when ‘one's life [may be] too totally determined by a progressively more normalizing state’ (Rubenfeld, 1989). The fact that this idea trades off its raw intuitive appeal, rather than any crisp theoretical bounds, renders it liable to being considered the perfect descriptor of the Warren (p. 679) Court's jurisprudence, whatever one's critical take. Yet, the cautionary stance this scholar offers towards an overly supine version of legislative deference may yet demonstrate the best posture available to defenders of the Warren Court, which has developed, over time, few abidingly cheerful friends. Perhaps, too, this is the normative stance that will best fortify those who must next defend the abortion right in the United States, should it become (as seems likely at the time of this writing) prone to heightened judicial and legislative attack.
It might be supposed that the American legal academy's libertarians would embrace the Court's apparent hostility toward the regulation of individual life. (For rhetorical effect, at the least, Justice Douglas funneled into his Griswold opinion a vision of police invading the ‘sacred precincts’ of the marital bedroom. Shades of 1984!) But the most energetic libertarians in legal academe have maintained an unmitigated repugnance toward Roe v Wade, 410 US 113 (1973), to which the contraceptive rights cases can now be seen to have led (see e.g. Epstein, 1973). These days, it seems, legal academics tend to present themselves as populists more than they do as libertarians, even when libertarianism has served as their usual calling card. (I myself find this cross-over puzzling, without the intervention of some theory, as yet unoffered, of the second-best.) Their obvious objections to Griswold can be seen simply as target practice for Roe. (See also discussion in Subsect. 3.2 below.)
As curious as is the missing libertarian defense of the contraception cases is the absence of a feminist defense of Griswold. Anti-contraception statutes operated significantly to the detriment of women, while touching far less the lives of men. The Connecticut law at issue in the case had been interpreted to permit the interdiction of prescription contraceptives. These consisted, in the main, of the diaphragm and ‘the pill’. One-size-fits-all contraception, such as the condom, does not require a physician's aid. Condom distribution was, correspondingly, impossible to interdict, giving men far more latitude—let's call it freedom—than women about whether or not to engage in contraceptive use. Given the barriers to safe abortion that were also a part of the regulatory regime, the lack of female contraceptive availability served to reinforce for women a lack of reproductive control, absent travel for this clandestine purpose to a more liberal state (a further cost, in itself). Then again, so what? From the standpoint of liberal progressivism, the social relations branch of libertarianism, and even feminism, the Griswold decision joins Skinner, Loving, and a host of other demise-of-collective-morality cases in coming out the right way. The ‘so what’ coda to this thought experiment goes, however, like this: an honest confrontation with the differential impact that contraceptive non-availability—the medically prescribed versions, at least—played in the lives of women might have provoked an awareness of the relationship between sexual autonomy and economic opportunity for women a great deal earlier than when it finally came about (see discussion in Subsect. 3.2 below).
(p. 680) At a minimum, the issue of women's sexual autonomy would have been able to breathe free, for as much as a decade, of the moral complexities of fetal life. Would a woman-oriented version of Griswold have made any difference at all? If one takes at all seriously the didactic value of the Court's work (West, 1990; but see Eisgruber, 1992), an equal protection analysis of women's right to contraception, coupled with a recognition of the constitutional value of reproductive autonomy, might have had an early, perhaps a profound influence over the seemingly perdurable reproductive rights debate.
The contraception case law trilogy we have considered undeniably set the stage for the recognition of an abortion right by the Supreme Court, albeit without benefit of a feministically inspired foundation. Beginning with Roe v Wade (1973), the Court went on to deconstruct the final pillar of the four types of sexual regulation that we have revisited here. That much has hardly prevented efforts to rebuild the regime. Indeed, a respectable bevy of critics have opined that the politics of the anti-abortion movement received a ferocious strengthening on account of the Court's work.
3 Abortion Law and Policy in the United States
The most turbulent and divisive issue in American domestic politics from the close of the McCarthy era until the close of the twentieth century has also been the most painful and relentless issue in contemporary US law. This involves the Supreme Court's decision, in Roe v Wade (1973), to recognize a federal constitutional right of abortion for women, a decision the Court has been called upon to reject or reconsider or remake from the time of its issuance to the present. The peculiar dominance of abortion as a question of constitutional right was, on first emergence, so massively overdetermined that an endless stream of American commentators has descended into the arena of debate without pausing to observe the one feature that has long entertained observers from abroad: the very peculiarity of the issue's dominance itself.
The right to abortion has been a matter of sustained controversy in the United States for an extraordinary variety of reasons. First, its recognition as a federal constitutional matter is contested on the ground that it constitutes a usurpation of states' rights (the federalism issue). Secondly, its legitimacy as an exercise of the judicial power is contested on the ground that it violates the constitutional separation of powers (the judicial supremacy/counter-majoritarian issue). Thirdly, its status both (p. 681) as a matter of right and as a right of evolving dimension and scope is contested by a variety of durable constituencies. Fourthly, its grant of decisional autonomy to women upsets the traditional balance of power between men and women, on the patriarchal-conservative view. Fifthly, its grant of decisional autonomy to women is contested on the (unconsolidated) moral or religious ground that it subserviates the fetus to a pregnant woman's self-determined interests and needs in the absence of a sufficiency of regard for the fetus's countervailing right to life.
3.1 The Constitutionalization of an Abortion Right: Roe v Wade
Roe held that a woman's decision to abort a first-trimester pregnancy should be a matter of constitutionally protected liberty, in that the decision falls within the ambit of privacy the Court had begun to inscribe into constitutional case law in Griswold. However, the Court continued, pregnancy itself is not a sphere of activity as to which regulatory intrusions should be taken as entirely ‘unwarranted’. Rather, the state is to be understood to have two separate interests in pregnancy which constitute independent and, on an increasing basis during gestation, ‘compelling’ regulatory grounds. The first is maternal health. The second is the development of fetal life. The Court found no justification for regulation by the state during the first trimester of pregnancy on either ground, thus leaving the decision to terminate or maintain an early pregnancy as entirely a woman's choice. Beginning in the second trimester, the Court found the state entitled to regulate to oversee maternal health. But during the final trimester of pregnancy, the state should be entitled to regulate pregnancy both to protect the welfare of the pregnant woman and to protect the welfare of the fetus—a potentially conflictual regime.
