The constitutional issues presented by the debate over Roe v Wade are fascinating. Lawrence Tribe reviews those questions in Abortion: Clash of Absolutes. Tribe is professor of constitutional law at Harvard Law School. He contends the debate revolves around two absolutes: the right of the fetus to life and the right of the woman to control her body.

This conundrum is unique to the 20th century. In early post-revolutionary America abortion was legal and common. The first law against abortion was not passed until 1821 when abortion was prohibited only after viability or movement (usually the 4th or 5th month). Most early abortion laws were intended to protect the mother. The death rate from abortions was as high as 30% in hospitals, but abortions continued to increase until by the mid-19th century it was estimated that there was 1 abortion for every 4 live births. (Ironically, it is now calculated that a woman is 23 times more likely to die from childbirth than from a 1st trimester abortion in the 1990s; hence it has been argued that the life of the pregnant mother is always in danger when compared to the risk of abortion.)

Aristotelian and Rabbinic traditional doctrine theorized the fetus was not human until "animation" (40 days for a male and 80 days for a female after conception). Animation was defined as "infused with a soul."

Abortion laws gradually became more restrictive during the early 20th century until, ironically, pressure from the clergy resulted in a relaxation of those laws in the early 60s. The measles epidemic and the thalidomide tragedies had forced many women to seek illegal abortions and the clergy were appalled by the result. They formed an organization to refer women to clinics where they could obtain safe abortions. Paradoxically, it was Governor Ronald Reagan who was one of the first governors to sign into law a bill permitting abortion on demand (1967).

After placing abortion in historical context, Tribe delves into its constitutional aspects, dealing with each argument in turn from all sides. It is again ironic (so much of the issue is) that Roe v Wade, considered by some a notorious example of judicial activism, was written by a conservative justice (Blackmun), under a conservative Chief Justice (Burger), who was appointed by a conservative president (Nixon), precisely to reverse the perceived avalanche of "activist" decisions.

Generally, the pro-abortion camp has based their constitutional argument on unenumerated (not explicitly stated) privacy rights found to be flowing from several on the Bill of Rights. Precedent includes other court decisions including Skinner v Oklahoma, 1943, which guaranteed the right to reproduce, i.e. the state could not interfere with the parental decision to have a child; and Griswold v Connecticut, 1965, which overturned a Connecticut law prohibiting the use of contraceptives.

Anti-abortion spokesmen, Judge Bork among others, have argued the right to privacy is no where stated in the Constitution; that abortion and the right of a woman to do what she wants with her body are not specifically mentioned in the Constitution. Tribe considers this reasoning flawed. If the right of privacy to control one's body is not firmly entrenched as a constitutional principle, then government could legally and constitutionally mandate abortion at some future date for some ostensibly socially desirable goal such as population control or eugenics. Such is currently the case in China.

This prospect is not so far-fetched as it may seem. For years states have forced the sterilization of mental defectives, and one must remember Justice Holmes' famous argument that "three generations of imbeciles are enough." In fact, the state of Virginia required forced, involuntary sterilizations of the "unfit" as late as 1972.

On the other hand, if privacy and a woman's right to chose become the predominant ideology, then government loses the right to control an individual's body and ultimate liberty resides with the individual. ( )

Laurence Tribe is a Yale Law School professor and constitutional scholar. His book does an exemplary job of discussing the history of abortion in the U.S., from a legal perspective, in an impartial manner. He shows holes in logic in both sides, and victories and defeats on both sides. His premise is that it is a clash of absolutes: neither side can have their way absolutely; there must be compromise on both sides.

I was enthralled by this book. It was so clearly written, with so many cogent points, that I have note after note of notes of things I wanted to remember. I will need to break one of my cardinal rules, and annotate this book liberally. I am certainly keeping my copy, and will buy many for others to read.

I will better be able to debate my pro-choice views, after reading this. It also caused me to consider what areas as a society are a "clash in absolutes". This book has changed me and my outlook.

I will be unable to post all the "quotes" I appreciated here, as many of them are multiple pages in length. I will, however, copy some which particularly struck me.

What I found most powerful, was his discussion of people who are generally pro-life, but allow abortion in cases of rape and incest. He discusses how this is an argument based on how the woman got pregnant, not about the life of the fetus. The fetus is clearly innocent here, yet abortion is allowed. He quite clearly shows that people who argue along this path, are making moralistic judgments about women and how they should prevent pregnancy. I will use that argument in the future.

I also found the chapter on the history of abortion around the world, to be fascinating. In some cases, I didn't like the pro-choice argument, because of how it was framed, even if I agreed with the outcome. That was new to me.

"Women who are able to control their reproductive destinies gain freedom to pursue personal missions other than the traditional one in the home."

He discusses how the pro-life movement uses photographs of aborted fetuses to gain proponenets. "We would do well to remember and to try to envision the disfigurement, destruction, and death wrought by the butchery of women killed in [back alley abortions] .. That such photographs are rarely seen must not be permitted to obscure the genuine tragedies they reflect."

"Laws restricting abortion so dramatically shape the lives of women, and only women, that their denial of equality hardly needs detailed elaboration. While men retain the right to sexual and reproductive autonomy, restrictions on abortion deny that autonomy to women. Laws restricting access to abortion therefore place a real and substantial burden on women's ability to participate in society as equals. Even a woman who is not pregnant is inevitably affected by her knowledge of the power relationships created by a ban on abortion."

Discussing the post Roe v. Wade republican party platform, "The National Catholic Reporter was even harsher in its headline describing the 1976 Republican platform: Conservative GOP Convention defends rights selectively: Fetuses have them, Hungry don't."

Discussing Bush Senior, and whether there should be federal funded abortions for rape/incest: "Bush supported rape and incest exceptions to strict antiabortion laws; he merely opposed giving this abortion option to poor women who needed public help. While he suggested that this was because there was no way to verify that a rape had occurred, he never spelled out whether he thought the problem of lying about rape was more common among poor women, whether he believed no women could be trusted to tell the truth about such a serious and traumatic event, or what."

"In a representative democracy, the word "always" belongs to the people; those elites that prevail in the courts, sometimes feeling an unwarranted contempt for the less well educated groups they have outflanked, can only lose in the long run if they take the justice of their cause for granted and discount the significance of views they think less enlightened than their own."

"Women who make the choice to end a pregnancy ordinarily recognize the gravity of what they are doing. Compromises that pretend otherwise, that treat each woman as a stranger to her fetus and pit the two against each other, are lacking in human understanding and are not plausible moves toward a world in which people reach out to each other."

"If advocates on both sides of the abortion debate would just pause, they would recognize at least one broadly shared interest, that of working toward a world of only wanted pregnancies. Better education, the provision of contraception, indeed the creation of a society in which the burden of raising a child is lighter, are all achievable goals that are lost in the shouting about abortion. ... Nearly all of us already agree we should strive for a society in which every child a woman conceives is wanted and in which every child born has someone to love and nurture it." ( )