Most Americans would most likely await a compliment when they hear the claim “The United States is in a class by itself.” But for many this expectation will be sadly dashed when they read these words in Mary Ann Glendon’s new book, Abortion and Divorce in Western Law (Harvard University Press). Glendon, a Harvard Law School professor, argues that American abortion and divorce laws are the most liberal in the Western world and provide the least protection for the fetus and for the children of divorced parents.
Today, in order to find a country where the legal approach to abortion is as indifferent to unborn life as it is in the United States, we have to look to countries which are much less comparable to us politically, socially, culturally and economically, and where concern about population expansion overrides both women’s liberty and fetal life.
Glendon supports her argument through an analysis of the abortion laws of 20 countries. She places each country into one of four categories: those allowing abortions until viability and not requiring regulation thereafter; those that allow elective abortions early in the pregnancy but regulate them strictly thereafter; those that allow abortions early in the pregnancy for circumstances that pose exceptional hardships for the woman; and those that allow abortions only when there is serious danger to the woman’s health, the likelihood of serious disease or defect in the fetus, or when the pregnancy resulted from rape or incest. Only the United States fits into the first category mentioned—that of countries that allow abortion until viability and require no regulation thereafter.
Glendon analyzes in detail the abortion laws of only two other countries, France and West Germany, but that is sufficient for her purposes. In the course of her comparison of these countries with the U.S. she notes that most other countries incorporate language protective of the life of the fetus into their abortion statutes; they allow greater protection for a viable fetus; they discourage the establishment of freestanding abortion facilities; they mandate more counseling and dissemination of information about alternatives to abortion; and they are willing to confront the question of the humanity of the fetus. Other countries attempt to discourage abortion by encouraging legislators to provide more welfare and child support. The U.S. is unique in having its abortion laws be the result of the judicial process rather than a result of the “give and take” of the legislative process. And no other countries speak in terms of a woman’s constitutional right to have an abortion.
Indeed, the abortion legislation of other countries seems designed almost as much to protect the fetus as to secure the preferences of women. In 1975, the West German Constitutional Court found that a liberal federal statute did not sufficiently protect human life and explained its decision with explicit reference to the Nazi “final solution” that found so much of innocent human life expendable. Glendon contrasts the West German decision based on a “concern for the community” with the invocation by the U.S. Supreme Court of a “right to privacy.”
Glendon seeks to discover if Americans might be well-advised to adopt some of the measures other countries take to make childbearing a more attractive choice. While she admits that compromise of the moral positions of those taking opposite sides in the abortion debate is most likely impossible, she expresses great admiration for the usefulness of political compromise:
These compromises, reached in the usual democratic way, are not entirely satisfactory to everyone. They distinguish between early and late abortions by drawing a line that is difficult to defend on rational grounds, and they weigh the competing interests in a way that is apt to be distasteful to pro-life and pro-choice activists alike. But the European countries have been able to live relatively peacefully with these laws without experiencing the violence born of complete frustration and without foreclosing re-examination and renegotiation of the issues.
She had spoken earlier of the French law as one that represents such a compromise:
The legislation as a whole is pervaded by compassion for pregnant women, by concern for fetal life, and by expression of the commitment of society as a whole to help minimize occasions for tragic choices between them. This commitment is carried out by provision of birth control assistance, and by comparatively generous financial support for married as well as unwed mothers.
She thinks that such compromise is possible in the U.S. because polls have consistently shown that most Americans do not approve of most abortions. Furthermore, she agrees with Justice O’Connor’s famous statement that Roe is on a collision course with itself since it both allows abortion but also acknowledges that the state has a compelling interest in protecting the fetus after viability—even while medical technology is rapidly moving back the point of viability.
Glendon is careful not to reveal her own position on abortion. At times, she seems to give some solace to the pro-choicers; for instance, in her observations that states would not have kept their strict anti-abortion legislation even had Roe v. Wade not overturned such legislation. She thinks that if Roe v. Wade is overturned, not many states will enact strict anti-abortion legislation. She also seems to offer consolation to pro-choicers with her observation that if individual states were to outlaw abortions, modern travel has made it possible for women to go to locations where abortions can be had. She also laments that the basic policy decisions about abortion have been made by men. Yet she does not make this claim to suggest that the laws would be more liberal if written by women. Rather, she believes men might be forced to bear more of the responsibility for the support of children were women’s perspectives to be taken more fully in to account.
In spite of her apparent even-handedness and even concessions to pro-choicers, one senses between the lines a desire for much greater and perhaps even complete protection for the unborn. Yet she clearly does not think such is a possibility at this time. Thus her argument seems directed at pro-lifers, to urge them to work for more realistic compromise legislation. The following passage seems to reveal her agenda:
Many in the pro-life ranks are beginning to realize that in our pluralistic society it may not be possible fully to protect fetal life. As they consider what laws have a realistic chance of being adopted and accepted, some are coming to the view that, between the doctrine of the abortion cases, under which unborn life is of little or no value, and a law which permits abortion only for serious reasons, compromise legislation is the lesser of evils.