A considerable amount of the body of the decision is given over to the reconstruction of the historical status of abortion. At the time that most, if not all, of the states had codified their criminal codes during the mid-nineteenth century, the dominant practice had been to enact the common law crime of ‘foeticide’ with—at least for practical, largely evidentiary reasons—a ‘quickening’ distinction intact. (The fetus was considered legally protectible only after a pregnant woman was likely to be able to feel the fetus move—roughly, the gestational fourth month.) But later in the century, a powerful branch of the medical profession became persuaded that quickening was the basis of a ‘ridiculous distinction’. Instead, it concluded, ‘“[T]o extinguish the first spark of life is a crime of the same nature … as to destroy an infant, a child, or a man”’ (Witherspoon, 1985). A protracted lobbying effort by doctors of this persuasion caused a considerable number of states to revise their foeticide statutes, criminalizing the intentional causation of any pregnancy termination. These strict and comprehensive criminal abortion statutes matured prior (p. 682) to the ratification of the Fourteenth Amendment. Several had stood largely or entirely unmodified as of the time of Roe.
A second group of states had, during the 1960s and early 1970s, liberalized their abortion statutes, instead. Their purpose was to permit abortion if, as a matter of medical judgment, the life or the health (not statutorily defined) of the pregnant woman so required. The conflict into which the Roe Court proceeded involved, then, a deep schism between a type of abortion regulation designed to protect fetal welfare at the potential expense of the welfare (though never the life) of the pregnant woman and a second type, designed to recognize the primacy of the woman's interests, if not precisely her rights.
What these statutes all had in common, however, framed the issue of their constitutionality more profoundly than that which divided them: All of them together take the state to be the arbiter of the individual woman's interests in her reproductivity and her health and all of them leave to the state the articulation of a balancing of any interests outstanding, when those of more than one juridical entity are found to be at stake. When, in Roe, the Court annexed an abortion right to the other personal rights it had earlier announced in Types One through Three of the regulatory variants we have considered, it not only terminated the states' legislative capacity to balance the interests implicated in the earliest stage of pregnancy, but it allowed women to take their place amongst the rights-holders whose reproductive decisions and actions were entitled to protection above and—during the first trimester, at least—beyond the control of the state. Despite Justice Blackmun's protestation that the Court intended to adopt no ‘theory of life’, fetal rights advocates, then to now, have refused to take the Court at its word.
3.2 Criticisms of Roe
The abortion right announced in Roe has drawn vast negative attention. Critics of a federalist persuasion have dined on the position that the Court's decision usurped states' rights. Originalists have argued that the drafters and ratifiers of the Fourteenth Amendment must have intended to validate the multitude of anti-abortion statutes then in place, of which the Texas statute at issue in Roe was one (Ely, 1973, 1980; Epstein, 1973). Critics of judicial activism on counter-majoritarian grounds have rejected Justice Blackmun's attempt to make capital out of historic divisions regarding the moral status of the fetus. They would have left to the states all relevant choices, including the recognition of ‘the rights of the unborn child’ (Epstein, 1973).
Religious groups, most notably the Catholic Church, had already gone on the attack against abortion liberalization in the various states; had contributed in numbers to the amicus briefs filed with the Roe Court; and had urged on the Court the understanding that life deserves the state's protection from the moment of (p. 683) conception forward—a substantive posture different from the federalist notion that each state should remain constitutionally unconstrained in its choice of a ‘theory of life’.
American social conservatives—most especially, extremists within this camp—have been galvanized, since Roe was handed down, by the residuum of power granted to the woman qua individual to decide without a male's supervention, let alone that of the state, the fate of early fetal life.
Feminist theorists, amongst others in legal academe, have expressed dissatisfaction with the Roe majority's privacy-based rationale. While others have criticized ‘privacy’ as devoid of a textual home or as an unsuitable, even hypocritical descriptor of a decision the Court itself had opined should be made by a woman in concert with others, the basal dissatisfaction of the feminist theorists has been the Court's lack of willingness to embrace an equality-driven rationale. On this account, it is only by acknowledging the transcendent unfairness of uncontrollable pregnancy in relation to women's opportunities for employment and other social and economic advance that the Court could have put the abortion right on the appropriate normative track.
This, the primary feminist-theoretical complaint about the abortion decision, draws unacknowledged moral sustenance from the intuition that women should not be held responsible for maintaining the life of fetuses that just happen to be inside them for reasons for which the women are not necessarily responsible. Contraceptive failure is an example. Rape is a second. Incest may constitute a third. This view is taken to hold—at least during early pregnancy—even if we grant that the fetus is a person (Thomson, 1971). It is a view that does not distinguish between pregnancies for which women are completely without responsibility (e.g. rape) and pregnancies that are the result of a woman's partial responsibility (e.g. the use of a contraceptive with a substantial failure rate, when more highly successful types are available). Nor does it invite a close factual analysis of such potentially dense moral thickets as incest. Still less does it guide the moral reckoning that might be called for in the case of intended pregnancies as to which the pregnant woman changes her mind. Instead, the no-moral-responsibility position is consistent with (and would seem to appeal for practical purposes) to the idea that either: (1) there is no satisfactory way for the liberal democratic state to determine the moral responsibility of each and every woman for each and every pregnancy or (2) more fundamentally, an intrusive inquiry of this kind is not the liberal state's job, even if it has strong interests in the matter—a straightforward libertarian view.
