By Kent R. Kroeger (July 9, 2018)
With President Donald Trump’s selection of U. S. Court of Appeals Judge Brett Kavanaugh to replacing retiring U.S. Supreme Court Judge Anthony Kennedy, the hyperbole from both Democrats and Republicans will be unbearable for the next few months.
“In his 12 years on the D.C. Circuit, Judge Kavanaugh has demonstrated a devotion to legal text and constitutional principle,” says Cato Institute legal analyst Ilya Shapiro. “I admire his dedication to the Constitution’s structural protections for liberty, his steadfast defense of the rights of speech and religious conscience, and most notably his willingness to question the excesses of the regulatory state.”
“I wish him a speedy confirmation; there is literally nothing in his record that justifies the smears and demagoguery he’s about to face,” adds Shapiro.
Opposition to Kavanaugh’s ascension to the Supreme Court will pivot largely on one issue: abortion. With the addition of Kavanaugh to the John Roberts Court, the assumption by many observers is that the Court will be primed and ready to strike down 1973’s Roe v. Wade ruling that said a woman’s right to privacy extended to the unborn child she was carrying and thereby made abortion legal in many circumstances.
Dawn Laguens, the executive vice-president of Planned Parenthood Federation of America, issued a statement immediately after the Trump announcement: “We oppose the nomination of Brett Kavanaugh to the Supreme Court, and call on the Senate to do the same. There’s no way to sugarcoat it: with this nomination, the constitutional right to access safe, legal abortion in this country is on the line. We already know how Brett Kavanaugh would rule on Roe v. Wade, because the president told us so.”
But according to University of Notre Dame professor Margot Cleveland, “Overturning Roe v. Wade will not criminalize abortion. Period.”
Writing for The Federalist, Cleveland argues that “Roe, and the currently controlling precedent Planned Parenthood v. Casey, created a federal constitutional right to abortion. Should Roe be overturned, the question of abortion, and any limits on abortions, would return to the states and in most cases the legislative branch.”
“What Roe (and Casey) do is prevent the states and Americans from having a say in this important public policy debate, resulting in a regime so extreme that only six other nations in the world (Canada, China, Netherlands, North Korea, Singapore, and Vietnam) have as permissive abortions laws as the United States,” adds Cleveland.
While Democratic Senate minority leader Chuck Schumer says he will fight the Kavanaugh nomination with ‘everything I have,’ as the days have passed since Trump’s announcement, more and more Democrats are privately conceding it is better to let the nomination go through and make it a rallying cry for Democratic candidates in the midterms.
Kavanaugh will be confirmed. The numbers are simply against the Democrats, who need to win more presidential and U.S. Senate elections if they want to control Supreme Court appointments in the future.
While the rhetoric is guaranteed to get white-hot over the Kavanaugh nomination, there is also a genuine opportunity for the media and policy experts to bring real context and understanding to the abortion issue. Abortion is not merely a medical procedure, it is a public policy superimposed on social norms, legal and political institutions, a free market economic system, and religious beliefs. It is not just about women’s control over their bodies. It is not just about morality and the sanctity of life. It is about all of these elements taken together — not in isolation.
For pro-choice advocates to deny the creation of a unique human life at conception is to deny the science. It is a narrow mindset not that dissimilar from those who deny the science behind anthropogenic global warming. [Actually, the biologic sciences are probably more advanced than climate science, but I’m just quibbling with myself on that point.]
For pro-life advocates to ignore the constitutional rights of a pregnant woman, independent of her baby’s development stage, is equally misguided and unproductive.
Absolutist arguments on abortion fail to capture reality. And in formulating public policy, that problem can turn policies into malignancies.
In Roe v Wade, the ‘compromise’ was to create the legal concept of ‘viability.’ In the Court’s 1973 ruling, once an unborn child is viable (considered to be about 28 weeks at the time of ruling), the states can impose restrictions on abortion rights in defense of the child’s legal rights. In essence, the court was attempting to answer the question: When does an unborn child gain their constitutional rights? The Burger Court’s answer to that question in 1973 did not end that debate, but rather launched it.
