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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 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.
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.
256 pages, Paperback
First published April 15, 1996
14 people want to read
About the author
Mark A. Graber
28 booksMark A. Graber is the University System of Maryland Regents Professor at the University of Maryland's Francis King Carey School of Law. He authored many books and articles focusing on American constitutional law, development, theory, and politics. He has been the section chair of the Public Law Section of the American Political Science Association and the Constitutional Law Section of the American Association of Law Schools.
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Displaying 1 - 2 of 2 reviews
November 1, 2021
Like everything else in bioethics, this book is dated. But I was blown away by Graber's argument that women should be able to access abortions, not because abortion is a constitutional right, but because restrictive abortion laws have been, and continue to be, implemented in discriminatory ways. Wait a minute. Maybe it's not so dated after all.
September 7, 2008
Graber says that his sympathies are mildly pro-life but he believes that abortion should remain legal.
His argument for the unconstitutionality of anti-abortion laws is one of the most compelling and (at least from my limited knowledge of the law) one of the more novel arguments. In short, he says that anti-abortion laws, in practice, arbitrarily discriminate against poorer people, on the assumption that affluent people can usually secure a safe abortion because they can afford to travel to states that keep it legal.
His solution to the recurrent political standoff over judicial nominees who might overturn Roe v. Wade represents an astute analysis but it's difficult to see how it would be put into practice. He notes that before the late 1970s, neither major political party had taken a solid stand on the abortion issue and that only when the parties divided over the issue, with the Democrats being consistently pro-choice and Republicans being consistently pro-life, did the issue of electing candidates who would appoint the "correct" people to the Supreme Court become such a divisive issue. It's unclear, however, how to make the parties revert back to the pre-1980 condition.
The most refreshing part of this book is that Graber shies away from the tired old and fallacious cliches and slogans advanced, ad nauseam, by the pro-choice and pro-life camps. Whatever one ultimately thinks of his analysis, at least he is intellectually honest.
His argument for the unconstitutionality of anti-abortion laws is one of the most compelling and (at least from my limited knowledge of the law) one of the more novel arguments. In short, he says that anti-abortion laws, in practice, arbitrarily discriminate against poorer people, on the assumption that affluent people can usually secure a safe abortion because they can afford to travel to states that keep it legal.
His solution to the recurrent political standoff over judicial nominees who might overturn Roe v. Wade represents an astute analysis but it's difficult to see how it would be put into practice. He notes that before the late 1970s, neither major political party had taken a solid stand on the abortion issue and that only when the parties divided over the issue, with the Democrats being consistently pro-choice and Republicans being consistently pro-life, did the issue of electing candidates who would appoint the "correct" people to the Supreme Court become such a divisive issue. It's unclear, however, how to make the parties revert back to the pre-1980 condition.
The most refreshing part of this book is that Graber shies away from the tired old and fallacious cliches and slogans advanced, ad nauseam, by the pro-choice and pro-life camps. Whatever one ultimately thinks of his analysis, at least he is intellectually honest.
Displaying 1 - 2 of 2 reviews