Mark Graber attempts to refashion arguments over abortion by assessing three key ideas: (1) abortion law in action often diverges from the law on the books; (2) different classes of people (rich and poor, black and white) received radically different treatment when abortion was generally banned; and (3) emphasizing how new bans will cause renewed unequal treatment provides a potent political argument keeping abortion legal. His pragmatic interpretation of abortion law and politics is interesting, concisely written, and well researched. Despite some questionable arguments, he offers a useful supplement to the usual discussion of abortion and constitutional privacy.
Graber's strongest chapter, "Abortion Law in Action," investigates enforcement of abortion bans in the pre-ROE era, laying a strong foundation of factual information. Before 1970, abortion laws were haphazardly and unevenly enforced: states banned abortion except in narrowly defined instances, but nearly a million illegal abortions were performed annually in the 1950's and 1960's. The bans coexisted with a "gray market" in safe abortions performed by competent doctors for their (generally white and middle or upper class) female patients; neither doctor nor patient feared prosecution. Prosecutors and police knew about these practices but refrained from enforcing the abortion code. Access to safe abortion depended upon knowing or finding medical professionals willing to offer aid. For many poor and minority women, who lacked both personal and social proximity to doctors, only dangerous illegal abortions were available. Thus, at mid-century between 5,000 and 10,000 women died and as many as 350,000 women were injured by illegal abortions each year (42-43). Because middle and upper class white women were receiving predominantly gray-market safe abortions, poor and black women disproportionately bore the brunt of these injuries and deaths.
Graber nicely demonstrates this discrimination. Comparing the percentages of abortions to live births at hospitals with both a public ward and private service, he finds the same doctors provided private patients abortion at four times the rates as ward patients (53). He also shows disparities by race. In New York City, "pregnant white women were five times more likely to have hospital abortions than pregnant black women and twenty-six times more likely to have hospital abortions than pregnant Puerto Rican women;" on the other hand, 93% of the women who died from illegal abortions were black or Hispanic (54). In an even more chilling example, Graber found anecdotal evidence that poor and minority women often had to agree to be sterilized in exchange for a safe abortion (65). Graber's historical section concisely details the real-life effects of the pre ROE abortion bans.
Graber's "law in action" chapter also challenges pro-choice groups, who harshly criticize the Court's refusal to overturn bans on public financing of abortion and its retreat from ROE in WEBSTER V REPRODUCTIVE HEALTH SERVICES and PLANNED PARENTHOOD V CASEY (which allow some regulations that discourage or complicate abortions). Such policies have little practical impact, seldom deter women from obtaining abortion, and do not have the discriminatory effects of abortion bans. Here, his re-thinking of abortion strategy becomes a paean to maintaining the legal status quo. Reinforcing Justice O'Connor's position, Graber finds waiting requirements, strict record-keeping requirements, and bans on state hospitals providing abortion do not create an "undue burden" on abortion.
The second major theme of Graber's analysis reinterprets abortion law from the perspective of the equal protection clause. Graber finds that abortion bans, as enforced, amounted to unconstitutional race and class discrimination. Two key claims underlie this conclusion: (1) race and class disparities in enforcement strongly suggest unconstitutional policies, and (2) the gray market was enabled and sustained by the action (and inaction) of prosecutors and the police. Graber insists that "no jurisdiction devoted the necessary resources to bring competent abortion practitioners to justice" (91). In fact, so few prosecutions of competent abortion practitioners occurred in the period before ROE that inaction became "intentional State action." The gray market in safe abortion services provided "affluent white women with a de facto immunity from statutory bans on abortion" (76).
I am intrigued with Graber's approach as a normative argument, though I am also skeptical that it applies as unambiguously in the abortion context as Graber believes. But the approach does not describe the Court's equal protection jurisprudence accurately. While the Warren and early Burger Courts sometimes found de facto race and class discrimination on the basis of a law's impact, the Rehnquist court has been less charitable. While Graber admits that McCLESKEY V KEMP -- holding that statistics showing racial disparities in the application of Georgia's death penalty did not invalidate individual sentences -- makes his legal argument more difficult, he presents McCLESKEY as an anomaly. In fact, McCLESKEY fits with a large array of cases in employment law and affirmative action where the Rehnquist court has been quite skeptical of statistical proofs of discrimination. [See, for instance, WARDS COVE V ATONIO and ADARAND CONSTRUCTORS V PENA.] Graber's argument must challenge the Equal Protection standards of the Court, which would require a more sustained analysis and elaborate attack than he provides.
In the case of abortion bans, two further problems complicate Graber's case. First, while he might show that such bans were applied in a discriminatory manner before 1973, pro-lifers can respond "past performance does not guarantee future results: this time we'll get it right." Since the bans have been dormant for 25 years, and the Court never declared them violations of Equal Protection, I do not share Graber's belief that the Court would overturn new bans because of this prior discrimination. New bans would seem presumptively valid until they could be shown to discriminate, which would take years. The second problem makes matters worse. While Graber has shown (to my "pro-choice" satisfaction) that a gray market in safe abortions existed, pro-life groups would contest his evidence vigorously. Even presuming that "neutral observers" agree with his historical assessment, statistical evaluation of current disputes will be more controversial. If a disproportionate impact on poor and minority women were to emerge, the Court would assess whether it resulted from permissible policies. If wealthier women travelling to states with pro-choice laws caused it, no Equal Protection problem would exist. Graber's suggestion to the contrary (73-75) is puzzling: perhaps it is a political argument about fairness rather than a doctrinal argument. Given American's willingness to accept the effects of economic inequality in areas such as health care and education, however, Graber may overstate the persuasive pull of "equal choice." Thus, Graber's assurance that "equal choice, at present, means pro-choice" (103) may work in theory better than in practice.
