Is the long-raging debate over abortion tearing apart our democratic institutions?
The 10th anniversary of the Supreme Court's decision decriminalizing abortion found "pro-choice" forces guardedly optimistic about sustaining their victory and "pro-life" forces still determined to overturn it. The prolonged dispute over abortion policy goes on because neither side is comfortable with less than total victory; each side views its cause as sacred, and both are right.
But as advocates on both sides strive to make abortion a pervasive question in American politics, many others worry about its effects on democratic government.
Injection of abortion policy into seemingly unrelated congressional business, tests of reliability on the issue in the selection of presidential appointees and in the election of public officials, and proposals for back-door constitutional change have all been regarded as threats to the American system. For example, contemplating a colleague's plan to attach abortion restrictions to appropriation bills, Sen. Barry Goldwater said he was "more concerned about perpetuation of our form of government" than "with busing, abortion, prayer, or anything else." In a similar vein, Utah's Sen. Jake Garn quit a pro-life group because it targeted House and Senate members for defeat solely because of their pro-choice position.
Under the auspices of the Brookings Institution, some previously uninvolved academic specialists have undertaken a dispassionate examination of the strategies used in the abortion struggle. Their conclusions are at once surprising and reassuring: While abortion policy is a divisive political issue, it is not a real and present danger to governmental institutions. Actions of the groups seeking to influence the decision--or change the decision--about abortion policy have not damaged the American system. Decisions about abortion policy have been reached pursuant to traditional political rules and practices.
Consider, for example, the argument over the "legitimacy" of the 1973 Roe v. Wade decision. At one point during last year's Senate debate on abortion, Sen. Jesse Helms summarized the views of seven eminent constitutional scholars who all expressed "shock and dismay" over the reasoning of the court. But did the court go beyond the role permitted it by two centuries of constitutional practice? As Prof. Lawrence Friedman of Stanford Law School explains, "It is hard to say what that role is."
In ruling on constitutional issues, the court perforce goes beyond the words of the Constitution. It has been doing so at least since John Marshall became chief justice in 1801. In the intervening years, nobody has succeeded in finding a way to separate "legitimate" decisions from those that are not. The role of the Supreme Court as constitutional arbiter may be questioned as a general principle. Questions of general principle, however, are not grounds for rejecting a particular decision. Nor can it be said that Roe is so far out of line in its reasoning, technique or results as to be a suspect decision.
Few senators who endured last September's extended debate on Helms' proposal to restrict abortion remember it nostalgically. Nevertheless, linking the abortion issue to the bill to increase the public debt limit was hardly the first time a controversial question was tied to a piece of "must" legislation. Correspondingly, the Weicker-Packwood filibuster against Helms' amendment hardly qualifies as an unprecedented use of Senate rules.
Most of the congressional consideration of abortion since the Roe decision involves the so-called Hyde amendments and comparable ones restricting federal financing of abortion. Prof. Roger Davidson, a prominent student of congressional procedures, has reviewed the making of the Hyde amendments and calls them "well within the formal and informal rules of both chambers." Whether appropriations riders that restrict spending on abortion are wise or unwise policy may be debatable. That appropriations riders have been a common procedural technique is certain.
Pro-choice and pro-life forces have each focused on the abortion views of some nominees to high office, but the effects have been neither broad nor deep. Challenges to the nominations of Justice Sandra Day O'Connor and Surgeon General C. Everett Koop are the most celebrated cases. Neither of them was nominated solely because of her or his position on abortion, and neither was turned aside by the Senate. More important, a good case can be made that a president with strong ideological convictions should be expected to make appointments consistent with those convictions. By the same token, however, groups espousing contrary views should try to extract limiting commitments from otherwise antagonistic nominees by participating in confirmation hearings and reminding nominees that they will be under scrutiny.
It is often said that the electoral process has been distorted by targeting particular candidates for defeat on the basis of their abortion position alone. This assumes that such targeting has been successful. But analysis by Professors John Jackson and Maris Vinovskis of the University of Michigan casts considerable doubt on the assumption. In 1978, for example, even in the particular races that pro-life or pro-choice political action committees contributed to, their money represented only a very small portion of the total spent. Interviews before and after the election with the campaign managers in 86 contested House districts failed to turn up any evidence that abortion was an important factor in those races.
Pro-life forces did benefit from media portrayal of the 1978 elections as a pro-life victory--an interpretation reinforced by Iowa Sen. Dick Clark's unsupported post-election statement that the abortion issue defeated him. To be sure, the 1980 election appeared to be a stunning success for the pro-life cause with the defeat of sundry liberal senators who were pro- choice. Similarly, 1982 can be portrayed as a pro-choice year because of the victories of leading pro-choice senators. In both years, however, abortion policy was probably not an important influence on the electoral results.
Survey data consistently indicate that few individuals rank abortion as one of their top policy concerns. A Roper survey in 1976 found abortion ranked last of 15 specified issues. In the American National election study for 1978, fewer than 0.5 percent of respondents mentioned abortion as an important national problem.
No claims are being made about the role of abortion as a significant electoral issue in 1982. Sens. Weicker, Metzenbaum, and Sasser all played critical roles in defeating the Helms anti-abortion legislation last year, and all were reele ted. And so was Orrin Hatch, the driving force in the Senate for a constitutional amendment to prohibit abortion.
But as the fight to overturn the constitutional protection accorded abortion enters its second decade, it is useful to know that this divisive issue is at least not a destructive issue for the American system.