This is not a pro-choice talk or a pro-life talk. The point of my discussion will be that those categories obstruct our ability to think about and legislate on the complicated legal and moral aspects of abortion.
I am operating on the presumption that abortion is an unfortunate and difficult choice, and that however dearly we hold abortion access, we must remember that abortion means the end of a potential life, whether we recognize it as technically ‘alive’ or not.
I will discuss the key abortion laws in the United States, and then contrast them with European laws. We tend to think that abortion access is limited in the States, when in reality we have some of the broadest access in the world. I will reference a scholar named Mary Ann Glendon, who supports abortion access, but argues that the US should adopt a European model of legal rhetoric.
CONTEXTUALIZING THE DEBATE
Abortion law in the United States, as we know, was initiated in 1973 with Roe v. Wade, where the Court recognized abortion access as part of the ‘penumbra of privacy’ established by the 14th Amendment’s protection of life, liberty and property. The Court ruled that the right to abortion must be balanced against the state’s interest in protecting the health of the mother and the potential life of the fetus. According to Roe, in the first trimester, the state has no legitimate interest and cannot regulate access. In the second, the state has a compelling interest in the mother’s health, and may regulate according to that interest, but there is no regulation permitted in the interest of the fetus’ potential life. In the third trimester, the state has a compelling interest in both the health of the mother and the potential life of the fetus, and may regulate abortion access based on these concerns. The argument against Roe is not necessarily opposed to access to abortion, but argues that to extrapolate abortion from ‘life, liberty and property’ is a weak means to securing the legality of the procedure.
It is my opinion that there is nothing fixed abut the law; laws reflect specific ideologies and assumptions just like any other scholarly discourse. The ‘penumbra of privacy’ created from the 14th Amendment is a legal construction, whether one agrees with it or not. Typically we only hear this complaint from ‘pro-lifers,’ but one can be in favor of abortion access and still make the claim that this was a perversion of the 14th Amendment, and that access should be legislated rather than squeezed out of a Constitution that clearly does not mention it. This approach creates a number of problems.
RHETORIC IN THE AMERICAN TREATMENT OF ABORTION
Since Roe in 1973 and its later corollary rulings, as Mary Ann Glendon has argued, the law and the debate in the United States has been poisoned with rights rhetoric which has disguised the conflict as one of abstract legalisms instead of a concrete dilemma between the life of a developing fetus and a woman’s need for reproductive control. Roe located the right to an abortion in the penumbra of privacy created by the Fourteenth Amendment’s Due Process Clause, thus framing the question in terms of the woman against the state, rather than the woman’s health and interests against the fetus’ health and interests.1 In construing abortion as a balance of the woman’s interests and the state’s interests, abortion access is automatically equated with ‘privacy rights’ and ‘liberty’ from excessive State intervention. Justice Scalia sharply criticized the plurality for their reading of the Fourteenth Amendment: ‘the best the Court can do to explain how it is that the word “liberty” must be thought to include the right to destroy human fetuses is to rattle off a collection of adjectives that simply decorate a value judgment and conceal a political choice.’2
Another problem with operating through the rhetoric of rights in the American abortion debate is that the Court has barely acknowledged the fetus itself, even simply in a strict legal sense. Having settled that the fetus is not a ‘person’ under the Constitution, ‘no Member of the Court has ever questioned th[e] fundamental proposition’ that the fetus has no rights in itself whatsoever, and without rights, the fetus has essentially no legal value. The Court is willing to construct the woman’s right to have an abortion, but not to construct a fetus’ right to life – which is actually less of a stretch of the Constitutional text. So the counterweight to a woman’s new right to an abortion, under Roe and upheld in the later cases, Casey and Gonzales, is not based on the interest of the fetus, but on the interest of the State.
