Balkin’s Grail: “Durable Compromise” on Abortion
posted by Scott Moss
Agree or disagree with him, Jack Balkin is aiming high with his ongoing efforts to reach what he calls a “durable compromise” on abortion:
a durable compromise over abortion … would probably look something like this new approach: Pro-life advocates continue to believe that abortion is immoral but agree that the criminal law is not the best way to solve the problem of protecting unborn life. Pro-choice advocates in turn agree to new social services and support for poor women that make it easier for them to choose to have children.
A few years ago, I saw an earlier attempt by Balkin to reach abortion common ground — an AALS panel on communitarianism that focused on reaching common ground. I feel for Balkin that, both times, his efforts have not been terribly well-received by pro-lifers. At the “communitarian” panel, Teresa Collette Stanton followed each statement by Balkin not with any responsive foray into common ground, but only with counterarguments why abortion is murder. Balkin’s more recent post has yielded a far more reasonable response by Rick Garnett; I say more reasonable not because Garnett is less pro-life than Stanton, but because unlike Stanton, Garnett responds to Balkin not simply by reiterating pro-life arguments, but by critiquing Balkin’s suggestions as to what would, and would not, be a reasonable “compromise” package.
Rick’s key point is that ” ‘compromise’ involves, well, compromise” — that pro-choicers have to offer more than “social services and support for poor women that make it easier for them to choose to have children” rather than abortions. Rick proposes that among the items pro-choicers would have to cede are (1) “acceptance … of rules that allow health-care workers … [and] religiously affiliated institutions … to opt out of cooperating directly with the provision of elective abortions” in the services or insurance they provide” and (2) an end to “limitations on the (peaceful) speech of anti-abortion protesters.” After I commented on his post, he asked me, “What are you willing to put on the table?”
As a pro-choicer, I don’t agree that Rick’s two proposals would be good law or policy — but as he notes, compromise involves accepting things you disagree with; and if pro-choicers are expecting to negotiate for something as big as getting pro-lifers to give up on criminalizing abortion, pro-choicers had better put a big stack of chips on the table. So I’d offer up a good chuck of both his points, #1 (most notably, not compelling religiously affiliated institutions to provide or pay for abortion) and #2 (allowing peaceful anti-abortion speech, like the ongoing protest at the Planned Parenthood location a few miles from my home).
But let me suggest something bigger: the debate should be about what week abortion becomes illegal, and the Supreme Court had flubbed that debate. The Court has been issuing its own “abortion compromise,” declaring abortion legal but allowing increasing restrictions — which seems oddly misguided: (a) abortion is legal until quite late in the second trimester of pregnancy, yet (b) abortion can be restricted quite early in pregnancy, and (c) early-pregnancy restrictions (waiting periods, notification/consent requirements, etc.) tend to make early abortions occur a bit later (e.g., turning week 8-9 abortions into week 10 abortions). I don’t think all pro-lifers really see a week one “abortion” (e.g., emergency contraception) as the moral equivalent of a week 22 abortion, and I don’t think all pro-choicers see a week 22 abortion as just as morally uncomplicated as a week one abortion. If abortion becomes more troubling the later it is in a pregnancy, then the Supreme Court’s current compromise is the worst of all worlds: the law makes many early abortions occur later, while allowing quite late abortions.
A more sensible compromise than the Court’s would be this: abortion is legal and substantially unrestricted until week X. I’m sure I’d come up with a different “week X” than Rick, but it’d be a lot earlier than the Court’s current standard, “X=viability” (week 24, give or take?). Wouldn’t pro-lifers prefer (for example) “no abortion after the first trimester” to “you can abort even a week 20 fetus but we can make it harder by requiring multiple doctor’s appointments, banning just one of the procedures (“partial birth”) commonly used as of week 15,” etc.?
November 24, 2008 at 12:25 am
Posted in: Constitutional Law
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Responses (4)
Rick Garnett - November 24, 2008 at 10:49 am
Thanks, Scott, for the note. For what it’s worth, I tend to think (and maybe this is insufficiently consisent or pure) *both* that (i) elective abortion is a grave wrong, one that the Constitution permits us to closely regulate and that we should closely regulate; *and* (ii) I’d “settle” for a regime somewhere in between the one we have and the one I’d prefer (such a regime, in my view, is probably the one that “politics” would deliver, were it permitted to operate).
I take your point that some regulations might push abortions a bit later, but there is, on the other hand, what I regard as the legitimate desire to “nudge” people, in what is often a very difficult situation, toward a fully considered decision. (To the extent such nudging is a bit parentalist, it does not strike me as excessively or unjustifiably so.)
Rick Garnett - November 24, 2008 at 10:49 am
Thanks, Scott, for the note. For what it’s worth, I tend to think (and maybe this is insufficiently consisent or pure) *both* that (i) elective abortion is a grave wrong, one that the Constitution permits us to closely regulate and that we should closely regulate; *and* (ii) I’d “settle” for a regime somewhere in between the one we have and the one I’d prefer (such a regime, in my view, is probably the one that “politics” would deliver, were it permitted to operate).
I take your point that some regulations might push abortions a bit later, but there is, on the other hand, what I regard as the legitimate desire to “nudge” people, in what is often a very difficult situation, toward a fully considered decision. (To the extent such nudging is a bit parentalist, it does not strike me as excessively or unjustifiably so.)
Scott Moss - November 24, 2008 at 11:30 am
Interesting — I’d figured a blanket ban as of week X would be more desirable to pro-lifers than the current regime of regulation that leaves some fairly late-term abortions legal.
A less-noticed factor in this whole debate, Rick, is that as the Supreme Court starts to allow more regulation of abortion, some state Supreme Courts bar under their own constitutions a variety of abortion restrictions the federal constitution allows; the state courts in CA, NJ, TN, WV, MT, and AK already have so ruled. So I think the current regime of regulation is on less solid legal ground (setting aside whether that’s good or bad) than many observers acknowledge, given (a) that many state Supreme Courts will disallow state law abortion regulations, and (b) that Justice Thomas’s narrow view of Congress’s legislative power over “Commerce” (the basis for key federal abortion restrictions) means I just don’t see 5 votes on the current Supreme Court for a lot of abortion restrictions — I think the Gonzalez v Carart decision allowing the federal “partial-birth” abortion ban would’ve come out differently had the plaintiffs been willing to make the “beyond the Commerce power” argument (because their Roe/Casey “right to abortion” argument yielded 4 votes, and Commerce could’ve landed Thomas as the 5th).
Bill - November 27, 2008 at 8:11 pm
As a pro-lifer, I have been suggesting to friends a slightly different compromise that I think a majority of pro-lifers would accept. Define protectable life the same way we define death…. brain wave activity. It has been claimed (although pro-choicers dispute this) that brain wave activity can be detected at about 40 days. If so, then simply require any woman who wants an abortion to get a fetal EEG. If it comes back flat, she can have abortion. If not, she has to keep the baby. Defining the beginning of life similar to the end of life has a certain logical elegance to it.
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