Tuesday, January 22, 2013
A thought (or just a hypothesis) for the day: For a topic that has convulsed American law and politics since 1973, the abortion issue has produced a surprisingly meager scholarly literature. This came to me when I was selecting readings for a seminar in law and bioethics, which I teach from time to time--it turns out it's hard (at least much harder than I expected) to find good resources on the topic. I don't mean to suggest, of course, that there has been nothing worthwhile written on abortion. Judith Jarvis Thomson's article about the kidnapped violinist in "A Defense of Abortion" (1970) remains a classic pro-choice argument, and our own Robby George, his mentor John Finnis, and John Keown (another Finnis student) have produced powerful defenses of the pro-life position. Then-Professor John Noonan's edited collection The Morality of Abortion: Legal and Historical Perspectives (Harvard, 1970) includes Noonan's own "An Almost Absolute Value in History" and Paul Ramsey's "Reference Points in Deciding about Abortion." (Note that Thomson's article and the Noonan collection are all pre-Roe and now over 40 years old.) Will Saletan's Bearing Right (California, 2004) was an interesting read about the politics of the pro-life movement, Mary Ann Glendon's Abortion and Divorce in Western Law (Harvard, 1989) is a wonderful comparative study, and my colleague Joe Dellapenna published a 1300-page survey of the history of abortion, Dispelling the Myths of Abortion History (Carolina Academic Press, 2006).
I am leaving a lot out that I could mention from many quarters (McMahan, Kaczor, Beckwith, eg), but, even so, this strikes me as a relatively small output of literature for a topic of such prominence. Law review articles working through the weeds of legal doctrine on abortion strike me as less common than one might expect (Jessie Hill's, Naomi Cahn's, and Reva Siegel's work on the pro-choice side, Mark Rienzi's, Michael Paulsen's, and Helen Alvaré's work and articles such as Stephen Gilles's "Roe’s Life-or-Health Exception: Self-Defense or Relative-Safety?," 85 Notre Dame L. Rev. 525 (2010) on the pro-life side being notable exceptions--again, leaving out some other candidates). Why is this? Are the arguments on each side now so well-rehearsed and known that there is little new--since, say, the initial outburst of literature in the early 1970s--to say on the topic? Are the terms of the abortion debate (sanctity of life, equality, liberty, autonomy) themselves so intractable that, as Alasdair MacIntyre suggests in After Virtue, abortion is merely one manifestation of the incommensurability in moral argument that afflicts our culture? And so writing on the topic--certainly writing in the hope of persuading those readers who disagree--is usually not worth the effort?