This “single-issue” quality of abortion politics strains the democratic “rules of the game” in our society. The debate over abortion suggests that the norms of political civility do not hold when an issue mobilizes groups whose members have an emotional commitment to one, all-encompassing cause. That our regime does successfully restrain interest group competition in most instances is explained by the fact that single-issue groups rarely develop over “economic” issues. Interest groups, on the other hand, are organized to safeguard economic gains, and their membership usually defers to the judgment of leaders as to how best to accomplish that goal. Few members are actively involved, let alone ideologically committed, to the larger purposes of trade associations, professional groups, and the like. But in abortion politics, pro-life and pro-choice groups have had the double effect of sustaining a high-intensity conflict at the grassroots level while denying to political elites the discretion needed to arrange a political settlement to this issue. Consensus building on abortion remains the key issue to be resolved, and this problem began with the Supreme Court’s Wade decision.
Consensus Building and Abortion
Abortion has been a concern of our national government only since 1973. Before then it was regulated by the states as part of their “police powers” to protect the health, welfare, and morals of the citizenry. Congress and the Executive became involved in this dispute because Wade destroyed that political consensus on abortion “reform” achieved during the 1960s. Wade short-circuited public opinion on abortion, violated the prerogatives of the states over this policy area, and increased tensions between the Court and the popularly elected branches of government.
Tremendous social change has affected American society in the past three decades, and many of these changes have touched “lifestyle” issues—race, sexual mores, and women’s rights, to mention but a few. Without doubt the Supreme Court acted on these issues because the Congress refused to deal aggressively with obvious and serious injustices. But too often proponents of social change are concerned only with righting a wrong, demanding additional rights and liberties, or enacting new laws. They assume that long-standing problems can be erased with one stroke of a pen, and that the majesty of the law will solicit the obedience of the citizenry. But social problems persist, there are few simple solutions to complicated issues, and the people have a tremendous capacity to resist compliance with what they see as ill-advised legislation. The effective implementation of any public policy ultimately depends upon its legitimacy, and this is largely determined by the manner in which political consensus was achieved when the policy is enacted into law.
The provision of abortion services depends upon the voluntary cooperation of physicians, nurses, social workers, and numerous other healthcare professionals, as well as state and local government officials. Given the decentralized nature of America’s healthcare delivery system, therefore, compliance with Wade can be greatly affected by the continuing struggle between pro-life and pro-choice forces. And the record clearly shows that healthcare professionals have not responded to the demand for abortions. The Alan Guttmacher Institute monitors this development year-by-year, and its findings document a serious maldistribution of abortion services in this country. In 1976, for example, only 21 percent of our 2,060 public hospitals allowed abortions to be performed in their facilities, and this situation is little changed today.
Congressman Henry Hyde is quoted as saying, “You don’t compromise on this issue of abortion. How do you compromise when the issue is human life—not your life, somebody else’s life.” Hyde’s comments signal the fundamental reason why it is so difficult to resolve the abortion controversy to the satisfaction of all parties. Issues which are “economic” in character are more easily resolved because the antagonists can always, in the final analysis, agree to “split the difference.” This is not easily done on a lifestyle question, and particularly on an issue of morality. Related to this is the fact that Wade, as a public policy statement, did not reflect the balance of power between the contending forces in this struggle. While there can obviously be winners and losers in the legislative process, many scholars argue that the workings of Congress, with its need for compromise, bargaining, and negotiation, guarantees that “intense minorities” will not lose entirely in the final outcome. But this process is not characteristic of judicial decision-making, as Wade clearly shows. In that ruling, the Supreme Court addressed the concerns of a small number of abortion militants while ignoring the growing right-to-life movement and misreading public opinion on this entire question. As a result, the pro-lifers have gained the momentum in this struggle today, and their views predominate in Congress and our state legislatures.
The problem of consensus building is further compounded by the fact that leadership on this question has sometimes been assumed by ultra-conservatives who see an opportunity to exploit this issue for political gain. By focusing on abortion, for example, Republicans can undermine the commitment of working class voters to the Democratic party.
