Tribe Mentality | Lynn D. Wardle and Mary Anne Q. Wood, A Lawyer Looks at Abortion

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“All issues are political issues,” said Orwell, “and politics itself is a mass of lies, evasions, folly, hatred and schizophrenia. When the general atmosphere is bad, language must suffer.” Among contemporary political issues, abortion is the worst, and Orwell would have easily identified the two abortion orthodoxies by their dialects. Pro-choice itself is a euphemism devised to hide the destruction of the human fetus. “Political language,” Orwell said, “is designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind.” Pro-life disguises the distinctions between the life of the fetus and of the child, which are as real as the distinctions between the life of the child and of the mature citizen. 

In his classic essay, “Politics and the English Language,” Orwell condemned foggy language—the dying metaphors, pretentious diction, and meaningless terms used today in the abortion controversy—and he proposed to clear it up with images “fresh enough to have an effect.” But he did not foresee that vivid images would be turned into propaganda. Still hiding behind the cloud of meaningless words, political writers today let loose a thunderbolt that illuminates a misshapen, fearful image meant to shock and distract the mind and distort the real issues. Under the euphemisms human life and freedom, the abortion debate since the 1973 Roe v. Wade decision has shown us a series of night mares—images of tiny babies mangled and trashed by the thousands or of unwilling women writhing in the pains of unwanted labor — during which reasoned discourse is bludgeoned into insensibility. 

In this charged atmosphere enter Lynn D. Wardle and Mary Anne Q. Wood, professors at BYU’s J. Reuben Clark Law School, who have already written on the topic for a legal readership (see Wardle’s The Abortion Privacy Doctrine, 1981, and articles in BYU Law Review, 1978, p. 783, 1980, p. 811; and in Missouri Law Review 45: 394). For the general reader, they now offer one of the most impartial and calm books on abortion, A Lawyer Looks at Abortion. Its neutral title, its staid, law review prose, its extensive legal documentation, and its comprehensive approach recommend it as an important, valuable document. Compared to what is put out by the right-to-life or choice lobbies, the book achieves what the authors hoped—to “improve the quality of public debate” (p. ix). 

Wardle and Wood set out in the abortion bog to find legal firm ground, not to sling mud, but they don’t come away clean. A Lawyer Looks at Abortion is, in the end, neither so much legal nor even moral as it is political. The pity is the authors don’t seem to know it; the mystery is why. 

The title, for example, can be viewed as a political ploy to cash in on the image of the legal profession in calm observation. The contradiction of a singular title and its multiple authors (pointed out by the Journal of Legal Medicine 3:3, p. 489) seems to prove the intent to manipulate. Or did the authors go along naively with the publisher’s desire to make this one of the legal series that has examined the Constitution and the ERA? 

The authors’ prose, peppered here and there with terms like “under color of state law” (p. 151) and “lacked standing” (p. 140), can be viewed as the sort of propaganda Orwell decried. Across the first few pages parades a sideshow of dismembered cliche and overstatement, terms left over from political hype meant to rally the crowd: a stimulus abruptly ceases, a provocation arises, reformers achieve spectacular successes, and then rulings have “the awe some ring of finality.” There is also a “fire storm of critical reaction,” but “such has been the overwhelming history of landmark controversial Supreme Court decisions.” Then “a core of dedicated workers organized themselves into a formidable grassroots movement” and “attempted to parlay their concerns into a viable political issue.” “Dramatically,” the elections came with a stunning defeat, “political successes of even more startling dimensions,” “a significant victory,” and “an astounding 21 victories” before “political clout was sharply felt.” “There is another side,” however, that “vigorously oppose[s] the objectives” and is “proselyting with zeal.” “And both sides have evidenced an unshakable never-accept defeat attitude that foreshadows a long and intense public struggle.” 

The act can be followed in the early pages only because its ringmaster is linear history, but later on, in the high-tension legal sections, the hyperbole and passive vagueness teeter between meanings, and modifiers dangle and fall out of place with arresting ease. Is this a case of Orwellian obfuscation, or is the prose the result of law-school ineptitude? 

A Lawyer Looks at Abortion is comprehensive, but the use of nonlegal evidence is decidedly lopsided, as if Wardle and Wood were trying to lend unmerited sub stance to their argument. In the general sections, for example, the superstructure for legal substantiation—the extensive and minute footnoting using Latin terms—sustains a lot of trivial evidence from encyclopedias, dictionaries, and an anatomy text book. The authors use intimidating medical terms (see the list of complications on pp. 112-15) when describing abortion but not when describing childbirth. When they do explain a term, they use it to enhance their point unfairly. For example, the description (pp. 123-24) of “saline amnio centesis,” injecting a salt solution into the uterus to kill the fetus, is unforgettable the first time. The next time it is propaganda. 

