Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, November 29, 2010

"Compromise" on abortion

We have had a number of posts, in recent weeks, regarding the relatively recent abortion-related conference at Princeton.  Some of those posts included references to Will Saletan's (of Slate) "take-aways" from the conference, which took the form of "advice" for pro-lifers and pro-choicers.  Commenting on these take-aways -- and, in particular, on Saletan's advice to pro-lifers that they join pro-choicers in reducing the number of abortions by endorsing contraception and sex education instead of regulation.  Putting aside (a) the question whether the number of abortions is all that matters and (b) how the number of abortions are, in fact, best reduced, I think Ross Douthat makes a very good point:

For Saletan’s compromise to become plausible, Roe would have to go. For any compromise that offers anything meaningful to abortion opponents to become plausible, Roe would have to go. I’ve made this point before, but it’s worth making once again: The problem with the abortion debate in America isn’t that the anti-abortion side won’t ever consider making compromises or taking half a loaf. It’s that the structure of constitutional law is tilted so egregiously toward abortion-on-demand that any plausible compromise is a non-starter. I appreciate Saletan’s willingness to contemplate the idea of some legal restrictions on abortion. In a different, better world, it would represent a real step toward meaningful political discussion. But so long as five Supreme Court justices think that there’s an absolute constitutional right to a second trimester abortion, he’s writing checks that American politics can’t cash.

UPDATE:  More from Saletan, here.


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Question for anyone: Could a case be brought to the Supreme Court that might plausibly result in more restrictions than Roe without Roe being simply overturned completely, with the issue going back to the states? Is it possible (or remotely plausible) that the Court could rule in such a way as to allow much tighter restrictions on second- and third-trimester abortions without making a change in the law for first-trimester abortions?

Posted by: David Nickol | Nov 29, 2010 4:31:15 PM

David Nickol,

My layman's impression is that the Supreme Court may decide anything it likes!

Posted by: WJ | Nov 29, 2010 10:26:19 PM

David Nickol,

My layman's impression is that the Supreme Court may decide anything it likes!

Posted by: WJ | Nov 29, 2010 10:28:17 PM

Yes, by abandoning the exceedingly broad definition of maternal "health" adopted by the Court in Roe's companion case, Doe v. Bolton.

Posted by: John Breen | Nov 29, 2010 11:42:40 PM

I agree with John Breen. As long as "maternal health" means not only physical damage to life or limb but any claim of harm to mental or physical health as determined solely by the mother, there is no way to plausibly limit abortions to the first trimester.

Posted by: Jonathan | Nov 30, 2010 9:08:36 AM

If maternal health is too thin a reed to use to justify prohibiting second trimester abortions, then perhaps opposition might be overcome by State provided health care for mothers who are injured or claim injury due to their carrying to term and birth of a child. If injury is transient or treatable, and the law places no financial burden on the mother, then most cases could be disposed of that way and leave us with the "real" life-or-death/grave-injury maternal health cases which are likely to be a small part. It's a step in the right direction, but will never happen because few leaders want a solution that is not a all-or-nothing answer.

sean s.

Posted by: sean samis | Nov 30, 2010 6:04:49 PM

Is there truly anyone in the "pro-life" movement who would be willing to accept a compromise that freely permitted first-trimester abortions in exchange for very strict limits on second- and third-trimester abortions? After all, 88 percent of abortions are done in the first trimester. One pro-life leader told me in an online discussion that he had no problem making an alliance with Orthodox Jews to try to outlaw all abortions except the 1% where the life of the mother was threatened, and when that was achieved, he'd then turn around and try and prohibit that 1%. I don't foresee any grand compromises.

Posted by: David Nickol | Nov 30, 2010 6:54:18 PM