Mary Ann Glendon: Law of Abortion and Divorce

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The Bill Moyers Collection: American Archive of Public Broadcasting

All laws tell stories, says Harvard law professor Mary Ann Glendon — stories about who we are, where we came from, where we are going, and what we value. Can Americans learn something from the abortion and divorce laws of other countries? Glendon says we have a lot to learn, and that it may surprise us. Glendon, whose field is comparative law, found her own assumptions challenged when she started the research for her prize-winning book, Abortion and Divorce in Western Law, which contrasts the legal practices of Europe and America as they bear on the difficult choices of these controversial issues. 


BILL MOYERS: [on camera] Good evening, I’m Bill Moyers. As just about everyone knows, the Supreme Court ruled in 1973 that abortion is constitutional. As just about everyone also knows, Roe vs. Wade didn’t settle the issue. The Justice who wrote that opinion recently suggested the Court may yet reverse itself. Americans are still of a divided and troubled mind on abortion. Polls show the majority believe abortion should remain legal. Polls also show that more than half of all Americans believe abortion is murder. Women who choose abortion admit to three or four or five or even more factors that affected their decisions; hardly anybody in the poll named one reason. No simple approach to abortion seems satisfying, and my guest this evening believes we have to continue the search for a compromise. She’s gone outside the country for some possible solutions. Join me for a conversation with Mary Ann Glendon.

[voice-over] Can Americans learn something from the abortion and divorce laws of other countries? Mary Ann Glendon, professor of law at Harvard University says we have a lot to learn, and that it may surprise us. Glendon, whose field is comparative law, found her own assumptions challenged when she started the research for this prizewinning look at abortion and divorce in western countries. Glendon says that all laws tell stories, “stories about who we are, where we came from, and where we are going,” stories about what we believe in, what we value. Glendon has a special interest in family law. This new book comes out soon. We talked in her office on the law school campus about the family issues on both sides of the Atlantic.

[interviewing] What did surprise you when you set out on this search; what was the first revelation that came to you?

MARY ANN GLENDON: I expected to find that the United States was one of a group of countries -I would have guessed the Scandinavian countries -that would have a fairly lenient approach toward abortion. The other attitude that I took to the research, and I think this altitude is fairly widely shared by Americans, is that there really isn’t any compromise possible on this issue; either abortion is illegal or it’s pretty freely available. I found that both of those conceptions that I brought to the project were wrong.

BILL MOYERS: You were surprised.

MARY ANN GLENDON: I was surprised to find the United States absolutely in a class by itself when compared to other Western countries.

BILL MOYERS: In what way?

MARY ANN GLENDON: In the United States there can be, under the current interpretation of the Constitution, no regulation of abortion at all in view of protecting the fetus until the sixth month. The second interesting thing is this is the only country where the courts have taken the problem so completely away from the legislature. And finally our courts now speak of a constitutional right to abortion. The language that we use in talking about abortion is unknown on the European continent. Even in countries which permit abortion rather freely in the first trimester there is no talk of a right to abortion.

BILL MOYERS: So European laws generally allow abortion in the first twelve weeks.

MARY ANN GLENDON: The typical European statute requires a waiting period; a brief period between the first contact, the first request for an abortion and the abortion itself. Our supreme court has said even a 24-hour waiting period is an impermissible interference with the woman’s freedom of choice. European statues also typically provide that the woman ought to be told about adoption. She ought to be told what material assistance would be available in carrying the pregnancy to term, which often is quite substantial in European countries. The United States Supreme Court has said that kind of information is an impermissible attempt to wedge the state’s message discouraging abortion into the privacy of the woman’s decision.

BILL MOYERS: So what did you conclude the Europeans are trying to say about abortion?

MARY ANN GLENDON: Many people might see their message as incoherent. On the one hand the statues often start out with an affirmation of the sanctity of human life, on the other hand they say abortion is available quite freely in situations of as the French say, distress, and the Germans say hardship in the early part of the pregnancy. But it seems to me if one tries to read the message that those laws are enunciating it is that we have several important values in tension with each other here.

BILL MOYERS: So we recognize, they’re saying, that the woman has a tough choice when she’s having an abortion and the state recognizes this, it wants to help her but at the same time it has doubts about the taking of developing life.