Wardle and Wood compare statistics from different periods since Roe v. Wade to show a drastic increase in abortions, with out acknowledging any changes in reporting and gathering methods or any lag in shifting from the illegal sector. When the authors compare the number of abortions to tonsillectomies (p. 8), the object of comparison says something subtle and wrong. That tonsillectomies are minor procedures tends to magnify abortion by their very triviality, and that they are often unnecessary tends to cast suspicion on both. The comparison of abortions to the population of sixteen states builds a subtle picture of mass murder, and comparing abortion laws to the laws governing slaughterhouses is not even subtle (p. 124). 

In the abortion controversy, perhaps high praise amounts to saying that Wardle and Wood did not, at least, compare abortion statistics to murders per thousand in New York; but when they use language, evidence, footnotes, and even their title this way, are they conspiring to misinform or are they merely callow? 

A Lawyer Looks at Abortion reveals a subtle pattern of authoritarianism—calling up the authority of the legal profession, of scholarship, of statistics, of medicine. After examining the evidence of authority, the authors succumb to a sort of tribe mentality as they draw conclusions. At the end of each section, they provide a free-standing summation that argues, in effect, “Some people say thus-and-such, and other people say thus-and-so.” This repeated appeal to common consent is most puzzling—over and over again the authors cast the debate into its most political form, without seeming to recognize it, and unknowingly reveal their sympathies: We are reasonable professionals and most right-minded citizens think as we do, but some proponents believe otherwise. At times the technique is carried to extreme: 

By promoting ominous predictions based on impressive statistics, these individuals have been successful in convincing some “elite,” strategically placed wielders of power in various public and private institutions, of the virtue of their cause. However, they have never been especially successful in convincing average citizens. Thus, the individuals and organizations that see legalized abortion as an essential step toward slowing population growth seem to have been most active in operating behind the scenes, providing resources and support for the presentation of the other arguments for abortion that have more appeal for the public at large (p. 40). 

I don’t believe this conspiracy theory any more than I believe my own theory that A Lawyer Looks at Abortion was writ ten to win political ground by questionable means. Wardle and Wood’s first chapter reads like propaganda, but by the fifth chapter, the research and analysis begin to outweigh the bias. At their best, they cite evidence and quote passages with persuasive reason, so that by the end — as the American Bar Association Journal pointed out (Oct. 1982, p. 1270), their patient scholarship and obvious goodwill win the reader over. 

Then how is it that these two law professors, experienced in government, legal practice, and the academy, seem to ignore the political essence of their book, identifying the problem as “inherently legal” (p. 205) ? Perhaps they are like the bespectacled speaker of Orwell’s essay, who is “almost unconscious of what he is saying, as one is when one utters the responses in church.” 

Mormons are trained into a peculiar habit of mind by week after week of Sunday School lessons and sacrament meeting speakers: First, we take as our text a generalized, abstract rule of behavior. We re view the authoritative evidence, from scripture or from General Authority pronouncements. Finally we use the established logic to prove the rule reasonable, which leads us to conclude that it can be and is supported by common consent. Mormons follow this pattern without thinking. “This reduced state of consciousness, if not indispensable, is at any rate favorable to political conformity,” Orwell wrote, and as he predicted, our writing and thinking suffer: “Orthodoxy, of whatever colour, seems to demand a lifeless, imitative style.” 

In this case, Wardle and Wood take as their subtext President Spencer W. Kim ball’s press statement, released by Church Public Communications, on abortion: “We have repeatedly affirmed the position of the Church in unalterably opposing all abortions, except [in] two rare instances: When conception is the result of rape and when competent medical counsel indicates that a mother’s health would otherwise be seriously jeopardized.” Marshaling the evidence, Wardle and Wood adopt Kimball’s position and show how eminently reasonable it is. Their contradictory appeals to both authority and common consent and their peculiar amalgam of legalism and moralism are the familiar products of the Mormon habit of mind. What they fail to see is that the Supreme Court, in the language of the Roe v. Wade decision, could just as reasonably be supporting the same position. 

If abortion is “the most significant civil rights issue of the last quarter of the twentieth century,” as Wardle and Wood suggest, it deserves impartial analysis, not prooftexting. If they must begin (whether consciously or not) with the reasonable dogma prescribed by authority, they should prove each side reasonable. By forcing us to stew in the quandary, they would elevate themselves and their opponents to their full humanity. If they had done this, readers would still agree that the court’s trimester approach hasn’t worked, that doc tors have no control over their patients, and that without that professional safeguard the law allows abortion on demand. And readers would still accept their solution to the dilemma, but without feeling suspicious, led on, or cheated. 

I am critical because A Lawyer Looks at Abortion comes so close, especially in the the later chapters, to being the thorough and objective analysis so badly needed. Even with my reservations, I echo Thomas B. McAffee, writing in the Missouri Law Review (48:284): “Clearly, the book is the best overall summary of the present state of abortion law written for non-lawyers that I have seen.” 

Reviewed by Kevin G. Barnhurst, who teaches journalism at Keene State College, University System of New Hampshire.