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 But basic rights will not be withdrawn.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, shows that when the legislative process is allowed to operate, political compromise is not only possible but typical."
The Perils of Compromise
The widespread desire that some kind of compromise be found for the divisive abortion issue is understandable: our public law should not appear wholly indifferent to the values that underlie the deeply held moral beliefs of large numbers of Americans. Even though I am naturally inclined to welcome suggestions for ameliorating contentious issues, I want to argue here that proposed "compromise" restrictions on abortion are unacceptable. What is proposed as compromise simply does not satisfy the concerns of those who find abortions morally troublesome. But the "moderate" restrictions in force and those now being introduced do impose real harm on many women and fall with such disproportionate force upon the less fortunate that they offend fundamental principles of equality.
The kinds of abortion legislation being advanced in the sheep's clothing of compromise fail to take into account the social and economic reality of abortion in America. Some "intermediate" restrictions now being proposed are coercive laws that would seriously curtail all women's autonomy. Other proposals would retain access to safe and legal abortion for affluent urban women while compromising away the rights of young, poor, uneducated, and rural women. Many compromise legislative proposals are disguised trades that would enable those who are affluent to retain access to abortion (for now at least) in exchange for "moderate" restrictions that place abortion out of the reach of less fortunate women. It is a devil's bargain, and it must be rejected.
Legislative proposals to regulate abortion fall into these general categories: (1) access restrictions, such as mandatory waiting periods, abortion-specific health and safety regulations, and parental or spousal notification and consent requirements; (2) timing restrictions, which require that abortions be performed only in the earlier weeks or months of gestation; and (3) justification requirements, limiting the reasons that count as acceptable grounds for terminating a pregnancy. Each type carries its own perils.
Restrictions on Access
Requirements that all second trimester abortions be performed either in hospitals or in clinics resembling small hospitals may raise the cost of abortion but do not seem wholly to preclude the exercise of choice. Similarly, a mandatory waiting period (recently enacted in Pennsylvania and now under consideration in several other states) may not seem an undue burden from the perspective of an urban professional woman. But from the perspective of a young pregnant woman, eighteen years old, unmarried and living in rural North Carolina, a different picture emerges. Seemingly innocuous requirements may have devastating consequences. A low-income, eleventh grade girl struggling to finish high school and prepare herself for life may have limited access to transportation and never, in fact, have travelled out of the rural county where she was born. An unnecessary hospitalization requirement can raise the cost of an abortion from $250 to more than $1,000 and involve a trip of hundreds of miles. A 24- or 48-hour waiting period may necessitate two long trips and an overnight stay in a strange and distant city.
To The Washington Post, such legislative requirements may seem no more than "skirmishing around the edges," minor impediments in a world of otherwise easy access to "abortion on demand." For much of America, however, the reality is far different. Stephen Wermiel and Michel McQueen report in The Wall Street Journal that "abortion is already scarcer and more difficult to obtain in many parts of the country than the existence of a constitutional right implies.... Women in western Missouri who want a second trimester abortion must either drive the 250 miles across the state or cross into Kansas." In North Dakota, Isabel Wilkerson writes in The New York Times, "what was always a difficult journey has become even more daunting since the only physician performing abortions in North Dakota retired." In part because of hostile pressure from pro-life activists, "none of the state's 1,200 physicians have stepped forward to fill the void." Eighty-two out of the eighty-seven counties in Minnesota have no readily available abortion provider.
The critical fact is that even seemingly modest restrictions will increase the barriers to access in a system that already makes it extremely difficult for many women to secure abortions. Legislative restrictions can be, and often are, the final straw. The ban on Medicaid funding of abortions for the poor, coupled with a ban on performance of abortions in hospitals receiving public assistance (upheld in the Webster decision), severely curtailed access for many. Unnecessary clinic regulations and mandatory, though medically unnecessary, tests add even more to the cost. If hospitalization is required and public hospitals are barred from participation, only expensive private hospitals, often distant and inaccessible to the poor and the young, will remain.
