Laurie Shrage Responds

Both Jennifer K. Brown and Rosalind P. Petchesky raise important concerns in their replies to my paper. I will try to sort out where they misunderstand my position and where we just disagree.

Brown states that I take “it as a given that continuing controversy over abortion shows that Roe v. Wade was wrong.” This is much too simple. Roe went wrong in one respect: because the justices thought that the privacy right they invoked would not allow any restriction on abortion, they imported another principle, which is the idea of fetal “viability.” Invoking viability reflects an attempt to find a magic line that can demarcate when a woman’s right to privacy can be limited by a fetus’s rights. Brown suggests that Roe was already a compromise, because this line could have, and maybe should have, been drawn at birth.

The problem with a magic-line approach is that it allows a single factor to determine when the fetus’s rights take precedence over the woman’s: the developmental stage of the fetus. In fact, there are a number of relevant factors: especially whether continuing a pregnancy imposes an unreasonable hardship on the woman. When a pregnancy does impose such a hardship, then the woman’s rights should take precedence. Indeed, Brennan, one of the most liberal justices on the Court, worried that allowing states to restrict abortion at fetal viability implied that the woman’s rights could be limited, at that stage, without consideration of her health or other hardship factors. He thought the viability idea went against the entire thrust of their opinion. Feminists have worried that “viability” may be a stage reached earlier and earlier, as neonatal technology improves, thus allowing a woman’s rights to be further limited.

But Brown sees the viability cutoff for nontherapeutic abortion as Roe‘s “genius” in coming to terms with the fetus as a developing entity. She alleges that I hold out the possibility of a balanced approach but offer “no principled basis for achieving it.” Actually, Roe supplied the basic principle: that any restrictions should respect a woman’s right to privacy. Whereas Brown approves of the way the Roe Court discerned “what is right within the legal order we have established for our self-governance,” I hold that the Court allowed for too little self-governance by defining the meaning of privacy in terms of the viability cutoff.

Like Brown, Petchesky seems willing to dismiss democratic debate and public opinion on the abortion issue. She focuses on the manipulability of opinion data and of public opinion itself. I agree with Petchesky that earlier opinion polls often “focused on the ‘reasons’ for abortion, not on gestational age.” But what these polls often showed (a point Kristin Luker has made) is that the public i...