Abortion Laws Worldwide
The multi-dimensional aspect of abortion rights becomes apparent when viewed across the globe and might offer some guidance (and warnings) to political leaders on how to address the core demands from both sides of the issue: (1) protect the right of women to control their own bodies, and (2) protect the inalienable human rights of the unborn.
It should not surprise us that there is significant variation in abortion rights across the world. The academic literature generally agrees that abortion rights are a direct function of women’s status in society.
By definition, that may be true. However, when abortion rights are viewed globally, one must look beyond women’s status to understand why some countries, like the U.S. and Turkey, have permissive abortion laws while others, such as Poland and the Philippines, have much more restrictive laws.
The above world map created by the reproductive rights advocacy group, the Guttmacher Institute, shows this variation in worldwide abortion laws and highlights the difficulty in using simple explanations to describe this variation.
For example, countries near the equator generally have more restrictive abortion laws, with the exception of countries such as Vietnam, Cuba and India where the laws are less restrictive. This apparent geographic relationship also mirrors the division of advanced economies from rapidly developing and less-advanced economies. But a world map of religious cultures would also appear correlated with abortion laws, as would a mapping of women’s status.
Yet, there are Muslim-majority countries (Tunisia, Turkey) with permissive abortion laws, and others with very strict restrictions (Egypt, Iraq). France and Italy, Catholic-majority countries, have few restrictions on abortion, while Catholic-majority Poland and Ireland limit abortions to cases where the mother’s health is at stake.
So, is it geography, the dominant religious culture, women’s status, economic development, or the political system driving abortion laws? Is it all these factors?
Or, perhaps, there is something more fundamental underlying these cross-national differences?
In a purely exploratory look at abortion laws worldwide with the hope of finding clues about what factors may drive the differences we see across countries, I collected recent data (2015–2017) on a range of key variables found to be (or hypothesized to be) significant correlates with national abortion laws.
The dependent variable was constructed using the Guttmacher Institute’s six-level index on worldwide abortion laws and adding a seventh level for countries identified by the Charlotte Lozier Institute as having the most permissive abortion laws in the world (Canada, China, Netherlands, North Korea, Singapore, U.S., and Vietnam).
There is surprisingly scant quantitative research attempting to explain cross-national variation in abortion laws; and while I do not presume my analysis here is definitive on the topic, I did try to draw ideas and constructs from a broad range of disciplines (economics, political science, sociology, social psychology, industrial organization psychology).
One of the more comprehensive and recent examinations of worldwide abortion laws was conducted in 2015 by Jessica Hyne, a Masters student at the Institut Barcelona Estudis Internacionals. In her cross-sectional analysis of abortion liberalism across 192 countries found the following independent factors to be most significantly correlated with abortion liberalism: religiosity, whether or not a country is majority Catholic or Muslim, gender inequality, regional policy diffusion, human and economic development, and Communist tradition.
Based on Hyne’s work and other research regarding abortion laws worldwide, I included the following independent measures in my own analysis:
⚫ Freedom House’s 2018 Political Freedom Index: Hypothesis: Higher levels of political freedom should relate to more permissive abortion laws.
⚫ The Heritage Foundation’s 2018 Economic Freedom Index (and its 12 sub-indexes: Property Rights Freedom, Judicial Effectiveness, Government Integrity, Tax Burden, Gov’t Spending, Fiscal Health, Business Freedom, Labor Freedom, Monetary Freedom, Trade Freedom, Investment Freedom, and Financial Freedom): Hypotheses: Higher levels of economic freedom should relate to more permissive abortion laws.
⚫ International Monetary Fund data on GDP per capita (2017): Hypothesis: Higher levels of economic development should relate to more permissive abortion laws.
⚫ World Bank’s Gender Development Index (2015): Hypothesis: Higher levels of gender development and equity for women should relate to more permissive abortion laws.
