Abortion as a Legal Battle

The controversy over whether or not a woman should be able to choose abortion is a classic community conflict, pitting against each other people who are absolutely convinced of the justice of their cause. This moral polarization -- life against liberty Tribe calls it -- is captured in the title, but the author's preference for the pro-choice position is so clearly evident that the title is almost misleading. This is not a book about moral conflict, or the people involved in the clash of absolutes, but a review of the historical, social and legal context in which the clash occurs.
When Roe v. Wade was handed down by the Supreme Court on January 22, 1973, it caught many people by surprise. The people and institutions that would become the Right to Life Movement were shocked to find the authority of the Constitution behind a position they found so morally reprehensible. But for those familiar with recent history, this development was a logical step. In the preceding twenty years, respected members of the very profession which had worked to criminalize abortion during the Nineteenth Century -- physicians -- had lobbied legislatures to give them more latitude in advising their pregnant patients. Their reform efforts were aided by two tragic episodes in the 1960s; the thalidomide scare and a rubella epidemic. The rise of the women's liberation movement in the late sixties brought a new constituency into the arena. The result of all this was that by 1973, four states had repealed abortion restrictions for at least the first trimester and many others had liberalized them.
Nor was the issue a new one for the courts. The right to privacy had already been found in the Constitution when the Supreme Court reviewed state birth control statutes. Roe was a logical extension. Tribe's review of the constitutional arguments is one of the clearest and most cogent available to a nonlawyer. Logical though it was, the Court was ahead of the country. The nascent movement against reform was given a quantum shove, and the nature of the debate was radically shifted over night.
Since then those who favor liberty over life have been fighting a defensive action, one which they appeared to be losing as Congress and the states passed restrictive laws and the courts mostly upheld them. During these years each side sought to hold responsible the people who have the most to lose from moral conflicts -- elected officials -- while trying to frame each argument in the most publicly acceptable manner. Each side purported to speak for the public when the polls showed that the most people's position was not absolutist; the public supported abortion under some circumstances, by some women, at some time. The battle shifted once again in 1989, when a divided Supreme Court held in Webster that a state can require tests for fetal viability prior to an abortion, and candidates for office discovered that the real silent majority preferred that their own moral decisions be kept private. Since then the community conflict has become a form of civil war.
Tribe's contribution to the struggle is to "show beyond doubt that ideas about abortion and attitudes about its availability are highly culture-specific, reflecting the time and place in which they arise" (p. 76). Thus he argues that the compromises of other countries which make available privately abortions that are disapproved of publicly won't work in a society concerned with enforceable norms about individual rights. Instead he looks to technology to once again change the nature of the debate. After reviewing past and present developments he argues that "the development of an artificial womb or the perfection of embryo transfer technology beyond the first few days of pregnancy would in practical reality separate the two analytically distinct questions raised by the debate about abortion that have heretofore remained practically inseparable -- the question of the imposition on a woman's liberation, and the question of the destruction of a fetus for which one is responsible" (p. 222). Until some compromise is possible, he urges that both sides show more humility and more tolerance toward each other.