Although Glendon’s position is fully compatible with that of one who supports the long-term goals of outlawing abortion completely, I regret to say that I think her interim solution or compromise would not assist the ultimate achievement of these goals and that it would more likely prolong the involvement of this country in abortion. Glendon hopes, it seems, to achieve several goals by her recommendation of compromise: she hopes to reduce the number of abortions at least somewhat and perhaps to prepare for an eventual further tightening of the abortion laws, to encourage public assistance for women in need, and to secure greater public peace on the question of abortion. Let me explain why I think her proposal stands to do more harm than good.
Certainly some compromise legislation is advisable, such as laws requiring parental consent for minors seeking abortions. These laws will most likely reduce the number of abortions. Yet some compromise legislation, especially that aimed at keeping public peace, may well be counterproductive. In her discussion of the abortion laws of France, Glendon noted that the language supporting protection of the fetus seemed hardly effective, and she even acknowledged that the French legislation could legitimately be characterized as a “bouquet of platitudes.” Nonetheless, she seems pleased that this legislation may have contributed to defusing the opposition to abortion in France. Such seems a curious satisfaction. I would argue that countries with laws that are likely to keep the opposition to abortion alive are better off. The U.S. may be fortunate to have such a liberal law because it’s more difficult to change a law that is drafted well but is ineffective.
Indeed, it may be good have the public peace threatened. Glendon does not mention the various “rescue” operations now active in this country (she may not have known about them when she wrote this book). These rescues are clearly a threat to public peace, although the rescuers are completely non-violent. An argument could be made that rescues are just what this country needs, for they provide a long-needed testimony to the conviction of the pro-life movement that abortion does indeed take a human life. Rescuers, at significant sacrifice of their own comfort, attempt to save babies at clinics much in the same way as one might jump in a river to save a drowning infant. While long-term solutions must certainly continue to be sought, rescuers do have the satisfaction of actually saving lives and perhaps of convincing others of the enormity of abortion. Those who seek compromise solutions run the risk of offering the lives of those dying today as sacrifices on the altar of some less painful, future solution to the problem of abortion.
Another part of Glendon’s agenda seems to be to persuade pro-lifers that they should be prepared to provide more public funding for single women with dependent children. She asserts:
If the state is once again to restrict the availability of abortion and to affirm the value of unborn life, it should in all fairness strive to help those who bear and raise children, not only during pregnancy but also after childbirth. [Emphasis added.]
Earlier she had commended the laws of West Germany and Spain:
In both opinions… there is the notion that what the pregnant woman can be required to sacrifice for the common value is related to what the social welfare state is ready and able to do to help with the burdens of childbirth and parenthood. She proceeds to demonstrate that the U.S. is behind other industrialized nations in the provision of family benefits and services. She demonstrates convincingly that the U.S. does not provide as much time for maternity leave, as much day care, tax benefits, and income supplements for childcare. In short, she argues that our society is singularly anti-natal in its social and economic legislation and practice.
I find several difficulties with the claim that “in all fairness” societies that outlaw abortion must provide support for babies not aborted. Certainly, it seems wise for society to provide such support; these women and their babies need help. But it is more an act of charity than justice to give it to them. What needs to be acknowledged is that women are usually in a condition of need as a consequence of their own free choice to engage in sexual intercourse although they were not prepared to meet the responsibilities of a child.
Still, though the women may have not proper claims on the state, their children may have such claims, and the state should help provide for them. But care must be taken that there is no suggestion that because it denies women abortion, the state must then compensate women for choosing to give life. Rather, in outlawing abortion, the state will have kept the woman from doing a great evil; in providing her with support, it will be performing an act of charity towards her, justice towards her child.
Moreover, it is simply not obvious that providing financial assistance will deter most women from having abortions. It is not a woman’s financial situation that most often leads her to seek an abortion; it is the type of relationship that she has with the man who has fathered her child, or, in the case of minors, the type of relationship she has with her family. While more generous social legislation may assist women in doing a better job of raising their children (though some studies show that its corrupting influence has serious consequences), those who seek to restore respect for human life need to put their energies into finding ways to discourage relationships that cannot sustain a child, as well as ways to foster a stable family life in this nation.
Glendon argues that compromise legislation will “replace strident discord with reasoned discussion” and that over the long run compromise legislation will help change the minds and hearts of the populace and impede demands for such practices as withholding treatment from newborns with defects. She tries to persuade pro-choicers that compromise will be beneficial since it will reflect more accurately the views of the American populace.
