Abortion rights protest following the Supreme Court decision for Whole Women's Health in 2016

Book Review: Mary Ziegler’s ‘Abortion and the Law in America’

By James Toomey

If you want to understand America, you must understand our politics of abortion. And if you want to understand our politics of abortion, you must read Mary Ziegler’s recent legal history, “Abortion and the Law in America: Roe v. Wade to the Present” (2020).

In comprehensive detail and in a singularly fair and thoughtful way, Ziegler tells the story of American regulation of abortion from the Supreme Court’s historic Roe v. Wade decision to the present, and looks ahead to an uncertain future. Through vignettes of activists who have dedicated their lives to one side of the debate or the other, Ziegler shows that, notwithstanding the superficial constancy of the abortion debate — one side proclaiming the constitutional, essential rights of the fetus, the other the similarly irreducible right of bodily autonomy — the character of the debate, and the kinds of arguments made, have shifted over the course of the last fifty years.

At different times and in different ways, partisans on both sides have sought out arguments about what Ziegler terms the costs and benefits of abortion — that is, arguments about whether society is better or worse off with legal abortion, as measured by some exogenous metric. These debates, distinct from rights claims, are about whether abortion helps women or harms them, helps or harms minorities, strengthens or fragments the American family. But more than that, the arguments are about epistemology and the “good life” — how we can know whether something is a benefit or harm, and under what theory of value is it good or bad.

Reading Ziegler’s book, it is hard not to see connections to the broader context of intellectual history in which the abortion debate has taken place. For example, Ziegler relates that in the 1990s, as the medical profession, and particularly the American College of Obstetricians and Gynecologists, took a more consistent line that abortion is a safe and ordinary medical procedure, pro-life activists came to challenge medical science and scientists themselves. They argued that the medical profession was conducting bad science in self-interest, suppressing dissent and framing scientific facts to accord with their philosophical commitments, and that the media was helping them. Moreover, they contested that science was the appropriate epistemological framework for answering these questions at all, relying increasingly on testimonials from women who regretted abortions and the notion that emotional responses to graphic images of abortion are a way of knowing whether it is beneficial or harmful.

The compatibility between these arguments and nearly identical moves among skeptics of climate change at nearly the same time is obvious. But reading the book today, it’s hard not to see the similarity also between these kinds of arguments and contemporary skepticism of public health and scientific authority in the coronavirus pandemic, which we know is concentrated on the right.

Like many histories, Ziegler’s book leaves us with at least as many questions as answers. She doesn’t opine, for example, on what might be going on with this confluence of arguments. It is at least plausible that similar arguments from similar people come from a consistent underlying epistemology. But if so, where did that epistemology come from? Was it the motivated result of the structure of the abortion debate? Or did it come first? And is it on to something? Are there good reasons for those with certain substantive normative views to be skeptical of science in certain fields? Maybe in some contexts, but not others? I don’t know, but Ziegler has given us a research agenda for a decade.

Amid this fascinating uncertainty, Ziegler’s book does clearly show something relevant for understanding partisanship more broadly. Specifically, she shows that shifts in the discussion to the purportedly utilitarian costs and benefits of abortion have not been correlated with a reduction in the intensity of the debate or the distance between the combatants.

There is, I think, something of a tendency in conversations about partisanship to see part of the problem as a proclivity to talk about big questions rather than little ones, sweeping claims of rights rather than utilitarian policy tinkering, whether the United States is a metaphysically racist country rather than the composition of the school board. If we talked more about real policy, the argument goes, we might realize that we’re not all that far apart at all, that we want the same things, that we have reasonable disagreements about how to get there.

Ziegler’s book tells us this isn’t so. And it makes sense. As with the costs of benefits of abortion, our views on the composition of the school board come from our answers to the big questions. And we disagree on our answers to the big questions. Moving the conversation to narrow issues of policy, then, doesn’t set aside our underlying disagreements but obscures them. Indeed, by not talking about the big questions underneath, perhaps it is harder to understand where our opponents got their policy positions, and harder not to see them as evil or stupid.

What to do with this observation is not obvious. After all, Ziegler also points out that discussing the fundamental philosophical questions implicated by abortion hardly resolved them. For those of us who worry about the future of a country united by hatred, it is easy to find in the inescapability of these hard normative disagreements a kind of nihilism.

But maybe that’s okay. Maybe the point is that we have to understand that we do disagree about very important things, that we can’t silence or ignore or get rid of those we disagree with, and that we probably won’t persuade them. We have to live with them.

It’s a far cry from the civic republican ideal of 1950s fantasies and vague recollections of Rome. But it might be better than what we’ve got.

James Toomey

James Toomey

James Toomey is a Climenko Fellow and Lecturer on Law at Harvard Law School. His research focuses on bioethics, health law, and elder law. His scholarship has been published or is forthcoming in the Journal of Law and the Biosciences, the Elder Law Journal, and AJOB Empirical Bioethics.

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