MARY ANN GLENDON: It’s taken for granted by political parties, both on the right and the left in Europe, that the state will insure health and employment at more than minimal level. That has been absolutely noncontroversial so that for example Helmut Kohl, who is, one would have to say, a conservative European politician, when he was asked what his government was doing about abortion he said, “Well, our abortion policy is to provide and increase maternity benefits, child allowances, to help people with raising children.” We don’t hear much of that kind of talk from persons who are opposed to abortion in the United States.

BILL MOYERS: Some of the strongest opponents of abortion are also the strongest opponents of public support for single parents and dependent children. What does that say to you?

MARY ANN GLENDON: Well it says that there is something puzzling about the message that we are communicating through our legal system about children, the future, and attitudes toward neediness and dependency.

BILL MOYERS: So in a sense the Europeans are allowing abortions even as they are subtly encouraging, with their social policy, alternatives.

MARY ANN GLENDON: Yes. Take Sweden for example because Sweden has by European standards a very lenient abortion law; abortions pretty much on demand for the first 18 weeks. That’s as far as any European country goes with freedom of abortion, although even in Sweden it wouldn’t be called a right. Now a woman who finds herself pregnant and worried about that situation in Sweden knows a number of things. She knows that if she carries the pregnancy to term she will subsist, even if she’s not employed, she will be able to subsist on an amount of money that would be the equivalent, almost the equivalent of what a production worker takes home.

BILL MOYERS: But in this country, if I remember correctly, a young woman who has two children gets only about 50 percent of a production worker’s wage from welfare.

MARY ANN GLENDON: That’s right.

BILL MOYERS: But of course Sweden is so much more a homogenous, small country than our society which is riven by different and conflicting religious views. We’re not homogenous, we are a much more varied and combustible society, it seems to me, than Sweden.

MARY ANN GLENDON: One of the problems that our great diversity gives rise to is the problem of devising some legal norms that will be acceptable to a broad range of people in the population.

BILL MOYERS: Finding a story we can all understand and share.

MARY ANN GLENDON: Most people, in polls that have been taken every year since 1973, feel uncomfortable with abortion for any or no reason, but they also feel uncomfortable with the idea that abortion should be completely illegal. I think most Americans believe what I believed when I started my research, that compromise is impossible; either you’re for abortion on demand or abortion has to be completely illegal. That’s not what legislatures have done when they’ve been left to sort out the questions by themselves.

BILL MOYERS: Did you find in Europe that where the policies were liberal the rate of abortion was high?

MARY ANN GLENDON: No, as a matter of fact that’s one of the most interesting findings is that there’s very little correlation between strict and lenient abortion law and abortion rate. The Netherlands, which has one of the most lenient abortion laws, has the lowest rate in Europe. Romania which has one of the strictest in the world has a rate even higher than the United States. So what does all this tell us? It tells us that something else besides the criminal law is correlated with abortion rates.

BILL MOYERS: What is your guess?

MARY ANN GLENDON: Again I have to speak about Sweden which, as you’ve pointed out, is very different from us in many ways but Sweden did the impossible almost. In one decade beginning in the 1970s, Sweden dramatically reduced both its teenage pregnancy rate and its teenage abortion rate. How could they do that? Well, one can point to the fact that when the Swedish abortion law went into effect in 1974 it went into effect as part of a big package of legislation, and one part of the package was to make birth control information and devices very readily available, and another pan was a program for education for sexual responsibility.

BILL MOYERS: So these countries allow abortion but they do support alternatives in both sex education, cheap and easily-available birth control devices, and if a pregnancy is carried to birth, liberal social policies that support the young mother and the child.

MARY ANN GLENDON: That’s right. So there are many ways of being pro-life other than through the criminal law.

BILL MOYERS: Why don’t we have this attitude that is both tolerant but expectant; that allows abortion but tries to send a message about life and then provides the services to the mothers and the children that our European friends do?

MARY ANN GLENDON: In the late 19th century, legislatures all over the Western world started passing social legislation, what we would today call social legislation. It was happening in the United States, as well as in France and Germany and England. But in the United States something intervened. And what intervened was the United States Supreme Court, and supreme courts of individual states striking down that infant social welfare legislation as in violation of the constitutional rights to property and freedom of contract. Now there’s an example of what bothers lawyers like me, whether they’re pro-life or pro-choice, about Roe vs. Wade and a certain hubris on the part of the United States Supreme Court. In the line of cases that we’ve been discussing, the abortion cases, one really can’t find a firm constitutional mooring for these decisions. That’s one of the things that makes lawyers uneasy about Roe vs. Wade. It doesn’t have to do with abortion so much as who governs, who makes these important decisions for us?