In Roe the Supreme Court recognized a ‘compelling state interest’ legitimating regulation in the health of the mother beginning in the second trimester, and in the ‘potential life’ of the fetus only in the third trimester. I don’t believe anyone will disagree that the potential for life is present from moment of conception, but to acknowledge this would undermine the entire framework of abortion access in Roe, so the Court instead recognized the value of the fetus only when it fit with their vision of appropriate abortion policy. This case established the Court’s framework of abstract rights balancing, and set the tone of our ensuing public discourse. If anything, the conceptualization of abortion as a happy triumph of women’s rights over an unrecognized, essentially unimportant non-person has only grown more ingrained into the pro-choice movement, and the pro-life movement has grown more bitter in response.
Since Roe, the Court has moderated its abortion policy to allow certain restrictions on the practice, but the rhetoric has remained the same. In 1992 with Casey v. Planned Parenthood, the Court (indirectly) accorded greater legitimacy to the fetus, recognizing that the original trimester system ‘undervalues the State’s interest in the potential life.’3 Casey allowed states to enact regulations, at any time in the pregnancy, ‘designed to encourage [women] to know’ arguments in favor of continuing the pregnancy and to be aware of possible state assistance and adoption programs, so long as they did not impose an undue burden on the right of access.4 That the Court allowed such regulations, ‘even when in doing so the State expresses a preference for childbirth over abortion’ suggests the US was attempting to moderate the abortion conflict somewhat.5 Nonetheless, the decision continued Roe’s analytical framework based on women’s rights. Justice Blackmun’s opinion dramatically celebrated Casey for protecting the ‘flickering flame’ of ‘the hopes and visions of every woman in th[e] country.’6 Blackmun takes the rights rhetoric to an extreme; obviously abortion is not part of the ‘hopes and visions’ of most women, and certainly not every woman, in the United States. But this type of dialogue, casting broad access to abortion as an indispensable component of gender equality, has come to pervade the public discourse to an extent that calm discussion of the concrete realities of abortion is nearly impossible.
The detrimental effects of measuring abortion according to a woman’s right with minimal recognition of the fetus were especially clear in the 2007 Gonzales decision. Here the Court upheld the Partial Birth Abortion Act of 2003, which prohibited ‘intact dilation and extraction,’ one of the most common methods of abortion during the second trimester. By this method, a doctor removes the entire fetus intact rather than in pieces, either crushing, piercing, or vacuuming the contents of the skull, both to ease removal and sometimes ‘to ensure the fetus is dead before it is removed.’7 The end of this practice has of course been criticized by some as part of a steady erosion of abortion ‘rights,’ instead of a necessary protection against the mutilation of the sometimes-viable fetuses. Again, the very fact that restrictions on the right to abortion are articulated as State interests rather than fetal interests make criticism of regulation appear far more legitimate. A woman can curse the State for restricting her abortion rights, but it is doubtful she would criticize her fetus for interfering with her ‘rights.’ Gonzales held that the State has a ‘legitimate interest’ in ‘protecting the life of the fetus.’8 But the restriction on intact D&E in this case is no watershed moment in abortion discourse; it continues with the same distortions.
The Court justified the restriction of intact D&E on the grounds that it did not pose an undue burden on continued second trimester abortion access because alternative abortion methods remained available. The alternatives however, are either to rip the fetus out in pieces, or to inject the fetus to kill it several days before removal so that the body will ‘soften.’9 In upholding the restriction on intact D&E, the Court promotes these equally violent alternatives – creating a totally incoherent doctrine of State interest in the life of the fetus. In some ways, this is the American compromise, a strange balance of selective restrictions. The Justices’ heavy reliance on ‘rights’ has obscured the moral complexity of the issue, and oversimplified the legal questions involved as well. Mary Ann Glendon suggests that the Supreme Court ruling in Roe actually ‘pre-empted the type of political debate leading to legislative compromise which has taken place in Europe.’10
THE EUROPEAN MODEL
Unlike American policy, most European laws explicitly reference the life at stake in the abortion decision. French law explicitly ‘names the underlying problem as one involving human life’ instead of an abstract conflict between ‘a woman’s individual liberty or privacy and a non-person.’11 Indeed, the language of French law is not rights-based.
