This theme, Family Law in America and Europe (circa 1988), is the second of two themes ruminated by Mary Ann Glendon and Bill Moyers in the PBS series A World of Ideas. This part of their discussion
compares and contrasts the legal practices of Europe and America on the difficult issues of abortion and
Intertwined with this conversation is another theme discussing what our laws say about American
society - who we are, where we came from, where we are going, and what we value. More of that theme is
found at Laws Tell Stories.
The conversation between Mr. Moyers and Dr. Glendon about abortion and divorce laws took place in 1988
and this summary reflects the circumstances as Dr. Glendon saw them at that time.
Dr. Glendon states that one of the fundamental problems with Roe v Wade is that the U.S. Supreme Court
removed the issue of abortion from the public debate. In essence they said to one side of the issue:
"Go home there will be no more discussion". She compared that to the European model which continued to
structure debate on the issues of abortion and divorce in their legislatures. Europeans continued to seek
a balance between life, individual rights, and support for families.
The analysis began as a case study of the separation of powers and the proper relationship between the judicial and the legislative branches of government. The study continued with the comparison of the Roe v Wade decision with similar cases in the high courts of other countries. Dr Glendon examined:
- Individual U.S. States in the years leading up to 1973.
- Comparison of American versus European Abortion Laws 1973-1988
A. Individual U.S. States in the years leading up to 1973
Some interesting points she found include:
- Between 1967 - 73, nineteen states had already liberalized their abortion laws and the
solutions were similar to European solutions.
- Many causes that led to loosening abortion restrictions:
- Women's Movement
- Concern of doctors
- Increasing discrepancy between law and practice
- Thalidomide Catastrophe
Medical science in particular had an important impact. Medicine had advanced enough to the point where
few abortions were needed to preserve the health of the mother. In addition:
- abortion wasn't necessary under the old legal definitions, yet the numbers of abortions performed
- Early forms of abortion liberalization were obtained by doctors in order to protect their medical
licenses: they sought protection from liability lawsuits.
In general the 19 liberalizing U.S. States had European style compromise statutes. Dr Glendon thinks that
if Roe v Wade had not intervened, then (as of 1988) the U.S. would look more like Europe in terms of the
B. American versus European Solutions
The following two columns contrasts the differences between the American solution and the European
style solution. The American version resulted from the Supreme Court deciding the issue while the European
solutions were formed by their legislatures.
> No regulation of abortion permitted > All of the western countries
for the interest of preserving the life reviewed allowed regulation in the
of the fetus until viability at 18-24 interest of the fetus beginning around
weeks (i.e. 6 months) 10-12 weeks. Sweden latest at 18 weeks
> No waiting period permitted, even 24 hours > Brief waiting period before request for
is interference with women's freedom of for abortion and the procedure.
> No alternatives to abortion will be given > Women will be informed about alternatives
to women as part of abortion process. to abortion, including
# maternal assistance provided by the
government - often quite substantial
in European countries.
> "Do not have a large private, profit-
making abortion industry" (pg 474) Abortion
procedures are carefully regulated. One of the
regulations is a limit to the percent of abortion
procedures at that site.
> The courts speak about a "constitutional > Statutes start by stating an affirmation of
right" to abortion. The U.S. is the only sanctity of human life, but state an abortion
country that states its a "right" to have is freely available in "distress" (France), or
an abortion. The values advocated are "hardship" (German) in early pregnancy. The
# individual privacy. values advocated are
# woman's sovereignty over her body. # respect for human life
# compassion for women in vulnerable circumstances
> A distain for dependency > Well established, non-controversial welfare states.
The government will ensure health and employment at a
level greater than the minimum.
So, why does Europe allow abortion and supports a message about life, but not the U.S.A.? Dr. Glendon believes the
differences lie in social changes occuring during the late 19th century. Social legislation was passed in many
western countries. It was the foundation of the modern welfare state. The U.S. however, took a different turn.