As the chief exponent of this claim made clear at the time that her now-famous essay first appeared, the intuitive basis for the no-responsibility position is time-dependent: a woman who allows her pregnancy to progress in the ordinary course (nothing being said about significantly deformed fetuses and the like) would seem to grow increasingly responsible for its existence and, therefore, no longer as free of constraint (Thomson, 1971). This turn of the moral screw has sizeable implications (p. 684) for position (2): as a fetus draws closer to birth—the point at which legal personhood has clearly attached throughout the history of American law—the less obvious it becomes that the state's interest in fetal protection is unwarranted, even if its intrusiveness remains. Feminist equality theorists have consistently avoided acknowledging such differences in the moral significance of pregnancy on account of its development over time.
At the end of the day, those who believe that the fetus is entitled, uncontingently, to both the moral and the legal status of a person will not be swept off their perch by claims in favor of a woman's right to liberty or equality—still less, to privacy. Indeed, not. Galvanized by the Roe decision, anti-abortionists of many stripes formed the Moral Majority—a voting bloc that helped to put Ronald Reagan and (to a lesser extent) George H. W. Bush in the White House for three successive presidential terms. This same bloc, now heavily associated with the religious right in the United States, has continued to advance an anti-abortion agenda both in Congress and the states, producing a steady stream of legislation that has spawned constitutional challenges to this day.
The women's movement of the 1960s was also galvanized by the effort to secure a constitutional right to abortion for women. But, unlike the anti-abortion forces, which have solidified their base of popular support, the emphasis by the women's movement on abortion rights has been undermined by critical legal theorists and radical feminists for its association with what is taken to be a middle-class vision of welfare rights, one that is seen to have kept a more sweeping agenda of distributive justice for women from gaining support. Equality theory has thus become both a shield on which abortion rights have been defended and a sword used by feminist theorists against other feminists when wider issues of justice are put in play.
This unpretty state of affairs within feminism cannot be said to have yielded a productive dispute. Rather, it seems to have led to a state of near-exhaustion, at times, within the remnants of the women's movement. One consequence is that the feminist-theoretical development of abortion as a right has had but a single significant flowering in the aftermath of Roe—the energetic re-visioning of equal opportunity, especially equal economic opportunity, rather than liberty or privacy, as abortion's just constitutional ground (Ginsburg, 1975; Law, 1984; Siegel, 1992).
Liberty and equality theorists tend to converge in their belief that there is, indeed, a normatively funded relationship between persons and the liberal state. Within American feminism, the centrality of this issue is generally treated by assumption. As noted earlier, libertarians divide over it, when the counter-majoritarian ‘difficulty’, as it is known, sticks in their craws. For conservative theorists of a different stripe, the American attachment to rights and to rights discourse is understood to be extravagant, causing the achievement of a European-style ‘compromise’ at the legislative level over such highly fraught issues as abortion to get blocked. This is taken to be a matter of national regret—a situation that has been compared unfavorably to the legislative treatment of abortion and other matters in England, (p. 685) France, and Germany (Glendon, 1987, 1991; but cf., Epstein, 1992). Other populists, including apparent converts from left-liberalism, see voters and their legislative proxies as capable of—indeed, likely to make—satisfactory decisions about political life (the nature of politics, here, going undefined), if unconstrained by judicial review (Tushnet, 1999).
The core issue of whether or not abortion deserves to be treated as an implied (nontextual) constitutional right has, from well before the Supreme Court's decision in Roe v Wade, functioned as a legal, social, and political Rorschach test—an inkblot, the interpretation of which depends on a deep and wide diversity of other predisposing concerns. There was obviously no way for the Supreme Court to appease all of these tastes and preferences, or, indeed, many of them, when it extended the constitutional right to reproductive freedom to abortion as a woman's choice.
3.3 Roe's ‘Progeny’
Since the Supreme Court's decision in Roe v Wade, a steady stream of constitutional challenges involving abortion has been taken up by the Court. These are often referred to, collectively (and without irony), as ‘Roe's Progeny’. Their diversity represents efforts by individual litigants to extend the abortion right but, more consistently, efforts by various state legislatures either to extinguish it altogether, or to whittle away at its availability, thereby causing it to attrite. These legislative recastings have practical significance on the ground, though empirical studies of their effects have been both partial and slight. The most provocative of them have borne a special invitation to the evolving membership of the Supreme Court to repudiate Roe v Wade. The brief catalog below represents the most significant of this capacious inventory of moves.
3.3.1 Abortion Funding
Shortly after Roe v Wade (1973), the Court made clear its unwillingness to treat the abortion right as more than a bare prerogative. In Maher v Roe, 432 US 464 (1977) and, again, in Harris v McRae, 448 US 297 (1980), the Court considered the claim that the already-recognized abortion right ought to be extended so as to include a constitutional right to have the procedure paid for by the state under conditions of indigency or medical hardship. The Court refused these opportunities to expand abortion into a welfare entitlement, regardless of individual privation or the state's willingness to fund either indigents' medical needs, in general, or their pregnancy and childbirth-related expenses, in particular. For normative theorists who have disputed the widespread view that the US Constitution protects only ‘negative’ rights (in Isaiah Berlin's famous phrase, ‘freedom from’ rather than ‘freedom to’), and for those who have argued more pointedly that the Constitution embraces a (p. 686) positive sphere of welfare rights, the abortion funding cases offer nothing by way of support.
The vanguard of critics of the abortion funding cases has been filled with more than those who have argued for the protection of positive liberties on largely philosophical grounds. Welfare rights advocates argue that the cases demote the welfare of the most economically helpless women below that of their fetuses, thereby inverting the intended significance of Roe v Wade. European critics of American health and social policy have used the abortion funding cases to underscore the peculiarity, and even the perversity, of US policy, given apparent public reluctance to subsidize poor women's abortions in the midst of further reluctance to provide adequate welfare assistance for their children. (Here, the relative glare of Congressional activity helps to hide the diversity of state actions, some of which now provide for the public funding of early abortion for the indigent, though less often for the merely poor.)