One of the principal consequences of many abortion access restrictions is that they delay abortion. Delayed abortion creates a greater health risk, especially for teenagers. These delays may be lengthy for many young women, especially those who are poor and less well informed: they may postpone state-mandated parental involvement and avoid as long as possible the alternative of going to court for judicial permission. Or they may find it necessary to delay the abortion while raising funds or seeking transportation to a distant location.
Delay is not the only adverse consequence of the mandatory parental involvement laws now on the books in more than thirty states. As one lower court noted, "Although family relationships benefit from voluntary and open communication, compelling parental notice has an opposite effect. It is almost always disastrous." New York Assemblywoman Gloria Davis notes that even parental involvement laws with judicial bypass provisions lead to "scared, pregnant teenagers being shuffled through an overburdened court system along with drug dealers and other violent criminals, or trying to scrape the money together to travel someplace with less restrictive laws." Evidence in the Minnesota case before the Supreme Court this term showed that some pregnant minors "were so afraid of the [judicial] proceeding that they turned mute in court, were 'wringing wet with perspiration,' and frequently required a sedative. Some vomited and one began to abort spontaneously during the court process." However well-intentioned in theory, parental involvement laws in practice often become a form of state-sponsored child abuse.
That so many abortion access regulations are dysfunctional in practice should not be surprising. Such laws are seldom actually motivated by their ostensible goals of enhancing family relationships or protecting women's health. They are instead intended to prevent as many women as possible from having abortions. At that unstated goal they often succeed. In the four years following the implementation of a two parent notification law in Minnesota, the birth rate among Minneapolis women aged fifteen to seventeen rose 38.4 percent.
By pricing and regulating abortion beyond the reach of many women, access restrictions draw a line across society on social and economic grounds. Above that line women continue to have access to safe and legal abortions; below it women are relegated to illegal, dangerous alternatives, or forced into continued pregnancy and childbirth. The more regulations the states impose, the higher the line goes.
Restrictions on Timing
More than 90 percent of all abortions in America now occur within the first twelve weeks of pregnancy. Nonetheless, the pro-life movement has succeeded in making late-stage abortions a prominent public issue, often exemplified by graphic pictures of fetuses aborted at advanced stages of development. Proposed laws that limit the performance of abortions to the earlier months of the gestational period appear to respond to legitimate concerns. Later abortions are more dangerous than earlier abortions. And for many, abortion turns morally problematic as the months change a microscopic fertilized ovum (62 percent of which will spontaneously abort) into a fetus that toward the end of pregnancy fully resembles a human infant.
There is no good reason why as many as 10 percent of American abortions should still take place at so late a stage, especially considering the greater health risks to pregnant women caused by delaying abortion. As Mary Ann Glendon notes, "Unlike partisans on either side, the public seems to believe that there is an important difference between early and late stages of gestation."
Yet there is bitter irony to the pro-life movement's public focus on late abortions. If anyone active on the abortion issue is responsible for the unnecessarily high percentage of late abortions now being performed, it is those who march under the pro-life banner. As a result of Roe v. Wade, abortion became not only safer and cheaper, but also far more likely to be performed very early in pregnancy.
Some late abortions will always be necessary as fetal abnormalities are discovered or as threats to a woman's health emerge during pregnancy. More importantly, the way to prevent late abortions is not to obstruct or delay early abortions. The women most likely to delay until the second trimester are those who are poor, young, and without access to local, affordable providers. The absence of funding for abortions and the presence of waiting periods, consent requirements, and other needless regulations will push many American abortions into the second trimester. The adoption of a parental notification law in Minnesota, for example, caused the percentage of minors obtaining second-trimester abortions to rise by 26 percent. Adding to these burdens will increase the number of late abortions; eliminating restrictions would reduce the number.
