Legal Commentary

Perhaps not surprisingly, the pro-life movement is deeply divided over the strategy:

Cardinal Francis George of Chicago, president of the U.S. Conference of Catholic Bishops, said last week during a meeting of the conference that social-service spending is no substitute for legal protections for the unborn. He also questioned research showing that improvements in areas such as employment and health care can reduce the likelihood that a woman will want to end her pregnancy. "It's still to be proven what the connection is between poverty and abortion," he said.

Undeterred by critics, the activists are pushing for the passage of legislation that would increase funding for social services for pregnant women, such as low-cost health care and day care; provide grants at colleges for pregnant women and new mothers' education; and set up maternity group homes. Two House bills with backing from various groups are the Pregnant Women's Support Act, sponsored by Rep. Lincoln Davis (D-Tenn.), and the Reducing the Need for Abortion and Supporting Parents Act, sponsored by Reps. Rosa DeLauro (D-Conn.) and Tim Ryan (D-Ohio), who oppose abortion.

Those bills are largely opposed by antiabortion groups. "You don't work to limit the murder of innocent victims," said Judie Brown, president of the American Life League. "You work to stop it."

To preserve the coalition, activists have avoided taking positions on the more sensitive aspects of the issue, such as laws that restrict abortions, contraception, sex education and abstinence-only programs.

"There are certain things that we probably all can support, and then there are other things that we're going to disagree about, and you find common ground on what you can, and then you have a political battle on your other issues," said Jim Wallis, president of Sojourners.

Second, if you wanted to imagine how the U.S. would come to a durable compromise over abortion, it would probably look something like this new approach: Pro-life advocates continue to believe that abortion is immoral but agree that the criminal law is not the best way to solve the problem of protecting unborn life. Pro-choice advocates in turn agree to new social services and support for poor women that make it easier for them to choose to have children. (This is something that many pro-choice advocates will agree to because many of them also support expanded social welfare programs.) The result is a coalition of social justice pro-life advocates with traditional pro-choice liberals.

In understanding how this compromise would occur, you might make an (imperfect) comparison to changing views on contraception, premarital sex, and homosexuality. Many people believe (or believed) that each of these was deeply immoral, but increasingly came to accept that the criminal law was not the best solution to solve a moral problem. Abortion is different and will remain different because of concerns about unborn life, but if a compromise is to be found, it will likely be in this general direction.

Third, there will continue to be real problems with making any such compromise work. Pro-life advocates will still push for restrictions on abortion short of outright criminalization, restrictions which will often impact most heavily those poor women that the compromise seeks to protect. In addition, many pro-life advocates will resist changing their views on government programs providing increased access to contraception and sex education (other than abstinence programs), even though these reforms might significantly reduce the number of unwanted pregnancies and hence the number of abortion. I think that pro-life advocates will have to give some ground on contraception and sex education if a durable compromise is to occur. At the same time, pro-choice advocates will have to give ground on some kinds of abortion restrictions. Such a compromise is somewhat closer to the compromise over abortion regulation that developed in European countries with well developed social welfare states.

Full post as published by Balkinization on November 18, 2008 (boomark / email).