⚫ Indicator variables for Latin American countries, African countries, majority Muslim countries, and majority Catholic countries: Hypothesis: Countries with common regional histories (particularly with respect to culture, colonialism and religion) may also share similar abortion laws.
I also included the World Bank’s Human Development Index and Gender Inequality Index in my initial linear models of worldwide abortion rights, but found their explanatory contribution to be minimal in the presence of the economic freedom, political freedom, and economic development variables. They were therefore dropped in subsequent linear models and are not found in the linear model reported here.
More details on the methodology, statistical model, and linear model estimates developed during this project are available in the Appendix at the end of this essay. (And the data are available on request to: email@example.com).
Based on my cross-national analysis of current abortion laws worldwide, I found five variables to be consistently correlated with national-level abortion laws across the multiple statistical models I estimated:
⚫ Property Rights Freedom Index (More property rights freedom = more permissive abortion laws)
⚫ Government Spending Index (More freedom from the gov’t; in other words, lower gov’t spending relative to the private economy = less permissive abortion laws)
⚫ Gender Development Index (Greater gender development and equity for women = more permissive abortion laws)
⚫ Latin America and African nations (Countries in Latin America and Africa = less permissive abortion laws)
The first pair of graphs below shows the positive linear relationship between abortion rights and the World Bank’s Gender Development Index (GDI), after controlling for the other factors. In countries with higher GDIs, such as France, Sweden, Hungary, Poland, and Ukraine, the predicted Abortion Rights Index (ARI) is significantly higher. In contrast, in countries with low GDIs — Afghanistan, Yemen, Pakistan, Chad, Algeria — the predicted ARI is significantly lower.
When the data is displayed by region, African countries are seen to have low GDIs and low predicted ARIs, while West European countries are high on both indexes. However, Latin American countries tend to have much higher GDIs than many other countries, yet, their abortion laws are still largely restrictive.
A much stronger positive and linear relationship exists between abortion rights and a country’s Property Rights Index (PRI). Where a country’s laws protect property rights, their laws also tend to be more permissive towards abortion.
West European countries tend to index high on both abortion rights and property rights; whereas, Latin American and African countries tend to score low on both.
More interesting is that the level of political freedom (the Freedom House Index), which includes information on privacy rights, does not significantly associate with the abortion rights.
A more unexpected relationship exists between abortion rights and the intrusiveness of the government in the private economy. The Heritage Foundation’s Government Spending Index (GSI) is computed such that a high score indicates a country’s government is less intrusive in the private economy. Put differently, a high GSI indicates more economic freedom from the government.
So why would the GSI be negatively associated with the permissiveness of abortion rights?
If one examines those countries with high GSIs, they tend to be authoritarian regimes (Pakistan, Iran) and/or under-developed countries (Afghanistan, Central African Republic, Sudan, Chad). If a country is going to restrict citizens’ rights, it is much easier to do so under an authoritarian regime. But there are countries with relatively high GSIs and more restrictive abortion rights that are not easily classified as authoritarian or under-developed — countries such as Mexico, Chile, Argentina, Turkey and India.
On the other end of the spectrum, the U.S., Japan, Canada and the West Europe countries have significantly more intrusive governments in the private economy and generally have permissive abortion rights. As all are democracies, the association with higher levels of reproductive freedom is not surprising — but even after controlling for political freedoms and levels of economic development (GDP per capita), the relationship between the GSI and the ARI remains strong and negative.
In other words, economic freedoms more than political freedoms appear more important in understanding cross-national variation in abortion rights. But even within economic freedoms, the relationship to reproductive rights is not uniform or unidirectional.
Both arguments in the abortion debate contain internal contradictions that either need to be rationalized away or ignored altogether.
Pro-choice Democrats must accept that permissive abortion laws guaranteeing women’s legal access to abortion are an ennoblement of one of capitalism’s most fundamental principles: private property and its promotion of economic efficiency.
Legalized abortion (and birth control more generally) flourishes within free market capitalism. The economy needs productive workers, but also needs babies that turn into future productive workers. Abortion offers a direct mechanism at the individual level to more efficiently navigate the born-learn-work-breed-die life cycle.
