Balkinization: Stigmatized Abortion

Stigmatized Abortion

Mark Graber

Three positions on abortion seem possible. One view is that abortion should (almost) always be legal. Another is that abortion should (almost) always be illegal. The third is that abortion should be legal, but stigmatized, the stigma being reflected by a lack of other federal funding and various other restrictions (the three positions are probably points on a continuum). Persuading most people of the normative virtues of stigmatized abortion is likely to be worthless. Most people who read this blog have strong feelings on the subject and, my sense is that all of us have run out of new normative arguments that might prove persuasive. Let me instead suggest two political virtues of stigmatized abortion.

First, the empirical evidence suggests that keeping abortion legal has far more powerful effects on access to abortion than any restrictive policy short of outright bans on the procedure. For example, the most conservative estimate I have seen is that 75% percent of persons formerly eligible for aid are able to obtain abortions when funding is cut off. The most liberal estimate is 95%. My best guess on the data is about 85-90%. Many restrictions on abortion are administered in ways that makes their impact entirely symbolic. Very, very few women have partial birth abortions. When abortion is legal, the crucial variable in determining access is whether private parties provides services, not the existence of restrictive laws. Point of emphasis. This is not to claim that restrictive laws do not matter and that many are medically stupid (misinforming people under the guise of informed consent being the best example). The big point is that a heavily regulated abortion right is not a hollow shell, that the vast majority of persons able to obtain abortions because of Roe v. Wade will still be able to obtain abortions if all the standard restrictions become law.

Second, the public opinion evidence suggests that most Americans favor some version of stigmatized abortion, that the overwhemingly disproportionate influence of activists on the Democratic and Republican party explains why neither party can get to the middle on this one. Whether or not it is true in principle, most Americans do not see bans on partial birth abortions as placing them on the slippery slope toward banning abortion altogether. What these means politically is that if debate over Justice Roberts, future judicial nominees, and abortion in general focuses on the immediate issue of partial birth abortions, parental consent, etc., the left loses. If the issue is retaining Roe, the left wins. Having lost more than my fair share of elections over the past years, I think I might be willing to stomach a few stupid consent laws to win some political battles for once. But then again, I am a member of the party and profession that given the opportunity to fight the 2004 election over whether homosexual sodomy should be criminalized, egged on a Massachusetts court to make the decision guaranteeing that the 2004 election would be fought over gay marriage.

Posted 10:54 AM by Mark Graber [link]

Comments:

The number of partial birth abortions are contested. I've always found the Guttmacher Institute to have the best estimates. In 1996, when I wrote Rethinking Abortion[lots of leftover copies remaining!) they believed the procedure was performed 363 times. Five years later, the estimate around 2,000. I think with this figure, I would have said rare, rather than very, very rare, but the general point is that we are talking about less than 0.5% of all abortions. [Long story on why my posting id is sdragon--mgraber]

# posted by

Mark Graber : 3:59 PM

We could probably be a lot more confident that such abortions were really rare, if the abortion industry didn't fight in court every effort to require that reliable records be kept. As it is, we have the same people assuring us that they're seldom done, and absolutely demanding that we take that assurance on faith.

# posted by

Brett : 4:10 PM

I am a member of the party and profession that given the opportunity to fight the 2004 election over whether homosexual sodomy should be criminalized, egged on a Massachusetts court to make the decision guaranteeing that the 2004 election would be fought over gay marriage.

So your brilliant strategy for the 2004 election was to make it about gay marriage. How'd that work out for you? And now your brilliant strategy for 2006 is to essentially give up on abortion. How d'you think that one will work out? ;)

Don't get me wrong, I think it's great that the Dems are finally realizing that they can only be wrong on so many issues, and are thus dropping one of them, and I'm thrilled that the one to go is abortion on demand, but I don't think it's going to be enough to win the midterms for you.

# posted by

Simon : 4:50 PM

I don't know why a state the pays for childbirth but not abortion is accused of stigmatizing abortion. How would anyone assume that?

I also know why people are so troubled by China's one child policy. Oh, I'm sorry, the real concern is that it was done in an undemocratic way. If a democratic majority passes such a law, no problemo.

You are serious, right? Just checking.

# posted by

Joe : 1:30 AM

The more you wanna know whether you have forgotten something, the better you remember;
I once heard that, the only thing you can do when you no longer have something is not to forget
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# posted by