The Law as Teacher
Abortion and Divorce in Western Law.
by Mary Ann Glendon.
Harvard University Press. 224 pp. $25.00.
Nearly twenty years ago, a movement was undertaken to modernize two major areas of family law, abortion and divorce. At the time, advocates of both no-fault divorce and abortion-on-demand heralded the sought-for changes as a victory for individual rights: the right of a woman to terminate her pregnancy and the right of a spouse unilaterally to terminate a marriage. Today, both the fractious debate over abortion and growing discontent with the debilitating effects of divorce on women and children suggest that these legal developments have not been quite the boon for American society that their initial sponsors thought they would be.
That there is something askew with the American “solution” to these problems is suggested by Mary Ann Glendon’s extraordinary study. Professor Glendon, who teaches at the Harvard Law School, shows that as compared with Europe and Scandinavia, American law concerning abortion and divorce is consistently on the far, libertarian end of the legal spectrum. In light of our reputation for social puritanism, this is, to say the least, ironical; in Professor Glendon’s view it is also responsible for fostering an ongoing battle between the rights of individuals and the interests of society.
As she understands it, the American problem lies not in bad law but in the way we have come to think about law and the role it should play in our lives. That way of thinking is best expressed in the language of modern liberal theory, according to which each person must be treated as an “unencumbered self” whose “personhood is inviolable.” Law, according to this view, should not articulate a desired way of life, but should be so constructed as to allow individuals to choose their own way of life for themselves. Virtually abandoned is the idea that law should be educational, that it should tell us something about the subject it regulates.
The courageous goal of Mary Ann Glendon’s book is precisely to try to resurrect the idea of law as educational, an idea embraced by political thinkers going back to Plato. For guidance, she turns to Europe, where the laws pertaining to abortion and divorce manage to exhibit respect for individual rights while also seeking to shape a socially responsible policy.
With regard to abortion, recent American practice, as exemplified in the 1973 Supreme Court decision, Roe v. Wade, has been to couch the debate entirely in the rhetoric of rights, whether those of women (“pro-choice”) or those of the fetus (“pro-life”). The pro-choice movement in particular maintains that any shift away from Roe v. Wade would lead immediately to “back-alley abortions.” Yet Professor Glendon’s survey of European law shows just how false such a belief is.
In France, for example, a 1975 law made abortion available up to the end of the tenth week of pregnancy to any woman “whose condition places her in a situation of distress.” Since “distress” is never defined, the pregnant woman becomes the sole judge of what it means. The French restriction on abortion would therefore seem to be merely symbolic: any woman who claims to be in distress, for whatever reason, can get an abortion. But as Professor Glendon points out, it is precisely through the symbolic and hortatory functions of a law that the state can promote a view without forcing everyone to adhere to it. Thus, another part of the same law announces that “the voluntary termination of pregnancy must under no circumstances constitute a means of birth control.” Once again, although the state does not forbid a woman from using abortion as a method of birth control, it attempts to discourage such practice by terming it undesirable. The idea behind this type of legislation, argues Professor Glendon, “seems to be simply to try to make sure everyone knows that abortion is considered to be a serious matter.”
If abortion is a serious matter, if it is more than just a “preferred lifestyle,” as the late Justice Douglas put it, then the Supreme Court has given us no indication of how we might think about it other than as a serious matter of privacy. The West German Supreme Court, by contrast, while not ruling out all liberalized abortion legislation, has insisted that such legislation avoid “the false impression . . . that termination of pregnancy involves the same social [significance] as, say, a trip to the physician for healing an illness, or even that it involves a legally irrelevant alternative to contraception.” To Professor Glendon, this statement suggests that the West German court, unlike the American, has been willing to confront the fundamental question of the circumstances under which it may be legally permissible to take a life. By avoiding that question, the U.S. Supreme Court turned the abortion debate into an all-or-nothing struggle over “rights.”
As Professor Glendon readily admits, her own approach—which amounts to a search for what law can do to permit abortion without undue harassment and at the same time communicate the idea that abortion is a crucial moral issue—may never satisfy the ardent pro-life or pro-choice advocate. Yet it does attempt to replace the feverish debate over whose rights are being violated with a more reasoned discussion about the grounds and conditions under which abortion might be deemed legal.
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The tendency of American law to be neutral on the very things about which society cannot afford to be neutral is also seen in divorce legislation. Since California passed its “no-fault” divorce law in 1969, nearly every U.S. state has adopted some version of it. Yet once again the United States, this time along with Canada and Sweden, finds itself on the extreme end of the legal spectrum. In Britain, France, and West Germany, where laws regarding divorce are lenient by anyone’s standards, a judge may still dismiss a divorce petition if he is persuaded that the dissolution of a marriage would result in undue hardship for one spouse. The absence of such a clause in American law has created exactly what European lawmakers have tried to prevent, namely, divorces that grant child custody to one spouse, usually the wife, but without the necessary financial support she has depended upon while married.
Professor Glendon also points to a second, albeit less direct, consequence of American divorce law: the shortness of the route from “no fault” to “no responsibility.” The individual-rights language of divorce legislation, which was supposed to take the moralism out of the law, has simply established a more subtle but no less powerful teaching: “Marriage is a relationship that exists primarily for the fulfillment of the individual spouses. If it ceases to perform this function, no one is to blame and either spouse may terminate it at will.” By effectively putting an escape clause into every marriage contract, the new legal attitude has radically undercut the traditional American notion of marriage “till death do us part.”
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To be sure, Professor Glendon is not advocating a rollback of American family law to some traditional standard. As she tells it, the lesson of the European experience is that updating and modernizing statutes do not require throwing aside the moral authority of the law itself. The false promise of the abortion and divorce reform movements was that by transferring the moral questions from lawmakers to the individuals involved, the state would be constrained from imposing its values on men and women who did not share them. But the new, supposedly neutral, laws do in fact send a very distinct message. They tell us, writes Professor Glendon, “that if a marriage no longer suits our needs, or the continuation of a pregnancy would not fit in with our plans just now, we can choose to sever the relationship.” The damaging consequences of this message should now be clear: a nation bitterly engaged in a fight over abortion and over a divorce law that imposes hardship on the very parties that looked to it as an engine of liberty. Abortion and Divorce in Western Law, a serious and compassionate book, shows us that another way is both possible and eminently sensible.
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