Does this mean legalized abortion is a necessary element of free market capitalism? No, of course not. Birth control is more likely the necessary element and abortion is simply its more uncivilized, dehumanizing substitute.
Pro-life Republicans, however, are confronted with their own ideological contradictions on abortion policy. While they can take inspiration from knowing that freedom from government intrusion in the private economy is associated with more restrictive abortion laws, they must also accept that there is a strong relationship between strong private property rights and more permissive abortion laws. That fact does not fit so neatly into typical pro-life doctrine.
I accept the pro-life thesis that human life begins at conception and possesses inalienable rights needing protection — within reason. The State of Iowa’s newly passed ‘heartbeat’ law restricting access to abortion is a grotesque over-reach that violates common sense, as many women will not even know they are pregnant until after the heartbeat is detectable, and will likely backfire on Iowa Republicans come the midterm elections.
A property rights argument challenging draconian abortion laws like Iowa’s may offer more protection for women’s rights than Roe v. Wade’s reliance on privacy rights.
Northeastern University law professor Becca Rausch offers the following argument supporting the property rights approach:
“Under the safe removal theory, the uterus can be considered a woman’s property. This ownership would carry in its bundle the right to use, the right to exclude, and the right to dispose by donation, but not the right to dispose by sale,” wrote Rausch in 2012. “Identifying property rights in the uterus gains much ground for advancing abortion rights and access. First, as others have argued, the state may not appropriate private property for public good without providing just compensation, or the appropriation becomes an unconstitutional taking pursuant to the Fifth Amendment.”
In Rausch’s view, a woman’s uterine property rights cannot be restrained in the way her privacy rights may be limited. “The most central right associated with property-the sine qua non, according to some-is the right to exclude others from it,” contends Rausch. “Private property exists for the use of the owner. Pursuant to the right to exclude, owners can eject unwanted persons and objects from their property.”
As dehumanizing as Rausch’s argument may seem — treating a uterus as private property — it may already be the de facto rationale underlying today’s most permissive abortion laws worldwide. The cross-national data I am looking at suggests as much.
Finally, I don’t have a clean answer on how to bring rational, civil debate back to the abortion question. It may never happen. In the upcoming partisan and most likely deceptive debate on abortion rights surrounding the Kavanaugh nomination, at some point both sides may let the smoke clear and start realizing there two legitimate goals in play:
(1) We don’t need the government getting involved in our private lives any more than absolutely necessary.
(2) And protecting the sanctity of human life at all stages of the human life cycle is an equally admirable moral imperative.
Sadly, in words and practice, both Democrats and Republicans come up far too short on both.
APPENDIX: METHODOLOGICAL NOTES
The Model and its Estimation
This analysis of international abortion law employs a cross-sectional modelling approach (i.e., one point in time). While not as analytically powerful as a time-series panel design (repeated measures over time), for exploratory and descriptive purposes it offers useful insights into current differences in abortion laws across nations.
The linear model of international abortion laws was specified as a function of the following factors:
Abortion Law Index = f(economic rights and freedoms, political freedom index, gender development index, indicator for Latin American countries, indicator for African countries, indicator for majority Islamic nations, indicator for majority Catholic nations, and GDP per capita)
While all of the sub-indexes in the Heritage Foundation’s Economic Freedom Index were tested for significance, only two were consistently significant across models: Government Spending (i.e., the size of government relative to the total economy), and Property Rights Freedom. Details on how all of the Heritage Foundations’ sub-indexes are computed can be found here.
The best fitting linear model (estimated in SPSS) produced the following model estimates and fit statistics:
As the model fit table above indicates, the final model only explained 42 percent of the variation in abortion laws across nations, though the overall model fit statistic was highly significant (F-statistic = 12.9, prob. = 0.0001). The factors associated with international abortion laws and significant at α=.05 (95% confidence level) were: (1) an indicator for Latin American countries, (2) an indicator for African countries, (3) Property Rights Freedom, and (4) Government Spending.