Leave the abortion compromise alone

By , Thomas D. Rowe Jr. is professor of law at Duke University, N.C.

The abortion controversy has suffered from too much emphasis on ends, almost to the exclusion of thinking about what means are appropriate. Legal compulsion -- however commonly used in other contexts -- is a means that both sides of the abortion controversy should forgo, at least as to pre-viability abortions. In a pluralistic society like America's, when consensus is utterly lacking on a question of personal morality, no group ought to impose its views on others by law.

Whatever the convictions of the foes of abortion, it is different from murder in one crucial respect: much of our society, probably a large majority and including many major religious groups greatly concerned with moral issues, simply does not agree with the equation of abortion with murder or accept that it should be banned. Even for one who believes deeply that abortion is wrong, it should not automatically follow that society ought to write that view into its law. On all sides, some respect is due to widely and deeply held contrary beliefs -- an idea that cuts both ways, for the insistence of those who oppose abortions on not being forced to pay for them warrants respect as well.

However those against abortion may feel about US law as it stands, it doesn't impose anyone else's view on them. The law doesn't make anyone have an abortion; that certainly would amount to an imposition of the worst sort. While the idea of compulsory abortion is mostly hypothetical in present-day America, it does illustrate that those favoring free choice are more in the middle than at one extreme.

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The thought also leads to a further reason why those opposing abortion should deny themselves the weapon of legal compulsion: The power that can ban an abortion is the power that can require one, and we should not want our government doing either.

Legal compulsion can be a two-edged sword, one best kept sheathed on matters so intimate and divisive as abortion. If there ever were a law in this country trying to compel some abortions, the outraged response of many would likely be not just that the law was utterly wrong but that the state had no business dictating that sort of decision.

True conservatives should be wary of associating themselves with a cause that would legitimate the use of legal compulsion about abortion, for the likely reaction to the idea of compulsory abortion illustrates that there is something about the decision whether to carry a pregnancy to term that the state should not invade. Whatever one thinks of the soundness of the Supreme Court's abortion decisions as constitutional law, they have the great virtue of keeping us from doing that sort of thing to each other.

All this may sound like a fancy way of endorsing the slogan, ''Keep your laws off my body.'' It does reach the same conclusion, but the reasons why that claim seems justified go beyond selfish sentiment -- and have implications that will not be completely welcome in the pro-choice camp. If one side wants the other to keep its laws off women's bodies, it should at least be willing to keep its own laws off its adversaries' wallets. Such respect for opposing conscientious conviction has been all too lacking in the zealous crossfire, but it seems essential if the abortion issue is ever to cease being an open wound in our politics. And willingness to extend such respect implies what federal law, however much by accident we may have arrived at it, now provides: no ban on abortions but no tax dollars for them either.

Finally, acceptance of the legal status quo need not even mean acquiescing in what for each side is hardest to accept in the present situation -- continuation of legalized murder from the anti-abortion point of view, and discrimination against the poor for those who favor freedom of choice. For as the law excludes compulsion, it leaves other means open to both sides.

The pro-life forces remain entirely free, as they should be, to use moral argument and even enforcement of religious law through religious institutions to discourage others from having abortions, and to remedy the present inadequacy of support for alternatives to abortion.

By the same token, those who favor freedom of choice can support their belief with private efforts to make abortions available or unnecessary in the first place. Indeed, what should go with pluralistic respect for opposing conviction is acceptance of an obligation for voluntary action, such as giving to adoption programs or the new Abortion Fund. Otherwise all the alternatives, such as contraception, adoption, and abortion, will be -- as Justice Robert Jackson once said in a different context -- ''a promise to the ear to be broken to the hope, a teasing illusion like a munificent bequest in a pauper's will.''

The idea of compromise may now seem repugnant to partisans on both sides of the abortion controversy. But compromise by refraining from the use of legal compulsion -- without abandoning principle or other lawful means to pursue our different goal -- may be the only way out of the abortion thicket. Our law on abortion, more by chance than by design, has pretty much gotten to the point of abandoning compulsion. That is where it should stay.

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