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CIAO DATE: 6/5/2006
Abortion Nation
James Q. Wilson
March 2006
Abstract
Contentious social issues like abortion and gay marriage should be decided in state legislatures, not in the courts or through constitutional amendments.
When South Dakota passed a law banning all abortions save those that threaten the physical health of the mother, opponents of abortion were cheered and defenders of it outraged. I think both sides were mistaken.
Roe v. Wade, decided in 1973, did not create abortion; it created a right to an abortion. The decision had few merits on constitutional grounds, and it was a disaster on political ones. For nearly a quarter of a century American politics has been convulsed by this polarizing debate. No one can become the Democratic presidential candidate without favoring abortion, and--so far--no one can become the Republican candidate without opposing it. This has driven the candidates and parties far apart even though most Americans occupy a middle ground on the issue.
Abortion has become the key test for selecting people for high-level judicial offices. When Senator Charles Schumer (D-N.Y.) says he favors using “ideology” as a test for judges, the ideology he has in mind is abortion. When other senators oppose a “litmus test” for judges, the test to which they refer is about abortion. We closely watch Supreme Court decisions to see if they will oppose even the slightest restriction on this “right.”
By contrast, abortion is scarcely an issue in most European democracies, not because the people who live there have views radically different from American ones, but because legislatures--not courts--authorized abortions using language that tried to strike a reasonable balance among competing views.
When other countries authorized abortions, they did not authorize a right to one. Their laws were designed to give varying degrees of respect to unborn life. (Only in China is there a law as permissive as that conferred by Roe v. Wade.) When Professor Mary Ann Glendon surveyed abortion laws here and abroad in the late 1980s, she found that in France, Germany, Italy, the Netherlands, Switzerland, and the United Kingdom there existed pre-abortion waiting periods, mandatory counseling, time limits on when during a pregnancy an abortion could occur, and a requirement that several physicians agree on the need for an abortion.
Suppose, in response to a lawsuit brought against the South Dakota law, Roe were overturned. Abortion would not disappear. Women would not visit quack doctors or travel to Sweden. Abortion would be legalized in many states (it was legal in five before Roe was decided), but having been made legal by state legislatures, the laws would--as in Europe--accommodate the diverse views of proponents and opponents. Ardent defenders of abortion would realize that, in exchange for a small bus fare, a woman in South Dakota could go to a nearby state where abortions were easy to obtain. Ardent opponents would know that if they wished to live in an abortion-free state, they could move to one.