Abortion and Divorce in Western Law:
Degnan, Daniel A
BOOKS Instructive comparisons ABORTION AND DIVORCE IN WESTERN LAW Mary Ann Glendon Harvard, $25, 197 pp. Daniel A. Degnan This book should change the way abortion and divorce are discussed in...
...In her final chapter, Glendon asks why the difference...
...Care is taken to ameliorate economic consequences for the other spouse...
...Only the United States and Sweden, by contrast, offer' 'no fault" divorce, the American term for easy termination of the marriage by either spouse...
...French law, for example, characterizes the factual situation as involving human life and states a general principle of respect for every human being from the commencement of life...
...In the nineteen other nations, among them France, West Germany, Italy, Sweden, England, abortion takes place against a context of strong social and economic support for mothers and children, including money payments, day care, and maternity leave...
...If it ceases to perform this function, no one is to blame and either spouse may terminate it at will...
...The United States, in contrast, has framed its laws of abortion and divorce to express the isolated choice of an individual...
...Countries such as France and West Germany add an explicit principle that marriage should be permanent, a provision, Glendon argues, that may have an important symbolic and educative function...
...But the experience of other societies that have been just as deeply divided as ours, if not more so, on the abortion question, shows that when the legislative process is allowed to operate, political compromise is not only possible but typical...
...With divorce, Glendon proposes that the needs of minor children be made primary, under fixed requirements of support not subject to the discretion of judges...
...Divorce shows a similar contrast...
...Many of the countries require cause for abortions even in the early weeks of pregnancy...
...Glendon asks prochoice advocates in the United States to consider what a set of legal arrangements that places individual liberty above innocent life says about, and may do to, the people and the society that produces them...
...The laws of Western nations, except for the United States, embody compromise, complexity, and above all an ordering of public values...
...In most of the Western countries, divorce at the petition of one party requires a finding of the breakdown of the marriage, based upon separation ranging from one to six years...
...Daniel A. Degnan This book should change the way abortion and divorce are discussed in the United States...
...Choice by an individual is the only standard of legality and right...
...Our society's laws tell us the story of who we are and what we think of our obligations to developing human life, to children, to mothers and former spouses...
...In other Western nations, changes in the law of abortion and divorce were the product of national debate and major compromise...
...There is no educative role for such coercive laws to play...
...The different groups in these societies have been able to live peacefully and without frustration under these political compromises...
...In the United States, the abortion debate was cut short when the Supreme Court imposed its own, minority view...
...Our laws also constitute or shape us, affecting our ideals and behavior, the way we meet our responsibilities to one another...
...With the United States' low level of public benefits for mothers and children, the children of divorce in this country are often severely disadvan-taged...
...The United States, Glendon argues, tends to look upon law as Hobbes did, as an exercise of power...
...In the United States, in contrast, the Supreme Court has declared a constitutional right to abortion even in the final weeks of pregnancy after viability...
...There are, first, the interpretive and constitutive functions of law...
...The values of developing human life, marriage, and family are expressed in these laws, as are the interests of children and spouses...
...There is also the need for socially embodied argument, the debate by which our laws are formed...
...Women are isolated, as are children, under these American laws...
...Mary Ann Glendon has used a profound knowledge of comparative law to tell us that our society can be better served, if we have the courage and humility to learn from fellow nations.rn from fellow nations...
...Glendon corrects the misconception about American public opinion...
...In all these nations, abortions are limited and strictly regulated in the later weeks of pregnancy...
...it consistently rejects the Supreme Court's position of abortion-on-demand, while it also rejects complete prohibitions on abortion, especially in the earlier weeks of pregnancy...
...The legislative process, however imperfect, is a major way in which we as a society try to imagine the right way to live...
...American judges have discretion in deciding on levels of support for children, and study after study shows a striking inadequacy in these decrees...
...To prolife advocates, Glendon says that a law which communicates that abortion is a serious moral issue and that the fetus is entitled to protection will affect our mores, the hearts and minds of our people, better than absolute prohibition...
...The Supreme Court's decisions," Glendon writes, "have thus been doubly disappointing to the majority of Americans...
...Only in the United States is abortion characterized as an individual right...
...A culture of individualism and John Stuart Mill's idea of liberty inform our recent laws governing abortion and divorce...
...The other Western nations, Glendon tells us, have remembered what the U-nited States has forgotten...
...In almost all, the abortion law itself seeks to affirm and protect in some measure the value of developing human life...
...at most they are rather shadowy characters in the background...
...The test then is the health of the mother, so broadly defined that there is no limitation...
...Not only did the court get the story wrong, but it foreclosed the possibility of working out a better story...
...Mary Ann Glendon, who teaches law at Harvard, compares the laws of abortion and divorce in the United States and nineteen other Western nations...
...Glendon proposes that abortion law be returned to the states, where she expects, rightly I think, bitter debate but eventual compromise...
...In the United States, Glendon says, the definition of marriage has been rewritten: "marriage is a relationship that exists primarily for the fulfillment of the individual spouses...
...Children hardly appear in this story...
...In all of these nations, there are fixed, often generous (by American standards) requirements for the support of children by the former provider, supplemented by public benefits...
...Glendon argues eloquently that the United States need not be mired, as many believe, in an abortion debate in which either side must have total victory...
...Requirements of counseling, waiting periods, and even hospitalization in the second trimester have been struck down as interfering with that right...
...Glendon finds meaning in these contrasts...
Vol. 115 • September 1988 • No. 15