Glendon praised European statutes for setting a gestational time limit for legal abortions. These statutes, however, operate in a wholly different context from ours. Glendon notes that Sweden's cutoff for abortion is eighteen weeks, after which permission from a national board is required. But in Sweden the government does everything possible to ensure that any woman who wants to terminate her pregnancy may readily do so in the first eighteen weeks. A woman who wants to end a pregnancy may go to her well-publicized, accessible, free, neighborhood public health clinic and in complete confidence obtain an abortion. In most of the Western world outside the United States, Janet Maslow Cohen notes, a woman who is legally entitled to an abortion will find that "her government will support her abortion decision in the two most equality-promoting ways that government can -- by providing her with the safest procedure available in her society and by helping to pay for it."
To enact in the United States laws that simply prohibit abortions after twelve or eighteen weeks would constitute a strange and cruel response to the issue of late abortions. In this country, legislative deadlines for abortion would co-exist with access regulations designed to prevent women from being able to meet the deadline. No state truly concerned about either the increased maternal health risks or the moral implications of late abortions should consider the coercive step of prohibiting second trimester abortions while simultaneously pursuing policies that cause abortion to be delayed. (Third trimester abortions -- those near or after the point of fetal viability -- are almost always a medical crisis, and usually tragic events. But they do not pose a public policy issue, for a simple reason: no one wants to wait until the third trimester to have an abortion. Only 0.8 percent of all abortions occur after the twenty-first week, almost always for fetal abnormalities, and 99 percent of those few abortions that do occur after the twenty-first week occur before the twenty-fourth week. Nancy Rhoden notes, "Essentially the only defect for which abortion will be performed after week twenty-four is anencephaly. Abortion should be permissible at any time for this defect, because the anencephalic fetus, or infant, is never viable." Mary Ann Glendon's harsh criticism of Roe for not requiring every state to forbid or regulate third trimester abortions thus seems way off the mark. It is not clear how government regulators could provide any meaningful assistance in these very rare and tragic circumstances.) Bans on funding for abortions, shutting off access to public hospitals, parental consent/ judicial bypass laws, and testing requirements all fall into this category. Legislators who are troubled in principle by late abortions should support instead measures ensuring that every woman who wants to terminate a pregnancy can do so as early and as safely as possible.
There are further ironies. Better access to abortion, as noted above, helps prevent late abortion. Better access to contraception helps prevent abortion altogether. Yet strong elements in the pro-life movement oppose contraception as well. The United States has fallen far behind other advanced countries in the research and development of birth control choices. According to a 1990 study by the National Academy of Sciences, as many as two million unwanted and unplanned pregnancies occur each year because of contraceptive failure; between one-third and one-half of all abortions in America could be prevented if more birth control options were available. The study states that "the stronger the desire to reduce abortion, the greater should be the investment to develop new methods of contraception."
Former Surgeon General C. Everett Koop has noted, "We are at a very strange place in history, where the people most opposed to abortions are also opposed to the one thing that would stop them, which is contraceptive information."
Most pro-life groups strongly oppose making contraceptives more widely available, arguing that such a step might be seen as condoning adolescent sexuality. They seem to prefer subjecting all women to a coercive regime of abortion regulation to the slight risk of marginally encouraging premarital sex. That weighing of values is difficult to justify.
Mandatory Justification Requirements
The last category of legislative restriction on abortion are enactments that would limit the reasons for which a woman may decide to terminate a pregnancy. Such laws affect every woman who seeks an abortion. If, despite their harshness, they seem to have significant public support, it is because of a deep confusion among commentators that erroneously translates widespread personal ambivalence about abortion into a positive prescription for coercive public policy.
Undoubtedly, many Americans personally favor abortion in some circumstances, and personally oppose it in others. A national poll by The New York Times showed that while most Americans approved of abortion when a woman's health was seriously endangered (87 percent) and when there was a danger of serious fetal defects (69 percent), majorities also thought that a woman "should not be able to get a legal abortion" when "a single woman did not want to marry the man who made her pregnant" (50 percent opposed, 42 percent in favor) or when "a low-income family could not afford any more children" (49 percent opposed, 43 percent in favor).
