Rethinking Abortion: Equal Choice, the Constitution, and Reproductive Politics.

• Author: Smith, Steven D.

By Mark A. Graber.(1) Princeton, New Jersey: Princeton University Press. 1996. Pp. 244. Hardcover, $24.95. Steven D. Smith(2)

Rethinking Abortion is a piece of unapologetic "advocacy scholarship"--with the emphasis on "advocacy." Pronouncing existing arguments unsatisfactory, Mark Graber offers what he describes as "a better and more persuasive attack on pro-life policies than conventional pro-choice broadsides." (p. 193) Graber's argument--which he calls "equal choice" (p. 6)--is not exactly new; as he points out, the argument was prominently proposed and debated in the years before Roe v. Wade, and indeed was a principal focus of argumentation in Roe itself. (p. 64) But after Roe, the "equal choice" argument pretty much disappeared from the public scene. Not pausing to reflect on why pro-choice proponents might have chosen to retire the argument from active duty, Graber now calls it up again and presents it with gusto. "Once Americans are fully exposed to the philosophical and constitutional case for equal choice," he foresees,

legislators and executives will stop regulating abortion, voters

will elect large pro-choice majorities, justices will continue (or

resume) treating Roe as an authoritative constitutional decision,

and opponents of legal abortion will refrain from proposing

new bans until their pro-life policies have some reasonable

chance of being fairly administered.

(p. 118)

The bulk of Graber's discussion is presented as legal argument, and I will focus first and mainly on that aspect of his book. But Graber also provides a lengthy prescription for pro-choice political action. His political discussion is primarily addressed to, and can best be assessed by, pro-choice strategists--a group to which I can't pretend to belong--so I will describe that part of the book only briefly. Finally, I will note what seem to me some major and interesting questions that Graber raises, and indeed continually butts up against, but that his chosen purposes do not permit him to pursue.

1. THE CONSTITUTIONAL CASE FOR ABORTION RIGHTS

   Given the torrent of legal theorizing about abortion over the last two decades or so, one might question whether what the world needs now is yet another constitutional argument for abortion rights. Haven't the existing arguments succeeded well enough? Sensitive to this doubt, Graber explains that the constitutional debate has largely been carried on in ignorance of the relevant social realities. A closer look at those realities, he suggests, leads to two conclusions: first, that the familiar arguments both for and against abortion rights are deeply flawed and, second, that an alternative "equal choice" argument for such rights readily satisfies even conservative understandings of equal protection. (p. 90) We can consider each of these claims in turn.

   Criticism of existing arguments. "The most influential proponents and opponents of legal abortion are oblivious to the [relevant] details of contemporary social life," Graber asserts (p. 37)-they live in a "looking glass world" composed of "pseudo-empirical claims" (pp. 20-21)--and so his first chapter aims to show how their innocence of social realities undermines the familiar arguments for and against abortion. Occasionally his criticisms seem on point. For instance, the argument that abortion restrictions would not have been enacted if legislatures were not so heavily dominated by men does seem to be placed in doubt by studies showing that on the whole women are more favorable than men to restrictions on abortion. (p. 34-35) Graber also devotes several pages to showing that Catharine MacKinnon's claims about the relative infrequency of truly consensual sexual intercourse amount to "bald assertions" wholly unsupported by empirical evidence, and that MacKinnon distorts the one study she purports to rely on (Kristin Luker's Taking Chances). In fact, Graber argues, the study contradicts MacKinnon's views. (p. 30-30)

   Some of the evidence discussed by Graber might also usefully serve to curb the more extreme rhetoric to which advocates sometimes resort. For instance, Graber contends that pro-lifers greatly overestimate the increase in abortions that resulted from Roe (p. 265 nn. 40-42); if he is right, then responsible advocates ought to avoid making such claims. He also contends that post-Roe restrictions both on abortion funding and on abortion itself have had very little impact on the actual number or availability of abortions (p. 7, 20, 65-69); if so, then some pro-choice rhetoric might need to be tempered.

   For the most part, though, the empirical facts presented by Graber seem well shy of startling, and hardly cry out for major revisions in the current constitutional debate. For example, Graber explains to pro-choice advocates that very few of the women who choose abortion became pregnant as a result of rape or incest. In addition, complete forbearance from sex is not considered by American psychiatrists to be a symptom of mental disorder. And even people who want to engage in sex can do so without risking pregnancy--for example, through permanent sterilization. (p. 27) Graber explains to opponents of abortion rights that statutes prohibiting abortion have served a variety of purposes, not merely the protection of fetal life, that such statutes in the past were rarely enforced, and that the existence of prohibitions on the books did not necessarily reflect "a present pro-life social consensus." (p. 22-25) It seems unlikely that these revelations will set off a crisis in either pro-choice or pro-life circles.

   Moreover, a good deal of the discussion in Chapter One seems only distantly related to Graber's ostensible purpose of showing how existing arguments are undermined by empirical research; instead, Graber seems eager simply to accuse advocates--especially pro-life advocates--of inconsistency, hypocrisy, and moral insensitivity. For instance, he repeatedly levels the familiar charge that pro-lifers are inconsistent or hypocritical because they do not support government programs for promoting contraception or because they regularly oppose government spending for welfare measures that might reduce the need for abortion. (p. 23-24) To be fair, in a note at the back of the book Graber partially exempts "the Roman Catholic Church, the National Right to Life Committee, and several prominent pro-life Republicans" from the latter charge. (p. 166 n.47)

   In an obscure paragraph Graber likewise indicts Robert Bork for moral obtuseness. Or at least that seems to be his point, as best I can make out. Here is the argument:

   Bork suggests that constitutional theorists need never explore

   why persons actually oppose abortion. "Knowledge that

   [abortion] is taking place," he declares, "can cause moral

   pain." In Bork's opinion, courts in a democracy have no

   authority to prevent persons from enjoying the "gratification"

   that comes when bans on abortion ease this "moral pain,"

   unless abortion rights are "covered specifically or by obvious

   implication by a provision of the Constitution."(48)

   (p. 24)(3) Graber then goes on to castigate Bork for paying no attention to the source of the pain felt by those opposed to abortion; it is evidently a matter of indifference to Bork, Graber asserts, "whether anti-abortion activists are horrified by the death of unborn children, disgusted that other persons are committing acts that their religion regards as mortal sins, or fear that legal abortion will reduce the numbers...