For its own part, the Supreme Court has gone on to extend its commitment to the line of reasoning introduced in Maher and Harris. In the highly controversial case of Rust v Sullivan, 500 US 173 (1991), the Court accepted the federal government's administrative interpretation of a statute which denied federal funding to agencies which even permit the discussion by doctors or other counselors of abortion as a method of family planning. This ‘gag rule’, as it immediately became known, was condoned despite clear evidence of its negative implications for women's health; the obviousness of its purpose (to circumvent Roe's maternal health-related commitments); and its effects on the first amendment rights (not under attack for the only time) of government-paid workers to freedom of speech. Freed from constitutional concerns, Congressional conservatives have extended the outcome of Rust v Sullivan to the international sphere, rendering the receipt of American foreign aid for family planning programs conditional on compliance by each recipient program and facility with the identical rule.
3.3.2 Regulatory Constraints on Abortion
State responses to Roe v Wade and to the trimesterized framework of interests and interest-balancing that it announced have come to differ widely. These differences have become encapsulated within regulatory policy, as they are at the federal level as well. On the whole, a greater number of states than at the time of Roe now have liberal abortion regimes, undertaken to ease access to early abortion, in particular, and to provide funding for the indigent. But all of the states have engaged in time, place, and manner regulation and, in a number of them, the resultant restrictions have been designed to be harsh. Amongst a small number of states that have acted as provocateurs, moreover, either by skating as close to constitutional limitations as possible or by purposefully seeking to incite legal challenges to the schema in place, the blockages to abortion access have become severe. The actions of the provocateur (p. 687) states, in particular, have forced an array of constitutional challenges into the courts, where abortion-sensitive judicial appointments within the federal circuits and on state court benches, as well as on the Supreme Court, have been responsible for the creation of a patchwork of results.
Through all of this, the constitutional right to a first-trimester abortion, for a non-adolescent woman who can afford to pay, has remained essentially safe, though the paucity, in many parts of the country, of medical personnel willing to perform even early abortions constitutes just one consequence of the vigilante tactics of some anti-abortionists and the bitter controversy that has continued to rage. While most of the social welfare democracies have folded early abortion into their national health-care regimes, women who choose to terminate their pregnancies in the United States have to bob and weave around obstacles that the federal government, the states, and the medical community have been free to impose. (Until recently, most medical schools across the country had ceased to provide abortion instruction. It would be contrary to medical ethics for the state to require any physician who was conscientiously opposed to abortion to perform the act. But nothing explains why medical students who are willing to perform abortions should not be so trained. In France, by contrast, the law requires that an abortion provider be available within a designated small unit of geographic measure, countrywide.)
3.3.3 Decisional versus Deliberative Autonomy
Roe v Wade was meant to secure autonomy for women over the abortion decision during the first trimester of pregnancy, with regulatory interventions by the state being permitted later, if justified to protect maternal, and, after viability, fetal health. In Planned Parenthood of Southeastern Pennsylvania v Casey, 505 US 833 (1992), a plurality of the Court sustained the constitutionality of the abortion right, but went on to dismember the trimester-based framework of Roe, adopting, instead, a standard that protects pregnant women from the ‘undue burdens’ a state might attempt to impose on her right to abortion, a standard that opens the door to state interventions at any gestational stage, subject to judicial review of their due or ‘undue’ effects.
Applying its new formulation, the three-Justice coalition responsible for this outcome let stand the statutory sections under challenge that authorized a twenty-four-hour waiting period, except under emergency conditions, thereby necessitating two trips to accomplish the intended result and—at least as controversially—the authorization of at least some effort by the states to persuade every pregnant woman of the value of fetal life. Thus, to the consternation of at least some critics, the Casey plurality pledged its ongoing fealty to women's decisional autonomy over abortion, while retracting the protection of their deliberative autonomy at the same time (Cohen, 1992).
(p. 688) What had been widely predicted was that the Court would use Casey as the vehicle to ‘gut’ Roe. Refusing to be disappointed, critics of the Court, feminists amongst them, still insist that Casey gutted Roe. I simply don't agree. The abortion right lives a precarious existence in the United States. But, after and on account of Casey, it lives.
3.3.4 Adolescent Abortion
Three lines of common law doctrine and three further lines of constitutional doctrine have come to converge—at best, uneasily—in the regulation of abortion procedures for girls below the legal age of majority, an area into which the Supreme Court has now waded more than a half dozen times. The oldest and broadest line of authority inscribed in the common law is the recognition that children are under the general jurisdiction of their legal custodians, usually, therefore, their parents. Accordingly, it is a legal wrong, in the absence of specific exception, for a medical procedure to be performed on a minor child without prior custodial consent. A second line of doctrine traces out the exceptions to this rule. The traditional exception allows for the provision of emergency care in the absence of custodial consent. A more recent exception permits ‘mature’ minors to give or, in some instances, to withhold authorization for medical interventions, bypassing adult consent. The maturity that need be demonstrated in relevant instances has not been subject to close definition by the courts; rather, it has been fashioned as an impressionistic test. In a third line of cases, those involving private-actor disqualification, the state has adopted the primary decisional role.
In particular circumstances, the Court has recognized that minors are legal persons within the meaning of the Bill of Rights and, thus, may be rights-holders on their own. Still later, the Court began to fudge on the scope and significance of minors' constitutional rights, allowing the interests of their parents to outweigh those of the child.
Enter into this already unwieldy mix the complex issue of what right or rights ought to belong to pregnant girls, a category that must span the youngest females capable of becoming pregnant as well as those who are but weeks or even days away from the age of majority; girls who are entirely dependent on their parents or other legal custodians and those who, though minors, are functionally or legally emancipated; those who could reasonably benefit from parental guidance, assuming the parents are reasonable, and those for whom any parental or custodial notification could constitute the basis of grievous harm. Add, too, those girls who have already been subjected to abuse and those whose pregnancies are its direct outcome. Then, add pregnancies due to rape. Lastly, add in the troubling fact that adolescents in the United States tend to ignore or deny their pregnancies, becoming galvanized to take action only when their fetuses are near or past the mid-term.
