Abortion: the Clash of Absolutes. - book reviews

National Review, July 9, 1990 by Brian Robertson

Abortion: The Clash of Absolutes

WITH HIS testimony against Robert Bork's confirmation to the Supreme Court in 1987, Harvard law professor Laurence Tribe lent much needed academic credibility to opposition claims that Judge Bork was outside of the "mainstream" of American constitutional jurisprudence. Mr. Tribe's new book provides another opportunity to look at his peculiar constitutional theories, especially as they relate to abortion, the issue that will dominate the attention of the Court (and Court-watchers) for the foreseeable future. The book is receiving much attention, both because Tribe is a favorite constitutional authority among liberals (especially in the media), and because he is a likely nominee to the court if the Democrats win the White House. This book represents Mr. Tribe's latest effort to consolidate his position as the liberal front-runner.

Despite the conciliatory-sounding title, nothing in the book tempers his well-deserved reputation as a radical judicial activitist. He considers Roe v. Wade well within the judicial "main-stream." He is guided in this judgement not so much by his jurisprudence as by what can only be described as fanatical feminism, one that sees pregnancy as a tool of men to keep women in a position of subservience. In Mr. Tribe's view, this desire to keep women "in their place" (i.e., without economic or political power) is what motivates abortion opponents, not their professed reverence for human life. Entirely missing from Mr. Tribe's analysis is any notion of loving parental responsibility:

Whether in the name of traditional sex roles or in the name of a traditional sexual morality, much opposition to abortion seems realy to be about the control of women.

That, in essence, is the book's thesis. the chapter entitled "Finding Abortion Rights in the constitution" is sumply a pro forma exercise in arriving at that foregone conclusion. Mr. Tribe dismisses all legislative "compromises" to the Roe standard on the grounds that they don't pass the litmus test of legally mandated sexual equality. This is like saying laws against rape are inherently "unequal." It is a standard by which no law prohibiting abortion is even conceivable.

In the course of the chapter, Mr. Tribe gives us some interesting glimpses of his views of the role of judges in a democratic society. To the objection that judges should not usurp the role of democratically elected legislatures, he answers:

In the United States the history of the exercise of unfettered governmental discretion is largely a history of unequal treatment based on class, race, and sex.

By "unfettered governmental discretion" he simply means self-rule, and Mr. Tribe doesn't think we can be trusted to practice it. Accordingly the role of the judge is to ensure the right outcome if people pass bad laws.

Mr. Tribe supplements the "feeble" protections of the Constitution with a dose of feminist theory. Most writers would be wary of citing the president of the National Abortion Rights Action League in a disinterested, scholarly study of abortion, but not Mr. Tribe. He quotes Kate Michelman as an authority on how pro-Roe laws humiliated women. Indeed, his chapter notes read like a compendium of feminist "scholarship." Mr. Tribe even cites Mother Jones as a source on anti-abortion violence.

Inevitably, a book that depends so heavily on feminist tracts must revolve around the favorite subject of feminists: sex. Indeed, in a bizarre chapter entitled "In Search of Compromise," the reader begins to understand the agenda. For muddled partisanship, it's hard to beat this assertion:

A second familiar but still-underutilized approach to reducing the number of [unwanted pregnancies] is, of course, to prevent pregnancy through the only proven means for doing so: sex education and the wide availability of birth control. Some will no doubt think that the only moral means of pregnancy prevention is abstention from sex. But it doesn't work as policy because people don't abstain. This is the lesson of human history [My italics].

Where has the man been for the last 25 years? (Well, in Cambridge, Massachussetts, which perhaps explains everything.) He has clearly not been paying attention to the tragic results of similar policy recommendations already in action. Sex education is being taught in public schools to younger and younger kids, and contraceptives have never been more widely available and more widely used. Yet the rates of illegitimacy, teen pregnancy, and abortion continue to rise. Mr. Tribe id not dissuaded by the facts. His idea of "compromise" is to

pour significant sums of research and development money into new forms of contraception that will be safer or will feel less awkward or unnatural to use than currently available methods.... The development of such technologies has potential for dramatically shifting our conception of what is "natural." Human beings obviously aren't "hard-wired" for birth control. Perhaps males even be biologically programmed to distribute their genes as widely as possible.