When the court declares a statute unconstitutional, it brings the legislative process to a halt. It brings to a halt that process of education and persuasion and bargaining that goes on in and around legislatures. That’s one of the ways in which a vital, healthy society has a conversation about the goods that it wishes to pursue. So I don’t want to get involved in what I consider to be sterile debates about judicial activism or strict construction. I’m saying that there are prudential reasons why the court should be very, very careful before it shuts down a branch of the way the government operates. Before it shuts down the legislative process.

BILL MOYERS: And several states were moving politically to liberalize abortion policies before Roe vs. Wade.

MARY ANN GLENDON: I think it’s realistic to expect that if that process had gone forward, the map of the United States, the legal map of abortion in the United States would be like the legal map of abortion in Europe. There would be some differences in detail, but basically abortion available, fairly readily in the first trimester.

BILL MOYERS: How do you explain that the debate is still raging here? Raging ferociously. Much more so, it seems to me, than it is in Europe.

MARY ANN GLENDON: The Supreme Court has ruled one side of the debate completely out of court. It’s interesting. One of the aspects of the compromises in Europe that is appealing, I think, is that while debate goes on in Europe, it goes on in the form of a conversation, an exchange of views. It’s heated, it’s intense, people’s feelings about this matter are very strong. They’re strong in Europe, but what the European experience shows is that societies that were just as bitterly and deeply divided as we are made a compromise in such a way that it’s still negotiable. Legislation can be changed. There’s always another day. The losing side can come back and try again.

BILL MOYERS: In your book you link divorce and abortion. Why do you link them? What differences are there between divorce in this country and divorce in Europe?

MARY ANN GLENDON: Our divorce law is very similar to European divorce law in one way. Marriage has generally become freely terminable all over, in varying degrees. But curiously, it’s only in the United States where you can not only free yourself of the marriage bond, but free yourself substantially from economic responsibilities associated with marriage and having children.

BILL MOYERS: Are we the only one of the countries you studied that practices no-fault divorce’?

MARY ANN GLENDON: Well, we’re the only one that calls it no-fault divorce. And this is another area where I think language makes a difference. When I began my survey of divorce law, I asked people in countries where divorce is granted at the request of one party, whether they called that no-fault divorce. We had discussions about what you would call that in German or Swedish. And people said, “No, we don’t use that term. We find that kind of shocking.” The idea, of course, that they’re trying to capture with that term is that the litigation process is not very well suited to finding out the relative degrees of fault of the parties to a troubled marriage. It’s better not to go into that sort of thing in court. But, when it migrates into the law in that form, when that term takes hold, it connects up with a certain language of psychotherapy and it tends to be translated, I’m afraid, into a notion that the legal system is saying, nobody is ever to blame when a marriage breaks up. And then add to that no responsibility, and we have a very unusual treatment of divorce in the United States, as well as an unusual treatment of abortion.

BILL MOYERS: No fault becomes no responsibility?

MARY ANN GLENDON: Well, we glided from no fault to no responsibility because we do not, although I see some changes coming along here, we do not yet vigorously impose and collect child support.

BILL MOYERS: What do the Europeans do?

MARY ANN GLENDON: When the child support obligation can’t be collected, the state advances up to a certain amount of the child support obligation. And then there is, of course, as we have discussed the generally higher level of welfare in northern European countries.

BILL MOYERS: So, once again, the story in Europe is trying to say something slightly different. In divorce it’s trying to say what?

MARY ANN GLENDON: First of all, marriage involves a lasting commitment, having children involves undertaking a responsibility. We understand that there are many situations where things don’t work out, but when they don’t work out either there is going to be a vigorous imposition and collection of child support from the former provider, or society is going to step in and help with the problems of dependency created by the break-up of the union or some combination.

BILL MOYERS: Where are women better off, in Europe or in this country?

MARY ANN GLENDON: Whether women are better off really depends on how we would define being better off. Whether we see that as being the possessor of a great many individual rights or whether we see that as having a component of being protected in the areas of procreation and motherhood. Certainly the American woman is very well off as an individual and a possessor of rights. But, many European women are better off as mothers and members of interdependent family units. And this, of course, this difference of opinion on what is better off is one that makes it very difficult to say what is a feminist in the United States at the present time.

BILL MOYERS: And you say the children would be better off in Europe because?

MARY ANN GLENDON: Well, I have no hesitation in saying children are better off because of the large percentage of children in our population who are poor.

