Rethinking Abortion: Equal Choice, the Constitution, and Reproductive Politics

Mark Graber looks at the history of abortion law in action to argue that the only defensible, constitutional approach to the issue is to afford all women equal choice--abortion should remain legal or bans should be strictly enforced. Steering away from metaphysical critiques of privacy, Graber compares the philosophical, constitutional, and democratic merits of the two systems of abortion regulation witnessed in the twentieth century: pre-Roe v. Wade statutory prohibitions on abortion and Roe's ban on significant state interference with the market for safe abortion services. He demonstrates that before Roe, pro-life measures were selectively and erratically administered, thereby subverting our constitutional commitment to equal justice. Claiming that these measures would be similarly administered if reinstated, the author seeks to increase support for keeping abortion legal, even among those who have reservations about its morality. Abortion should remain legal, Graber argues, because statutory bans on abortion have a history of being enforced in ways that intentionally discriminate against poor persons and persons of color. In the years before Roe, the same law enforcement officials who routinely ignored and sometimes assisted those physicians seeking to terminate pregnancies for their private patients too often prevented competent abortionists from offering the same services to the general public. This double standard violated the fundamental human and constitutional right of equal justice under law, a right that remains a major concern of the equal protection clause of the Fourteenth Amendment.

Acknowledgments ix Introduction Sublime Theories, Ugly Facts 3 The Argument for Equal Choice 8 Things to Come 12 Chapter I The Clash of Absolutes Revisited 16 The Clash of Absolutes 16 Abortion Law in Books 18 The Looking Glass World of Abortion Advocacy 20 The Theoretical Impasse 37 Chapter II Abortion Law in Action 39 Abortion Past 41 Abortion Present 64 Abortion Future 72 Chapter III Equal Choice 76 Equal Justice under Law 76 Constitutional Equality 79 Discriminatory State Action 84 Judicial Review 96 Slaughtering the Company: The Prudential Case against Equal Choice 103 The Simple Justice of General Laws 106 Chapter IV Rule by Law 108 By the Law of the Land 108 Rule by Law versus Rule by Discretion 109 Judicial Rule by Law 114 Law Enforcement in a Democracy 115 Chapter V Realizing Equal Choice Persuasion and Politics 118 The Critique of Pure Litigation 121 The Myth of the Pro-Choice Majority 131 Rethinking Abortion Politics 142 Pro-Choice Strategy and the New Deal Party System 153 Conclusion The Allure of Pro-Life 157 Notes 161 Bibliography 209 Index of Cases 237 General Index 240