On its first stride into this complex arena, the Supreme Court held unconstitutional a statute that required the written consent of at least one parent for any (p. 689) first-trimester abortion involving an unmarried minor—a legislative attempt to drive a clear wedge between this group—still, despite avoidance techniques, the largest subset of pregnant minors—and the uncompromised right to early abortion that the Court had announced in Roe. The Court declared this blanket parental veto authorization to be an ‘undue burden’ on the constitutional right to privacy, which, following Roe, it here found to include an abortion right for girls (Planned Parenthood of Central Missouri v Danforth, 428 US 52 (1976)).
Since that time, the Court has stuck by its initial positions that a constitutional right to abortion exists for under-age girls and that states may not unduly burden it. But the Court has let slip normative guidance with exceeding sparseness in this arena, effectively stepping into the framework of state-by-state regulation only to declare specific enactments outside constitutional bounds.
The Court's willingness to extend an abortion right to minors hardly begins to describe the chaos, moral and otherwise, that attends adolescent pregnancy in the United States. In some states, judges have liberally consented to abortions after parental bypass hearings that they speed through. In other states, especially where judges stand for election, doubt has been raised—by judges themselves—that they will ever grant their consent.
In many states, the abortion question is effectively decided by the dearth of providers willing to perform abortions on girls or abort the mid-term pregnancies that girls so commonly present. Of the 1.1 million adolescents who have become pregnant in the United States each year during recent decades, some 60-percent maintain their pregnancies to term. Courtesy of the confluence of the mature minor rule in relation to medical consent and the willingness of many states to pay for childbirth, girls may receive both pregnancy and childbirth subsidies, even when their parents do not believe that pregnancy and childbirth are in their daughter's interests (and when the parents may bear secondary support obligations to the child).
The decrease in stigma that has come to attend births out of wedlock has helped to foster a second trend: significantly reduced relinquishment for adoption, along with retention of their babies by adolescent girls. At the same time, old-style favoring of shotgun weddings is in severe decline. The retention phenomenon, in particular, has generated potentially fatal effects on the further education of adolescent mothers. Amongst the older ones, the effects on educational opportunity and economic advancement have been generally found severe, and the heavy statistical tilt toward pregnancy, childbirth, and retention amongst black and hispanic adolescents adds a multiplier effect to the potential for career derailment and resultant economic loss (Rosenheim and Testa, 1992). There seems to be no controversy (though rather little study) concerning these effects. Whereas pregnancy prevention programs are commonplace throughout the social welfare democracies, such programs have been held hostage within local politics in the United States to abortion hostility on the part of political and religious groups, most often in the name of parental prerogative and family autonomy. The trends toward high adolescent pregnancy (p. 690) and child-retention rates are often thus disabled from being effectively countered at the source.
Disputes over the empirics of adolescent pregnancy help to keep the fires burning in this precinct of the abortion conflict (Lawson and Rhode, 1993). Commentators who believe that ‘easy’ abortion encourages teenage promiscuity do not need to rely on empirics for guidance: theirs is a normative stance (Carlson, 1988). Allies of these anti-abortion normativists point to studies that suggest that the psychological sequelae of childbirth, at least for older teens, may be less severe than the guilt that may attend abortion, especially if it is undertaken without parental notice or support—a hypothesis dependent largely upon anecdotal evidence involving multiple variables that have not generally been pulled apart.
Those who represent the other side of this conflict use extant empirical studies to support the opposite normative outcomes. The mildest of these studies are offered for the position that, in general, adolescents weather the abortion experience with considerably less damage to their health and welfare than they do childbirth (Melton, 1986). The most denunciatory argue from studies of racial and ethnic minority teenagers that early childbirth permanently stunts their lives (Elders, et al., 1989–90).
None of the studies that point to optimistic or pessimistic outcomes for the girls goes so far as to provide longitudinal examinations of personal and social outcomes for the children of those who have not chosen abortion (assuming that control variables could be designed). The stark fact that teenage mothers in the United States have increasingly stopped surrendering their offspring for adoption merely takes us to the door of what deserves to be known. On an altogether different side, a recent and controversial, if not incendiary, study proffers evidence that decreases in crime within the United States, and the state-by-state emergence of its decline, correlates directly with variations in the states' abortion restrictions over time (Donahue and Levitt, 2001).
3.4 Normative and Practical Implications of the Contraception and Abortion Cases
The contraception cases have come to reinforce the baby-boom generation's sense that sexual liberty is a personal entitlement and that procreative liberty is, on account of the responsibilities that children entail, an a fortiori case of that entitlement. So far and so fast had these understandings become incorporated into the general body of knowledge (if not of social truths) that an argument made by the state's attorney in Griswold to the effect that community morals are enhanced by the harsh penalties that pregnancies impose, was not even trotted into view on the state's behalf barely a decade later in Roe.
Left lingering is the question of whether this normative ground has been gained in virtue of its never having been lost: marital, procreative, or, for that matter, sexual (p. 691) liberty are sometimes conceptualized as rights that are inherently pre-political, which the Court, prior to the abortion cases, had more than once proclaimed to be the ‘basic civil rights of man’. Does the oxymoronic notion of a pre-political right help to dissolve the issue of pedigree for the rights in question? Or, does the image of a just pre-political order act merely as an instruction to look away from law in the direction of metaphor—or common sense—for validation of the interpretive judgment at hand? The fact is, the 1960s generation which reaped the whirlwind on account of the contraception cases treated them simply as acts of avuncular good sense. And polls continue to demonstrate the American public's (albeit mild) support for at least an early abortion right, despite the continual blitz of more extreme views from the anti-abortion right.