French abortion law ‘guarantees the respect of every human being from the commencement of life,’ permitting derogation only in cases of necessity.’12 Thus abortion is framed as an unfortunate derogation from the ideal. But this does not mean French women face substantial barriers to securing abortion. In practice, the ‘necessity’ of having an abortion is defined very broadly, and access is essentially universal during the first twelve weeks of pregnancy. Afterwards, only ‘therapeutic’ abortions, for which two physicians must certify that pregnancy ‘as seriously endangering the woman’s health or that there is a strong possibility that the unborn child is suffering from a particularly serious disease.’13
French and American abortion law is fairly similar during the first trimester, and during the second access it is actually much broader in the United States. In addition to a shorter time frame for allowable nontherapeutic abortions, French law also places more regulation on the procedure before an abortion: women must meet with an approved counseling service, and be given a brochure on adoption options, public and private support programs for mothers and children. The American Supreme Court has only recently allowed states to provide similar information to women seeking abortions with the Casey decision, but counseling has not been upheld, and states are definitely not required to provide such information or services. Predictably, in France, where the law is phrased in terms of limiting the right to life, access is more restricted than in the US, where the focal point of the law is the right to an abortion.
When the French Constitutional Court reviewed the Abortion Law of 1975, its point of focus was the opposite of Roe’s. Mary Ann Glendon raises the ‘humanness’ of French abortion law for its combination of ‘compassion’ for women and ‘affirmation of [the] life’ of the fetus, thus demonstrating ‘the commitment of society as a whole to help minimize occasions for tragic choices between them.’14 This definitely contrasts with the United States, which has phrased its law in terms of aggressive rights claims instead of compassionate balancing of interests.
Other European states’ policies emphasize the life of the fetus as well, without needing to accord it actual ‘rights.’ Germany criminalizes abortion except in cases of ‘distress.’15 Poland permits abortions only when the pregnancy endangers the mother’s life or health, when there is a ‘high risk that the fetus will be severely or irreversibly damaged or suffering from an incurable life-threatening disease,’ or when the pregnancy is ‘the result of a criminal act.’16 Glendon (and I) may not advocate the more substantively restrictive models like Germany and Poland, but the legal and rhetorical framework of their statutes are more coherent than American standards.
THE VALUE OF RHETORIC
So, why does rhetoric matter? Is ‘life rhetoric’ actually valuable in abortion law?17 Or is it mere hypocrisy to phrase the law as two conflicted values (the value of the fetus coupled with the continuation of the practice of abortion)? Laurence Tribe rejects Glendon’s argument for the rhetoric of compromise as essentially pointless and hypocritical: ‘[t]o anesthetize through rhetoric those who wish to protect fetal life…is a far cry from genuinely protecting fetal life.’18
Tribe’s critique is fair, but the American experience has demonstrated the power of language choices in the analytical framework of case rulings. The rhetoric of women’s rights in particular is important because it influences public and legal conceptualization of the debate. Unlike other privacy issues appropriately associated with women’s liberation, like marriage, procreation, and contraception, we cannot ignore that abortion entails ‘the purposeful termination of a potential life.’19 American rhetoric and policy has largely failed to recognize this, and now our discourse is spreading to the public spheres of Europe. The pro-life rhetoric of French and other European law may, as Tribe says, ‘anesthetize’ against the content of the law (that abortion is still made available), but the pro-abortion or ‘pro-life’ rhetoric of ‘women’s rights’ and ‘privacy rights’ similarly desensitizes everyone to the violent reality of the procedure. A change in rhetoric would mean a more accurate characterization of the nature of the abortion decision.
IS RHETORIC REFORM OR COMPROMISE POSSIBLE FOR THE UNITED STATES?
Europe is different from America in many ways that make Glendon’s hopes that American states will one day follow the European pattern of compromise about abortion seems unrealistic.
Dworkin, Life’s Dominion20
Ronald Dworkin considers the United States too culturally heterogeneous and individualistic to ever ‘compromise’ on abortion policy, as Mary Ann Glendon has praised Europe for doing. But while it is easy for Dworkin dismiss the US as too conflicted, and for Glendon to propose ‘progressive’ Europe as an alternative, Europe has not escaped the debate either.
