I’ve blogged quite a lot on this book, which I think offers one of the best discussions of the topic of abortion and the law that is around. It situates the abortion issue more broadly in the context of social justice and family policy. So I’ve (finally!) collected a few passages for your information and reflection: I hope they’re an incentive to buy the book.
Mary Ann Glendon
Abortion and Divorce in Western Law
Harvard University Press, Cambridge, Massachusetts
The Continuing Consensus
Brigitte and Peter Berger write in their recent book on family policy: “Any new consensus on [the abortion] issue will emerge from common reflection about uncertainties, rather than from shared certitude.”152 Taking this as a starting point, it seems likely, according to the public opinion surveys, that a consensus based on uncertainty has been present all along in the United States.
152. Brigette Berger and Peter Berger, The War over the Family: Capturing the Middle Ground (New York: Anchor Books, 1983), 81.
Abortion and Dependency
If we do one day rethink our entire public policy relating to abortion, some aspects of the European experience are, I would submit, particularly important for us to take into account. Abortion regulation as such should be viewed in the context of other laws relating to mothers and children. If we are to move from abortion on demand to reimposition of restrictions on abortions in certain situations, we should review the entire complex of laws that bear on maternity and child-raising, including but not limited to our welfare and child support laws. An important segment of the pro-life movement has already recognized that those who would restrict or deny abortion should be prepared to give the pregnant woman every possible form of assistance. If the state is once again to restrict the availability of abortion and to affirm the value of unborn life, it should in all fairness strive to help those who bear and raise children, not only during pregnancy but also after childbirth.
The international picture shows some curious contrasts. First, in countries where the idea of the social welfare state is strong, primary responsibility for child support is unambiguously fixed on the parents and backed up by extremely efficient collection machinery. In the United States, where public responsibility for needy children is assumed only grudgingly, there has been until recently little effort to impose child support in adequate amounts and to see that it is collected. Second, European abortion law has been heavily influenced by notions of what is reasonable to require from a pregnant woman, and European child support law by notions of what it is reasonable to require from an absent father. American abortion law and, at least until recently, child support law has expected little from either men or women. Third, the ideology of privacy has become a leading motif in American, but not in other countries’ treatment of family matters. When applied to the family, the right to be let alone often turns out in practice to be the right to leave others alone—as American women desiring abortions and men unwilling to pay child support have been able to do with relative ease over the past several years. When we consider the totality of regulations bearing on the question of abortion, it appears more clearly than ever how different the United States’ position is, even from that of other countries which have elective abortion. Our law stresses autonomy, separation, and isolation in the war of all against all, in contrast to Sweden where the laws emphasize sex equality and social solidarity, West Germany where the message is pro-life and social solidarity, and France where equality, life, and solidarity are all sought to be promoted. The European laws not only tell pregnant women that abortion is a serious matter, they tell fathers that producing a child is serious too, and communicate to both that the welfare of each child is a matter in which the entire society is vitally interested.
At present, as we have seen, what American law about abortion communicates is that fetal “potential life” is outweighed by any interest at all of the pregnant woman until the last trimester. Even then, fetal life need not be protected as a constitutional matter. If a state does decide to regulate abortion at that point, it must still assure that an abortion can be performed if the mother desires it and if a single doctor judges it necessary to preserve her health, broadly construed to include a notion of “well-being.”234 In contrast, all of the West European laws, while permitting abortion on a wide variety of grounds, communicate that fetal life is an important interest of the society and that abortion is not a substitute for birth control.
234. Doe v. Bolton, 410 U.S. 179, 192 (1973). (Doctor’s medical judgment relating to health of pregnant women “may be exercised in the light of all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the well-being of the patient.”)
At this point I would like to draw out another, quite different but still specifically legal strand that has to be part of any explanation of why the continental countries and the United States diverge in their approaches to the subjects with which we have been concerned here. The presence of specific family protection language in many European constitutions is of a piece with the existence in continental countries of explicit national family policy. In the United States, we have no counterpart to European cabinet ministers charged with responsibility for family affairs. Nor do we have mandatory national programs of maternity benefits and child care, or meaningful subsidies for families with children. We also lack those networks of local and national private or semiprivate organizations called family associations that exert quite a powerful influence on family policy in many countries. This does not mean that American society is anti-family, or that continental countries are particularly pro-family or pro-child. It does not even mean that we do not have a family policy. What it does mean is that our family policy is implicit, contained in the details of tax law, employment law, pension and insurance law, social welfare and social security law, and so on. Because it is implicit, it is largely unexamined, and its implications for family life are insufficiently aired and discussed.