Problemas de comprensión en el proceso de lectura

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arily characterized the two major American political parties as distinctly non­

ideological coalitions of voters who come together every four years to nominate and elect a president. Nicol C. Rae recently observed that “[i]n the comparative study of political parties in twentieth century advanced democracies, the United States has always been something of a problematic outlier owing to the absence of organized, disciplined, and ideological mass political parties.”¹ Moreover, according to Rae, when compared with other advanced industrial democracies,

“American national parties have traditionally been decentralized, loosely organized, and undisciplined, with party cleavages based on cultural or regional factors rather than social class divisions.”² But today, according to researchers who have explored the problem of polarization in American politics since the 1980s, there is now “widespread agreement that the Democratic and Republican parties in the electorate have become more sharply divided on ideology and policy issues in recent decades.”³ Commentators agree that among the factors most responsible for the sharpening of distinctions between the two parties has been the infusion of white, Protestant, conservative, religiously motivated voters into the Republican Party.⁴ Thus, not only have American political parties become more ideologically oriented, but they have also come to resemble more closely the European model, in which parties represent distinct religious and secular constituencies.

The political polarization that has occurred over the course of nearly two decades was crystallized in Patrick J. Buchanan’s speech at the 1992 Republican National Convention. It was there, in Houston, Texas, that Buchanan famously

announced to delegates, and a national audience, that “There is a religious war going on in our country for the soul of America. It is a cultural war, as critical to the kind of nation we will one day be as was the Cold War itself.”⁵ Praising both Ronald Reagan and presumptive nominee George H.W. Bush for their resolute leadership on moral issues, Buchanan went on to attack Bill Clinton, the Democratic nominee, for promoting an agenda that did not reflect “the Judeo­Christian values and beliefs upon which this nation was built.”⁶ In addition, Buchanan specifically faulted Clinton and the Democratic Party for their support of abortion rights at their own party’s July nominating convention, held in New York City:

At…[the] top [of their agenda] is unrestricted abortion on demand.

When the Irish­Catholic governor of Pennsylvania, Robert Casey, asked to say a few words on behalf of the 25 million unborn children destroyed since Roe v Wade [sic], he was told there was no place for him at the podium of Bill Clinton’s convention, no room at the inn.⁷ Buchanan’s praise for George H.W. Bush and Reagan is especially noteworthy because both candidates shifted their positions on abortion from pro­choice to pro­life after they decided to run for president.⁸

While a full discussion of the myriad ways in which religion has shaped intra­party competition in America over the past four decades is beyond the scope of this paper, there is little doubt that the Republican Party has become the party of religion, and that religiously determined issues have come to play an increasingly important role in electoral politics. Among those issues, which include gay rights, prayer in public schools, and the teaching of evolution, the most important by far is abortion. As Geoffrey Layman puts it, “Abortion is the defining issue in contemporary cultural and moral politics…[and] the issue that has been most central to the cultural debate both within and between the parties.”⁹ This development has had profound consequences not only for the electoral process but also for appointments to the U.S. Supreme Court, the arena in which battles over abortion are now frequently waged.

During the 35 years since Roe v. Wade was decided,¹⁰ the abortion issue has shaped American electoral politics, and although abortion remains legal in the United States, pro­life groups, often associated with the Republican Party, have worked tirelessly to overturn the landmark ruling. Pro­life advocacy groups like Focus on the Family and the National Right to Life Committee have successfully elected legislators at both the state and federal level who have passed myriad laws that restrict a woman’s right to terminate a pregnancy. At the same time, these groups have joined with other Christian conservatives to help elect presidential

candidates like George W. Bush, who vowed to appoint “strict constructionist”

judges to the Supreme Court, understood to mean judges committed to overturning Roe v. Wade. Given the crucial role the Supreme Court has played in determining abortion policy in the United States, it is useful to understand how organized interest groups, which exert influence within the Republican Party, have framed the abortion question in religious terms, so that a woman’s right to choose abortion today is less secure than it was even a decade ago.

Since the 1980s, abortion reform has also occurred throughout most of Western Europe, and the constitutional courts of Italy and Spain, two countries with large Catholic populations, have both rendered decisions that resulted in the partial decriminalization of abortion in the past few decades. Moreover, both the Italian¹¹ and Spanish¹² rulings have been viewed as legitimate, and abortion law has remained relatively—some would say surprisingly—stable in both countries despite ongoing efforts by Catholic politicians and clergy to revive the debate.¹³ It should be noted that any efforts to either expand or roll back abortion reform in both Italy and Spain take place in the political and electoral arenas, which are structurally and functionally separate from the constitutional courts. This institutional arrangement, which depoliticizes the constitutional courts, is in sharp contrast to the increasingly politicized role the U.S. Supreme Court plays in the American electoral process.

