Essay by Suzanna Sherry
Michael Perry's thoughtful jurisprudential musings in Morality, Politics, and Law get most things just right. His framework of moral knowledge and a constitution of aspirations resonates with much of the best of contemporary moral philosophy and constitutional jurisprudence. When Perry turns to specifics, however, his reasoning weakens considerably. In particular, his discussion of abortion is fundamentally flawed.
Perry draws two conclusions about abortion: (1) That the extremely restrictive Texas statute at issue in Roe v. Wade—which permitted abortion only to save the woman's life—was unconstitutional; and (2) that the Supreme Court went too far when it invalidated virtually all restrictions on pre-viability abortions. Perry argues that the Court should have required all anti-abortion laws to contain three exceptions. Abortion must be permitted if the woman's health is endangered by continuing the pregnancy, if the fetus's life would be short and painful because of a genetic defect, or if the pregnancy was the result of rape or incest. Professor Perry's first conclusion is indisputable. It is the second conclusion—that elective abortions should be restricted—with which I take issue in this Essay.
Perry's conclusions appear to depend primarily on two assumptions: (1) That the value of fetal life is the central issue in determining whether elective abortions may be outlawed, and (2) that the Texas statute probably would not have been enacted without the discriminatory undervaluing of women's well-being. I will suggest in this Essay that the first assumption is simply incorrect, and that the second assumption does not support the second, restrictive conclusion that Perry reaches. This restrictive conclusion, moreover, is inconsistent with several of the fundamental theses of the book as a whole. In short, on the abortion issue, Perry has simply gotten it wrong.
About the Author
Suzanna Sherry. Professor of Law, University of Minnesota.
Citation
63 Tul. L. Rev. 1591 (1989)