Doctors and Demonstrators

How Political Institutions Shape Abortion Law in the United States, Britain, and Canada

Drew Halfmann

• Publisher: University of Chicago Press
• Year: 2011
• Print ISBN: 9780226313436, 9780226313429
• eBook ISBN: 9780226313443
• Topic: Social Sciences
• Subtopic: Social Policy
• Index: Social Sciences

Since Roe v. Wade, abortion has continued to be a divisive political issue in the United States. In contrast, it has remained primarily a medical issue in Britain and Canada despite the countries' shared heritage. Doctors and Demonstrators looks beyond simplistic cultural or religious explanations to find out why abortion politics and policies differ so dramatically in these otherwise similar countries.

 

Drew Halfmann argues that political institutions are the key. In the United States, federalism, judicial review, and a private health care system contributed to the public definition of abortion as an individual right rather than a medical necessity. Meanwhile, Halfmann explains, the porous structure of American political parties gave pro-choice and pro-life groups the opportunity to move the issue onto the political agenda. A groundbreaking study of the complex legal and political factors behind the evolution of abortion policy, Doctors and Demonstrators will be vital for anyone trying to understand this contentious issue.

ONE

Introduction

Abortion is a complex and controversial terrain for most contemporary societies. Throughout the world, women’s economic and social roles are changing as they increasingly enter the paid labor force, pursue education, and raise children on their own. As they take on these new roles, women seek greater control over their reproductive lives. Such control can help them protect their livelihoods, their health, their relationships, and their dreams—for themselves and for their loved ones. Moreover, because women bear children and still provide most of the care for them, many see reproductive control as a prerequisite for full and equal participation in society, in other words, for citizenship.¹ Contraception provides one avenue for reproductive control, but it is imperfect. The annual risk of pregnancy for women using contraceptives is quite low, but the lifetime risk is much higher. Women who use reversible methods of contraception during their entire reproductive lives will experience, on average, two contraceptive failures. Approximately half of American women who have abortions report using contraceptives during the month in which they became pregnant. Even with the best contraception, women cannot achieve full reproductive control without access to abortion.²

In response to women’s changing roles and feminist demands for reproductive control, most rich democracies liberalized their abortion laws in the 1960s and 1970s. Other countries are doing so now. Almost all of these reforms produced intense conflict. Many religious traditions are deeply opposed to abortion. Some groups oppose changes in gender roles and see abortion as a key symbol of those changes. An additional source of conflict involves the question of who will perform abortions and in what circumstances they will do so. In many times and places, nonmedical actors provided abortions, but the modern medical profession has insisted on a monopoly over abortion provision. Moreover, in many countries, the state has delegated the regulation of abortion to medical professionals; they are charged with limiting abortions to particular circumstances such as the protection of the pregnant woman’s health. But medical control often produces arbitrary and unequal care as doctors impose their personal beliefs on their patients and as abortion approvals vary by class and region. In other countries, the state has allowed women to access abortion without medical gatekeeping or legally defined grounds, but the medical profession often resists such arrangements because it does not want patients to make their own diagnoses and choose their own procedures. For all of these actors, the stakes of abortion policy are high and compromise is often difficult to find.³

During the late 1960s and early 1970s, Britain, Canada, and the United States, like other rich democracies, liberalized abortion laws dating from the nineteenth century. Although these countries have many political, economic, and cultural similarities (more about this later), they established very different abortion policies. Britain and Canada held onto a piece of the nineteenth century by allowing abortions only if doctors or hospital committees certified that pregnant women met requirements of medical or, in Britain, economic necessity. The United States abandoned such requirements. A pregnant woman could obtain an early abortion for her own reasons so long as a doctor agreed to provide it. The United States, with its history of Puritanism and backwards social and sexuality policies, had established the most liberal abortion reform in the West. The countries also differed in the way that abortions were provided and funded: In Canada, abortion services were located in public or nonprofit hospitals and paid for by the state; in the United States, the vast majority of abortions were provided in single-purpose clinics divorced from mainstream medicine where women paid for their own abortions; and in Britain, approximately half of abortions were provided in the Canadian style and half in the American style.