Both Dworkin and Glendon have misconstrued the nature of the differences between Europe and the United States. This paper argues that although Glendon offers a very useful critique of rights rhetoric in the United States, both she and Dworkin wrongly presume that the European ‘compromise’ has successfully prevented Europe from following the American trend of unconstructive rights conflict. Like the US, Europe as a whole and within each State faces the challenges of pluralism. The key factor, to which Dworkin alludes, which could inhibit the US from reciprocating in the process of convergence is its traditional vision of the limited role of the State. Even so, moving towards European rhetoric and State support for pregnant women is not ‘unrealistic’ for the United States. I conclude that the success of a European ‘compromise’ is largely an illusion of rhetoric combined with a standard European economic and social support system. Europeans are just as morally conflicted as Americans, and their laws are not so different. The United States may aspire to European-style rhetoric and economic policy, but it would only begin to clarify the terms of the debate, not automatically resolve it.
EUROPEAN ‘COMPROMISE’?
Glendon is correct in her critique of the way rhetoric distorts the abortion debate in the US. But having more ideologically coherent law does not necessarily mean the issue is settled for Europeans. Along with pro-life rhetoric, the other component of the European compromise is State assistance for women faced with the abortion decision. Most of Western Europe mandates ‘maternity leave and benefits,’ along with ‘child care, cash grants, and tax benefits to women with dependent children.’21 Strong state support for economic and social needs is ‘an important part of the European dedication to human life.’22 The United States has some similar programs, but not nearly to the extent of the European welfare system. Nor are American doctors required to provide information about public (and private) support for pregnant women, as French doctors are.23
But the ‘compromise’ has not saved European States from continued conflict over abortion. The European Court of Human Rights faces challenges from all sides of the debate. Bruggemann argued that Germany’s strict limits on abortion were a violation of her right to privacy, while a man from the UK argued that England’s allowance of any abortion at all was a violation of the right to life.24 This conflict is not a matter of European states being too different for the ECHR to create a universal abortion rule. The countries are of course internally conflicted as well. Glendon has declared that ‘France has had no continuing high-level turmoil on the issue of abortion.’25 For her, this is evidence ‘contrary to what one hears from both sides of the abortion controversy in the United States,’ that ‘a divided society can compromise successfully.’26 But is France really finished with the abortion debate? A 1979 article from The Economist suggests that ‘militant feminists’ and ‘Catholic conservatives’ in France are by no means acquiescent.27 And in 1995, the International Herald Tribune reported ‘the growing activities of US-style anti-abortion “commandos”’ and other protest movements.28 France appears little more settled than the United States. If there was a legislative compromise, it has not moderated the conflict much more successfully than the judicial intervention of the Supreme Court.
Europe’s inability to avoid a heated debate over abortion is due to its cultural diversity, which in many ways, contrary to Dworkin, closely resembles that of the United States. Just as abortion law in the US varies ‘from region to region’ due to political and religious differences, so to does the law among European countries. Their policies are not identical, but South Dakota is the Poland or the Germany of the United States, and states like New York and Massachusetts parallel the UK’s less restrictive laws. Dworkin argues that in certain pockets of the US, ‘politics are more dominated by religious attitudes’ than ‘national politics.’29 But it is not as though Europe has ascended to some lofty state of perfect secularism (presuming that were even an ideal). Europe is not immune from the influence of religion. Tribe cites the example of Switzerland, where women often must travel from Catholic to Protestant areas for abortions.30 So the tensions within Europe, as in the US, exist both between States and within them. The conflicts at play in the ECHR’s cases demonstrate the variance among European countries. There is internal resistance to England’s broader provisions for abortion, and resistance in Poland and Germany to their restrictions. If the American Supreme Court had taken the path of the ECHR and left abortion law to the discretion of each state, US policy would likely look much like Europe’s, ranging from tight regulation in South and Midwest to more relaxed access on the East and West Coasts. To a certain extent, these variances are already true. The language of compromise cannot prevent the tensions arising from such diversity in either society, but it can clarify the terms of the discourse.
