Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The religious right purports to be deeply concerned about the high rates of abortion in the United States, but its most stalwart proponents have succeeded in implementing and maintaining policies that keep the abortion rate high.
I draw this lesson from discussions in Naomi Cahn and June Carbone’s wonderful new book, Red Families v. Blue Families: Legal Polarization and the Creation of Culture. The book is primarily a study of the way in which different family forms have emerged in different parts of the country, and the political ramifications of the polarized value systems that result. But the data it contains reveals a deep incoherence in the American government’s family planning policies.
The most effective way to lower the abortion rate would be to increase the availability of contraceptives and information about contraception, especially to poor women. This is precisely what the federal government did in the 1970s, hoping to reduce out-of-wedlock births to poor women. But the Reagan administration cut contraception funding and shifted family-planning efforts toward adoption counseling and abstinence education, which were more acceptable to its conservative base. The consequence, of course, was very high levels of abortion.
Since then, there has been a toxic political equilibrium, in which the conservative right keeps contraceptive funding low. The left has not called them on the way that such policies increase the abortion rate, perhaps because proponents of family planning are reluctant to admit that abortions are a bad thing. But somebody needs to say it: the religious right is responsible for many abortions in America.
Cahn and Carbone observe that two different family systems, presupposing different norms, now exist in the United States. The older, more traditional model demands marriage before (or very soon after) sexual activity begins, identifies responsible parenthood with marriage rather than maturity or economic self-sufficiency, aims at socialization into traditional gender roles, and embraces authoritarian models of parenting. The appropriate response to unplanned pregnancy is the shotgun marriage. Same-sex marriage seems to flout this entire complex of values, elevating the happiness of adults over the well-being of children.
This model remains prevalent in much of the United States. Where it does, the Republican party has reliable support: the political affiliation of a state correlates well with the median age of first marriage. But where it prevails, divorce rates are the highest in the country, because early marriages are the most likely to fail. Teen pregnancy, high rates of sexually transmitted diseases, and single motherhood are frequent. The problem is that, although this ethic has considerable continuing power, it is in decay. Its enforcement mechanisms have weakened. Unhappy couples can no longer be forced to stay together, and teenagers can’t be prevented from having sex.
At the same time, a new sexual ethic has emerged and is now deeply entrenched in the blue states. This model, which Cahn and Carbone call the “new middle class ethic,” is tolerant of premarital sexuality so long as contraception is carefully used, with abortion as the responsible fallback. It calls for postponing marriage and parenthood until the completion of higher education, and aims at more egalitarian gender roles within marriage. It produces lower rates of divorce and teenaged motherhood, but also falling fertility and more people living alone.
The red-state, conservative ethic has always been suspicious of sex education. Evangelical Christians, who are the most militant proponents of the red-state ethic, are three times as likely as non-evangelicals to believe that sex education should not be taught in schools. (108; all page references are to Cahn and Carbone’s book.) Government support for contraception, especially contraception provided to teenage girls without their parents’ knowledge or consent is anathema. Such girls should not be having sex at all. Contraceptive information is likely to encourage them to flout moral norms with impunity. Unwanted pregnancy is unfortunate but valuable as a deterrent to premarital sex.
It was this ethic that produced the move to abstinence-only sex education, which is now the predominant approach in a third of American schools. (110) But there is no evidence that such education makes abstinence until marriage more likely (96% of Americans have sex before they marry, see 175), or produces a decline in teen or nonmarital births, and some evidence that it produces an increase in both, because it is more likely that a girl will not know how to contracept at the time of her first sexual experience. (3, 111) The effect is particularly pronounced with respect to black and Latina girls, who are disproportionately exposed to abstinence-only education. Two-thirds of white women, but fewer than half of black women, have received instruction about contraception before their first sexual encounter. (111)
It is no accident, then, that the United States has the highest rate of unplanned teen pregnancies in the industrialized world. (8) Three in ten teenaged girls become pregnant before they turn 20, and four-fifths of these pregnancies are unplanned. (91) In 2006, half of all pregnancies were unplanned, and these were concentrated below the poverty line. (90) The rate of unintended pregnancy is 69% for African-American women, 54% for Latinas, and only 40% for white women. (173)
Here is where abortion comes in. Among African-Americans, 43% of conceptions end in abortion, compared with 25% of Latinas and 18% of whites. It should be no surprise that the rate of abortion correlates heavily with the rate of unplanned pregnancy. African-American teen births dropped in the 1990s, but this was true in large part because abortion rates, which fell for white teens, remained higher for minority teens (172).
If you want to lower the abortion rate, then, the most obvious way to do it is to provide better information about contraception to the women who now are experiencing high rates of unintended pregnancy, in schools and also by providing comprehensive sex education to women over 18 (173).
The Republican leadership, however, has opposed any such funding. Most recently, they succeeded in pressuring Obama to strip out expanded funding for family-planning services from the stimulus bill. House Minority Leader John Boehner emphasized that any such funding would benefit Planned Parenthood, which delivers abortion services. He did not mention that such funding would lower the rate of abortions.
Republicans worry that sex education will lead to more premarital sex. There’s not much evidence that this is true of any particular sex ed program. The major effect of such programs is to prevent sex that was going to happen anyway from leading to pregnancy and disease. (It is true that the birth control pill helped bring about the sexual revolution of the 1960s, but it’s too late to reverse that.) But even if keeping girls ignorant would reduce the rate of premarital sex to some extent, how many abortions would be too high a price to pay for that?
But somebody on the religious right ought to be reflecting on the now-obvious fact that the policies that they have been supporting are directly responsible for millions of abortions. If leadership is now going to be exercised in order to reduce the abortion rate, it will have to come from them. Opposing contraceptive education is politically popular in the red states. But how can a politician who sincerely believes that abortion is the killing of a person, and who is aware of the data I’ve just described, ethically take advantage of this opportunity?