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Secularization and Its Discontents: Courts and Abortion Policy in the United States and Spain

Secularization and Its Discontents: Courts and Abortion Policy in the United States and Spain

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Secularization and Its Discontents: Courts and Abortion Policy in the United States and Spain

Author: Adrienne Fulco
Secularization and Its Discontents: Courts and Abortion Policy in the United States and Spain

Author: Adrienne Fulco

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10/20/2013

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195
14.Secularization and Its Discontents:Courts and Abortion Policy in theUnited States and Spain
Adrienne Fulco
S
cholars who compare European and American political parties have custom-arily characterized the two major American political parties as distinctly non-ideological coalitions of voters who come together every four years to nominateand elect a president. Nicol C. Rae recently observed that “[i]n the comparativestudy of political parties in twentieth century advanced democracies, the UnitedStates has always been something of a problematic outlier owing to the absenceof 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 regionalfactors rather than social class divisions.”
2
But today, according to researchers who have explored the problem of polarization in American politics since the1980s, there is now “widespread agreement that the Democratic and Republicanparties in the electorate have become more sharply divided on ideology andpolicy issues in recent decades.”
3
Commentators agree that among the factorsmost responsible for the sharpening of distinctions between the two partieshas been the infusion of white, Protestant, conservative, religiously motivatedvoters into the Republican Party.
4
us, not only have American political partiesbecome more ideologically oriented, but they have also come to resemble moreclosely the European model, in which parties represent distinct religious andsecular constituencies.e political polarization that has occurred over the course of nearly twodecades was crystallized in Patrick J. Buchanans speech at the 1992 RepublicanNational Convention. It was there, in Houston, Texas, that Buchanan famously 
 
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ECULARISM
, W
OMEN
&
 THE
S
 TATE
: T
HE
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EDITERRANEAN
W
ORLD
 
IN
 
 THE
21
ST
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ENTURY
announced to delegates, and a national audience, that “ere is a religious wargoing on in our country for the soul of America. It is a cultural war, as criticalto the kind of nation we will one day be as was the Cold War itself.”
5
Praisingboth Ronald Reagan and presumptive nominee George H.W. Bush for theirresolute leadership on moral issues, Buchanan went on to attack Bill Clinton,the Democratic nominee, for promoting an agenda that did not reflect “the Judeo-Christian values and beliefs upon which this nation was built.”
6
Inaddition, Buchanan specifically faulted Clinton and the Democratic Party fortheir 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 Irish-Catholic governor of Pennsylvania, Robert Casey,asked to say a few words on behalf of the 25 million unborn childrendestroyed since Roe v Wade [sic], he was told there was no place forhim 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 pro-choice topro-life after they decided to run for president.
8
 While a full discussion of the myriad ways in which religion has shapedintra-party competition in America over the past four decades is beyond thescope of this paper, there is little doubt that the Republican Party has becomethe party of religion, and that religiously determined issues have come to play an increasingly important role in electoral politics. Among those issues, whichinclude gay rights, prayer in public schools, and the teaching of evolution, themost important by far is abortion. As Geoffrey Layman puts it, “Abortion isthe defining issue in contemporary cultural and moral politics…[and] the issuethat has been most central to the cultural debate both within and between theparties.”
9
is development has had profound consequences not only for theelectoral process but also for appointments to the U.S. Supreme Court, the arenain which battles over abortion are now frequently waged.During the 35 years since
Roe v. Wade 
was decided,
10
the abortion issue hasshaped American electoral politics, and although abortion remains legal in theUnited States, pro-life groups, often associated with the Republican Party, have worked tirelessly to overturn the landmark ruling. Pro-life advocacy groups likeFocus 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 lawsthat restrict a woman’s right to terminate a pregnancy. At the same time, thesegroups have joined with other Christian conservatives to help elect presidential
 
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candidates like George W. Bush, who vowed to appoint “strict constructionist” judges to the Supreme Court, understood to mean judges committed tooverturning
Roe v. Wade 
. Given the crucial role the Supreme Court has played indetermining 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 tochoose 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 thepartial decriminalization of abortion in the past few decades. Moreover, both theItalian
11
and Spanish
12
rulings have been viewed as legitimate, and abortion law has remained relatively—some would say surprisingly—stable in both countriesdespite 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 reformin both Italy and Spain take place in the political and electoral arenas, whichare structurally and functionally separate from the constitutional courts. isinstitutional arrangement, which depoliticizes the constitutional courts, is insharp contrast to the increasingly politicized role the U.S. Supreme Court playsin 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 AmericanSupreme Court’s decision in
Roe v. Wade 
, which has been subjected to ongoingchallenges for nearly four decades. A second and related question concerns thedegree to which organized pro-life groups in America, almost all of which roottheir opposition to abortion in religious belief, have more successfully affectedthe legal process than similar groups in either Italy or Spain. is paper is partof a larger project that seeks to contribute to the rich and growing literature thatanalyzes constitutional courts in a comparative framework. In the larger projectI will include a discussion of the role of the Constitutional Court in adjudicatingabortion law in Italy, but here I will focus my comparison on the way in whichconstitutional courts function in America and Spain. My principal objectivesare to examine the role of the constitutional courts and the practices of judicialreview in each country, in order to understand why the abortion question remainsfar 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, wherea large Catholic population and a history of engaged religious political partiesdefine the political landscape. I will conclude with a consideration of the waysin which the American abortion controversy, which is driven in large part by 

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