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
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
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.
to January 26, 1998 Contents Page