The final section addresses the political implications of "equal choice" and the strategies abortion rights supporters should adopt. Graber's pragmatic political strategy is modest. Because of the politicization of the judicial appointment process, those who support abortion rights must protect abortion politically, but Graber cautions against attempts to forge a pro-choice majority. Capturing a political party as "pro-choice" likely assures the other party will become pro-life. Since abortion is rarely as important to voters as economic matters, the fate of abortion becomes tied to who holds office during good and bad economic times. Graber next notes that support for abortion rises with income and education levels. Since judges tend to be highly educated and relatively wealthy, other things being equal they should tend to support abortion rights. At present, however, other things are not equal because abortion has been a hotly contested and polarizing political issue, and Republicans have pledged to find judges hostile to Roe. Thus, pro-choice activists should put more emphasis on helping pro-choice Republicans than maintaining pro-choice Democrats. If abortion becomes less of a dividing line between the parties--if each party has a mix of pro-choice and pro-life supporters--neither party will try to "pack the courts" on this issue. By removing abortion from the selection of judges, abortion rights can once again be protected by judges and avoided by politicians.
Graber's political analysis, however, does not offer many concrete suggestions about how to get the toothpaste back in the tube. While it might have been advantageous for pro-choice groups to support like-minded Republicans in the late 1970's, these groups only became active in the contests after pro-life groups captured the party. Over the past five years, Republicans have attempted to moderate their pro-life position; they have failed because each attempt alienates their pro-life core supporters, who are disproportionately active in grass roots political campaigns. Given that pro-life groups are not likely to accept the quiet politics that would advantage pro-choice groups, the proper strategy becomes difficult to discern.
Graber also over-estimates the staying power of abortion in the absence of a due process right. He states, "Even if ROE V WADE is overruled in the near future, abortion will remain legal in virtually every state" (147). On his theory, abortion opponents would need to overcome the same legislative inertia that made it so difficult to liberalize abortion policies in the pre-ROE period: many legislators will prefer to dodge the issue; supporters of the status quo can bottle the bill up in committee, utilize any of a number of stalling tactics, attach "killing" amendments, etc. All of this may be true, but given the strength of the pro-life movement in wide areas of the country, bans on abortion seem quite likely in at least some states. While politicians might prefer to avoid abortion, pro-life groups have the power to overcome such reluctance. Graber's counter-intuitive argument would need a good bit more evidence to displace the conventional wisdom of the likely effects of ROE's overturning, and I wish he had taken more seriously the possibility (and consequences) of abortion being illegal in numerous Southern and Mid-Western states.
Graber deserves praise, however, for writing a lively and informative book about abortion that offers numerous insights from a different perspective. It should be accessible to a wide audience (mid-upper level undergraduates or graduate students in courses on women in politics, constitutional law, or democratic theory), and its combination of concrete analysis and theoretical insights should provide for a productive discussion.
CASES CITED
ADARAND CONSTRUCTORS, INC. V PENA 132 L.Ed. 2ND 158 (1995)
McCLESKEY V KEMP 481 US 279 (1987)
PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA V CASEY 500 US 279 (1992)
ROE V WADE 410 US 113 (1973)
WARDS COVE PACKING CO. V ATONIO 490 US 642 (1989)
WEBSTER V REPRODUCTIVE HEALTH SERVICES 492 US 490 (1989)
"[Mark Graber's] pragmatic interpretation of abortion law and politics is interesting, concisely written, and well researched.... Its combination of concrete analysis and theoretical insights should provide for a productive discussion."—-Timothy L. Smith, The Law and Politics Book Review —-Bonnie Steinbock, Ethics
In this extremely interesting and well-written book, Mark Graber maintains that the abortion debate has bogged down. He wants to try a new approach, one that is both pragmatic and, he hopes, likely to appeal to those Americans who, like him, believe that abortion is morally wrong, but should be legal.
Ethics - Bonnie Steinbock
[Mark Graber's] pragmatic interpretation of abortion law and politics is interesting, concisely written, and well researched.... Its combination of concrete analysis and theoretical insights should provide for a productive discussion.
The Law and Politics Book Review - Timothy L. Smith
In this extremely interesting and well-written book, Mark Graber maintains that the abortion debate has bogged down. He wants to try a new approach, one that is both pragmatic and, he hopes, likely to appeal to those Americans who, like him, believe that abortion is morally wrong, but should be legal.
[Mark Graber's] pragmatic interpretation of abortion law and politics is interesting, concisely written, and well researched.... Its combination of concrete analysis and theoretical insights should provide for a productive discussion.
The Law and Politics Book Review