In all three countries, pro-life movements tried to roll back the reforms of the “Long 1960s” (the late 1950s to the early 1970s).⁴ In Britain and Canada, they failed miserably. Prime ministers, members of Parliament (MPs), and political candidates ran away from the abortion issue. Pro-life movements in those countries not only failed to reduce the quality and availability of abortion services but also saw them expand through increased public funding and the loosening or elimination of medical gatekeeping requirements. In the United States, by contrast, the pro-life movement was more successful—moving abortion to the center of politics. Presidents, governors, state and federal legislators, judges, and political candidates spent thousands of hours debating the issue each year. The pro-life movement reduced the quality and availability of abortion services, mainly through reductions in public funding, requirements that minors obtain parental consent, and laws mandating that women of any age endure waiting periods and antiabortion propaganda. Brief vignettes from the end of the 1980s illustrate the differences in the abortion politics of the three countries.

United States

In 1989, the U.S. Supreme Court considered the constitutionality of Missouri’s new restrictions on abortion.⁵ Republican President Ronald Reagan asked the court to use the case to overturn the 1973 Roe v. Wade decision that had first established a limited right to abortion. Activists on both sides of the issue marched on Washington, and the pro-choice march was the largest protest in American history. The American Medical Association (AMA) filed a legal brief urging the court to retain Roe but did little else. The court did not overturn Roe; instead, it upheld the Missouri restrictions and said it would allow similar restrictions in the future. The author of Roe, Justice Harry Blackmun, complained that the court had cast “into darkness the hopes and visions of every woman in this country who had come to believe that the Constitution guaranteed her the right to exercise some control over her unique ability to bear children.”⁶

Britain

In 1988, David Alton, an MP from Britain’s Liberal Party, introduced a bill to reduce the upper time limit for abortions from twenty-eight to eighteen weeks. Activists on both sides of the issue lobbied Parliament and protested on the streets of London. The medical profession vigorously opposed the bill. Both the Conservative and the Labour parties remained officially neutral, though most Conservative MPs supported the proposal and most Labour MPs opposed it. Because the bill was introduced by an individual MP rather than by the Conservative Government, it was allotted only a short time for debate. When Alton asked for more time, the Government refused, and the bill died before coming to a final vote.⁷

Canada

In 1988, the Canadian Supreme Court struck down the country’s 1969 abortion law, finding that strict medical gatekeeping arbitrarily denied abortions to eligible women. The court did not establish a right to abortion but instead left it to Parliament to design a new law. Progressive Conservative Prime Minister Brian Mulroney thought that abortion should be regulated in some way but, because his party was deeply divided over the issue, was reluctant to take it up. After some delay, he tried to find an approach that would not offend either side—his bill required medical gatekeeping, but gave doctors broad discretion. Typically, MPs from the ruling party were required to vote for Government bills, ensuring their passage, but Mulroney let most members of his party vote as they pleased. The bill barely passed the House of Commons and moved on to the Senate. Protestors from both sides squared off on Ottawa’s Parliament Hill, and the medical profession threatened to stop performing abortions. Mulroney again let party members vote as they pleased, and the bill was narrowly defeated. Mulroney refused to offer new abortion legislation, and subsequent Governments refused as well—leaving Canada with no abortion law.⁸ Said one pro-choice activist, “our government’s decision to leave things alone was not based on a passionate belief in a woman’s right to choose. It was simply based on distaste for having to deal with anything controversial. I guess we’re lucky to have a do-nothing government on our side for a change.”⁹

As these vignettes reveal, pro-choice and pro-life movements faced off in all three countries. But the involvement of other key actors—political parties and medical associations—varied across the countries. In the American case, political parties engaged heavily with the issue, while the medical profession stayed out of the fray. In the British and Canadian cases, political parties avoided the issue while medical associations defended abortion services.

Differences in the abortion policies and politics of the three countries provoke many questions:

• Why did three countries with strong social, cultural, and political commonalities establish different gatekeeping arrangements for abortion, and in particular, why did the United States establish the most liberal one?