It is a fundamental mistake, however, to suppose that these respondents would, upon reflection, favor enacting into their state's code of laws their own personal assessment of when abortion is wrong. Although the literal wording of the above questions called for respondents to state when a "woman should be able to obtain a legal abortion," respondents were likely giving their own personal views of when one "should" or "should not" have an abortion. That interpretation is borne out by the answers given when respondents were directly asked the central public policy question: "If a woman wants to have an abortion and her doctor agrees to it, should she be allowed to have an abortion or not?" Sixty-three percent said that woman should be allowed, and only 24 percent said no. The most plausible reading of the ambiguous polling data is that Americans personally condone or disapprove of abortion for a variety of reasons, but, in the end, prefer to leave the choice to individual women.
Even if a majority of Americans did believe in the abstract that the law should determine what reasons justify an abortion, that majority would likely disappear if more people understood the mechanisms of government regulation required to enforce such a policy. Consider, for example, a law that prohibited abortion when "used as a means of birth control." As Gene B. Sperling and I have written, "The fundamental flaw in these laws is what they would require of every woman who decides to terminate a pregnancy. Potentially, each woman could be subjected to an intrusive and humiliating process of proving to some official committee, or court, that she was using birth control when she became pregnant." Even if only one "reason" for having an abortion were prohibited by law, every woman would have to prove to some government board that the prohibited reason was not her reason. In the 1990s and beyond, those hostile to all abortions are likely to seek appointment to committees that would decide these questions. In such a case, choice could be replaced by cross-examination.
In a clever use of semantics, the bill purported to ban those abortions that were "used or sought as a method of birth control." The bill, however, deemed all abortions to be "for birth control" unless the woman and her physician could prove that her abortion fell within one of three exceedingly narrow exceptions: severe fetal disability; pregnancy by rape or incest; and where "severe or long lasting physical health damage" to the pregnant woman "would result" from continuation of the pregnancy. (A physical condition that "might" result in severe health damage to the woman would not be sufficient.)
Each of the three exceptions would have been nearly impossible to establish. A woman who had been raped, for example, could be enjoined by a judge from having an abortion unless she and her physician could prove (1) that she had reported the incident within seven days; (2) that she was in fact raped; and (3) that her pregnancy resulted from the rape and not from some other act of intercourse. The second would often be difficult to prove, the third almost impossible. In light of the severe penalties, and the difficulty of proving in court the existence of one of the narrow exceptions, no reasonable risk-adverse physician would ever have undertaken to perform any abortion in Idaho under this statute.
And what did Professor Glendon say about this measure? In spite of her much heralded prediction of legislative moderation and praise for "compromise" laws on the European model, Professor Glendon offered crucial assistance to the passage of the drastic Idaho bill by writing a letter, widely circulated by Idaho pro-life leaders, stating, "I certainly consider the bill to be constitutional" and noting, "As for the appropriateness of the bill to Idaho circumstances, it is my earnest hope that that decision will be made in Idaho (and remade when and if needed), rather than in Washington."
The fact that Governor Cecil Andrus decided after extensive deliberation to veto the bill has obscured the most important political message of the Idaho saga. Contrary to many sanguine predictions, both houses of an American legislature -- after extensive hearings and acting with full knowledge of its consequences -- were willing to pass an extreme law that would have essentially prohibited all abortions. The Governor's veto -- based upon a preference for a somewhat less drastic bill and a concern that the Supreme Court as presently constituted might have invalidated this extreme version -- offers scant comfort for the future.
After Idaho, we know that some state legislatures will not be content with "moderate" restrictions that "merely" foreclose abortion for the most vulnerable women. And even if the line can be held against enactment of the most draconian laws, lesser, "marginal" restrictions severely harm women who are hostage to geography, youth, poverty and inadequate education. For the affluent and the comfortable to sacrifice the right to abortion of the less fortunate would not really be a compromise. It would be a sell-out.