There are difficulties with Glendon’s view that the way a law is formulated will help form the attitudes of the populace. Drawing upon Plato’s analysis of law in his dialogue The Laws, Glendon advocates writing laws in such a way that they not only define what is forbidden but also help to educate about what is good. I have no quarrel with this laudable goal, but disparities between the kind of society Plato envisioned and modern society make a transfer of his ideas into practice in our time next to impossible. Plato thought the law educated society in part because he had set up an elaborate system in The Laws that required the populace to memorize the laws and to sing songs and tell stories that would reinforce the laws’ content. Sadly, law plays no such role in our moral education. Few modern citizens are aware of how a law is formulated—they simply know what they can and cannot do.
Divorce, American-style
In the second portion of her book Glendon applies the same method of analysis to divorce as she did to abortion. Again, she ably draws out the differences between U.S. divorce law and the laws of European nations. The U.S. is again unique in the liberality of its laws. For instance, whereas most countries require a lengthy waiting period of at least several years before granting a no-fault divorce, most U.S. laws require a separation of a year or less. U.S. courts have even begun to speak of divorce as a constitutional right, as well as speaking of a right to as many remarriages as one wishes.
The United States appears unique among Western countries in its relative carelessness about assuring either public or private responsibility for the economic casualties of divorce. More than any other country among those examined here, the United States has accepted the idea of no-fault, no-responsibility divorce.
Whereas all Western nations have made divorce easier, only the U.S. (18 states and D.C.) and Sweden have eliminated fault grounds for divorce completely and have denied the courts any discretion in denying divorce.
Although Glendon laments the ease with which divorce can be obtained, her chief concern is with the terrible system the U.S. has for ensuring financial support for the dependent spouse and minor children after a divorce. She notes that the U.S. treats divorces of couples with minor children as exceptional when they are in fact typical. Indeed, little in our system is designed to protect the children and much works against their protection. U.S. law generally leaves the decision on financial support up to the discretion of the judge whereas European countries generally have formulae and tables devised to ensure support. The U.S. also lacks means for adjusting support to cost of living and is particularly remiss in ensuring that child support is paid or that agreements made in the divorce settlement are kept. Other countries have public means of collecting support and means of providing support when collection is difficult.
Glendon charges that most U.S. judges seek to protect the standard of living of the male provider in the household. She recommends a “children first” policy in the formulation of divorce laws and of tax laws. Her argument in this regard is most compelling.
The third and final portion of Glendon’s book is an attempt to explain the greater liberality of American laws on these matters. First, Glendon treats the reader to a succinct and fascinating history of the philosophical underpinnings of American law. She offers three explanations for the American phenomenon. First, the Anglo-American tradition broke from its feudal roots long before the continent and the American populace in particular had little tradition upon which to build. Second, the tradition that it imported was quickly and easily influenced by the thought of Hobbes and Mill and thus valued liberty, individualism, and self-reliance above all else. Third, in the United States, unlike France, for instance, the legislature took a back seat to the judiciary. She summarizes her comparative study of the French, German, and American legal systems in this way:
Legal systems on the French and German model have imagined the human person as a free, self-determining individual, but also as being defined in part through his relations with others. The individual is envisioned, more than in our legal system, as situated within family and community; rights are viewed as inseparable from corresponding responsibilities; and liberty and equality are seen as coordinate with fraternity. Personal values are regarded as higher than social values, but as rooted in them. This view of the world pervades court decision, statutes, social programs, and constitutional texts.
Not only are the conclusions that Glendon draws provocative, it is a delight to read the observation of one who moves easily among the ideas of Hobbes, Mill, Rousseau, Kant, Tocqueville, Robert Bellah, Clifford Geertz, and Alasdair Maclntyre. In general, Glendon shows a familiarity with a wide spectrum of authors, from the classical and modern political theorists, comparative law specialists, and modern works on abortion and virtue that contributes a great deal to her analysis.
Glendon’s conclusion is an eloquent statement of a kind of wistful desire that laws when drafted well might be effective in forming the morals of the populace. In her conclusion, Glendon notes that in our fragmented society the best that laws can do is to reflect and enter into the kind of dialogic search engaged in by a pluralistic society of persons trying to live together. She continues to urge compromise legislation, but she has truly modest expectations of the good it can serve. Her final analysis of the European situation is this: “In their current approaches to these problems, which may at first seem to be mere political compromises, satisfactory to no one and shot through with inconsistencies, a conversation is going on about the right way to live.” It seems that we are in a sad state indeed when the best we can hope for is a conversation, in hopes that the conversation will help us find some common ground upon which we can build a society that will preserve families and communities.
Glendon is not given to excessive optimism; her well-written and well-researched book is a worthy attempt to explain how American law came to be unique in its liberal permission of abortion and divorce and to suggest ways that we could edge back from the precipice upon which we find ourselves. Good men and women can and do differ on whether this is better achieved by inching along by the baby steps of com-promise legislation or whether giant, vigorous, and forceful steps are needed to escape the rapid erosion of our respect for life and for the good of faithful and stable marriages.