Abortion Clinic regulation Politics

Abortion Clinic Regulation

As the present battles in Kansas and Virginia show, controversies over abortion clinic regulation seem certain to continue.  According to A. Barton Hinkle [Richmond Times-Dispatch, March 4, 2011], conventional labels like “conservative” and “liberal” are not predictive of where one stands on this issue.  “[M]any so-called conservatives believe in limited government everywhere except the uterus.”  And “[s]uddenly, outraged liberals are sounding remarkably like libertarian advocates of laissez-faire capitalism and the industries they defend.”  How can one explain “[t]he fact that progressive defenders of abortion rights suddenly sound like Milton Friedman and Ronald Reagan”?  One possibility “is that abortion providers differ from every other entity in the universe—that they are uniquely pure of heart and incapable of error, and therefore ought to be left alone to do their good work in peace while beneficent government agencies impose increasingly strict oversight on the troglodytes and imbeciles who run everything else.”  “The other,” clearly Hinkle’s view, “is that when it comes to the excesses of the modern regulatory state and the danger of giving government in general too much power, the Milton Friedmans and Ronald Reagans of the world might—just might—have a tiny shred of a point.”

Hinkle makes a very good point about the limitations of labeling, but he also evades the underlying policy dispute.  I presume that even Hinkle himself believes in some government regulation [airline safety?  prescription drug testing?].  The challenge is to determine when the risks of doing nothing make government intervention desirable.  This is a particularly vexing question with respect to abortion clinics, as the normal policy decision, already tough enough, is complicated by the underlying dispute about abortion itself.  There are good grounds for believing that some pro-choicers, due to a commitment to preserve the abortion choice as an absolute freedom, are opposed to all regulations, no matter how reasonable and benign.  But there is also reason to believe that some pro-lifers primarily view clinic regulation as a vehicle for driving abortion clinics out of business.  They thus support requirements that arguably are not defensible purely in terms of women’s health and safety.                  

Samuel Calhoun

Samuel Wolfe Calhoun, J.D., is Professor of Law at Washington and Lee University School of Law. He received his J.D. from the University of Georgia and his B.A. from Harvard University. His teaching interests are contracts, commercial law, and legal writing. In addition, he teaches a seminar on the abortion controversy. His scholarly interests are law and religion, abortion, and jurisprudence. His most recent major piece of scholarship is “Grounding Normative Assertions: Arthur Leff’s Still Irrefutable, But Incomplete, ‘Sez Who?’ Critique,” Journal of Law and Religion 20 (2004-2005): 31ff. His website can be found at: