Fundamental Wrongs.(Beggars and Choosers: How the Politics of Choice Shapes Adoption, Abortion, and Welfare in the United States)(Review)

Beggars and Choosers: How the Politics of Choice Shapes Adoption, Abortion, and Welfare in the United States, by Rickie Solinger (Hill & Wang, 284 pp., $25)

In this new book-her third on the subject of abortion-historian Rickie Solinger contends that the right to choose to have an abortion has been trivialized by political interest groups, which have reduced it to little more than a consumer right, similar to the right to choose among shoe styles or brands of potato chips. In abortion, as in any other area of public policy, women are viewed as good or bad consumers (which is to say, choice makers), and are either punished or rewarded with tax breaks and the like, depending on the policy initiative a particular interest group has succeeded in enacting into law. Solinger argues that women will never be truly empowered until their reproductive rights are treated as "fundamental," and taken more seriously than the process of picking out shoes.

The biggest problem with this premise is that what Solinger wishes for has already taken place-but she doesn't much care for the result. The Supreme Court has, in fact, recognized a fundamental liberty right to a first-trimester abortion, and it is precisely this that has created the current situation: Women today are free actors on abortion, but they are fairly subject to policy and social pressures in their deliberations on this issue, as they would be in any other important life decision. But because the high court established a fundamental liberty right in the realm of reproduction, Solinger bristles at the thought that lawmakers, traditional feminists (whom she blames for espousing the language of "choice"), and academics can argue for or against policy or social influences that create incentives for women to exercise or refrain from exercising those rights.

Solinger starts out by criticizing Roe v. Wade for couching the language of abortion rights in terms of "choice," rather than as a "fundamental" right. It is this lapse, she argues, that gave rise over the last three decades to a culture in which lawmakers and others can label women as bad choice makers in order to justify conservative policy goals (such as limiting welfare benefits). An early example of this pernicious trend was the Supreme Court's 1980 decision upholding the constitutionality of the Hyde amendment, which made unlawful the funding of most (but not all) Medicaid abortions.

In fact, however, the Roe decision did couch the right to an abortion in the language of a fundamental right; indeed, it went out on a judicial limb to do so. It was precisely the fundamental nature, as Roe defined it, of the right to terminate pregnancy that gave rise to the "choice" language that came to dominate the abortion dialogue in the ensuing decades. Confronted with a brand-new fundamental right, the American people began to have a serious debate on the question of abortion.

In Roe, Justice Harry Blackmun held that the right to terminate a first-trimester pregnancy does not arise solely from the fuzzy penumbra of privacy protections emanating from the Bill of Rights, but instead emerges directly from the Fourteenth Amendment right to liberty. As a consequence, it may be subject to state interference only where there is a compelling governmental interest-a very exacting constitutional test. (Roe also concluded, of course, that as pregnancies progress through the second and third trimesters, the government has an increasingly compelling interest in regulating them, for health and safety reasons.)

In essence, Blackmun went 28 years ago where Solinger argues we need to go today. But as Justice Rehnquist explained in his dissent in Roe, Fourteenth Amendment liberties are not guaranteed absolutely; they are guaranteed only against deprivation without due process of law. The ...