Emory Report

January 26, 1998

 Volume 50, No. 18

First Person

Common ground not likely
for abortion adversaries

Will America's political battles over legalized abortion ever end? Will the opposing sides ever find a "common ground" that would appeal to the millions of Americans whose feelings fall somewhere in between? Will changes in medical technology somehow resolve the conflict?

The answers are clear: no, no and no-and in large part that's because our abortion struggle actually is about a whole lot more than just abortion.

News reports of the last few years may have led you to think that most abortion tussling nowadays involves just one vaguely defined, but hotly debated, "late-term" abortion procedure, the so-called "partial birth" method. That emphasis has been misleading in at least two very important ways.

First of all, the constitutional battle over abortion, unlike the political tussling, is over. The U.S. Supreme Court's 1992 decision in Planned Parenthood v. Casey not only reaffirmed the protection that 1973's Roe v. Wade first accorded a woman's right to choose; it also made so explicitly binding an institutional commitment to "choice," that no Supreme Court of the future could ever go back on it. Since Casey, the high court has refused to hear argument in any other abortion case, and last year all 11 state "partial birth ban" laws that were challenged in lower courts were blocked. Legislators may enjoy making noise, but they're not going to succeed in outlawing any abortions.

Second of all, the political and news media focus on late-term abortions obscures the fact that 88 percent of all abortions take place during the first 12 weeks, or first trimester, of pregnancy. A quick look at some recent poll results might lead you to think that public support for legal abortion is slipping, but a more careful reading of the numbers shows almost exactly the opposite: while all the "partial birth" publicity has led to less backing for second and third trimester abortions, the percentage of Americans who endorse first trimester abortions has increased.

This makes perfect sense and shouldn't seem surprising: most Americans, just like those who help provide abortion services, believe that the earlier an unintended pregnancy is ended, the better.

But there are two conspicuous ironies here for abortion opponents. First, some right-to-life advocates insist that the focus on the relatively unusual late-term procedures is a bad strategy. "What we've done here is said, 'Here's a really bad kind of abortion,' and the implicit message is that all other kinds of abortion aren't as bad," American Life League president Judie Brown told USA Today. "That undermines what this movement is trying to do, which is ban all abortions, period." Maybe it's no wonder that all the "partial birth" publicity seems to have gone hand-in-hand with increased public support for early abortions.

There's also the more tangible paradox that results from abortion opponents' success in getting some states to impose compulsory "waiting period" laws that require women who want abortions to make multiple visits to sometimes-distant service providers. A study of Mississippi's experience with such a law, reported in the Journal of the American Medical Association, shows how such requirements significantly increase the number of later-term abortions by delaying what otherwise would have been first trimester terminations. What gives? Not only are later procedures more risky for women, but aren't most abortion opponents proclaiming that later abortions are worse than earlier ones?

The answer is simpler than you may think: abortion isn't just about abortion, or the moral status of the fetus, it's even more about SEX. Most people on opposite sides of the abortion issue have radically different feelings about human sexuality. One side believes procreative sex involving a woman who wants to bear a child is just one of many possible reasons for sexual activity. The other side believes just the opposite: only heterosexual intercourse that holds open the possibility of childbirth within marriage is a morally appropriate use of humanity's gift of sex.

If you've believed abortion arguments are primarily about fetuses, try a simple test: how many abortion opponents who you know are in favor of either contraception or gay rights? Public opinion research shows that with contraception the answer is "not very many" and that with gay rights the answer is "very few at all."

That shouldn't be surprising. Court decisions aside, there's no possible common ground in our battles over abortion because there's no common ground between two diametrically opposed views of sex. Our abortion struggles will continue, for they say more about us than we usually admit.

David Garrow is Presidential Distinguished Professor at the School of Law and author of Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade. This article first appeared in Newsday, The Chicago Tribune and The Oregonian.

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