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Legitimate Differences: Interpretation in the Abortion Controversy and Other Public Debates

University of California Press

Current public debates over social issues in the United States are often pursued and portrayed as though they were arguments over competing moral principles. Thus, the abortion debate is depicted by its participants and commentators as a struggle that opposes principles of life to principles of liberty. So-called pro-life groups argue against a woman's right to terminate a pregnancy on the basis that abortion violates a moral principle of respect for the sanctity of human life. Conversely, pro-choice groups support the right to an abortion on the basis that any restriction of abortion rights violates a moral principle of liberty insofar as it is also a restriction of woman's freedom to decide when or if she is to be a parent. Similarly, discussion over affirmative action is viewed as a debate setting principles of equality against those of fairness or diversity. Those who advocate an end to America's affirmative action policies argue that they violate the principle of equality in granting preferential treatment to certain groups on the basis of their ethnicity, race, or gender. Just as adamantly, those who advocate the continuation of affirmative action policies argue that principles of fairness require preferential treatment to compensate for the effects of past discrimination against certain groups while a principle of diversity requires the spreading of privileges and career opportunities over a wider spectrum of the American public.

Differences on moral principle also seem to divide those who defend the production and consumption of pornography as part of their defense

of the principle of free speech from those who attack pornography as a violation of the principle of equality with regard to women. And, finally, the moral principles involved in supporting the integrity of the family and denying the place of market values in it seems to pit those who criticize the practice of surrogate motherhood against those who defend it by appealing to principles involving the rational autonomy of women and the freedom of contract.1

Such apparently moral differences are particularly troubling to us Americans because we assume that we share moral principles. At least we assume that if we do not share all our moral principles, we share certain founding principles that speak to the sanctity of life and to the importance of liberty and equality. Moreover, we assume that we can appeal to our Constitution and ultimately to the Supreme Court's interpretation of it to resolve any disagreements we may have over how and whether disputed practices conform to our principles. Hence, we are dismayed when Supreme Court decisions only increase the acrimony and bitterness in our disagreements as they have in the controversy over abortion and in various cases involving affirmative action.

We are supposed to agree that individual human life is intrinsically valuable and that each individual is to be granted as much individual liberty as is compatible with a similar liberty on the part of all others. We are supposed to agree, then, that each person is to be guaranteed a right to life, the freedom of speech and contract (among other freedoms), and the liberty to pursue his or her own life's projects and conceptions of the good. Americans are also meant to agree that men, women, and children are to enjoy a right to equal concern and respect as well as to careers, offices, and opportunities that are equally open to all on the basis of individual merit and hard work. But if we so completely disagree at least on the four issues I have mentionedabortion, affirmative action, pornography, and surrogate motheringthen perhaps we only appear to agree on the validity of shared fundamental principles. Moreover, perhaps our presumption that we ought to share an allegiance to the same moral principles aggravates the hostility each side in our debates bears toward the other. Each uses the principles we are meant to share to convict the other side of violating ideals fundamental to our moral identity.

Attempts to resolve such conflicts often try either to narrow the scope of moral disagreement or to dig further down below the principles on which we seem to disagree to a deeper core of moral agreement. The idea here is that the contrasts I have sketched, those that oppose a principle of life to that of liberty, a principle of equality to those of fairness

and diversity, a principle of free speech to that of equality, and a principle of family integrity to that of freedom of contract, are all relatively superficial contrasts that can be resolved by uncovering a more fundamental ground of principled agreement. Lawrence Tribe has thus characterized the debate over abortion, for example, as only apparently a "clash of absolutes,"2 one that can be resolved by considering views Americans continue to share on the value of family life and the proper scope of technological intrusions into it. I want to look briefly at his resolution for two reasons: to support his effort to remove our conflicts from the domain of clashing absolutes and to indicate potential problems in all attempts to minimize our differences by simply invoking more fundamental or more widely shared principles. I shall be arguing that these attempts fail to recognize both the depth of our differences and what I shall be calling their interpretive character. Moreover, I shall argue that only by acknowledging their interpretive character can we begin to find ways to deal with them.

Suppose, as is likely, that technological advance makes it possible for doctors to remove fetuses from their mothers' wombs at an early point in their pregnancies and to grow the fetuses in surrogate mothers or test tubes. Such a procedure would seem to offer a solution to the conflict over abortion if that conflict pits a fetus's alleged right to life against a woman's alleged liberty to choose when and if she is to become a parent. Without causing the death of the fetus, a woman could liberate herself from both the need to endure a nine-month pregnancy and all responsibility for the fetus or child by simply allowing the fetus to be transferred from her womb to another woman's womb or to an artificial one. But suppose a pregnant woman decides she does not want either to bear a child at this point in her life or to have a fetus removed from her body and brought to term in another place. Does she still have the right to demand an abortion in circumstances in which technology can absolve her of all responsibility for bearing and raising the child she conceived? Can she insist that the life of the fetus be terminated if another woman or the state is willing to bring it to term? She would no longer be compelled to bear or raise the child. But does she have an additional right to insist not only that she be released from the necessity of bearing the fetus but, further, that the fetus's life be ended, that no child genetically related to her be born into the world at this time?

Tribe admits that a woman might reasonably object to the notion that she could...