A review by Jo Freeman published in Contemporary
20, No. 5, September 1991, pp. 735-6.
Abortion: The Clash of Absolutes, by Laurence H. Tribe. Norton:
New York, 1990. 270 pp. $19.95, cloth
controversy over whether or not a woman should be able to choose abortion
is a classic community conflict, pitting against each other people who
are absolutely convinced of the justice of their cause. This moral polarization
-- life against liberty Tribe calls it -- is captured in the title, but
the author's preference for the pro-choice position is so clearly evident
that the title is almost misleading. This is not a book about moral conflict,
or the people involved in the clash of absolutes, but a review of the
historical, social and legal context in which the clash occurs.
Roe v. Wade was handed down by the Supreme Court on January 22,
1973, it caught many people by surprise. The people and institutions
that would become the Right to Life Movement were shocked to find
the authority of the Constitution behind a position they found
so morally reprehensible. But for those familiar with recent history,
this development was a logical step. In the preceding twenty years,
respected members of the very profession which had worked to criminalize
abortion during the Nineteenth Century -- physicians -- had lobbied
legislatures to give them more latitude in advising their pregnant
patients. Their reform efforts were aided by two tragic episodes
in the 1960s; the thalidomide scare and a rubella epidemic. The
rise of the women's liberation movement in the late sixties brought
a new constituency into the arena. The result of all this was that
by 1973, four states had repealed abortion restrictions for at
least the first trimester and many others had liberalized them.
was the issue a new one for the courts. The right to privacy had
already been found in the Constitution when the Supreme Court reviewed
state birth control statutes. Roe was a logical extension. Tribe's
review of the constitutional arguments is one of the clearest and
most cogent available to a nonlawyer. Logical though it was, the
Court was ahead of the country. The nascent movement against reform
was given a quantum shove, and the nature of the debate was radically
shifted over night.
then those who favor liberty over life have been fighting a defensive
action, one which they appeared to be losing as Congress and the
states passed restrictive laws and the courts mostly upheld them.
During these years each side sought to hold responsible the people
who have the most to lose from moral conflicts -- elected officials
-- while trying to frame each argument in the most publicly acceptable
manner. Each side purported to speak for the public when the polls
showed that the most people's position was not absolutist; the
public supported abortion under some circumstances, by some women,
at some time. The battle shifted once again in 1989, when a divided
Supreme Court held in Webster that a state can require tests for
fetal viability prior to an abortion, and candidates for office
discovered that the real silent majority preferred that their own
moral decisions be kept private. Since then the community conflict
has become a form of civil war.
contribution to the struggle is to "show beyond doubt that ideas
about abortion and attitudes about its availability are highly
culture-specific, reflecting the time and place in which they arise" (p.
76). Thus he argues that the compromises of other countries which
make available privately abortions that are disapproved of publicly
won't work in a society concerned with enforceable norms about
individual rights. Instead he looks to technology to once again
change the nature of the debate. After reviewing past and present
developments he argues that "the development of an artificial womb
or the perfection of embryo transfer technology beyond the first
few days of pregnancy would in practical reality separate the two
analytically distinct questions raised by the debate about abortion
that have heretofore remained practically inseparable -- the question
of the imposition on a woman's liberation, and the question of
the destruction of a fetus for which one is responsible" (p. 222).
Until some compromise is possible, he urges that both sides show
more humility and more tolerance toward each other.