Some combination of normative allegiance and normative drift have settled in, in support of the position that abortion is, indeed, a woman's right. Does that mean that, thirty years downstream of Roe, this right would garner legislative recognition across the states if a change in the Supreme Court's current fragile balance were to effectuate the total repudiation of Roe (and Casey) and return the abortion issue to the states, tout court? I find it difficult to opine on this, the ultimate predictive question. What does seem reliable is that the few states that have acted as abortion provocateurs would outlaw the practice quite thoroughly, though what even they might fashion, in cases of rape, incest, severe threats of injury to maternal health, and the youngest girl-pregnancies seems considerably insecure. More reliable is the prediction that the states with the most populous urban centers and concomitantly liberal populations would install liberal abortion regimes, or retain those that they now have. Just the divergence between these liberal and illiberal states would recreate the checkerboard legislative pattern in existence at the time Roe was decided. This would be likely to re-instigate the pre-Roe phenomenon of abortion tourism, as it had become known—well beyond the amount that exists now—giving rise to obvious distributive concerns. In other respects, the three decades of activity since Roe was handed down seem likely to have caused certain predictably durable practical effects.
One such effect involves the number of abortions women would have. A position taken by court critics (including critics of the Supreme Court) is that the constitutional jurisprudence of abortion turns out to have been, at best, irrelevant, as a matter of practical significance (Rosenberg, 1993). The crudest evidence asserted is that, from the years before Roe was decided to the present, the number of abortions performed in America each year has remained about the same. This much may well be true: the 1.3 to 1.5 million annual abortions statistic seems remarkably obdurate to change. But evaluating the practical effects of the abortion decisions requires an examination of more than statistical trends.
The first practical effect that I assume would perdure is that, by outlawing the criminalization of abortion, the Roe decision hastened the demise of an illegal industry—the provision of abortion to girls and to women under often horrendous conditions deleterious to their lives, their future fertility, and their health. It should (p. 692) be a fact to be reckoned with, quite apart from anything else, that the mortality and morbidity factors that were associated with illegal abortion—thousands of deaths and serious injuries per year—have been almost entirely eliminated in the United States in the epoch that has followed Roe. This effect is attributable not only to the circumstance that abortion providers are now entirely above ground, where they can easily provide safe and sanitary procedures. In addition, a technique for the performance of early-to-mid-term abortion, the use of suction curettage under ultrasound guide, gained rapid use, once the sale of standard medical equipment to providers who were not on the run was able to be uncoupled from fear. The relatively modest cost of the equipment involved has assured no sacrifice in safety of the early-to-mid-term procedure, across reputable facilities where it is performed. This and the low level of capital investment involved has permitted clinics to out-compete hospitals on cost to an extent that has continued to encourage providers to enter and remain in the market for abortion services, at least in areas where the locale proves accepting, on a basis that has helped to keep the costs of early medical (surgical) abortion low. One may hope that even a major resurgence of checkerboard legislation would not provoke a resurgence of illegal and unsafe abortions in its wake.
Indeed, the swiftness of the procedure, lack of health complications, and low cost of suction curettage have so far enabled it to survive handily against the recently introduced, much-heralded alternative: pharmaceutical (non-surgical) abortion using the progesterone antagonist RU-486. (In the case of the earliest procedures this regimen makes possible, the term ‘abortion’ is inapt: implantation is impeded and the unimplanted embryo is shed.) For present purposes, the complicated, secretive introduction of this product into the American marketplace has accrued mostly symbolic effects: out of the 2.6 million abortions performed in the period since the drug was made available to US women in November 2000, approximately 100,000 nationwide have employed RU-486—a far lower response rate than had been predicted heretofore, but one that may well mirror the relative novelty of the procedure; its newness to market; its greater cost, inconvenience, and its risk of complications; and, on account of risk, physician reluctance to prescribe. What was supposed to provide a strong, new incentive for the earliest post-fertilization intervention—and, therefore, the greatest possible insulation against moral attack—has amounted, in the United States, at least, to a promise unfulfilled.
What must remain a matter of pure speculation is whether a woman's use of an early intervention procedure like RU-486 can and does affect her relation to the decision to terminate her pregnancy, and whether, as well as how, each type of available procedure might influence her attitude toward the early embryo or the later fetus itself. Would a cheap, easy, and reliable method of expelling the earliest embryos increase moral hazard by discouraging contraceptive use? Is there a minimum of moral suffering that should accompany the disuse of embryos, instead? The private aspects of pregnancy are necessarily that, and they are likely, (p. 693) therefore, to be immunized from most forms of reliable empirical research. (Extant studies that compare grief and regret over abortion with grief and regret over childbirth fail to satisfy reasonable methodological concerns.) Even in attempting to consider the practical consequences of abortion techniques, we find ourselves back in the normative realm.
4 Contraception and Abortion in Europe and the United Kingdom
The general, developmental arc of the law and policy of contraception and abortion in much of Europe and in the United Kingdom is, at the crudest level, similar. Most countries began with highly restrictive—indeed, prohibitory—policies, as did the United States. Indeed, countries with heavy Catholic majorities followed the church's teachings and landed on abortionists with force.
In France, by the mid-1970s, widespread contraceptive use, the commonplace—and dangerous—level of illegal abortion, and the phenomenon of abortion ‘tourism’ to countries that had already enacted reforms led to major legislative change. The interesting result was a statute that required a single consultation and a week's wait but gave pregnant women discretion over the first trimester abortion decision if they considered themselves ‘in distress’.
In England, in a 1939 case that marked the beginning of the turn away from the criminal sanction of abortion and toward a more liberal regime, a judge read an exception to save the life of the woman into the statute at issue in the case. Sweeping parliamentary reform of England 's abortion law came about in 1967. The terms of the new Abortion Act were far more encompassing in their generosity toward women's welfare and realistic toward the totality of circumstances that may surround the abortion decision than any statute or judicial ruling that has appeared, to this day, on US shores. (The Act permits a physician to perform an abortion, inter alia, where taking a pregnancy to term would create risk to the life or mental or physical health of the pregnant woman or to any of her children. The statute and its politically benign enactment were mentioned by Justice Blackmun in his opinion for the majority in Roe as an indicator of the direction of developments with which the United States should become aligned. The didactic salience of this brief part of the opinion appears to have been nil.)
