by laurence h. tribe
norton, 259 pages, $19.95
Abortion: The Clash of Absolutes is an expert brief on behalf of strict adherence to the terms of the abortion liberty granted in Roe v. Wade, no matter how much leeway the Supreme Court may give to legislatures in the post- Webster era. The renown of its author. Harvard Law Professor Laurence Tribe, is such that the book bids fair to become the official handbook of abortion rights advocates for the next several years. In ten concise, clearly written chapters, he canvasses the current legal situation, the history of abortion, the problem of finding abortion rights in the Constitution, the question of the personhood of the fetus, the politics of abortion, and the possibility of a new approach to this most divisive of political issues.
Tribe’s announced purpose is a constructive one: to challenge the inevitability of permanent conflict on abortion policy; to examine critically the arguments on both sides of the debate, identifying areas of common ground and disagreement; and “to lay the groundwork for moving on.” He hopes, he says, to persuade his readers “that we need not cling so fiercely to one or the other extreme, that there is room for movement toward healing our divisions over the abortion question based on shared values and goals.”
This introductory statement might lead one to suppose that Tribe is about to endorse the sort of accommodation currently being proposed by moderate abortion-rights supporters like Daniel Callahan. These compromises seek to safeguard unborn life in early pregnancy (where empathy with the fetus is more difficult) chiefly by creating opportunities for advice and help to the pregnant woman, but would increase protection for the fetus as its development progresses. Most of Tribe’s book, however, is aimed at countering the growing consensus that some sort of political middle ground must be found between a total ban on abortions and the abortion license of Roe V. Wade. He puts his very considerable legal and rhetorical talents in the service of shoring up the crumbling doctrine of Roe—if not by court decision, then by legislation, and if not by state legislation, then by a pre-emptive federal freedom-of-choice act. Though the book is in the form of a search for accommodation, the search leads Tribe to the position currently taken by the prochoice leadership: not the slightest legal interference with the abortion rights granted by Roe v. Wade should be tolerated.
One by one Tribe considers and rejects the major proposals for reform of abortion law. He cannot even approve bans on sex-selection abortions, for he sees no evidence that sex-selection abortion is a problem in the United States, and forbidding them could be the camel’s nose under the tent, leading to further erosion of abortion rights. Proposals for notification of parents of minors, mandatory counseling and information about alternatives to abortion, regulation of abortion clinics, or limits on the reasons for which abortions may be performed are labeled as pseudo-compromises that “offer only an illusion of reasonable accommodation.” Such proposals are “cruel” because, to the extent that some women seeking abortions are denied or delayed, “we will still be faced with the disruptions of life and the unwanted children . . . .” The truly moderate position. Tribe explains, is Roe itself, which wisely leaves the decision to the woman herself but permits some regulation in the interest of the fetus after viability—so long as that regulation does not interfere with the woman’s “health.”
The attempt to portray Roe as moderate is not the most convincing part of Tribe’s book. Since the Court has defined “health” as “well being,” Roe leaves virtually no room for protection even of viable fetuses from abortion. This was made abundantly clear in the cases that followed Roe where the Court struck down nearly every legislative attempt to regulate late abortions. Even Webster merely permits a state to require a test for viability. The post-Roe cases reveal how little regulation in the interest of protecting unborn life the Court has been willing to tolerate. In 1979, for example, the Court struck down a legislative attempt to require that post-viability abortions be performed using methods that would give the fetus a chance to be born alive. If Roe and its progeny are not extreme, one must wonder why no country other than China has gone so far in exempting abortion from legal regulation.
Although he defends the broad abortion rights granted in Roe, Tribe does suggest, with hindsight, that it would have been wiser for the Court to have decided the case on narrower grounds. He explains that the abortion right could then have been expanded slowly in later cases, so as to get the public used to it bit by bit, rather than shocking and galvanizing pro-life sentiment with one sudden dramatic decision. (There is a certain tension between these strategic considerations and Tribe’s effort to portray Roe as moderate.)
After learning that the author approves of no compromise where Roe’s abortion liberty is concerned, the reader’s curiosity is piqued. What is the new approach that will aid us to transcend conflicts over the abortion issue? Stated in the most general way. Tribe’s proposal is one that virtually all prolife and prochoice partisans have already accepted: “We must reduce the number of situations in which women are pregnant but do not want to be.” Tribe would proceed toward this common ground mainly on two fronts: social programs and technology. Like most prolife supporters who share his unexceptionable goal. Tribe favors efforts to make our society more hospitable to children, supportive of motherhood, and encouraging to child-raising families. To accomplish these ends, he looks mainly toward governmental initiatives through parental leaves, maternity benefits, day care, and so on. He does not mention the large part of prolife activity and resources devoted to some 3,400 local organizations that afford financial and other assistance to enable women to continue with their pregnancies.