An obvious question is how to assess the stability of the abortion rulings by the Italian and Spanish constitutional courts, in comparison to the American Supreme Court’s decision in Roe v. Wade, which has been subjected to ongoing challenges for nearly four decades. A second and related question concerns the degree to which organized pro­life groups in America, almost all of which root their opposition to abortion in religious belief, have more successfully affected the legal process than similar groups in either Italy or Spain. This paper is part of a larger project that seeks to contribute to the rich and growing literature that analyzes constitutional courts in a comparative framework. In the larger project I will include a discussion of the role of the Constitutional Court in adjudicating abortion law in Italy, but here I will focus my comparison on the way in which constitutional courts function in America and Spain. My principal objectives are to examine the role of the constitutional courts and the practices of judicial review in each country, in order to understand why the abortion question remains far more polarizing and contentious in the United States, where the separation of church and state is enshrined in the Constitution, than it does in Spain, where a large Catholic population and a history of engaged religious political parties define the political landscape. I will conclude with a consideration of the ways in which the American abortion controversy, which is driven in large part by

highly active and motivated partisans who are informed by their religious beliefs, has caused the Republican Party to frame questions in religious terms, including questions that come before the Supreme Court.

The U.S. Supreme Court and Abortion Policy

The U.S. Supreme Court has played a central role in defining abortion policy in America. The 1973 ruling in Roe v. Wade, which provoked controversy from the day it was decided, struck down a Texas statute that had criminalized abortion except in cases where the pregnant woman’s life was at stake. The statute was challenged on the grounds that it violated a woman’s right to privacy, a right that was recognized by the Court in a series of cases dealing with access to contraceptives.¹⁴ Sarah Weddington, counsel for the original plaintiff in the case, argued that just as a woman’s right to determine whether she would use contraceptives was protected by a fundamental right to privacy, so too was her right to determine whether she would continue, or terminate, her pregnancy. It is significant that in the United States in 1973 there were no national abortion laws, and all statutes criminalizing abortion had been proposed and approved at the state level. Although some states, like New York and California, had already begun to reform or repeal their criminal abortion statutes before Roe was decided,¹⁵ the effect of the decision was to overturn all state statutes that resembled the one in Texas because the Supreme Court’s rulings are not limited to the particular parties to a case. Thus, the Court’s decision in Roe abrogated every state law that criminalized abortion or failed to conform to the Court’s analysis of the broad protections to which women were now entitled. It is for this reason that the Court’s ruling was characterized as sweeping and that the judges who joined the 7­2 majority were criticized for engaging in judicial activism. Analysis of the historical record now reveals that Harry Blackmun (the author of Roe), and the other six justices who joined his majority opinion, were unaware that the decision would trigger such a strong and sustained response from abortion opponents.¹⁶

Almost immediately after the Roe decision was announced, pro­life advocates vowed to overturn the ruling. Over the next several years, several pro­life groups were established, most of them closely affiliated with religious organizations. They developed strategies aimed at passing legislation at the state level that would test the reach of Roe by establishing restrictions on access to abortion such as parental consent, mandatory waiting periods, and informed consent. Additionally, these pro­life activists quickly made abortion a matter of electoral politics and publicly announced that they would work to defeat candidates at all levels of government who supported the Court’s decision in Roe.¹⁷ This two­pronged strategy, directed

both toward litigating in the courts and also at electing pro­life candidates, was successful. Over the past four decades, pro­life candidates have been elected to both state legislatures and the U.S. Congress, and numerous statutes restricting access to abortion have been passed.¹⁸ Although most of these anti­abortion laws were initially found to be unconstitutional by the Supreme Court, pro­life groups and conservative Christians became increasingly active in the Republican Party during the 1980s, and they now constitute one of its most important constituencies. These groups made the election of pro­life candidates a priority, and every Republican elected to the presidency since 1980 has adopted a pro­

life position by promising to appoint judges to the Supreme Court whose record indicates a willingness to overturn Roe. Ronald Reagan, George H.W. Bush, and George W. Bush all campaigned on pro­life platforms, and each president appointed justices who have indeed voted to uphold state statutes restricting abortion. These justices include Antonin Scalia and Anthony Kennedy (Reagan appointees); Clarence Thomas (a G.H.W. Bush appointee); and John Roberts and Samuel Alito (G.W. Bush appointees).¹⁹ The two new Bush appointees, John Roberts and Samuel Alito, were subjected to intense questioning about abortion in their nationally televised Senate confirmation hearings, but ultimately even some of the most skeptical senators, including Democrats, voted to confirm their nominations.²⁰

What, then, allows a vocal minority of pro­life voters to have such a disproportionate impact on the electoral process, which in turn directly affects judicial decision­making at the level of the U.S. Supreme Court? To answer this question, it is necessary to examine both the structure of the Court and its function in the American political system. The U.S. Supreme Court is the final arbiter of constitutional disputes, and its interpretations of the Constitution are binding at all levels of government, including the state level. On the national level, however, the Court is one of three branches of government, and it is part of the system of checks and balances that defines the entire American constitutional scheme. There are no specific qualifications for judges who sit on the Supreme Court, and their selection is based solely on the preferences of the president who nominates them. Moreover, since the justices have lifetime tenure on the Court, they usually serve long beyond the term of the president who appoints them. The justices do not need to respond to public opinion, and they can be removed from the Court only through the laborious process of impeachment, which has been initiated only once in American history.²¹ From a structural perspective, the appointment of U.S. Supreme Court justices is directly linked to the electoral process in general and to the politics of presidential elections in particular. Although the work of interpreting the Constitution requires