The German story of abortion reform was more wrenching than the English or the French. An invariant criminal abortion prohibition was first enacted in 1871, being subjected to slightly liberal amendment, first by statute, then by judicial (p. 694) exception. The Nazis, however, abolished all reform, reinstituting harsh criminal penalties, except on the basis of eugenic determinants, to aid in the purification of the Aryan ‘race’. At the end of the war, when Germany was split into two, West Germany re-adopted the pre-Nazi Weimar law. Communist East Germany, meanwhile, went on to enact a law permissive of abortion virtually without limit—a rather ugly showcase, as promulgated, for the ideal of gender equality under law.
The substantive difference between the laws of the two Germanys created a substantial market in abortion tourism, West to East. This undermined whatever efficacy the West German abortion regime might have had. Around the same time as the major French statutory reform, and just a few years after the English, a bitter and divisive change was enacted, one that had, amongst its effects, the decriminalization of first trimester abortions and the provision of excusing conditions for later abortions, too.
The new German and new French laws were challenged on constitutional grounds for what, suddenly, they were attempting to do. The Conseil Constitutionnel held that the French statute, with its self-determinative ‘distress’ provision, did not violate the 1789 Declaration of the Rights of Man or the 1946 Preamble to the Constitution, which states: ‘The nation guarantees protection of health to all, notably, to children and mothers’ (French Constitution of 1947, Preamble). Rather, the Court interpreted the concept of ‘distress’ to satisfy the principle of respect for life by limiting abortion, here and in the later provisions of the statute, on grounds of necessity—a creative, if instrumental, result.
The German challenge bit more deeply and painfully into the relationship between West Germany and its Nazi past. The postwar constitution was drafted to effectuate, as well as to symbolize, that country's break with fascist ideology and its horrific social instruments: the destruction of the handicapped (‘unworthy’ life); and the liquidation (‘Liquidierung’) of ‘races’ outside the Volk in accord with the ‘final solution’: genocide. The Basic Law (the Constitution) contains individual rights, including a right to freely develop one's ‘personality’. Its stratified text contains higher-order principles and public values which, for the sake of the community, are intended to be strongly observed. In this latter portion is found the guarantee of a right to life for ‘everyone’—a command the Constitutional Court interpreted so as to impose positive obligations on the state—obligations meant to reach as far as the embrace of fetal protection as a form of developing life, from and after the fourteenth day after conception.
The West German Parliament had debated between two statutory models before narrowly enacting one. The rejected ‘indication’ model treated gestation after the fourteenth day as a continuous process—one that a pregnant woman would require a good and sufficient reason (indication) to interrupt. The chosen ‘periodic’ model bore similarities to the Roe Court 's trimester framework, as did East Germany 's law.
(p. 695) The German Constitutional Court struck down the statute in 1975 by asserting the primacy of communal protection for what it broadly interpreted to be all human life-forms after the initial fourteen days, a decision that allowed the Court to sidestep the question that Justice Blackmun had placed at the center of his analysis: whether a fetus as well as a woman has legally cognizable rights. Instead, it elevated communal obligation toward the fetus to a level above a woman's rights.
The constitutional demand on which the Court insisted was not, however, that all or even that most fetuses be brought to term. It was that the legislature create a statutory scheme out of the alternative model that it had rejected, a decision that mandated the re-criminalization of abortion, subject to specific exceptions. The loosest of these, conceptually, permitted abortion on the basis of social or medical necessity, including under circumstances where it would be ‘unreasonable’ to expect the woman to take the pregnancy to term. But this compromise proved unstable. Ultimately, the Court demanded a provision requiring that a state-sponsored counselor put a serious case for fetal protection to pregnant women whenever abortion is contemplated.
The terms of the enactment in the German Parliament followed the letter of these demands. But the Court's concerns fell in a different direction than the East German population's, which came close to causing the suspension of reunification in 1990, until a statute more generous to the interests of women was laid out. The political compromise that was reached blended a periodic basis for abortion such as the East Germans had had, with the mandatory counseling provisions from the West.
As with the prior enactment, the losing parliamentary parties took their case to the Constitutional Court. The Court handed down a ruling insisting that, in the interest of unborn life, abortion must remain illegal but that, if the counseling obligation were fulfilled, abortion during the first three months of fetal life would go unpunished and, thereby, excused. Thus, every abortion for any reason has been made to take place directly in the shadow of the German Criminal Code. And a powerfully managerial Court.
After its insistence that the abortion decision be authored under an umbrella of wrongdoing, the Court liberalized the counseling requirement so as to rest the ultimate decision about her pregnancy in the woman's hands. Moreover, the Court insisted upon the provision of meaningful social subsidies, in the form of public support for the willing pregnant woman and, later, for her child. Even beyond the matter of monetary support, the Court insisted on gender non-discriminatory workplace rules. In regard to the payment for abortions out of state funds, the Court permitted some; outlawed others; and required still others, treating the funding decision not as a matter of legislative discretion, but as the Court's alone. Recently, the individual states have acquired greater discretion in regard to funding, especially regarding later than first-trimester abortions.
From the period shortly after both the French and the German litigations wound down until the present, the abortion controversy in both countries has leveled out, (p. 696) such that major political turmoil over abortion cannot be said to exist. The English experience, has stayed calm, to boot. This then—to the first approximation, a decades-long end to social perturbation—unites the English, French, and German developmental arcs. And it unites them, too, with the political response to abortion that has long been maintained in the other European welfare states.
Because these are welfare states, their similarity, one to another, does not end with the brute fact of a bare abortion ‘compromise’ (Glendon, 1987) having been achieved. Yet, the critical commentary from comparative law scholars has tended to focus not on the welfare deficiencies of the US position on abortion but on an institutional critique that views the US abortion conflict as the fault of the Supreme Court.
