Religion & Law

As Jack Balkin notes, given the election of Sen. Obama, it is quite unlikely that Roe / Casey will be overturned anytime soon, and it is certain that the pro-abortion-rights position will be strongly and ably represented, and advanced, in the Obama Administration.  And so, as the Washington Post reports, "a growing number of antiabortion pastors, conservative academics and activists are setting aside efforts to outlaw abortion and instead are focusing on building social programs and developing other assistance for pregnant women to reduce the number of abortions."

As I said (many) more times than MOJ readers wanted to hear, I do not believe "the issue" in the abortion-rights debate is (from the anti-abortion perspective) simply the number of abortions.  Yes, a smaller number of abortions would be, for people like me, a good thing.  However, it is also (for people like me) regrettable that our Constitution has been interpreted to prevent political communities from providing (if they choose to provide) greater legal protections to unborn children.  Like most abortion opponents, I understand entirely that the law should not prohibit every wrong; with respect to abortion, though, many of us believe that the current regime represents not merely an entirely reasonable concession to different moral standards regarding private, self-regarding conduct, but instead constitutes (in addition to a mistaken interpretation of the Constitution) an unjust exclusion of some persons from the protections the law provides generally.

Putting aside this point, though -- a few quick thoughts on Jack's post about a "compromise" . . . 

Jack says that a "durable compromise" over abortion "would probably look something like this new approach:  Pro-life advocates continue to believe that abortion is immoral but agree that the criminal law is not the best way to solve the problem of protecting unborn life.  Pro-choice advocates in turn agree to new social services and support for poor women that make it easier for them to choose to have children. . . .  The result is a coalition of social justice pro-life advocates with traditional pro-choice liberals."

In my view, the durability of such a compromise could be undercut if (as I expect will happen) current limitations on the use of public funds for abortion (here and abroad) are lifted or watered down.  Also, I suspect that a truly stable "compromise" would need to include, among other things, acceptance by the pro-choice side of rules that allow health-care workers, hospitals, religiously affiliated institutions, and churches to opt out of cooperating directly with the provision of elective abortions.  An Administration or Congress interested in a stable compromise would not insist that, say, Catholic hospitals provide elective abortions, or that religious social-service agencies include abortion in their health insurance programs, etc.  And, it seems to me that even those on the pro-life side who are interested in compromise on this issue would not like to see limitations on the (peaceful) speech of anti-abortion protesters.

I'd welcome others' (especially Jack's) views, though.