The recent grant of certiorari by the Supreme Court in the Dobbs case from Mississippi has led to much speculation as to the ultimate fate of Roe v. Wade and its more important companion case of Doe v. Bolton. Most speculation has predicted a gradual whittling away of the two 1973 abortion cases, possibly first by a decision allowing the states almost complete leeway to prohibit third-term abortions. If Bob Woodward and Scott Armstrong’s The Brethren: Inside the Supreme Court is to be believed, the legalization of late-term abortions was smuggled into Justice Blackmun’s opinion at the behest of Justice Douglas. It has prevented the abortion controversy from being defused in America as it has been in Western Europe, where almost all countries including the Scandinavians have drawn a firm line at the point of fetal viability, somewhere between the 20th and 24th week of pregnancy.
The breadth of the recent agreement to hear the Dobbs case and the recent changes in composition of the Court suggest that a bolder decision is now a possibility. The New York Times’s Linda Greenhouse professes herself unable to discern where the Supreme Court might draw a line once the principle of fetal viability at the beginning of the third trimester is abandoned. But a case can be made that a line between abortions that must be permitted federally and those that can be banned by states can be drawn at another location: at the point of “quickening,” about 14 weeks into pregnancy. That was the line of demarcation drawn by the pre-Roe common law, both here and in England, as described by Glanville Williams’s The Sanctity of Life and the Criminal Law. Williams, though a relative liberal on the abortion question, was recognized during his lifetime as the leading scholarly treatise-writer on the substantive criminal law.
Under the pre-Roe common and statutory law, which would be revived in at least some states by a decision repudiating the three-trimester analysis, the so-called morning after pill, increasingly important, would be perfectly legal, as would other techniques in control of the women, including the use of intra-uterine devices. Restrictions on abortion would be limited to surgical abortions. Abortion law was originally derived from a purpose to preserve medical ethics and the Hippocratic oath: Its criminal sanctions only applied to doctors.
As a practical matter, restrictions on surgical abortions during the first trimester are difficult to enforce. Such operations are performed in the privacy of offices rather than hospitals. A prohibition of them would have its primary impact on the advertising and public identification of abortion clinics. Many technically illegal operations would continue to be performed, though doctors would be wary of the dangers of buyer’s remorse and would undoubtedly be careful about who they took on as patients.
The justices—including, one may suspect, two of the liberal justices, Kagan and Breyer—by now are well aware of the damage to the political order wrought by the abortion issue.
The abortion controversy is the ultimate political recruiting device. On the right, it adds religious conservatives and rustics to a business constituency. On the left, it adds suburban flappers to others bent on economic leveling. General Charles de Gaulle once lauded American state governments for taking on “the immediate business of politics,” leading to political parties that “are opposed on none of the fundamental issues,” including “moral law.” But the federal government now is, as in France, “the target of every grievance.” Justice Stevens and Professor Geoffrey Stone have denied religion as a legitimate source of law. Yet most religious proscriptions have secular origins, not based in a desire to deny pleasure, but out of concern for the upbringing of the young.
No longer is the law viewed, in Justice Oliver Wendell Holmes’s words, as “the external deposit of our moral life.” Judge Learned Hand prophesied that absolute rules would generate “controversies undreamed of by those who use this facile means to enforce their will.” The assumption has been that legalized abortion reduces the numbers of unplanned pregnancies and unwanted children. As Justice John Paul Stevens said, “On a strict balancing of economic costs and benefits, the economic costs of unlimited childbearing would outweigh those of abortion.”
But despite those expectations, the number of unwanted pregnancies and births out of wedlock has only increased. Permissive abortion gave young men a hunting license. No longer would young women reject their sexual advances out of fear of pregnancy—”you can always get an abortion.” Nor would young men abstain from making potentially unwelcome advances, as legal abortion had greatly improved the odds in their favor.
Nobel Prize-winning economist George Akerlof and his wife Janet Yellen, now secretary of the Treasury, pointed out in two articles in 1996 that legalized abortion had brought an end to the “shotgun marriage” and any assumption of parental responsibilities by young men. Where once 43 percent of unwanted pregnancies had resulted in marriages, now the proportion is a mere 9 percent.
Yet many women, once pregnant, whether from maternal instinct, fear of future inability to conceive, or social and economic pressure, do not resort to abortion. Far from reducing births out of wedlock, the new rules produced an explosion of them. In 1970 only 5.7 percent of all births were out of wedlock in America’s white population; that number has risen to 29 percent. Likewise, out-of-wedlock births for black Americans have risen from 38 percent to 71 percent in the same period.
Akerlof and Yellen were pessimistic that anything could be done about the consequences of the pill and freely available abortion. But experience with welfare reform suggests they might be wrong. People are driven in their life decisions by fundamental fears. When it was discovered after the 1996 law that pregnancy no longer conferred an automatic right to 18 years of state payments and independence from one’s mother, the rate of pregnancies to unmarried teenagers fell sharply from 213 per thousand in 1990 to 65 per thousand in 2016.
Meanwhile, counseling requirements, prohibitions on third-trimester abortions, delay, uncertainty, public censure, and expense may produce lower proportions of births out of wedlock. Such lower numbers persist in Germany, where only 16 percent of children are raised by single mothers, compared to 26 percent in the U.S.
Abortion is said to be indispensable to broader female participation in the professions. But abortion-on-demand has played out very differently for less fortunate groups. Their lives have been disordered by the changes in mores. The changes have feminized poverty for the non-college educated. The media defenders of the absolutism of Roe v. Wade thus appear not as partisans of the Enlightenment, but as practitioners of class warfare.
Less fortunate women would almost certainly benefit from the changes in behavior that would result from stricter prohibitions on abortion: inducements to be careful, if not chaste. Those favoring greater restrictions thus cannot be dismissed as persons whose claims rest on religious superstition—on what Justice Stevens called “official endorsement of a theological tenet.” The argument about abortion cannot be characterized as a religious war between believers and nonbelievers. If the debate proceeds in the language of social science, as it does in the Akerlof and Yellen article but rarely elsewhere, with discussion of social consequences and indirect as well as direct effects, the media will be exposed as the real proponents of superstition, and their traditionalist opponents as the advocates of empiricism and social order.
Any serious modification of the present rules, including one which left Roe standing but overruled the companion case of Doe v. Bolton invalidating procedural discouragements of abortion devised as a compromise by the American Law Institute, would produce a great uproar, fueled by college co-eds enjoying the blessings of free love and the support of their professors and college administrations. They would be aided by many among the estimated one-half of women who since 1973 have availed themselves of abortion, though many have had second thoughts. But concern for continuing damage to the political order and an awakening of social conscience about unwed motherhood and the feminization of poverty are factors that, if emphasized equally with the moral and religious arguments, cut the other way. If the Court is to move to stanch one of its great self-inflicted wounds, it needs the help of those prepared to discuss secular effects and the costs to rational politics of a continued adherence to what in international terms is an extreme position.
George Liebmann is president of the Library Company of the Baltimore Bar, and is the author of works on law and history, most recently Vox Clamantis In Deserto: An Iconoclast Looks at Four Failed Administrations.