BILL MOYERS: If I hear you, the story is that the individual has a responsibility to society not to take the loss of life lightly, but society also has a responsibility to the individual that is here, either the single woman, the single mother, the child.

MARY ANN GLENDON: The United States is communicating to mothers, especially, that it is a very risky proposition to devote yourself entirely, or primarily, to child raising. And is that really the message that Americans want to communicate through their public and private law? I don’t think so. I think we’re better than that.

BILL MOYERS: Better than the story we’re telling ourselves through the law’?

MARY ANN GLENDON: I think so. I think that the legal story doesn’t do justice to the richness and complexity of feelings that people in the United States have about tragic situations.

BILL MOYERS: Do you feel caught in the middle as a lawyer and a professor? You want the law to reflect the sanctity of life, but at the same time, if abortion proceeds — and I assume you want it to proceed — you want public policy to support that mother and that child. Are you getting criticized from both sides?

MARY ANN GLENDON: I think there is no political home right now in the United States for what I might call, what Europeans would call, a Christian Socialist position. That is, in most European countries there would be a political party that would be very interested in social values; what the law is saying about the kind of society we want to be. Now, it’s an interesting question why there is no such political party in the United States. Absolutely standard in Europe. And I suppose that this has something to do with this problem that we keep coming back to which is the heterogeneity.

BILL MOYERS: The diversity of America?

MARY ANN GLENDON: We apparently just don’t feel that all American children of all colors, social classes, are our children, the way I think a Swede quite easily feels that a child up in Lapland is very precious to a worker in Stockholm.

BILL MOYERS: Isn’t there something else, too? Isn’t it possible that the answer lies partly in the capitalist language that is used to tell the story? “You are on your own. If you’re alone, if you can make it, line. If you can’t make it, it’s something to do with your worth, your merit, your character, your being.”

MARY ANN GLENDON: Yes, that’s very definitely a part of our story. It’s a big part of our story. It’s also a part of the European story but what’s different is that it is moderated in most European countries by older classical and Christian notions about having duties along with your responsibilities. If you have advantages from the society, you give something back to the society.

BILL MOYERS: What are the forces that are shaping the story today as we sit here and talk?

MARY ANN GLENDON: I see really a dark side to both the pro-choice and the pro-life movements. I think that pro-choice has some silent support among men who don’t want to take responsibility for fatherhood, among persons involved in a profit-making abortion industry, and maybe saddest of all, among tax payers who see abortion as a way of keeping down the size of an underclass. Pro-life has this dark side of punitiveness toward women, that I find absolutely incomprehensible, but it seems to be there, as well as certain unwillingness to recognize that if you’re going to be pro-life it shouldn’t be with a view that life begins at conception and ends at birth. You have to be pro-life all the way and that means supporting maternity, childbirth, child-raising, which has become very difficult in our society where both parents are usually in the labor force.

BILL MOYERS: Do you think we’re paying a price for individualism in America? And the old idea that the individual can do what he or she wants but you have to do it on your own, isolated from society? Don’t expect help.

MARY ANN GLENDON: There is always the danger that if you speak a language which only recognizes individual rights, that you will become a people that can only think about individuals. Choices last. Choices that we make as individuals make us into the kinds of people that we are. Choices that we make collectively as a society make us into the kind of society we are. So, if you put together a whole lot of legal decisions that give priority to individual rights, that let them trump everything else, you’re contributing in some unquantifiable but nevertheless real way to shaping the society.

BILL MOYERS: Isn’t it possible that there’s another story to the story, and that this story is the one that many women feel they are now finally beginning to tell. The story that Roe vs. Wade established that we are our own competent moral agents. That we are the possessors of our own body and can control our destiny, and that we are not to be subject to the whim or power of men, or the state. Isn’t that a legitimate story that women are now beginning to tell?

MARY ANN GLENDON: I think that’s a very powerful statement. But it’s not the whole story. It’s like so many American stories that leave something out. And, of course, what’s being left out is that there is a question of life involved here and that’s a value that women have to be interested in; probably even more interested in than men are.


MARY ANN GLENDON: Developing life. What the Supreme Court of the United States has refused to call either human or alive or a person. Somehow the story has got to take account of that. The story has to be one about moral complexity. The story as it stands right now is oversimplified, it doesn’t do justice to the richness and complexity of American life. It’s basically an impoverished moral discourse.

BILL MOYERS: [voice-over] From Harvard University this has been a conversation with Mary Ann Glendon. I’m Bill Moyers.

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