an unanticipated consequence of
Jack M. Balkin
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
This remarkable column by Ross Douthat, no friend of abortion rights, makes the case that access to abortion has helped stabilize marriages and reduce the number of out of wedlock births, thus promoting family stability and, one might also think, family values:
Naomi Cahn and June Carbone . . . depict a culturally conservative “red America” that’s stuck trying to sustain an outdated social model. By insisting (unrealistically) on chastity before marriage, Cahn and Carbone argue, social conservatives guarantee that their children will get pregnant early and often (see Palin, Bristol), leading to teen childbirth, shotgun marriages and high divorce rates.
This self-defeating cycle could explain why socially conservative states have more family instability than, say, the culturally liberal Northeast. If you’re looking for solid marriages, head to Massachusetts, not Alabama.
. . . Cahn and Carbone also acknowledge one of the more polarizing aspects of the “blue family” model. Conservative states may have more teen births and more divorces, but liberal states have many more abortions. . . . So it isn’t just contraception that delays childbearing in liberal states, and it isn’t just a foolish devotion to abstinence education that leads to teen births and hasty marriages in conservative America. It’s also a matter of how plausible an option abortion seems, both morally and practically, depending on who and where you are.
Whether it’s attainable for most Americans or not, the “blue family” model clearly works: it leads to marital success and material prosperity, and it’s well suited to our mobile, globalized society.
By comparison, the “red family” model can look dysfunctional — an uneasy mix of rigor and permissiveness, whose ideals don’t always match up with the facts of contemporary life.
But it reflects something else as well: an attempt, however compromised, to navigate post-sexual revolution America without relying on abortion.
Douthat appears to be arguing that access to contraception and abortion helps achieve the very sort of family stability that conservatives say they long for, but conservatives are not willing to accept the tradeoff of making abortion and contraception widely available for fear that these alternatives will actually be used. Although Douthat asserts that it is access to abortion that is crucial, in fact easy access to contraception is just as important in preventing unwanted pregnancies, especially among teenagers. Moreover, as Douthat notes in passing, one must also consider the effects of economic opportunity, education, and class on illegitimacy and family stability.
But even if we accept his premise that abortion is really what matters, Douthat seems to be saying that if conservatives wanted more stable families with fewer out of wedlock births, they might consider making access to abortion easier and less stigmatized in states with the most restrictive laws. Giving women greater sexual freedom and greater opportunities to choose the number and timing of their children reduces illegitimacy and promotes stable marriages, making it easier for families to survive in today's difficult social circumstances. In other words, he has described a family values argument for abortion rights.