Perspectives on Abortion
ABORTION has dominated American politics for the past 20 years: It has shaped the campaigns, influenced legislative agendas at both state and national levels, determined the fate of judicial nominees, captured the attention of the media, and divided the country. What Laurence Tribe purports to do in ``Abortion: The Clash of Absolutes'' is challenge ``the inevitability of permanent conflict'' between ``life (the life of a fetus) on the one hand, and liberty (that of a woman) on the other'' - in short, to recast the question so as to allow for intelligent discussion and compromise.
Persuaded not so much by constitutional arguments as by sociological evidence, Tribe in fact argues that the only ``reasonable'' approach is to allow women to choose abortion. This bias, obvious in both tone and treatment, precludes his achieving his stated goal. Instead, he provides merely another prochoice polemic.
Tribe limits his discussion to the ``rights'' of women, maintaining that the fetus essentially has no rights under American law and dismissing traditional moral concerns, such as those having their roots in religion, as irrelevant to the legal debate.
Advances in medicine are, for Tribe, linked to the moral questions relating to abortion. ``By offering several perspectives from which to view the question of abortion, some rooted in philosophy, some springing from recent developments in science and technology,'' he writes, ``we may come to see new ways to understand the issue.''
Selective examination of abortion in other parts of the world along with a brief history of abortion law in the United States serves as background for Tribe's analysis. He draws two conclusions: 1. Enlightened cultures adopt liberal abortion laws. 2. The availability of abortion will continue to be determined by the level of medical technology and the informed opinion of the medical profession.
Tribe holds that the central legal issue, as in cases involving contraception, is the ``fundamental right ... to engage in sexual intercourse without having a child.'' This right, he contends, grows out of the individual's right to privacy that is implied but not explicitly stated in the Constitution.
In a section called ``Deciding Which Rights Are Specially Protected,'' he cites the standard proposed by Supreme Court Justice Benjamin Cardozo for determining what rights are ``implicit in the concept of ordered liberty.'' The due-process clause, Cardozo wrote, ``would invalidate legislation that trod upon interests `so rooted in the traditions and conscience of our people as to be ranked as fundamental.'''
By this standard, the assertion that abortion is ``fundamental'' in the American system of rights is hardly persuasive. Although legislation prohibiting abortion was initially passed because of pressure from the medical profession, support for these laws also reflected 19th-century morality.
While Americans in the 20th century are less outwardly religious, many continue to hold traditional values and beliefs that shape their attitudes toward abortion. Many who endorse abortion as the lesser of two evils - perhaps preferable to child abuse - do so with great reservation because they truly believe abortion is wrong. The tragic stories related by Tribe and others, illustrating that abortion is a desperate act, point also to the fact that even those who resort to abortion often have serious dou bts.
Assuming a ``feminist'' perspective, Tribe repeatedly refers to the ``physical invasion'' of a woman's body by the fetus and to the ``burden'' of pregnancy, child-bearing, and child-rearing. This attitude leads him to endorse the suggestion ``that any time a woman is prevented by some government action or policy from ending a pregnancy that she does not want to continue, her body is in a sense being `taken' for public purposes.''
``This is a `taking,''' he argues, ``at least as surely as one's home might be taken for public use.... Just as that could not be done, under the Fifth Amendment,... without `just compensation,' so a woman's body should not be subject to conscription without payment - at least in the form of financial support for the health and welfare of the woman and the child.''
This unconventional - indeed rather bizarre - application of the Fifth Amendment would have serious implications for the right of privacy; the greater the government's investment, the larger its role in individual and family decisionmaking.
Tribe professes to be searching for compromise, yet he finds the ``moderate'' legislation supported by the anti-abortion forces unacceptable. Consent requirements, notification provisions, waiting periods, limiting the grounds for abortions, restrictions on funding ``would sacrifice much more than they would accomplish.''
Dealing with consent requirements, he explains that ``a rule has emerged that a minor too young to consent to a particular form of treatment is also too young to refuse such treatment when a parent insists upon the minor's receiving it.''
Although courts have not forced physicians to perform abortions on unwilling minors whose parents request termination of a pregnancy, Tribe explains, ``the premises on which such consent requirements rest equally support parentally compelled abortions.'' Notification requirements could harm minors; waiting periods serve no constructive purposes; limiting the grounds for abortion would result in unwanted and potentially abused children; and restrictions on funding constitute class discriminat ion in Tribe's view.
He suggests alternatives, admitting that many in the anti-abortion camp would find his recommendations difficult, if not impossible, to accept. ``We could encourage people to want children,'' he writes, by providing affordable postnatal health care, mandatory maternity and paternity leaves, good child care, and flexible time arrangements in the workplace. He also supports improving sex education, making contraceptives more available, and introducing new methods of birth control, including th e (now illegal) abortion pill RU-486.
Unable to divorce himself from his own liberal agenda, Tribe cannot locate a common ground on which the two sides might meet. Nor, for that matter, does he break new ground. The book depends heavily on secondary sources - newspaper articles, standard histories, and works by his colleagues at Harvard University.