But that is at first glance. A closer look reveals an argument that does not withstand scrutiny for one simple reason: the right of the pregnant woman to decide for herself whether to continue her pregnancy has already been deeply, deeply compromised. Although Shrage dangles the tantalizing prospect of a "just right" balance between abortion availability and restrictions that will end the debate and allow us all to focus on other issues, she offers no principled basis for achieving it. The last thirty years have proven over and over again that "compromise" on the abortion issue is a one-way street, all compromises to date having restricted rather than expanded the possibility of personal decision-making in this realm. Nothing in Shrage's argument suggests a different outcome.
Shrage's insistence that Democrats and Republicans refuse to compromise on abortion is utterly belied by the heavy restrictions on access to abortion that have already been enacted all over the country. Who is drafting these restrictions, passing them through committees, bringing them to floor debates, voting for them, campaigning on them, and signing them, if not Democrats and Republicans? In short, her claim that the major parties resist compromise on abortion is palpably wrong.
To the extent that Shrage acknowledges the whole panoply of "funding cuts, waiting periods, mandatory counseling, and other measures" that particularly limit abortion access for poor and young women, she places blame for these restrictions not on the proponents of "compromise," but on the "[p]olitical polarization" that she claims is preventing compromise. The problem for Shrage is that whatever her sympathy for the women targeted by these restrictions, she clearly believes more (though perhaps different) compromises are in order. Thus, she deflects attention from the avidly compromising politicians that crowd our legislatures to that old bugaboo, the "middle-class women's movement" (my words, not hers). Shrage asserts that "poor women have not fared well in the post-Roe years," and then helpfully reminds us that "the leaders of mainstream feminist groups, like their counterparts in the Democratic Party, are generally not poor," thereby implying that coziness between mainstream feminists and the Democratic Party has somehow invited these restrictions or, at least, allowed them to flourish.
This claim, too, clashes with reality. When I got involved with my local chapter of the National Organization for Women in 1980, I was given a stack of postcards addressed to state legislators urging them to keep Medicaid funding for abortion and went out on street corners to collect signatures. Did I call out, "Keep abortion safe and legal" to get people to sign the cards-the kind of alarmist, polarizing tactic Shrage criticizes? Absolutely! I had two reasons. First, in my view and NOW's, abortion couldn't be called "safe and legal" unless it was an actual option for any pregnant woman, and Medicaid funding was necessary to make that so. Second, I hoped that characterizing funding restrictions as a slippery slope toward a ban would galvanize opposition from the non-poor public, which might otherwise ignore the fate of "other women's" rights. Which way would Shrage have it, that sounding the alarm on abortion restrictions that affect just one portion of the population is "polarizing" and therefore contributes to enactment of more restrictions or that not sounding the alarm is a sellout by women's organizations? In truth, no one but mainstream feminists lobbies against or brings legal challenges to restrictions such as those Shrage describes; and, moreover, mainstream feminists are leaders both in promoting child care and in replacing punitive welfare policies with measures to promote women's independence.
SHRAGE'S DISCUSSION of the congressional debate over intact dilation and extraction, or D&X, abortion, muddies the issues. Contrary to her suggestion, the D&X debate is not about prohibiting late second-trimester abortion. Moreover, the D&X debate concerns pre-viability abortions only, as post-viability abortions (and even late pre-viability ones) are virtually unavailable except in medical emergencies. Rather, the entire D&X debate is about banning a particular abortion method, leaving other methods available for the same abortions (at least its sponsors claim only that limited intent). This matters, because it raises an important question: how could the U.S. Congress possibly be competent to choose one medical procedure over another for the same operation? Before Shrage offers a D&X ban as a good trade for lifting some restrictions on earlier abortions, she should answer this question. She should also explain what mechanism she would invent to make such a compromise stick past the legislative session in which it was enacted.
Shrage takes it as a given that continuing controversy over abortion shows that Roe v. Wade was wrong, and she invites us to renounce what has come to be seen as its basic premise: that until the time that the developing fetus could live outside the woman, that is, up to viability, a woman has the right to decide whether to continue her pregnancy. She directs us to the pre-Roe loosening of abortion restrictions in some states, without acknowledging that only four states actually gave women the right to choose before Roe, while the other "reform" states permitted abortion only in cases of threats to the woman's life or health, severe fetal defects, or in cases of rape or incest. Shrage suggests that the Supreme Court or legislatures might require better contraceptive access "in exchange for new restrictions on second-trimester abortions," or that the Court might leave women to make their own decisions on abortion in the first trimester but require us to prove one or another justification for the decision in the second trimester. Yet Shrage fails to offer any principle other than discomfort and public opinion polls for allowing earlier but not later abortions; the answer cannot very well be a "right to life" since whenever the abortion takes place it is the same fetus that ultimately is not born. Shrage's approach also treats the Supreme Court like just another legislature. The two criticisms are related.
What Shrage fails to grasp is that judging is not just another political decision. The Supreme Court's role is to engage in a sometimes very difficult struggle to discern what is right within the legal order we have established for our self-governance. In Roe, the Court was challenged to draw its answer to the question of abortion restrictions from a document written without any particularized concern for women and a legal tradition that, until recently, had not considered women to be fully subject to the Constitution's rights and protections. Roe's genius is that it came to terms with a fact that is largely absent from anti-abortion discussions and largely absent from Shrage's argument, as well-that while pregnancy involves a developing human, that developing human is inside, and is in most respects very fundamentally a part of, a developed and autonomous human, a legally recognized subject, a woman. The Court's decision recognized women's autonomy and constitutional dignity. By ruling that during the time in pregnancy when the developing human has no capacity for independent life, the woman can act on her body as her body; but when the developing human has a capacity for independent life, the government may restrict abortion, the Court gave women a degree of control over our bodily integrity and our sexuality that thousands of years of culture and politics had largely denied us. The compromise that the Court in fact reached in Roe is not unassailable-among the many questions one might ask is why the woman does not maintain her control over her body through her entire pregnancy, especially given that the physical demands of pregnancy are greatest in its final stages, and that there is no comparable situation outside of pregnancy when bodily control is taken away in this manner. But it is not laughable, or anachronistic, or unprincipled. Nor is it any surprise that the backlash against this ruling has been profound and protracted, and will continue to be. Just what would further compromise put at stake?
Jennifer K. Brown is vice president and legal director of the NOW Legal Defense and Education Fund. She previously directed the reproductive rights unit at the New York State Attorney General's office.
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