Abortion
Rabkin, Jeremy A.
BOOK REVIEWS T aurence Tribe, Tyler Professor of 1-r Constitutional Law at Harvard Law School, used to shape public policy with appellate briefs for Supreme Court justices and with articles and...
...He is equally opposed to parental consent requirements for minors seeking abortion and to prenotification requirements for husbands or fathers, both of which strike him as "cruel...
...He concedes that preserving the life of the fetus might be a legitimate concern, but he deals with that concern in a moral or social vacuum...
...T ribe is incapable of grasping that 1. people may oppose abortion not because they cherish some morbid notion of pregnancy as a necessary punishment, but because they cherish pregnancy as a blessing...
...He is opposed to all restrictions on public funding of abortion...
...Part of the reason for this one-sided presentation may be that Tribe is a compulsive advocate, who can't stop himself from heightening his own preferred side and muddying or obscuring the most serious arguments on the other side, even when he is trying to assume a fair-minded come-let-usreason-together posture...
...That is progress of a sort...
...He considers them—and finds every one of them unacceptable and indefensible...
...W. Norton/270 pp...
...Perhaps the chief value of this book is its unintended demonstration of how intractable the abortion debate has become...
...But, for all his misgivings, Tribe cannot resist pressing this bizarre technological "compromise," apparently because he finds it such a powerful challenge to the "real motives" of pro-lifers: "If the extensive exploration of technologies to improve fetal survivability [despite removal from the mother's womb] seems unappealing, might one reason be an underlying attitude that, by comparison with any technological alternative, women represent cheap 'baby machines...
...From this perspective, the embrace of abortion-ondemand, which relegates an unborn baby to the moral status of a tumor, seems the ultimate confirmation of this degradation...
...Tribe's constitutional law treatise also accepts the propriety of military conscription in wartime—though the draft burdens the liberty of conscripts for much more than nine months and leads to fatal injuries much more often than does pregnancy...
...If an artificial womb or some such technology would allow the fetus to be brought to term, without requiring the mother to continue withher pregnancy, would this not, he reasons, satisfy both sides—or at least the strongest arguments on both sides...
...In a book that devotes so much space to setting the abortion debate in wider historical context, there is no mention of the growing trend in medical and ethical literature to distinguish worthy from "unworthy" lives in decisions regarding euthanasia...
...That book, anticipating the fight over the Bork nomination, was pretty clearly aimed at wavering senators...
...For all his professed desire to move the debate beyond the "clash of absolutes," Tribe is quite unwilling to give an inch of ground to the pro-life position...
...Thus Tribe characteristically fails to consider one of the most obvious reasons why most people still shrink from prohibiting abortion in cases of rape—namely, that they want to strengthen the ideal of maternal love and cannot believe that any rape victim could love the product of her rape...
...Tribe is unlikely to persuade anyone not already committed to the moral inversions of radical feminism, but his idea of a good argument tells much about the distance between pro-choice advocates and the rest of the country...
...Law professors seem to find such abstract arguments extremely compelling, but normal people usually do not...
...Tribe's own proposal for a "com- promise" is to separate the "liberty" of the woman to be free of her pregnancy from the "right to life" of the fetus—and then to look forward to the day when advanced technology can allow us to satisfy both "absolutes" simultaneously...
...And despite some popular "stuffing" in this book—detours into the history of abortion practices around the world, overviews of the contemporary political battles over abortion in America—Tribe devotes most of his energy here to just this sort of "logical" argument...
...For Tribe is quite comfortable with the imposition of tolerance by an array of anti-discrimination laws and in some of his recent writings has expressed sympathy with feminist demands for the suppression of pornography...
...There is no mention of the Supreme Court's refusal to intervene—following the refusal of lower courts to intervene—in the Indiana "Baby Doe" case in 1981, where parents (and their doctor) decided to "treat" an already born baby, found to have Down's syndrome, by denying it all liquid, and thus condemned the baby to a horrible death by dehydration...
...He tries to show sympathy for, or at least understanding of, the "right to life" opponents of abortion, but this book is essentially a relentless argument for an extreme pro-choice view...