• What accounts for differences in the public/private mix of abortion funding and provision?

• Why is abortion so much more controversial and politicized in the United States?

• What accounts for change in abortion policy over time?

• How and under what conditions do social movements affect policy?

This book attempts to answer these questions by filling a key gap in the abortion politics literature. Most books on abortion policy and politics explain differences between countries in terms of social movements or national values (and especially religious beliefs).¹⁰ This book shows that political institutions go a long way toward explaining these differences. Moreover, of the studies that claim that institutions matter for abortion politics, few have convincingly demonstrated this through close historical analysis within and across cases. Finally, this study considers institutional factors that have previously received little attention, in particular, the construction of interest group priorities and the openness of political parties to social movements.¹¹

Institutions and Abortion Policy

Roughly speaking, institutions are the “rules of the game.” They are rules, norms, roles, and meanings that form the context for individual and group actions.¹² Some examples of political institutions include rules that establish multiple jurisdictions in a country and the relations between them (federalism), rules for electing presidents or members of legislatures (electoral institutions), and rules for determining whether laws are consistent with the constitution (judicial review). Many scholars, including myself, also consider existing government policies such as old-age pensions or medical care programs to be political institutions (policy legacies).

By focusing on political institutions, I offer a rereading of conventional accounts of abortion policy and politics. Students of abortion politics seldom highlight political institutions; instead, they take them for granted and treat them as almost natural occurrences. This book seeks to denaturalize institutions and expose the ways in which they bias politics and policy. As Alexis de Tocqueville demonstrated when he visited the United States in the early nineteenth century, a fruitful method for understanding the institutions of one country is to examine those of another. This book examines the institutions of three. And as historical sociologists such as Karl Marx, Max Weber, and Michel Foucault have shown, a useful method for interrogating the institutions of the present is to examine those of the past. This book compares numerous episodes of policy making over the last fifty years. During this time, some institutions have changed—providing an opportunity to examine policy making before and after those changes.

The book focuses not just on institutions, but on interactions between actors in civil society and the political institutions that enable and constrain their actions. I analyze the effects of macro-level political institutions such as health-care policies, electoral and party systems, and policy venues on meso-level collective actors such as medical interest groups, political parties, and social movement organizations. I show that political institutions helped determine when, where, and how actors involved themselves in abortion policy making. Political institutions affected the interests and priorities that these actors constructed and shaped the meaning and salience that they attached to the abortion issue. Though political institutions powerfully shaped abortion policies, they did not determine them. Plenty of room remained for maneuver and choice by individual and collective actors as they faced strategic dilemmas and trade-offs. And chance played a role as well.¹³

In addition to explaining differences in the abortion policies and politics of three countries, I also use the case of abortion policy to assess and improve on existing theories of social policy development. In the last century, states, and especially richer ones, have established a wide range of social policies that attempt to protect citizens against various risks to their economic well-being such as unemployment, low skills, disability, poor health, and old age. Some social policies have also sought to promote greater equality among classes, genders, or racial and ethnic groups.¹⁴ Reproductive policies can be considered social policies—first, because they insure women against unwanted pregnancies that threaten their economic, social, and physical well-being, second, because they promote the equal participation of women in society, and third, because many states fund or provide contraceptive and abortion services.¹⁵

The first generation of theories seeking to explain differences in health and we...

Table of contents

• Cover
• Copyright
• Title
• Contents
• List of Abbreviations
• Acknowledgments
• 1. Introduction
• PART ONE. Abortion Reforms of the Long 1960s
• PART TWO. After Reform
• References
• Appendix 1: Statements on Abortion in American Party Platforms, 1972–2008
• Appendix 2: U.S. Supreme Court Cases on Abortion
• Appendix 3: Abortion Attitudes in the United States and Britain
• Appendix 4: Abortion Funding and Provision in the United States, Britain, and Canada, 1970s–2000s
• Appendix 5: Abortion Attitudes in the United States, Britain, and Canada, 1975–2004
• Notes
• Index