THE POSSIBILITIES FOR CONVERGENCE
The compromise so dear to Glendon is about rhetoric more than content, and the European experience increasingly resembles the American debate. Dworkin himself identifies ‘the most important legal trend’ in Europe to be a movement ‘toward constitutionally embedded individual rights adjudicated and enforced by courts.’31 And not only are domestic courts shifting toward this American model, international courts in ‘Luxemburg and Strasbourg’ are as well.32 As the convergence of the two societies’ legal systems and cultures intensifies, the value of each country’s original domestic legislation will be eroded by American rights discourse.33 The activism in Europe increasingly resembles American tactics and language. The European Convention on Human Rights and Fundamental Freedoms is also rooted in rights rhetoric. And like the US Supreme Court, the ECHR has repeatedly declined to recognize a right to life for fetuses.34 Its resistance is understandable; to do so could potentially force a reevaluation of all existing abortion law. In general, the ECHR has displayed more willingness to accept a diversity of abortion policies among its states than the US Supreme Court.
If the theory of convergence is proving true for Europe, Dworkin’s original question reappears: is it possible for the US to move towards a European model of pro-life rhetoric and broader state involvement in the abortion decision?35 There are two possible barriers, both rooted in the longstanding American aversion to State ‘intrusion’ into ‘private’ matters.
Europeans are more comfortable with an expanded role for the State. European abortion law places a significant amount of power in the hands of intermediaries, between the woman and the State. As stated above, France requires a woman to consult with a doctor and a counselor before the procedure takes place. Poland requires medical approval. Germany’s exceptions must be certified. Tribe labels these procedural requirements as ‘unacceptable’ in an American ‘rights-based legal system.’36 Certainly, Americans would not respond warmly to such bureaucratization of their access to medical care. Not only a greater practical burden, increasing the role of secondary agents in the abortion decision weakens the sense of personal, individual choice upheld so dramatically in American case law and political rhetoric. As Tribe puts it, predictably keeping with the discourse of women’s rights, allowing others to contribute to the abortion decision ‘dis-empowers and disrespects women.’37 Similarly, Justice Stevens wrote in his dissenting opinion for Casey where the Court allowed a 24-hour waiting period for the procedure, ‘we must reject the notion that a woman is less capable of deciding matters of gravity.’38 In the American discourse, allowing doctors or other third parties into the abortion decision is not only an affront to one’s personal liberty, but to the very concept of sexual equality. This is why the rhetoric is not irrelevant to the content of the law. Americans must move past the individualistic presumption that state agents are automatically their opponents. In the French Abortion Law, the purpose of consulting with a doctor and a counselor is to inform and enable the woman to make an important choice. The Casey decision, allowing new regulations on abortion access, including the 24-hour waiting period and provision of neutral medical information, suggests that the United States may be ready to accept the possibility of benevolent regulation like that of Europe.
The other critical issue is for Americans in economic and welfare programs. Social and economic support is expected from the state in Europe, and politically taboo in the US. America is of course home to a vastly unequal public school system, a virtually nonexistent public sexual health campaign, and a weak welfare system for the poor. Roe, Casey and Gonzales do not address economic or social policy as possible mechanisms for mitigating the circumstances in which women must consider abortion. In contrast, the French Abortion Law of 1975 actually includes sexual health education as a part of its abortion policy. Paragraph 13, seeking to prevent abortion from becoming a means of birth control, mandates the government to ‘take all measures necessary to promote information on birth control on as wide a scale as possible.’39 Education and social welfare programs of Europe ‘provide resources both to prevent the occurrence of unwanted pregnancies and to create an environment in which it will be easier for a woman to decide to take a pregnancy to term.’40 This will be a difficult component of abortion policy for the United States to accept, especially the radical wing of the pro-life movement, but one which has been gaining increasing publicity. Public education and economic support are essential aspects of abortion prevention, and the United States must realize it eventually. There is reason to be more hopeful than Dworkin.
