Clash of Absolutes
Degnan, Daniel A.
CLASH OF ABSOLUTES Laurence H. Tribe W.W. Norton, $19.95,270 pp. Daniel A. Degnan This book, powerful in one way, is also a study in inverted argument. Ostensibly presenting both sides of the...
...Drawing from Judith Jarvis Thompson's likening of the fetus to a stranger in the womb, dependent on the woman for life support, Tribe claims that from both a legal and ethical perspective the woman's freedom should not be subjected to the needs of the fetus...
...In his next to last chapter, amazingly called "In Search of Compromise," Tribe gives no quarter...
...The only detailed ethical-legal discussion engaged in by Tribe is an argument based upon the common law's refusal to impose a duty to rescue strangers...
...These raise a host of social, moral, and legal issues, but few of these are in Tribe's mind...
...Even in the later stages of pregnancy, laws which would require waiting periods, or parental notification or consent are rejected by Tribe...
...That the case was a startling, sudden declaration of a liberty to abort in the first six months (the equivalent of New York's very liberal abortion law) and then an extension of the liberty to the entire pregnancy is lost almost entirely...
...Legal critics of Roe are assigned simplistic positions which are then rebutted...
...In Tribe's account, Roe v. Wade, the Supreme Court's 1973 abortion decision, is presented as the moderate outcome of a clash between competing absolutes, pro-choice and prolife...
...The book is powerful because it represents the legal and cultural thought (there is very little of the philosophical or moral here) of many constitutional and feminist academics and because it invokes the individualist, voluntaristic side of American culture...
...A fetus's life, in Tribe's view, is something that we think requires consideration...
...Tribe presents the case as if it were chiefly an effort by the Supreme Court to protect the fetus in the final three months of pregnancy, the time after viability...
...Arguing against any change in what he calls the abortion right, Tribe goes far beyond his seemingly modest earlier conclusion that Roe is "constitutionally defensible...
...Tribe also calls for more effective and widespread contraception, a matter which would require a change of position among some who are prolife or anti-abortion...
...For Tribe the only real concern is the woman's choice...
...There is only the woman's abortion right, a part of her liberty or freedom...
...This section is clearly popular, an appeal to politicians and the public rather than to legal scholars...
...Tribe never speaks, therefore, of a fetus's right to life...
...What Tribe lacks in his natural law of autonomy is any further ideal or theory of human dignity and community or any theory of the moral implications for persons and the community of destroying human life, much less any suggestion that sexual union has meaning beyond an individual's will and consent...
...Ostensibly presenting both sides of the abortion controversy, the book is actually a brief for retention of the complete "abortion right" spelled out in Roe v. Wade...
...If we would look for a judicious, balanced appraisal of the "clash of absolutes" in the abortion controversy, and for possible compromises in the law, it will not be found in this tendentious book...
...The prochoice or pro-abortion advocates represent necessary progress in Tribe's view...
...When Tribe enters into a legal defense of Roe against its constitutional critics, his book is especially disappointing...
...Finally, after the Supreme Court in the Webster case has suggested a possible retreat from Roe, the central point of Tribe's book appears...
...Tribe now argues that women should not have to spend the practical energy and effort needed to defend the abortion right before legislatures, since the abortion right is a necessary part of the liberty and reproductive freedom guaranteed to women by the United States Constitution...
...As James R. Kelly of Fordham University has warned, in this kind of argument the fetus is bound to lose...
...Admittedly, it would be better if the abortion liberty did not necessarily involve killing the fetus, Tribe asserts...
...One is reminded of John Henry Newman's observation that for the modern mind religion is merely an emotion among other emotions...
...The fetus's life does not, however, invoke principles of liberty of action, autonomy, self-fulfillment, or equality...
...In no case, however, should the law attempt to prevent or restrict abortion...
...The Catholic church and later a tribe of new-right zealots appear to be the only real opponents of abortion...
...Any other position is seen as a regressive, indeed moralistic, "punishment" for sexual activity...
...The abortion right Tribe asserts is heavily dependent on a view that women and men equally must have a complete freedom to be "sexually active" without the consequences of bearing or having children when pregnancy results...
...Even the Supreme Court's gossamer protection of viable fetuses in the final three months of pregnancy, which Tribe disingenuously trumpets, must yield to the liberty of the woman and a single doctor to decide that an abortion should be performed...
...One "compromise" proposed would be to offer more postnatal care to women and children, something that many prolife advocates have long proposed...
...Tribe's most impressive and sobering arguments bear on the desire and right of women to shape their own futures, on the desperate need of some women to avoid a childbirth, and on the large number of abortions and the demand for them...
...Only much later in the book does it appear that for the final three months, the period of viability, the Court defined the physical or mental health of the mother so broadly that abortion on demand was also allowed in this period...
...Tribe's supreme principle (or absolute), a modern natural law, is the principle of individual choice and autonomy, augmented by the feminist principle that women must be equal to men in the decision not to bear or have children, although for women an unwanted pregnancy requires terminating the life of the fetus...
...Tribe summarily rejects the legal compromise suggested by Mary Ann Glendon, that of increasing restrictions on abortion as the fetus becomes more developed and practically identical with the human infant except for size and ability to live outside the womb...
...In Tribe's description of the country's response to Roe, the abortion question is made to seem a matter of interest groups, rather than the fundamental, social, moral, and constitutional issue that it is...
Vol. 117 • November 1990 • No. 20
