Essay by Ruth Colker
I think it would be fair to say that I did not engage in any real dialogues about abortion until 1987. Until that time, I readily accepted the feminist pro-choice perspective and did not see the reasonableness of any of the pro-life arguments. Moreover, I assumed that all pro-life advocates shared a fundamental disrespect for women's well-being. Given my deep-seated commitment to feminism, I did not see how the disagreements between pro-life and pro-choice advocates were “good faith” disagreements; therefore I could not see how I could even engage in, or would want to engage in, real dialogue with a pro-life advocate.
In 1987, I had my first real discussion about abortion with a feminist pro-life advocate. For the first time, I realized that there are people who both respect women and favor imposing restrictions on the availability of abortion because of a respect for the value of prenatal life. In particular, the suggestion that the Holocaust may have started with fetal surgery and experimentation made me pause, as a Jew, and wonder if my feminist pro-choice perspective sufficiently respected the value of preserving life. My opportunity to engage in abortion dialogue did not cause me to abandon my pro-choice perspective; however, it made me more open to considering ways that pro-choice advocates can better accommodate the values respected by pro-life advocates. I began to see that I did not have to think of pro-choice and pro-life positions in bipolar terms—that just as pro-life advocates could have a genuine concern about the value of life.
At about the same time, I began to read a draft of Michael Perry's Morality, Politics, and Law. One of the fundamental questions raised by Perry's book is how we can facilitate deliberative, transformative dialogue on divisive moral issues, such as abortion. As much as I admired Perry's task, I found myself deeply disturbed by some of the book's conclusions, including Perry's application of his theory to the legal-political realm and particularly the application of his theory to the abortion issue. Nevertheless, I agreed with Perry's assumption that it is good for us to engage in what Perry calls “deliberative, transformative dialogue” on moral issues. I therefore decided to examine his book quite closely from a feminist perspective to see what I could learn about how to facilitate dialogue on divisive moral issues, such as abortion.
Given that background, I will use this Essay to ask two questions: (1) Can we engage in such dialogue in our morally pluralistic society; and (2) will judicial restraint facilitate such dialogue?
Perry acknowledges that we cannot always be confident that moral dialogue is possible on a particular issue, yet he suggests that there is no harm in trying to create mechanisms to facilitate such dialogue. As much as I share his aspiration of dialogue, I am not sure that trying to facilitate dialogue is so cost-free. Such a determination depends, in part, on whether the mechanisms created to foster dialogue will cause other sorts of problems or will (in addition or instead) facilitate real dialogue. Before deciding to create specific mechanisms that might advance dialogue, we should evaluate the potential harm of these mechanisms, whether or not we believe that they facilitate real dialogue.
In addition, I am reluctant to endorse Perry's method of engaging in such dialogue within our legal-political system. Perry endorses the mechanism of nonoriginalist constitutional interpretation, coupled with self-restraint to resolve constitutional moral issues and to facilitate dialogue. In other words, he argues that judges should interpret the Constitution by reference to the aspirations that they believe are signified in the text, but should proceed with caution in imposing that interpretation on our society, especially when there is good faith disagreement about the resolution of a moral issue. The purpose of this caution is to facilitate dialogue on difficult moral issues within the legislatures rather than to have judges “imperially” resolve such moral issues. I agree with Perry's use of nonoriginalist tools of interpretation, but disagree with his theory of self-restraint.
Perry uses the example of abortion to demonstrate the implications of nonoriginalism coupled with self-restraint. In this Essay, I closely examine his abortion example and conclude that judicial restraint does not necessarily facilitate legislative dialogue when there is good faith disagreement. In addition, I examine the possibility of dialogue more broadly and consider how we can foster public dialogue on divisive moral issues like abortion.
About the Author
Ruth Colker. Professor of Law, Tulane University; Visiting Associate Professor of Law, University of Toronto (Fall 1988).
Citation
63 Tul. L. Rev. 1363 (1989)