The social welfare side of Tribe’s new approach will appeal to many prolifers, especially those Catholics who see abortion as part of the “seamless garment” of life issues. But it is disappointing that Tribe cites with approval a New York Times op-ed piece by President Carter’s former Counsel, Lloyd Cutler, arguing that the state has a moral obligation to provide for pregnant women and children if it denies poor women free access to abortions. Tribe praises the article without mentioning the sinister reason Cutler gives for insisting on our social duties to the poor: “The moral zeal of the right-to-life movement ought to be tempered by the realization that for every unwanted child they force into this world, they may be piling huge future obligations on all of us that our Government would be bound to satisfy.” There is a world of difference between the preferential option for the poor advocated by many Catholics and Cutler’s constricted vision of the human community, reinforced as the latter is with a stern warning about a potential “sharp growth of the underclass.” In the former view, public and private social assistance are expressions of neighborliness; in the latter, increased spending for the poor is presented as a punishment for heedless prolifers and a warning to taxpayers.
A Nobel prize will surely be in order for the man or woman who figures out how to bring forth Tribe’s (and prolife’s) ideal society where abortions will no longer be sought. So far, however, the common goal seems elusive, and the question therefore becomes: What do we do in the meantime? In a section titled “Using Technology to Circumvent Destiny,” Tribe speculates that scientific advances may soon render both birth control and abortion safer, simpler, and less physically intrusive.
Several alternatives to available contraceptive technologies are in effective use in some parts of Europe or are at least being examined seriously. For women these include: contraceptive implants placed under the skin; injectable microspheres and microcapsules that provide a constant dose of a contraceptive hormone over several months; monthly injectables; vaginal rings that release hormones; nasal sprays that prevent ovulation; and, apparently, intracervical implants to neutralize sperm by using an electrical current to deter migration across the cervix and toward the fallopian tubes.
Near-perfect control of procreation. Tribe hopes, may be within our grasp. But how perfect will it be? Most, though not all, birth control innovations are meant to be used by women. Reactions to such matters are subjective, of course, but I must confess that to me this array of implants, injections, rings, sprays, and electric currents does not sound “absolutely safe” or even “non-intrusive.” Would many men use the male counterparts to these devices that Tribe dutifully lists in another passage?
When contraception fails, Tribe seems to pin great hopes on RU486. Referring to its relative safety and ease of use, he finds it hard to see why it should be “denied” to women. As with contraceptives that act upon the woman’s body chemistry, however, it is not clear that high-tech is really the safe way to go. The RU-486 method requires the patient to take three doses of this synthetic steroid, followed by an injection or suppository of the hormone prostaglandin. As a contemporary of many women who were told that another steroid, DES, was a simple, safe precaution against miscarriage, I cannot help wondering whether an abortifacient whose long-term effects are unknown is so much a boon to women as to the next generation of tort lawyers.
The main flaws in Tribe’s “new” approach, then, are two. Its first prong implies that we should not ask people to respect the lives of unwanted or inconvenient humans as long as we do not have in place a social-welfare state so perfect that pregnancy and child-rearing are no longer burdensome. The second, despite a nod in the direction of male contraception, keeps the main costs of the sexual revolution right where they have always been”on the bodies of women.
Fortunately, there is a large middle ground on which moderate prochoice and prolife supporters seem tentatively to be staking out positions. Contrary to stereotypes, and unlike the prochoice leadership, many thoughtful choice supporters are concerned not only with “who decides” but with what is decided. For this reason, abortion-rights proponent Daniel Callahan has concluded in a recent essay that the hostility of prochoice leaders to any and all (compromise is a tactical mistake. Polls show that most prochoice supporters are troubled by certain grounds for abortion, and that they have a gradualist view of personhood.
Callahan warns that prochoice loses support among its own ranks when it insists that discretionary abortions, for reasons such as sex selection, must be tolerated in order to protect “necessary” abortions. In a revealing passage of his chapter on the politics of abortion. Tribe shows that he knows this too.
Much of the prolife leadership has already approached the middle ground that Callahan and other prochoicers have sighted. While insisting on the principle of protection for innocent unborn human life, many prolife leaders have accepted that under current conditions that goal must be pursued incrementally: by seeking the maximum legal protection for unborn life that is legally and culturally sustainable, and continuing to work for the transformation of individuals and society on which all “rights” ultimately depend.
In Tribe’s concluding chapter, he too calls for introspection and conversion. He asks prolife and prochoice sympathizers to look deeply within themselves and confront honestly the possibility that their “real” motives may be different from their “professed” ones. The prolife movement, he suggests at several points, is animated “in part” by a reluctance to see women play roles more equal to those of men and by harsh attitudes toward sexual morality. Theories that any significant part of prolife is anti-woman, however, are hard put to explain why women are significantly more prolife than men. It does not take Sherlock Holmes, on the other hand, to discern why the strongest supporters of elective abortion are young men.
