Abortion, the hardy perennial of constitutional politics, is back in the headlines. While President Obama recently celebrated the 38th anniversary of Roe v. Wade, conservative governors around the country are preparing new legislation to ensure that the right of a woman to choose will become an increasingly hollow right. It is no accident that the issue has moved back into the center of political debate as we debate providing health care for our citizens.
Starting in the 1960s, sweeping changes occurred in the abortion laws of the nations of the Atlantic world. Mary Ann Glendon made two trenchant observations in a very fine comparative monograph, Abortion and Divorce in Western Law, written over two decades ago that resonate today. The first is that while abortion laws became liberalized throughout the West in the latter half of the twentieth century, the United States was an outlier because it tolerated fewer abortion regulations than other Western democracies. The second is that we could perhaps learn from the approaches taken by democracies abroad since they, unlike the United States, managed to reach messy compromises on abortion.
The first observation has not held up well; the United States seems poised to allow all sorts of obstacles and regulations that will undermine a woman’s right to choose. What is interesting about these changes is that they do not represent any national consensus on abortion but rather the wishes of minorities with intense preferences. We balkanize power to a much greater degree than most other democracies. This does little to prevent tyranny as the framers hoped since other democracies survive nicely with fewer roadblocks to majoritarian lawmaking than we do. Our extreme form of separation of powers does, however, empower minorities with passionate preferences while disempowering majorities with weaker preferences. In the United States, minorities with intense preferences have a disproportionately large voice both in ordinary and constitutional politics.
Glendon’s second observation highlights an important comparative constitutional puzzle. Abortion in the United States was a less divisive issue in 1973 when Roe v. Wade was decided than it is today and is considerably more divisive today than is the case in most western democracies. The reasons for this divergence are complex but an important piece of the puzzle is how our Court dealt with abortion. Rather than focus on preserving important exceptions to safeguard a woman’s health and well-being (which is the path taken by a great many western democracies), our Court sought to fashion a right that could withstand democratic contestation. It failed. Privacy has proven a problematic rationale for the decision as it leaves little room for the elected branches to contest the normative status of abortion as a constitutional right. Carving out exceptions to abortion laws (the path not taken by the Court in 1973) would have made political counter-mobilization more difficult and it would have enabled the Court to ensure that abortion laws did not go too far in harming the rights of women in the real world where access to abortion matters more than an increasingly hollow right inscribed in constitutional cases.
Timing also plays a key role in whether polities liberalize their abortion laws. Latin America remains an outlier with generally restrictive abortion policies. By the time the nations of the region democratized in the 1980s, a trans-national counter-mobilization against abortion had taken root in the region and unsurprisingly found fertile soil given the importance of the Catholic Church. Even while illegal, abortion remains available to the middle and upper classes which cuts down on the willingness of elites to invest capital on such a divisive issue. As constitutional courts have become more powerful in the region, however, they may be starting to undermine restrictive policies. The Colombian Constitutional Court, for example, issued an important decision, C-355/2006, which held that criminalizing abortion in all circumstances was unconstitutional and that there had to be exceptions when a woman’s health was at issue, when there were serious fetal abnormalities, or when pregnancy was the result of a criminal act. An English translation of the case is available at http://www.womenslinkworldwide.org/pub_c3552006.html.