The U.S. Supreme Court and State Supreme Courts struck down infant social welfare legislation as violations of
constitutional rights to property and freedom of contract.
In addition, Professor Glendon postulates the our heterogeneity prevents us from compromising on this issue. The
United States may be too diverse because, as a society we do not feel that all American children of all
colors and social classes are our children - to be protected. Contrast that with her impression of Swedish society
which does feel that all children are its own - from the Laplander baby to the Stockholm factory worker's baby.
Swedish society is more homogeneous.
There is a very critical point to make for both Americans and people of other nationalities about the Roe v Wade decision and its legal effect. The Court has ruled on this issue in the language of "constitutional rights" which means there is no compromise. Within the framework of the American constitution, there will be no changes on this issue until (a) a constitutional amendment or (b) the Court changes its mind. The court has shut down the legislative process and all the education, persuasion, and bargaining that occurs around that process.
This returned the discussion to the fundamental question posed by Professor Glendon: Who governs? Do the
Courts or the Legislatures know what is good for the American people? The Roe v Wade decision indicates its the Courts who govern on this issue in the U.S.
Dr. Glendon links divorce and abortion in her analysis because of the central motif of dependency. At the time of her interview with Bill Moyers, divorce laws in the U.S. and Europe were very similar: marriage was freely terminable in varying degrees. However, in the US one could also free oneself from the economic responsibilities of marriage and child-rearing (pg 478).
The U.S. does not vigorously impose nor collect child support payments. Europe established a system for child support including:
- standard tables for calculating amounts to be paid
- if not collectable, then the state will pay certain amounts for child-rearing.
Americans hear the term "not collectable" and immediately think "dead-beat dads". The latter term means a father who purposely avoids his financial responsibility to pay child support. However, other circumstances may arise that make child support difficult which are taken into consideration in Europe: one or both parents are too poor or there is a new family of the paying parent for which he is currently providing. Therefore the state will step in to help provide for the children.
At a societal level, European countries say that marriage is a lasting committment and children are a responsibility. If the marriage does not work out, then the state will:
- vigorously impose child support, or
- step up and help financially with the child rearing, or
- provide a combination of the two.
Please note two changes in the U.S. during the last 14 years. Both are implementations of the dependency motif implemented in typical American style: personal responsibility and self-sufficiency. First is the child-support issue. Collection of support payments is more pro-active now even to the point of imposing collection by garnishing wages and through the Federal income tax process (i.e. find a dead-beat dad and collect past due payments via income tax specifically from that dad). Tables of child support payment amounts are more prevalent now. Second is Welfare Reform. In the last five to six years there has been a major effort to reduce citizens' dependency upon the state for living subsistence. The sound bite or pithy marketing phrase heard most often was to "reduce welfare moms" - women who are perceived to continue to have babies out of wedlock in order to increase their welfare income.
The dependency motif as revealed in the issues of abortion and divorce is summarized by Dr. Glendon when she says that the U.S. "story" is told in the language of capitalism:
"If you can make it, fine.
If you can't make it, then
that is reflective of your worth,
your merit, and your character."
Europe has elements of this same philosophy
, but it is moderated by older classical and christian notions of
one's duty along with one's opportunity.
In U.S. society, individualism is a central element to such a degree that court rulings downplay the positions and
protections of intermediate social organizations such as churches, labor unions, families, and neighborhoods.
Mary Ann Glendon's proscription for American society is to keep the social conversation alive in the legislatures
and not allow the courts to impose one point of view upon all. It is through the reflection and choice of the
legislative process that a heterogeneous society can establish good government.
Professor Glendon's books on Family and Comparative Law are listed on Mary Ann Glendon.
Bill Moyers A World of Ideas: Conversations with Thoughtful Men and Women About American
Life Today and the Ideas Shaping Our Future, edited by Betty Sue Flowers, Doubleday, New York, 1989,
pages 470-483. ISBN 0-385-26346-5 (paper)