The corresponding sin of prochoice, Tribe suggests, may be a certain contempt for the “recent immigrants” and “lower-status religious groups” from which prolife draws disproportionate support. In his speculation about the silent motives of prochoicers, there is no mention of the profit-making abortion industry, or of the social attitudes that occasionally surface in statements like NARAL director Kate Michelman’s:
It’s terrible to reduce such an important social issue to this, but the truth is that prenatal care, delivery, and the first year of life on welfare cost taxpayers $4,000 a year compared with $250 for an abortion.
My own view is that searches for hidden reasons are not very useful. Any coalitions as diverse as the prolife and prochoice movements will have some members who are animated by base and unworthy motives. After many years of watching the fray, I see no reason not to accept the accounts given by both sides as substantially accurate descriptions of what is most important to most of their supporters. After all, both sets of values are important. Women are entitled to equal respect, dignity, and personal liberty. But a society that establishes a constitutional right to dispose of unwanted unborn life may have implicitly adopted the principle that burdensome human beings can be sacrificed at the request of those on whom they depend.
Where the important values of women’s liberty and protection of innocent life clash, countries all over the Western world have worked out political accommodations. These compromises do not avoid pain and tragedy—how could they? But they do try to balance compassion for pregnant women and concern for unborn life, sometimes by emphasizing the former in the early stages and the latter as the pregnancy advances. Imperfect? Yes. Unsatisfactory to practically all determined activists on both sides? Yes. But in a democratic and pluralistic society, as Tribe so rightly observes, education, dialogue, persuasion, and, ultimately, voting are “all we’ve got.”
Lest any reader suppose that this review is a disinterested appraisal of Tribe’s book, I should clarify my own position. Not only are the author and I friendly colleagues whose views on the abortion issue differ, but Tribe has strongly expressed his disagreement with me in the very book that is here under review. While these circumstances may render me somewhat less “objective” than the usual book reviewer, they also perhaps confer certain advantages, as I will endeavor to show by briefly relating the positions in the current book to the main themes of my colleague’s life work.
Though Abortion: A Clash of Absolutes is an uncompromising defense of the extreme prochoice position, it is a book shot through with questioning and self-doubt. Tribe’s honesty and scientific sophistication compel him to face squarely what some prochoice advocates deny; that the fetus is a developing human life. He is critical of Justice Blackmun in Roe and of those prochoice supporters who avoid or deny this simple fact. Just how critical is demonstrated in a 1985 Harvard Law Review article where Tribe criticized the Court in Roe for “reaching beyond the facts of the case to rank the rights of the mother (sic) categorically over those of the fetus, and to deny the humanity of the fetus (even denying that a viable fetus is a ‘person’ prior to the ‘moment’ of birth). . . . ” Like virtually all constitutional law specialists, regardless of their views on abortion. Tribe has found Justice Blackmun’s opinion in Roe to be deeply flawed. Tribe’s own idea of a better course to have pursued in that case is signaled in the 1985 article where he chides the Court for its failure to show “a more cautious sensitivity to the mutual helplessness of the mother and the unborn that could have accented the need for affirmative legislative action to moderate the clash between the two.”
The Larry Tribe whose career as a constitutional lawyer has been largely devoted to protecting the rights of the weakest and most vulnerable members of society does not coexist comfortably with the Tribe who reluctantly defends the right to abort what he recognizes as a human person. Nor does the rhetoric of privatization come naturally to a man who espouses an active role for government in enlarging the community of those for whom we assume common responsibility, and who has so effectively shown why private choice must sometimes bow before important social interests such as equal opportunity in employment and equal access to accommodations.
I thus discern that within The Clash of Absolutes there is another clash, a sort of intra-Tribal struggle. It is a struggle between two good guys—the Larry Tribe who is compassionate towards the weak, vulnerable, and disenfranchised against the pioneering feminist Larry Tribe. Like many thoughtful men in the academic world, Tribe seems to feel that, as a male, he cannot appear to be siding with the enemies of feminism. His avowed ambivalence, however, together with the tension between the views expressed in this book and the general development of Tribe’s other work, leads me to believe that Tribe will come, as most women do, to accord more weight to the value of protecting human life than is here expressed. His sincere empathy with women will lead him to see that women are not well served by a movement which makes the right to abortion paramount to all others, or which implies that women are so weak that they need not be held morally responsible. His concern for constructing an abortion-free society will lead him to see that Roe’s abortion license itself promotes a climate where too many decisions are weighted in favor of abortion. Most important of all, his concern for the oppressed and endangered will lead him to see that none of us, men or women, can afford to let our legal system lapse into careless delegation of decisions about what life is worthy to live.
One of the many qualities that lifts Larry Tribe above the ranks of lesser legal scholars is his willingness to reexamine his positions and change his mind. Given the far-reaching implications of this important contemporary civil rights issue, it seems likely that while this book may appear to some abortion rights proponents to be the last word on the subject, it will not be so for its ambivalent author. It is my confident hope that, over time, in Tribe v. Tribe the better man will win.
Mary Ann Glendon Professor of Law at Harvard Law School. Her most recent book is The Transformation of Family Law.