...In 1986 he published God Save This Honorable Court, arguing for the Senate's right to reject presidential nominations to the Court on purely ideological grounds...
...But perhaps it is more correct to say that he reasons from feminist dogmatism...
...It is also good news for those who disagree with Professor Tribe's political agenda...
...19.95 Jeremy A. Rabkin THE AMERICAN SPECTATOR AUGUST 1990 35 not possibly be used to limit the right to abortion since the imposition of pregnancy is otherwise so awful...
...Tribe's blindness to such reasoning seems to reflect a liberal dogmatism that rejects out of hand all societal efforts to reinforce moral norms through legal compulsion...
...Thus his treatise argues against the constitutional propriety of anti-sodomy laws, laws against non-monogamous marriage, laws restricting hippie-style communes, and other measures penalizing unconventional "family" arrangements...
...Tribe concedes that rightto-lifers are entitled to base their views on theological or metaphysical dogmas, but he treats their position as if it had no other serious basis than a totally abstract dogma about the beginning of "life...
...In a book filled with accounts of court decisions since Roe, there is no discussion of the Supreme Court rulings that have made it almost impossible to prevent even third-trimester abortions...
...Aware that the pro-choice position no longer has an automatic majority on the Supreme Court, Tribe does consider a range of possible legislative compromises...
...obstacle...
...Tribe acknowledges that such technology "raises justified fears about a Brave New World of state-run baby farms, including the specter of state control over the disposition of fetuses that are not wanted by their biological parents . . . " He even expresses sympathy with the claim that women ought to have control, not only over their own bodies, but also over their own genetic material—at least when the material in question is contained in a very young or very small fetus...
...One of his favorite arguments, repeated several times, is that those who would allow an abortion in cases of rape must be motivated by a secret desire to punish women for sex rather than any sincere concern to preserve life, since the offspring of a rape is still a "life...
...BOOK REVIEWS T aurence Tribe, Tyler Professor of 1-r Constitutional Law at Harvard Law School, used to shape public policy with appellate briefs for Supreme Court justices and with articles and treatises for Supreme Court clerks...
...Tribe's underlying objection is not to constraints on liberty or self-expression, per se, but to the imposition of moral norms that tie women—and men—to traditional ideals of family life...
...For Tribe's advocacy skills are indeed much better suited to the courtroom or the cloakroom than to the forum of public opinion...
...The imposition of even a two-day waiting period before allowing abortions strikes him as posing an unacceptable Jeremy A. Rabkin Ls professor of government at Cornell University...
...his specialty is the relentless pursuit of the "logical" conclusion, reached by posing "the issue" with extreme, formulaic alternatives...
...He is opposed to prohibiting abortion for birth control...
...Tribe's own premise is that anything less than "life" could ABORTION: THE CLASH OF ABSOLUTES Laurence H. Tribe/W...
...Tribe, a former mathematics student, is not a particularly gifted or evocative writer...
...Now Professor Tribe offers a defense of abortion rights which actually seems to be aimed at the general public...
...In Tribe's moral perspective, the freedom to indulge passions is so much taken for granted, that even the prospect of "Brave New World baby farms" seems less degrading to human dignity than an unwanted pregnancy...
...There is no discussion of the Court's subsequent rejection of federal regulations to protect handicapped infants from such fatal mistreatment...
...He is opposed to restricting abortion to the early stage of pregnancy...
...But the larger problem is rooted in the very premise of Tribe's approach...
...He is constantly trying to resolve the right-to-life argument into its supposed logical premises in order to demonstrate that many of its adherents, since they do not stick to this logic with unswerving consistency, must be operating from other, more sinister motives...
...As this sort of argument suggests,Tribe's efforts to accommodate the right-to-life position tend to reduce that position either to nasty caricature or to meaningless abstraction...
...From a traditional moral perspective, the unleashing of sexual passions outside the family—outside even the hope or the pretense of a future family—is cheapening or degrading to the proper dignity of human life...
...he is opposed to any limitation on the permissible rationales for abortion, since such restrictions wrongly imply that some women may be having abortions for "frivolous" reasons...
Vol. 23 • August 1990 • No. 8
