Keynote Address: Untying the Moral Knot of Abortion

Abortion is commonly identified as one of the most compelling moral issues of our time.1 Politicians and the media describe the debate in dramatic terms, often referring to it as a "war."2 These theatrical descriptions have done a disservice to our public conversation about abortion, in that they have functioned as a "conversation stopper."3 We assume that there are two sides, that these two sides are far apart, and that they are irrevocably entrenched. We are also led to believe that the key moral question in the debate is the value of the embryo or fetus.4 I argue that these perceptions are false. If we look beyond the hyperbole, we see that most people do not view the issue in such stark terms. The public holds complex and sometimes contradictory views about the morality of abortion. For most of the public, abortion seems to present a muddle of potential moral questions, and the most pressing among them apparently have relatively little to do with the moral status of the embryo or fetus, and much to do with judgments about women's appropriate behavior and their proper role in society.5These subtleties do not make for exciting news headlines. But they are critical for us to understand. We cannot know whether a given abortion restriction makes sense if we do not know what societal problem or moral evil it aims to ameliorate. Today, I want to begin to untangle the moral knot of abortion so that we can try to have an honest conversation about what is really at stake. In the end, I will argue, the moral aspect of abortion that we should see codified in law is a woman's dignity and autonomy in making her own decision about the fate of her pregnancy and, thereby, her life. I conclude that this concept of autonomy is far better protected by the Roe v. Wade6 decision than by the undue burden standard of Planned Parenthood of Southeastern Pennsylvania v. Casey.1In the summer of 2013, Texas passed a controversial new set of abortion restrictions, some of which have been challenged in federal court.8 The federal district judge's opinion in the case described the abortion debate in the dramatic terms we typically find in the media and in political discourse. Judge Yeakel wrote:Today there is no issue that divides the people of this country more than abortion. It is the most divisive issue to face this country since slavery. When compared with the intensity, emotion, and depth of feeling expressed with regard to abortion, the recent arguments on affordable healthcare, increasing the debt ceiling, and closing the government retreat to near oblivion.9This statement should give us pause. Is the country really this exercised over abortion? Is the issue more divisive than segregation? Than the internment of Japanese-Americans? Than red baiting? Than the Vietnam War? When Texas Governor Rick Perry convened a special legislative session to consider the omnibus abortion legislation,10 a poll showed that eighty percent of Texas voters did not want abortion to be raised during the special session, sixty-three percent said the state has enough restrictions on abortion, and seventy-one percent thought that the Governor and the legislature should be more focused on the economy and jobs.* 11 Judge Yeakel's description is clearly hyperbole, yet this kind of hyperbole about abortion is so common that we often take it for granted.It is also irresponsible and unhelpful. For decades, the media and politicians have grown accustomed to describing the abortion debate as a heated battle that divides the country.12 And while this black-and-white portrayal does not depict reality, the public seems drawn to its simplicity. The abortion debate has fallen prey to the more general phenomenon of news as entertainment.13 We are more captivated by what Jack Balkin calls the "sporting elements of political conflict"14-the battles, the winners and losers, the polarization-than by the substantive aspects of public policy.15 Indeed, viewing the abortion battle as hopelessly intractable relieves us from having to grapple with the more difficult questions of what the public actually believes and what that means for abortion policy. …