ABORTION

Judicial controversies over the constitutionality of statutes criminalising abortion are often where instrumentalist understandings of adjudication are most clearly fixed in the public imagination.

The received wisdom is that pro-choice activists have won important victo­ries in a range of jurisdictions. For example, the US Supreme Court’s Roe v Wade^[470] decision in 1973, striking down state laws criminalising abortion in principle, has been hailed as one of the ‘most radical decisions’^[471] ever issued by that Court. Defending that decision has been a central preoccupation of liberal lawyers,^[472] who have applauded the Court in later cases such as Planned Parenthood of Southeastern Pennsylvania v Casey,^[473] for refusing to reverse Roe v Wade, and indeed, in the words of one commentator, for giving it ‘a new and better foundation.’^[474] Outside the US, the Supreme Court of Canada’s ruling in Morgentaler^[475] that the Canadian Criminal Code dealing with abortion violated the Charter’s guarantee of life, liberty and security of the person has been vari­ously described as ‘momentous’^[476] and a ‘landmark case’ which ‘demonstrates how the Courts can begin to incorporate women’s reality within constitutional jurisprudence.’^[477] In Germany, the Bundesverfassungsgerichts declared federal law criminalising abortion unconstitutional in 1993,^[478] thus apparently reversing its previous stance that a positive duty was imposed on the German state to pro­tect the life of the foetus.^[479] However, the evidence here also suggests that these court decisions have had much less direct effect than is widely presumed.

Assessing Direct Effects

Taking first the US, empirical data on abortion suggest two conclusions which doubt the direct effectiveness of Roe v Wade. First, although it is seen as the moment when abortion ceased to be a crime in principle, there was a significant number of abortions carried out before it was handed down, both outside,^[480] and within, the state’s abortion laws.^[481] Secondly, although the number of legal abor­tions rose after 1973, this was at no greater rate than the pre-existing trend: thus, while there was an increase by 463,100 from 1969-71, this compares with an increase of 289,600 from 1973-75.^[482] Similarly, in Canada, although abortion was only (partially) decriminalised in 1969, it has been estimated that from 1954-1965, between 50,000 and 100,000 abortions were performed, unauthor­ised by state law.^[483] In Germany, while the Constitutional Court had announced its defence of the rights of the foetus in 1975, there was an almost five-fold increase in the number of abortions from the mid-1970s until the late 1980s.^[484]

We can best explain this growing sense of dissonance between official pronouncements and actual practice by contrasting state-centred accounts of abortion law with the actual legal regimes which influence women’s decisions. The notion that the state is the authoritative source of legal norms pervades dis­cussion on abortion—for example, expressed clearly in the idea that given the absence of legislation of abortion following the Morgentaler decision, there was a ‘legal vacuum’^[485] in Canada. However, from a legal pluralist perspective, we can point to at least three important non-state sources which give us a more accurate picture of the law of abortion.

First is what Santos calls the domestic law of the householdplace, which is ‘a complex social field in which state and domestic legality engage in a constant process of interaction, negotiation, compromise, conflict, mutual reinforce­ment, mutual neutralization.’^[486] Within this framework, a patriarchal domestic law has historically been an important source of maintaining a conservative view of women’s sexuality.

In the generation since the birth control pill became widely available, an alternative model has increasingly reflected social reality: women actively express their sexuality; sex is not tied to marriage, or to motherhood; within marriage, motherhood can be delayed or avoided altogether; motherhood does not necessarily imply marriage. In short, the alternative model claims for women a measure of control over their sexual conduct and maternity that was unimaginable in the 1950s.^[487]

Secondly, the medical profession must be seen as important actors whose deci­sions go some way to giving shape to the prevailing normative regime. Thus, for example, under the pre-Morgentaler legislation in Canada, a woman required the consent of a therapeutic abortion committee, composed of at least three doc­tors, that continuing with pregnancy ‘would be likely to endanger her life or health.’^[488] Clearly, how doctors interpreted their role would have an important bearing on the availability of abortion. This discretion was confirmed in Morgentaler by Dickson CJC, who referred to the findings of the Badgley Report^[489] that therapeutic abortion committees acting under the statutory regime at issue established their own guidelines with frequently arbitrary results.^[490] Rosenberg makes the striking point with regard to the US that following Roe v Wade, US hospitals broadly refused to carry out abortions: twelve years after the ruling, only 17 per cent of public hospitals were providing abortion services, the same proportion as the year following the Supreme Court’s decision.^[491] What made the difference was that other medical professionals, in private clinics, opened for business.

Thirdly, as with race relations, we should include in our explanation of changes in the practice of abortion, the ‘invisible background norms’ which both shape, and are the product of, broader societal attitudes on matters of sexual politics.

Indirect Effects

As with the civil rights litigation, it is necessary to consider the argument that the abortion decisions may have had some indirect progressive effect. In this regard, we can consider two objections to the foregoing: First, that while there may be little evidence of direct change, the litigation energised and politicised the pro-choice campaigners, and lent legitimacy to their arguments. Secondly, that while it may be true that there was no dramatic increase in abortions where courts decriminalised that activity, this did remove real legal barriers of access, particularly to high quality medical services. However, while there may be some support for each statement, the balance of the evidence suggests that the main indirect effect of the abortion cases was to make it more difficult for most women to have an abortion.

Let us take first the question of access—it is undoubtedly the case that in the years since the criminal laws were reformed, the incidence of unsafe, backstreet abortions has significantly decreased.^[494] However, the corollary is not that all women now have access to safe abortions by medical professionals. In the US, Roe v Wade effectively privatised abortion, with (for profit) private clinics filling the gap left by the reluctant public hospitals, and which by 1985 provided 87 per cent of all abortions.^[495] This inserts a further variable into the broader normative regime of abortion, namely the law of the marketplace.

This might not be such a major problem if we could point to legislative action improving access in other ways. However, a second indirect (and unintended by abortion campaigners) consequence was that decisions such as Roe v Wade and Morgentaler if anything appear to have galvanised opposition to abortion. We can see this expressed both by political elites—for example, by withdrawal of public funds for women seeking an abortion^[496]—and by the public at large, vary­ing from organisation of large-scale protest movements, to more direct action, such as picketing, or even bombing, of abortion clinics.^[497] To repeat Scheingold’s point made in the context of race relations: while constitutional adjudication may be able to provoke a crisis, how this is resolved depends very much on soci­ety’s willingness to depart from values which are under pressure. Here, as with busing and affirmative action, abortion litigation played contentiously to a divided public, and may have stymied abortion campaigners’ efforts by unleash­ing latent, but deeply-rooted, public hostility. Thus, in a parallel with the civil rights litigation, the abortion decisions may have placed some (particularly urban middle class) women in a better position, but for many, particularly if they lived in more traditional areas,^[498] they were in no better position to avail themselves of their now constitutional right to an abortion.

Mary Ann Glendon provides an interesting coda to this discussion, by argu­ing that the importance assigned by both camps to receiving the courts’ blessing for their position contributed to casting the issue as an all-or-nothing clash of rights between pregnant women and foetuses.^[499] This leads to an antagonistic, individualistic form of public debate which she argues leads to poor policy: in this regard, she contrasts North America unfavourably with continental Europe where, given a historically less prominent role for courts,^[500] there is a more proactive approach focusing, for example, on the need for safe and accessible procedures, while also providing counselling services.^[501] From this we can make the further point that to the extent conducting the abortion debate in terms of rights obviates the possibility of compromise, this actually works to the disad­vantage of both pro-choice and pro-life campaigners by reducing the prospects of each of them advancing a substantial portion of their policy agenda.^[502]