Should We Compromise on Abortion?

The Supreme Court's 1989 decision in Webster v. Reproductive Health Services has turned abortion into a central issue of majoritarian politics: more than half a million Americans have rallied in the nation's capital in the past year to assert strongly that the right to abortion be upheld or restricted. Many prominent commentators are concluding, however, that the "extremists on both sides" must yield to the quieter voices in favor of moderate solutions and legislative compromise. That view, it seems to me, is profoundly mistaken.

The calls for compromise are appearing with increasing frequency. Historian Fred Seigel, for example, writes in a recent issue of The Atlantic that the abortion issue "pits advocates for women's rights against proponents of fetal rights on an issue that cries out for the compromise heartily desired by the vast majority of the American people." Once the "true believers" on each side have exhausted themselves, William Safire writes, the sensible "pro-compromise majority" will step forth to "reject politicians who slavishly follow pro-life or pro-choice fundamentalists." Opinion polls consistently show, says The New York Times, a "substantial middle ground in public opinion, an ambivalent majority that is opposed to an unlimited right to abortion but is also convinced that there are situations when abortion should be available." Many argue that pro-choice supporters should not be unduly alarmed by the return of the abortion issue to state legislatures. Following the adoption last fall of Pennsylvania legislation precluding most abortions in public hospitals, requiring a 24-hour waiting period, and making every married woman certify in writing that she had informed her husband about her plans for an abortion, the editors of The Washington Post offered a reassuring opinion:

It is our suspicion ... that even if the worst nightmare of the abortion rights groups came true and Roe were overturned entirely, not a single state would move to criminalize abortion. There will be skirmishing around the edges for years on questions such as funding and parental notification. Some legislatures will adopt some restrictions, but then the voters will have the final word. In a number of states, minor changes may be accepted. But basic rights will not be withdrawn.

Not only popular publications have argued that legislative compromise on abortion is inevitable and desirable. The argument that legislatures will (and should) gradually compromise on moderate legislative restrictions received serious scholarly support from the publication two years ago of an ambitious comparative study, Abortion and Divorce in Western Law, by Harvard Law Professor Mary Ann Glendon. "Interest in her analysis," The New York Times recently reported, "has grown since last summer when the Supreme Court ... at least partially returned legal authority over abortion to state legislatures."

In her complex critique of Roe v. Wade, Glendon argues that Roe endorsed an "extreme and isolating version of individual liberty" and contrasts that with the more "communitarian" approach she finds in Europe where most countries take a "middle position" of disapproving abortion in principle while permitting it in circumstances deemed by the legislature to constitute good cause. She draws a sharp contrast between the European situation and that of the United States where "to a greater extent than any other country, our courts have shut down the legislative process of bargaining, education, and persuasion on the abortion issue." (Glendon suggests that Roe v. Wade "insulated the pregnant woman from the larger society" and that it precluded humane statutory initiatives and supportive communitarian approaches to the problem of abortion and unwanted pregnancy. Nothing in Roe v. Wade, however, precluded a woman from choosing to consult her parents, spouse, minister or supportive friends about her decision; nothing in Roe precluded government from reducing the number of abortions by making more effective birth control widely available; nothing in Roe v. Wade precluded the community from providing the financial support that would make it easier for more women to choose to have more children. What Roe foreclosed was not communitarianism, but compulsion.) Arguing that a world without Roe "would not necessarily represent a setback for women," Glendon asserts that it is erroneous to conclude that "no compromise is possible" on abortion. The continental experience, she concludes,

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