Historically the less affluent voted Democratic for economic benefits, but now Republicans are appealing to their conservatism on abortion and other lifestyle issues. The Republican party favors a pro-life amendment to the Constitution whereas the Democratic party has generally stood behind the Wade decision. This definition of abortion as a partisan dispute reflects the greater conflict surrounding this issue since 1973.
At this juncture in history, therefore, it appears that consensus building on abortion will take one of two forms. As one alternative, judicial supremacy in this policy area may be directly challenged by a constitutional amendment—either a pro-life version banning abortions or a states’ fights amendment returning jurisdictian over this question to the individual states. To date, nineteen states have called for a Constitutional Convention to rewrite the law on abortion, and what gravely concerns the pro-choice advocates is their location in every region of the country. These states include Delaware, Massachusetts, New Jersey, Pennsylvania, and Rhode Island in the East; Alabama, Arkansas, Louisiana, Kentucky, Mississippi, and Tennessee in the South; Idaho, Nevada, and Utah in the West; and Indiana, Nebraska, Oklahoma, Missouri, and South Dakota in the Midwest. However, it would seem that the immediate prospects for overturning Wade by amendment are not good. No pro-life amendment has ever been considered by the entire House of Representatives or Senate, although many have been introduced into Congress every year since Wade. And an amendment would require a two-thirds vote in the House and Senate as well as the concurrence of three-fourths of the states.
Another alternative would be a “political” one, involving an understanding between the branches of government, And there does seem to be an emerging area of agreement among lawmakers. Congress and the majority of state legislatures approve of abortion for medical necessity; even the Hyde Amendment provided for this. On the other hand, there is very little support at the national or state levels for fully legalized abortion. This is exemplified by the Hyde Amendment, which permitted the states to reassert their priorities over abortion policy. And the trend has been clear.
By the end of 1978 only ten states (and the District of Columbia) agreed to pay for all abortions or those deemed medically necessary. Sixteen more states paid for abortions only when the mother’s life was threatened; five others would pay for abortions when the woman’s life was endangered or in cases of incest or rape; and eighteen states accepted the Hyde Amendment language and paid for abortions when the mother’s life was threatened, where pregnancy was caused by rape or incest, or where the woman might suffer lasting physical harm. In 1978, 80 percent of all abortions paid for were done because the mother's life was threatened; less than 20 percent involved a situation where serious physical health problems existed; and only about 2 percent involved cases of rape or incest. Therefore, the vast majority of states agreed to fund abortions for those “therapeutic” indications (except for fetal abnormality) which had been proposed by the American Law Institute twenty years earlier.
These parameters of abortion policy will not satisfy the pro-life or pro-choice militants, but they suggest the beginning of a solution to this dilemma. We do not argue that this scenario is the “best” or the “moral” solution to the problem of abortion, but we do suspect that it may be the viable alternative in terms of the requirements of consensus building. For one thing, therapeutic abortion is solidly supported by the citizenry as well as healthcare professionals. For another, the Supreme Court has opened the door to this kind of resolution of the abortion issue by upholding the constitutionality of the Hyde Amendment. Finally, as imperfect as this option may seem, it comes closer to addressing the concerns of pro-life advocates that abortion not be used indiscriminately as an easy solution to difficult moral and sexual problems. Furthermore, by this solution, the political system will have responded to a very real social problem but in a manner which re-establishes the viability of public policy and the legitimacy of our governmental institutions. The major lesson to be learned from our experience with abortion politics, unfortunately, is that we had to experience the debilitating effects of this long struggle in order to fashion a solution to the abortion issue which was so obviously indicated two decades ago—before the intrusion of the Supreme Court.
This article was originally published in Commonweal’s special abortion issue, released November 20, 1981. It is adapted from the book The Politics of Abortion: A Study of Community Conflict in Public Policy-Making (Praeger) by Raymond Tatalovich and Byron W. Daynes, published in 1981.