Getting Beyond Roe
Why returning abortion to the states is a good idea
The Politics of Abortion, by Anne Hendershott, Encounter Books, 179 pages, $25.95
In 1985 a prominent liberal legal figure argued that Roe v. Wade, the Supreme Court decision that established a constitutional right to an abortion, was a "heavy-handed judicial intervention" that "was difficult to justify and appears to have provoked, not resolved, conflict." The writer was Ruth Bader Ginsburg, now an associate justice on the U.S. Supreme Court—and also now a strong supporter of Roe.
Ginsburg isn't the only backer of abortion rights to have taken issue with the 1973 decision. In 1995, for example, the University of Chicago's Cass Sunstein, a superstar among liberal law professors, wrote in the Harvard Law Review that the high court "should have allowed the democratic processes of the states to adapt and to generate sensible solutions that might not occur to a set of judges." Roe, he argued, centralized an issue centered around privacy, reproduction, and medical ethics, all matters that traditionally have been the province of the states. Moving those moral debates to Washington forced a one-size-fits-all policy on the entire country, raising the stakes, and therefore the contentiousness, of an already divisive issue.
A new book by a staunch critic of abortion also suggests a decentralized approach. In The Politics of Abortion, the conservative sociologist Anne Hendershott offers a scathing, unabashedly polemical history of the pro-choice movement. While Hendershott leaves no ambiguity about her own position on the issue, she closes the book by calling not for more federal antiabortion laws but for returning the issue to the states. It is time to end the "superficial slogans that rally the troops but build impenetrable barriers," she writes. "Taking the discussions out of the courts and back to the realm of local policy, where we might once again debate the politics of abortion as neighbors and friends, would be a good start."
On that much, at least, she's correct. The "pro-choice"/"pro-life" split suggests that only two options are on the table, when in fact far more positions are possible. Just as pregnancy is a continuum, so too is the spectrum of opinion on abortion, from what might be called the Monty Python position—"Every Sperm Is Sacred"—to the philosopher Peter Singer's argument that even infants lack the self-actualization that would make it immoral to kill them, or at least no more immoral than killing an animal of similar mental capacity. Most views, of course, lie somewhere in between, offering different perspectives on everything from when human life begins to who, aside from the mother, might have a say in the decision to end a pregnancy.
Abortion policy, then, is about drawing lines and setting community standards. Such issues are best dealt with in those diverse laboratories of democracy, the states. A federalist approach would allow a wide array of abortion policies that better reflects the spectrum of public opinion on the issue. That isn't to say a federalist approach would leave everybody fully satisfied. There would still be people stuck in states whose laws don't reflect their personal values. But that much isn't very different from the way things stand today. Roe prevents any state from banning abortion outright, but in places like Utah and Mississippi abortion is extremely rare, due not just to legal restrictions—waiting periods, mandatory counseling, parental notification—but also to the fact that prevailing community values mean there isn't much of a market for the procedure. Mississippi has just one abortion clinic in the entire state.
The main difference between a purely federalist approach to abortion and what we have today is that in the former each side wouldn't be clamoring to control the federal government so it could impose its favored policies on the rest of the country. The battles would be fought in the state legislatures, and national politics would no longer be held hostage to the abortion issue.
For such a scenario to emerge, the Supreme Court would need to do more than overturn Roe. It would have to make it clear that the regulation of abortion is a police power reserved to the states, and that it will no longer entertain attempts to override abortion policy made by the states. That approach wouldn't be perfect, and it wouldn't satisfy the hard-core activists on either side of the debate, but it would be far preferable to what we have now. As it stands, the Supreme Court is one vote from overturning the decision, with two pro-Roe justices—Ginsburg and John Paul Stevens—generally considered the members most likely to retire.
Unfortunately, judging from the Court's recent ruling in Gonzales v. Carhart (which upheld a congressional ban on "partial birth" abortions) and the fair-weather approach to federalism taken in cases like Gonzales v. Raich (which upheld a federal ban on medical marijuana), a decision overturning Roe probably would leave the door open to a national ban. The divisive debate would continue.
A different course could be charted if the right embraced the more decentralist approach advocated by Hendershott. A professor of sociology at the University of San Diego, Hendershott is no center-hugging moderate. Her call for a more civilized debate comes after nine chapters of pointed attacks on the abortion rights movement. Her politics sometimes gets in the way of clear-eyed analysis, but her book is nonetheless an informative look at one side of the debate.
In a nutshell, Hendershott's argument is that abortion has become the defining issue for the American left, more important than social justice, civil rights, economic equality, or feminism itself. She describes, for example, efforts by the group Democrats for Life to get a link from the Democratic National Committee's website. Although it links to sites as varied as the Easter Seals, the Forest Service, and the Oneida Indian Organization, the party denied the group's request.
Hendershott's historical narrative documents how the abortion rights lobby ballooned from a few influential, well-funded, but outnumbered radicals in the early 1960s to a full-fledged movement by the early 1970s. The Ford Foundation, for example, funded a group called Catholics for a Free Choice, a spin-off of the National Organization for Women that sought to carve out wiggle room on the issue for Northeastern Catholics. Through the 1970s, groups like the National Abortion Rights Action League were able to tie abortion inextricably to feminism, a union that seems inevitable today but at the time wasn't obvious. Hendershott points out that one of the seminal feminist texts, Betty Friedan's The Feminine Mystique, never mentions abortion; some early feminists, such as Susan B. Anthony, were vocal opponents of the practice.
