Policy Today magazine cover
May/June, 2006

When does life begin? While scientists strive to answer the question empirically, the world's major religions have their own answers. Somewhere between or within the two camps, each of us harbors individual feelings. Why then, should Americans cede the final word to eight men and one woman in black robes?

For better or worse, the age of instant media coverage has turned American political discourse into a barrage of short-lived concerns. But while many "big" stories prove fleeting, the U.S. abortion debate is the political equivalent of the sun rising in the east. Nearly everyone has an opinion, and stalwarts on both sides of the issue are passionate and vocal. In the 30 years since Roe vs. Wade, however, the American public has assumed that the courts are the primary venue for the discussion. Consequently, legislators on both sides of the aisle outline their stance before their constituents and pledge to promote favorable court picks if elected. It has thus been assumed that abortion is a legal issue, and to a lesser extent, a political one.

But is it either?

More than a legal question

Abortion is an intensely controversial topic because it branches far beyond the narrow precepts of law and sound bite politics. The argument is taken up by so many people—not only those directly affected by the practice—because of its deep cultural, religious and social underpinnings.

"It's a general fact about our civic, public discourse that moral questions are thought to be appropriately framed either as a matter of religious teaching or as a matter of purely personal, unarguable opinion," says Shelly Kagan, Henry R. Luce Professor of social thought and ethics, and adjunct professor of law at Yale University. "I think there's room for rational debate, absolutely."

Winnowing the debate

Nevertheless, the abortion discussion in this country has been largely reduced to some very narrow concepts. People wanted to know John Roberts' stance on privacy issues not because they value their privacy, but to divine his stance on abortion. It is a practice that has split the discussion in two. The first half—the effective debate—is squeezed into an ever-narrowing channel of discussion within a court system that is structurally ill-equipped to handle it. The second half—a lively public debate featuring a reasonable reconciliation of cultural, social and religious values—is probably the more important of the two, but has yet to find an effective venue.

"Detailed discussion isn't something that American political discourse readily lends itself to, is it?" notes Kagan. "Our political figures want something that can be easily summarized in a sentence or a very short paragraph. It's just not at all clear that there's a place for the discussion."

Kagan, an accomplished and respected philosopher of ethics himself, goes on to laud contemporaries such as Martha Nussbaum and Peter Singer for their active engagement in the public arena on ethical and moral issues that help shape debates over topics like abortion. And although he stresses the importance of this public debate, he doesn't balk at the narrow parameters of the legal arena. "It's not so much that it's a mistake to discuss abortion in the courts as a matter of privacy," he says. "The fact that the moral and philosophical debate doesn't turn at all on the issue of privacy doesn't mean that the legal debate can't be cast in those terms."

A more productive path?

Nussbaum, Ernst Freund Distinguished Ser-vice Professor of law and ethics at the University of Chicago, outlines a different legal avenue that could arguably diminish the emotional nature of the legal debate and engage the public in a more productive discussion.

"Certainly, the privacy approach has been the dominant lens through which we view the debate," she says. "But it has numerous problems. Abortion seems like an issue of decisional autonomy, not one of informational secrecy."

Nussbaum argues that a more productive lens through which to view the topic
is the idea of equality. Under the Constitution's equal protection clause, it's problematic to pass any law that offers an asymmetrical or unequal burden to a group that has been defined as a so-called "suspect class." Women enjoy this protected status, so the argument goes that in forcing a woman against her will to continue a pregnancy, the fetus's "personhood" is not an issue. "The problem becomes that of demanding women to offer their bodies for life support," says Nussbaum. And that would violate the equal protection clause.

Although Nussbaum asserts that certain regulations on abortion could prove imminent under this line of argument should women achieve true equality, she stresses the utility of the approach. "I think it's a more productive approach because it does bypass this interminable debate about the moral status of the fetus," she says.

Reframing the issue in the UK

Opening up new avenues in the legal debate as Justice O'Connor did with the equality provision in Casey vs. Planned Parenthood could help shape the public dialogue as well. In the UK, where the abortion debate is not as emotionally charged as it is in the United States, the discussion took a noticeable turn with the Abortion Act of 1967. Although the UK had abortion laws and regulations on the books dating back to 1861, it wasn't until the issue was addressed as a public health concern that legislation was passed to deal with it summarily. It's no surprise, then, that the issue was settled with a piece of legislation and not a court ruling.

All of which suggests that the U.S. courts have a further option: deciding the issue is non-justicable, simply not within their jurisdiction to decide. "I don't think the problem is so much about shifting the terms of the actual debate as it is creating an appropriate space for the debate to take place," contends Kagan. "I think we would do well to create a public sphere in which we could have a debate on moral and legal issues instead of just demagoguery and mindless appeal to one kind of authority or another."

Whatever that forum may be, a courtroom with plaintiffs and defendants arguing the merits of their respective positions before a judge seems an unlikely choice.