4.1 Comparative Critiques of US Abortion Law and the Counter-Critical Response
Two of the most prominent comparative law scholars in the United States have written extensively and enthusiastically about the value to an American audience of attention to European abortion law (Glendon, 1987, 1991; Kommers 1977, 1993). Both scholars praise the decisions of the German Constitutional Court, in particular. Both decry the Supreme Court's efforts in Roe. Both set the stage for what turns out to be a heavily one-sided match, as a comparative constitutional exercise. Both avoid focus on the extraordinary degree of judicial activism that the German Court exhibited in dictating a set of demands to the national legislative body—not once, but twice—demands that created a rare and bitter split on the Court itself and unintentionally encouraged a political schism that almost paralyzed reunification.
Given the vilification that has been heaped on the Roe v Wade majority for taking decisional authority out of the state legislatures' hands, it is surprising that these observers have chosen the German example through which to extol the virtues of communitarianism and populism (Glendon, 1987) without shouldering the high burden of persuasion that, on balance of power grounds alone, an American jurisprudential audience might require. Indeed, it is difficult to treat the case that is enthusiastically mounted (especially by Glendon, 1987) for a single, Euro-centered approach to abortion as much beyond a subtle and sophisticated form of advocacy for her deeply committed pro-life views (Cohen, 1989; see also Hertberg, 1993; Werner, 1996; and Miedel, 1994).
4.2 The European Subsidy of Abortion and Contraception
The most striking feature of much of the comparative scholarship in relation to contraception and abortion, as issued from the American side, is how court-skeptical (p. 697) it tends to be and how formalist analytically, besides. What eventually gets nudged into view, but with a denial of permission to parade is that, for some twenty to thirty years, all of the developed democracies of Europe and North America have reached a point of stasis regarding the legitimacy of abortion during the first trimester of pregnancy, though the process and the justification of legal legitimation have taken several different forms. The point that has been reached throughout the developed European and North American democracies is that the continuation or termination of her pregnancy is a woman's choice. With the exception of the United States, two other facts are widely in place: one is that abortions are and, by clear inference, should be performed in publicly supported health facilities, with consultative counselors who are state paid, rather than being isolated in sole-function clinics on the metaphorical edge of town. The other is that, when the procedural conditions that de-limit regulatory control are properly followed, all early abortions and certifiedly therapeutic late-term abortions are and, by clear inference, should be paid for by the state. The national health-care delivery system in the true welfare democracies both makes abortion available and subsidizes the cost.
This general incorporation of pregnancy and pregnancy termination into the national plan for public health was what fueled the decision of the French government not only to invest in the development of the pharmaceutical abortifacient RU-486 but to demand its distribution, when the company which had manufactured it, fearing a threatened American boycott, held back. As the French Minister of Health announced to his nation and to the world, ‘From the moment government approval … was granted, RU-486 became the moral property of women’ (Greenhouse, 1988).
Where the normative implications of this coherentist approach have become powerful is in the formulation of legal and policy goals for women throughout the developing world. There, one tends to see concerns about the remaining prevalence of unsafe abortion framed within similarly coherentist terms—terms that are far in advance of the rhetoric of rights and political action in the United States in linking population planning to reproductive health to individual, autonomous choice on the family planning front. (See e.g. Reproductive Rights 2000: Moving Forward, 2000.)
While Europe has been in the vanguard of the move to understand personal health and population planning as co-dependent and their support by the state as, at least in part, a public good, there is another side to the present situation throughout Western Europe that currently resides somewhere between a puzzle and a mystery. It involves the fact that, even with the substantial pregnancy, childbirth, and child subsidies that many European countries pay, virtually all of them have, for almost two decades, had childbirth rates that are below the level of population replacement, even as average life expectancy has grown high, as concerns about immigrant populations have spiked, and as long-term political worries about who will fill the borders of Europe, whether or not it develops into a single union, have become rife.
(p. 698) What recent population studies report in the cases of France, Germany, and Italy is that government support for contraceptive use and abortion provision remains in place, but that the officially reported governmental ‘view on fertility level’ is that it is ‘too low’ (World Population Prospects, 2002). The puzzle, if not the mystery, becomes: if generous subsidies haven't been able to nudge fertility rates upward, what further blandishments might be adopted in coming years? Will Europe simply continue to treat reproductive choice as the moral property of women and learn to revise its anxieties and its goals? The anxieties are clearly potent. It is a given that the population is aging within most of the European welfare democracies, while birth rates are continuing to fall. Guest-worker policies and welcome berth to citizens of the host country's former colonies have helped to fill needed workers' ranks. But anti-immigrant sentiment is on the rise. How will national and pan-European family policy formation accommodate labor needs, high welfare costs, and (if they continue) falling birth trends?
Questions such as these are not currently generating reliable answers at the level of policy or principle within the nation-states that are giving rise to them. In the case of Europe, one can only hope that the welfare democracies will remain welfarist, but not to such an extent that the pressures to support rising numbers of aged persons will heavily distort their attractive liberal values and their ways. In the United States, one must similarly hope that the liberal values that have become encoded within the law of reproductive choice—autonomy and equality, to the fore—survive any coming paroxysmic moments so that, apart from an atmosphere of crisis, they can gracefully evolve and mature.
During the past thirty to forty years, the right to use contraception and the right of women to choose to terminate especially their early pregnancies have received consistent acknowledgement as matters of policy and law. These outcomes have depended on differing, though generally substantial amounts of intervention on the part of constitutional courts. The instability that persists in regard to the status of the abortion right may be a function of its judicial supervention in the United States, as its domestic critics are given to conclude. But a host of other factors have been at work. Whether abortion rights can survive and develop despite these pressures defies present prediction. Their incorporation within the scope of European social philosophy and welfare entitlement seems more readily capable of granting the twinned fortunes of contraception and abortion a secure—though not an imperturbable—life. Despite the obvious threats of legal and political upheaval in the (p. 699) United States, the ties that bind reproductive choices to liberal values and embed them in economic and social life may yet drive the same result.
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