CONCLUSIONS
Glendon’s main point is that America should reject its rights-dominated discourse and adopt a democratic compromise like Europe. She is right to draw attention to the problems of rights discourse, especially in the complicated moral and legal territory of abortion. But Glendon omits the struggles Europe has faced despite its method of ‘compromise.’ Though Europe allowed abortion policy to develop through its legislature did facilitate more constructive rhetoric than the United States, both societies have struggled to balance the value of the fetus’ life with the needs of the pregnant woman. Increasingly, European and American policy resemble each other. This means that the US has infected Europe with rights rhetoric, but it also means that the US is beginning to accept a more compassionate approach to abortion, both in its treatment of women’s access and decision-making, and in its regard for the fetus’ welfare. Casey and Gonzales, however flawed, suggest that the United States may be moving towards the recognition of a broader state interest in the potential life of the fetus – far more ‘European’ than Dworkin might expect.
1 Roe v. Wade (1973), p. 7.
2 Planned Parenthood v. Casey (1992), Dissenting Opinion of Justice Scalia, p. 51.
3 Casey, Majority Opinion, p. 27.
4 Casey, p. 27.
5 Casey, p. 31.
6 Casey, Opinion of Justice Blackmun, p. 39.
7 ??Gonzales v. Planned Parenthood? (2007), Majority Opinion, p. 57.
8 Gonzales, p. 62.
9 Gonzales, p. 58.
10 Reading Materials, p. 252.
11 Mary Ann Glendon, Abortion and Divorce in Western Law, p. 256. Glendon’s emphasis.
12 French Abortion Law of 1975, p. 84.
13 Reading Materials, p. 84.
14 Glendon, p. 253, 255.
15 Bruggemann and Scheuten v. Federal Republic of Germany, Eur. Ct. H.R. (1978), p. 204.
16 Tysiac v. Poland, Eur. Ct. H.R. (2007), p. 236.
17 Laurence Tribe, Abortion: The Tribe of Absolutes, p. 257.
18 Tribe, p. 257.
19 Casey, Opinion of Justice Rhenquist, p. 44.
20 Ronald Dworkin, Life’s Dominion. In Reading Materials, p. 258.
21 Tribe, p. 255.
22 Dworkin, p. 258.
23 Casey, and French Abortion Act of 1975.
24 Bruggeman, and X v. United Kingdom, Eur. Ct. H.R. (1980).
25 Glendon, p. 94.
26 Glendon, p. 95.
27 The Economist, 13 October 1979, p. 44.
28 Barry James, International Herald Tribune, 6 July 1995.
29 Dworkin, p. 258.
30 Tribe, p. 257.
31 Dworkin, p. 258.
32 Ibid.
33 Reading Materials, p. 254.
34 X v. UK, Eur. Ct. H.R. (1980), RH v. Norway, Eur. Ct. H.R. (1992), Vo v. France, Eur. Ct. H.R. (2004).
35 Reading Materials, p. 260.
36 Tribe, p. 253.
37 Tribe, p. 253.
38 Casey v. Planned Parenthood, Dissenting Opinion of Justice Stevens, p. 38.
39 French Abortion Law of 1975, p. 84.
40 Tribe, p. 254.
Works Cited
Casey v. Planned Parenthood (1992)
Dworkin, Richard, Life’s Dominion, in Reading Materials.
The Economist, 13 October 1979, p. 44.
Glendon, Mary Ann, Abortion and Divorce in Western Law, in Reading Materials.
Gonzales v. Planned Parenthood, US Supreme Court (2007).
Barry James, International Herald Tribune, 6 July 1995.
RH v. Norway, Eur. Ct. H.R. (1992).
Roe v. Wade, US Supreme Court (1972).
Tribe, Laurence, Abortion: The Tribe of Absolutes, in Reading Materials.
Tysiac v. Poland, Eur. Ct. H.R. (2007).
Vo v. France, Eur. Ct. H.R. (2004).
X v. United Kingdom, Eur. Ct. H.R. (1980).