January 22, 2004,
EDITOR'S NOTE: This book review appeared in the September 1, 2003, issue of National Review.
Will Saletan, a writer for Slate and a friend of mine, has written a thoughtful and engaging book on the politics of abortion, Bearing Right: How Conservatives Won the Abortion War. His analysis distinguishes between two kinds of "pro-choice" positions. What he calls the "conservative pro-choice" position grounds its support for legal abortion in the limits of government power and the autonomy of families. I assume that the liberal pro-choice position, which Saletan develops only by implication, is based on egalitarianism, feminism, and the empowerment of individuals.
Liberal pro-choice activists favor taxpayer subsidies to give low-income women access to abortion. Conservative pro-choice voters oppose such subsidies, as they want the government neither to hinder nor to aid women seeking abortions. Liberal pro-choicers oppose parental-consent laws because they violate the autonomy and bodily integrity of teenage girls. Conservative pro-choicers support those laws because they safeguard the autonomy of the family.
Saletan tells the story of how the organized pro-choice movement triumphed by appealing to the conservative pro-choice voters and, in the process, sold its soul. His story begins in Arkansas in 1986. Opponents of abortion had placed a referendum on the ballot to ban taxpayer funding of abortion. The governor, one Bill Clinton, said he agreed with the initiative's "stated purpose." Pro-choice activists were able to beat the referendum, barely. They did it by running a deceptive campaign. Instead of defending taxpayer funding, they ran an ad falsely suggesting that the initiative would increase such funding.
They ran another ad pretending that the initiative would ban abortion. Its text: "Imagine. Your fourteen-year-old child, your own sweet daughter, is raped and pregnant. She's frightened, confused, and so are you. Imagine, too, the government says they'll make the decision. Never mind the circumstances. You, your doctor, your preacher, your daughter have no say in this personal, private tragedy. Don't let this bad dream become reality. Vote against Amendment 65."
With that ad, Saletan argues, the pro-choice movement took two right turns. By drawing attention to victims of rape, the movement implicitly treated other women's reasons for having abortions as less compelling. The movement was back to separating women deemed innocent and those deemed guilty. Second, pro-choicers had stopped emphasizing the decision-making authority of the pregnant woman. All of these other people her family, church, and doctor were in the mix, too. (Actually, there was another right turn: The ads against the initiative also argued that less abortion funding would mean more welfare spending.)
The next conservative pro-choice triumph was the defeat of Robert Bork's nomination to the Supreme Court. His opponents hammered away at Bork's hostility to the "right to privacy" and even accused him of atheism. Support for Bork among conservative voters, and especially among Southern whites, plummeted. (Saletan sees a racial subtext to these voters' concern about government activism, as also to their concern about pregnancies resulting from rape.)
Soon after Bork's defeat came the election of Douglas Wilder as governor of Virginia on a pro-choice, anti-funding, pro-parental-consent platform. Pro-choice candidates who made those concessions put pro-lifers on the defensive, particularly those pro-lifers unwilling to make exceptions for rape. Wilder's election marked the start of a period, roughly coterminous with the first Bush presidency, during which the pro-choice movement was as politically strong as it has ever been.
But the limits of this strength became apparent early in Clinton's term. Pro-choicers' attempt to codify Roe v. Wade in a federal "Freedom of Choice Act" foundered on the funding and parental-consent issues. Pragmatic pro-lifers began to make headway by appealing to conservative pro-choice voters. Leading pro-lifers first quit trying to ban abortion in cases of rape and incest. Then they gave up on a ban altogether, concentrating instead on an incremental strategy of chipping away at abortion rights. Parental consent and a ban on partial-birth abortion topped their agenda. The pro-choice movement had secured a "right to abortion" but defined in conservative terms.
For Saletan, the trouble with those terms is not just that they exclude taxpayer funding and teenagers' rights. The swing voters to whom both pro-lifers and pro-choicers have appealed are not primarily motivated by the woman's right to choose or the unborn child's right to life, but by "the rights . . . of husbands, parents, businesses, and taxpayers." Catering to their demands can generate results that are neither pro-life nor pro-choice that threaten both women and children.
Saletan explores a series of cases in which what he calls "the right to choose life" has been threatened. Parents have tried to force their daughters to have abortions. Employers have sought to bar pregnant women, or women who could become pregnant, from certain jobs (for example, jobs involving lead exposure), leading to abortions and sterilizations. Politicians and judges have sought to implant Norplant, a contraceptive and abortifacient, in welfare recipients and criminals. In many places, welfare reformers have successfully imposed a "family cap": Where welfare recipients had previously seen their payments rise as they had more children, under the cap they did not rise. Many pro-lifers and liberal pro-choicers opposed the family cap as a form of governmental encouragement of abortion. Conservative pro-choicers did not object to it.
Pro-choice tactics have exacted another cost as well. Because it downplayed the importance of the pregnant woman's right and put all its energy into beating pro-lifers, the pro-choice movement got involved in fights it should have avoided. There was no need for pro-choice organizations to promote embryo-destroying stem-cell research, or to promote cloning to facilitate such research. These issues didn't involve women's control over their own bodies. The National Organization for Women came out for stem-cell research and cloning anyway.
Saletan is a sharp thinker and has a nice, clean writing style. His distinction between pro-choice conservatism and liberalism explains important features of the politics of abortion. There are indeed a great many middle-class voters who want to keep abortion legal because unwanted pregnancies are a threat to bourgeois family life. One might say, speaking bloodlessly, that these voters place order above liberty, equality, or justice. To put it in more human terms: Unplanned pregnancies are not part of their plans for their sons and daughters. This impulse is not entirely ignoble, even if Saletan makes no attempt to sympathize with it.
But Saletan's account leaves out a lot. It wasn't abortion-rights activists in Arkansas who drew a line between legal abortion and subsidized abortion. It was the federal courts that insisted on the former but not the latter. It isn't "conservative pro-choice voters" who have kept abortion legal in the third trimester. It's the courts. If Saletan were right, conservative pro-choicers would oppose bans on partial-birth abortion. Such prohibitions are a form of government activism; they regulate the conduct of adults as well as teens. But the conservative pro-choicers actually favor those bans. It's the courts that have blocked them. Some polls suggest that a small majority of the public is willing to ban all abortions with exceptions for rape, incest, and the life of the mother.
Saletan's book is curiously silent about the extent to which the courts have shaped and structured the debate about abortion. If voters recoil from proposals for taxpayer funding and from bans, it's in part because they require divisive political debate to enact. They are departures from the status quo a status quo set by courts.
The courts, moreover, are still the place where resistance to strong parental-consent laws is mounted. The courts require, for example, that any parental-consent law include a provision for judges to bypass parents. Priscilla Owen, a Bush nominee to the federal bench, is being held up largely because the pro-choice lobby thinks she was too reluctant to take advantage of that loophole. Pro-choicers have not truly given up on parental consent.
Saletan believes that the pro-choice movement lost its way in the 1980s and '90s. Some of us, of course, think it lost its way at the very start. But would pro-choicers really be better off if they had followed his implicit advice? They might not have lost their souls, in his terms, if they had promoted abortions for teenage girls on the taxpayer's dime. They would have lost, period. Pro-choicers would have had to defend abortion as a good thing (at least in some tragic cases), and not just as something the law must tolerate. At no point in the last 30 years would that argument have sold.