By the 1980s the movement controlled much of the Democratic Party. Well-financed pro-choice groups were able to fund candidates who supported abortion rights, while money for anti-abortion liberals was almost nonexistent. By 1993, Hendershott writes, "pro-life voices within the party had effectively been silenced." High-profile Democrats such as Bill Clinton, Al Gore, and Jesse Jackson (who had once described abortion as "genocide") all flipped on the issue before seeking national office.
Hendershott criticizes the pro-choice movement for trying to suppress information that might injure its cause. In one particularly interesting passage, she discusses General Electric's remarkable "4D" ultrasound imaging system, a technological innovation that renders striking images of fetuses in the womb. In 2002 G.E. marketed the product in a national campaign aimed at young women, showing expectant mothers bonding with their unborn children while Roberta Flack sang "The First Time Ever I Saw Your Face." The technology was enormously popular. 4D ultrasound stations even began to appear in shopping malls.
Abortion rights proponents leapt into action, fearing that too-real images of unborn fetuses might cost them popular support. After pressure from pro-choicers, G.E. pulled the TV ads, pulled testimonials from its website, and began marketing the technology solely for medical purposes. Several states banned the use of ultrasound for "nonmedical" purposes, including New York, where then–Attorney General Eliot Spitzer subpoenaed 34 anti-abortion crisis pregnancy centers for "practicing medicine without a license" because they used the technology.
The 4D controversy is a striking example of how one side of the abortion debate used the law to suppress the flow of information to expectant mothers out of fear of what that information might do to their cause. But Hendershott has little to say about similar efforts on the anti-abortion side. Pro-life lawmakers, for example, repeatedly have attempted to prohibit physicians who receive federal funding from even discussing abortion with their patients, particularly at overseas military hospitals.
Indeed, while Hendershott offers a wide-ranging critique of the pro-choice movement, she never acknowledges that pro-lifers have employed similar tactics. (She does set aside one chapter to attack the violent wing of the anti-abortion movement.) The Christian Coalition and kindred groups, for example, have gone to great lengths to purge their foes from the national Republican Party. They've just been less successful at it.
Consider former New York Mayor Rudolph Giuliani, a lifelong pro-choicer. Since announcing his candidacy for president, he has told the conservative talk radio titans Sean Hannity and Rush Limbaugh that in spite of his position on the issue, he would nominate justices like the fervent abortion opponents John Roberts and Samuel Alito to the Supreme Court—a signal to Republican primary voters and powerful pro-life activists that they have nothing to worry about. (Of course, Giuliani also says he will continue to support abortion rights. How he'll reconcile the two isn't exactly clear.) And while Hendershott regrets that pro-choicers have federalized the abortion debate, she is conspicuously silent on, for example, the conservative push for a pro-life amendment to the U.S. Constitution (a key plank in the Republican Party's 2004 platform) or efforts by the GOP-controlled Congress to restrict abortion.
Given this one-sidedness, some readers might suspect Hendershott's support for a federalist approach is disingenuous. "Taking the discussions out of the courts" to the realm of "local policy" would of course require Roe to be overturned, which would be a milestone victory for the pro-life movement. Nevertheless, Hendershott's history of the pro-choice movement suggests that while overturning Roe would represent a political victory for pro-lifers, the reversal wouldn't necessarily prevent many abortions. The pro-choicers achieved enormous momentum in the '60s and '70s, and support for reproductive rights is much stronger today than it was before Roe.
As late as 1967, 49 of the 50 states still made it a felony to provide an abortion. But in June of that year, the American Medical Association passed a resolution reversing its prior opposition to abortion in cases of rape or incest, severe physical deformity of the fetus, or danger to the health or life of the mother. That started a sea change in state legislatures. By the time Roe came down in 1973, just six years later, 17 states had legalized abortions performed to preserve the life or health of the mother. Colorado, North Carolina, and California also included exceptions for the mother's mental health. Alaska, Hawaii, Washington, and, most significantly, New York had passed laws essentially guaranteeing abortion on demand.
New York's law, passed just a year before Roe, didn't include a residency requirement. The Alan Guttmacher Institute, a pro-choice research organization specializing in reproductive issues, estimates that some 100,000 women traveled to New York City to obtain abortions in the time after Albany liberalized the state's laws and before the Supreme Court issued its opinion.
Without Roe, the pro-choice movement would have had to keep taking its case to the state legislatures. States with more permissive attitudes about sex and reproductive rights likely would have passed more permissive abortion laws. Other states would have embraced tighter restrictions. And some states would have kept the existing prohibitions in place.
Had Roe gone the other way, it's likely that "partial-birth" abortions already would have been prohibited in most states. (The vast majority of the public opposes the procedure at issue in Carhart, which involves partially delivering a fetus, then making an incision at the base of its skull and vacuuming out the contents.) States with a strong interest in preserving parental rights likely would have required parental permission for a minor to obtain an abortion. Some states might allow abortion but prevent the use of public funds to pay for the procedure. Others might allow abortion on demand and provide funds to ensure poor women's access to the procedure.
A federalist approach wouldn't minimize the stakes for either side. But it would recognize how important the issues are to both sides by allowing as many people as possible to live under an abortion policy that best reflects their own values, and it would transform national politics by moving a particularly poisonous argument to a more appropriate venue. Justice Ginsburg may have embraced Roe, but other supporters of abortion rights have moved in the opposite direction. Pro-choicers who have recently criticized Roe v. Wade include The Washington Post's Benjamin Wittes and Richard Cohen, Harvard's Alan Dershowitz, and Slate's William Saletan. It's healthy that at least a few voices on both sides of the debate are finally coming to realize the benefits of leaving this issue to the states.
Radley Balko is a senior editor of Reason.