Rethinking Abortion: Equal Choice, the Constitution, and Reproductive Politics

Rethinking Abortion: Equal Choice, the Constitution, and Reproductive Politics

Rethinking Abortion: Equal Choice, the Constitution, and Reproductive Politics

Rethinking Abortion: Equal Choice, the Constitution, and Reproductive Politics

Synopsis

Mark Graber looks at the history of abortion law in action to argue that the only defensible, constitutional approach to the issue is to afford all women equal choice -- abortion should remain legal or bans should be strictly enforced. Graber compares the philosophical, constitutional, and democratic merits of the two systems of abortion regulation in the twentieth century: pre-Roe v. Wade statutory prohibitions on abortion and Roe's ban on significant state interference with the market for safe abortion services. He demonstrates that before Roe, pro-life measures were selectively and erratically administered, thereby subverting our constitutional right of equal justice under law. Claiming that these measures would be similarly administered if reinstated, the author seeks to increase support for keeping abortion legal, even among those who have reservations about its morality.

Excerpt

Any fair-minded person should recognize the impeccable credentials of equal choice. Unlike pro-choice arguments, which rely heavily on controversial moral claims and interpretive theories, equal choice arguments follow naturally from political values and legal precepts that most Americans regard as axiomatic. Policies that grant affluent white women practical indulgences from the criminal law are inconsistent with widely held principles of justice as well as the plain, original, and historical meanings of the equal protection clause. Hence, repeating the arguments of chapters iii and iv at appropriate moments may be the only political strategy necessary for keeping abortion legal. Once Americans are fully exposed to the philosophical and constitutional case for equal choice, legislators and executives will stop regulating abortion, voters will elect large pro-choice majorities, justices will continue (or resume) treating Roe as an authoritative constitutional decision, and opponents of legal abortion will refrain from proposing new bans until their pro-life policies have some reasonable chance of being fairly administered.

Still, some fair-minded persons will not find equal choice arguments so compelling. Critics may insist that my chapter ii overestimates the inequalities that result when our society bans abortion or underestimates the number of fetal lives that pro-life policies save. Others may claim that the few fetal lives that bans on abortion save still outweigh the substantial race and economic inequalities that result when such policies are implemented. Anti-Roe commentators may argue that the equal protection clause does not protect equal choice rights or that state officials were not constitutionally responsible for the racial and class biases of the gray market. I think these and similar criticisms are wrong, but intelligent persons often disagree. For these reasons, even if equal choice arguments prove more persuasive than pro-choice arguments, they will not be the final word: no scholarly analysis can bring about the social consensus necessary to end the abortion controversy.

The inevitable contestability of all abortion policies compels advocates of reproductive choice to think politically in one last sense. They must . . .

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