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A world without Roe: how different would it be?

A World Without Roe: How Different Would it Be?

Though presented with many opportunities over the past 16 years, the Supreme Court has yet to retreat from its ruling in Roe v. Wade, the case that is now understood as establishing a constitutional right to abortion. The Court's ruling this year in a Missouri abortion case may be different. No one knows exactly how the views of the newest justice, Anthony Kennedy, differ from those of Lewis Powell, the Roe-supporter he replaced. It seems, though, that Kennedy could well end up siding with Roe critics O'Connor, Rehnquist, Scalia, and White, tipping the scale against Blackmun, Brennan, Marshall, and Stevens.

But even if most justices no longer support Roe, neither the worst fears of pro-choice partisans nor the highest hopes of pro-lifers are likely to be realized. Only rarely does the Supreme Court make an abrupt break with its past rulings. And the sustained controversy provoked by Roe will doubtless discourage the Court from now delivering as stunning a blow to those concerned about women's rights as it did in 1973 to those who expected the law to protect fetal life. What seems more probable is that the line of decisions extending from and expanding Roe will be pruned and reshaped to achieve a better balance between the rights of pregnant women and the protection of developing life. Rather than overruling Roe outright, the justices may simply broaden the category of abortion-related issues that can be thrashed out in the give-and-take of the legislative process. If so, Roe v. Wade might well emerge shorn of some of its wider implications. But its narrow holding--that a statute permitting abortion only to preserve the life of the pregnant woman is unconstitutional--would probably remain intact.

What kinds of statutes would state legislatures produce if the abortion issue were returned to them, or if, as is more likely, the opening in the window of permissible state regulation were gradually widened? In the six-year period before Roe v. Wade, nineteen states had already liberalized their abortion laws. We can gain some idea of how this law revision process might have played itself out not only by examining these laws, but by examining abortion law in other developed nations that have settled the matter legislatively. The first conclusion is that a middle ground does exist. Although many people consider moral compromise on abortion impossible, Western European experience shows that political compromise is not only possible but typical, even in countries as deeply divided on the abortion question as ours.

A second striking fact that emerges from comparison of legal approaches of Western nations to abortion is that no country in Europe has gone so far as our Supreme Court in permitting abortion on demand. A small group of countries does exempt abortion from criminal penalties during approximately the first trimester of pregnancy. But even Sweden (which is the least restrictive in this respect) begins to regulate in the interest of the fetus after eighteen weeks, in contrast to the regime of Roe v. Wade, which forbids such regulation until viability and permits it thereafter only on condition that it does not interfere with the health (broadly understood as "well-being") of the pregnant woman. At the other end of the West European spectrum are two countries (Ireland and Belgium) that have what amounts to a blanket prohibition on abortion.

The typical approach by far, however, is a compromise that takes various forms, but has four common features: (1) abortion is clearly identified as a criminal offense even in the first trimester, but is exempt from punishment under certain conditions; (2) after the early weeks of pregnancy, these exemptions are strictly limited and closely supervised; (3) criminal sanctions are directed only or mainly toward the abortionist rather than the pregnant woman; and (4) the places where abortions may be performed are regulated so that abortion cannot become a specialized profit-making industry. A major variation within this pattern, as one would expect, concerns the grounds on which early abortion may be exempted from punishment. The range of positions on this point extends from countries where only a serious medical problem or a pregnancy resulting from rape or incest will suffice, to others where social or economic hardship is an acceptable reason. A second important variable concerns who decides whether the ground for early abortion is present: the woman herself, a doctor, or a committee of some sort. Several West European statutes require a waiting period of a few days after the initial request for abortion is made. During this period the pregnant woman must be informed not only about alternatives to abortion, but about the material assistance that may be available to her should she decide to carry the fetus to term.

These types of statutes fit remarkably well with what polls consistently reveal about sentiment in the United States concerning abortion. Most Americans, including many who, like President Bush, are sympathetic to the pro-life cause, feel uncomfortable about making abortion illegal. At the same time a majority, including many with pro-choice leanings, are uneasy about establishing a nearly absolute right to dispose of developing life. Although public debate has been dominated by those using the language of no compromise, most Americans are less rigid and more uncertain--if not about the morality of abortion, then about how it should be dealth with in a pluralistic society.

If the Supreme Court had not brought the development of American abortion legislation virtually to a halt in 1973, it is probable that by now most American states would have done what most Western nations have done: tried to balance compassion for pregnant women and concern for fetal life, emphasizing the former in the early stages and the latter as the pregnancy advances. But matters have become more complicated since 1973. To begin with, the Court's 1973 notion of viability has been undermined by technological innovations that have reduced the age at which a fetus can survive outside the womb. More important, sixteen years have passed during which our political processes have not been allowed to operate in the ordinary way with respect to abortion. Many state legislatures have attempted to restrict abortion within the narrow limits available to them. Like steam escaping through a tiny aperture, these laws have often had a special intensity, a pent-up quality--and nearly all have been struck down by the Supreme Court.

Less well known, however, is that about half the states have made no effort to restrict post-viability abortions. Most legislators were delighted to be relieved of having to stand up and be counted on such a divisive issue. They may be inclined now to look for ways to keep passing the buck. In many states, the local courts will be only too happy to assist this flight from politics. Any new laws that are produced in the wake of a Roe retrenchment are also certain to be challenged in state courts under state constitutions. Inevitably, there will be some state Supreme Court judges who, like the majority justices in Roe v. Wade, are eager to substitute their own views of proper social policy for those of elected representatives. The U.S. Supreme Court will thus not see the end of its involvement with abortion anytime soon.

If that is the case, and if whatever form future American abortion regulation may take fails to fulfill completely the aims of either the pro-life or prochoice movements, why should the Supreme Court put us through the trouble of returning the issue in large part to the hurly-burly of the state legislative process? One reason might be to make us define ourselves. In countries like ours, where people have little in the way of a common religion, history, or traditions, law often takes on the role of a carrier of values. It reveals who we are and what kind of society we want to be. Abortion law, in particular, is freighted with symbolism about life, liberty, gender, and dependency. By allowing one important value, the right of privacy, to trump all others, the Supreme Court in Roe v. Wade did not do justice to the complexity of American sentiment about the grave and agonizing issues involved in abortion.

Furthermore, when the court declares an area off-limits for legislation, the losers are left with few political outlets. They can seek a constitutional amendment, or they can work for a change in the Court's mind or composition. Because of the deleterious effects of confining political activity to those channels, it seems that a certain degree of modesty on the part of the Courts is appropriate, at least in those areas where there is no clear guidance in constitutional text or tradition. Legislatures, with all their well-known defects, are still the branch of government to which we have entrusted the main business of weighing and deciding among competing interests and values. Moreover, we often benefit from permitting the states to function as what Louis Brandeis called a laboratory system, testing diverse approaches and tailoring them to local circumstances. The process of bargaining, education, and persuasion that goes on in and around legislatures is well suited to issues like abortion, where most people are unsure about what the "right" approach is, and where the factual picture is changing constantly with biological and technological advances. With a social problem of such complexity, the best way to proceed is not through a showdown in court, where winner takes all, but by keeping dialogue alive in the nation's statehouses, where there is always another day. Mary Ann Glendon is professor of law at Harvard University. Portions of this article appeared in The New Republic, Feb. 20, 1989, and are reprinted here with permission.(c) The New Republic, Inc., 1989.
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Title Annotation:abortion law
Author:Glendon, Mary Ann
Publication:The Hastings Center Report
Date:Jul 1, 1989
Previous Article:Sweden: growing interest in ethics.
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