Solving a 'Clash of Absolutes'

Last week, Congressional Democratic leaders decided to give up trying to pass the Freedom of Choice Act for at least the rest of the year. They were motivated by the realization that the law, which would guarantee abortion rights nationwide, would probably not be passed unless it included provisions allowing state governments to impose restrictions like those recently upheld by the Supreme Court. For these abortion advocates, half a loaf is worse than none.

Fear that compromise is a slippery slope causes Congressional supporters of the Freedom of Choice Act to dig in their heels and insist that permitting any restrictions undercut the legitimacy of the right to choose.

But these all-or-nothing supports of the proposed law have made two mistakes. First, they ignore the general beliefs of the American people whom they are supposed to represent. And second, the contribute to the over-simplification and extreme polarization of the abortion debate, thereby making it harder for us to reach a national consensus.

According to Roger Rosenblatt's Life Itself, a 1992 study of American opinion about abortion, the majority of Americans believe both that the fetus is something close to a person and that abortion should nonetheless be permitted. In other words, they think abortion should be allowed but discouraged, and certainly treated as if it were more than just a morally unambiguous operation.

The restrictions proposed for the Freedom of Choice Act involved sush issues as mandatory waiting periods, parental consent for minors, and required counseling that would discuss other options and attempt to discourage women from having the abortion. Contrary to some Congressional Democrats' beliefs, these restrictions may not be the fascist's foot in the door, but rather an expression of the seriousness Americans sense in the abortion issue. Statistics show that other members of Congress--even some prochoice Democrats--feel the same way.

This being the case, the supporters of the Freedom of Choice Act do women a disservice when they refuse to consider any alternatives to absolutely unrestricted "abortion on demand." Giving up the fight altogether leaves abortion rights at the mercy of the Supreme Court, an institution which is on the way to becoming more "pro-life" than many Republicans, especially Republican women.

And there are good reasons why the legislature and not the courts should set the national policy on abortion. Abortion is, as Tyler Professor of Constitutional Law Laurence Tribe put, it,. a "clash of absolutes." In previous eras, the conflict between two valid and irreconcilable principles was recognized as part of human political life and called tragedy. Nowadays, we act as if every problem had a solution. But appeals to abstract principle, such as the Court uses in its decisions are not they way to resolve a tragic conflict, whose very force derives from the army of principles arrayed on both sides.

It is more appropriate, if we wish to resolve a dilemma we cannot solve, for the legislature, which is the representative of public opinion, to search the national conscience and discover what sort of compromise Americans have been able to reach in their private consciences. Such an empirical approach would only compromise the court's status as the guardian of principles untouched by politics, but it is the only feasible approach.

This is why Congressional supporters of the Freedom of Choice Act should not give up. To succeed, however, they need to listen to the message being sent by their constituents. And that message seems to be that Americans want legislation giving them the right to decide about the morality of abortion on a case-by-case basis in their own lives. At the same time, the law should remind Americans of the seriousness of such a decision and prevent abuses of that right.

Congress has to take the responsibility for resolving the abortion issue--not "solving the problem" in an abstract, absolute way. They should allow Americans the opportunity to solve the comflict on their own in an atmosphere of proper moral seriousness. The supporters of the unadulterated Freedom of Choice Act should stop insisting on a victory of principles over people, and start working on a legislative compromise that secures abortion rights while respecting the moral ambiguities and conflicts that American perceive in this issue.