The big news this week was the report of the leaked draft of a pending U.S. Supreme Court opinion that would overturn the Roe v. Wade abortion decision of 50 years ago.
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| Source: https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473 |
I have written about the abortion issue a number of times in these pages over the years
There is no more emotional, contentious and divisive issue in America today. Much of it was avoidable. Abortion became the contentious issue it is today because 50 years ago nine people on the Supreme Court totally bypassed the constitutional process that the Founders designed to resolve difficult questions through the consensus of the people.
That question has still not been answered today to anyone's satisfaction 50 years later.
Where do you draw the line between balancing the right to life of an unborn child with the rights of a mother to choose whether she wants to carry and care for that child?
The Roe decision ruled that the Constitution of the United States of America protected a woman's liberty to have an abortion without excessive government restrictions. In summary, the decision was that restrictions by the states on abortion were not permitted in the first trimester. In the second trimester the court ruled that states could not outlaw abortions but they could reasonably regulate them. In the third semester, when the baby was viable, the states could restrict or outlaw abortions except to preserve the life and health of the mother.
That single decision by nine unelected jurists overturned restrictions in the majority of states that limited or outlawed abortion that had been in place going back to shortly after the nation's founding.
However, it is sometimes forgotten at the time Roe was decided there were states in which elective abortions were already legal. That was the case in 1971 in California, New York, Washington, D.C., Alaska and Hawaii. However, 46 states thereafter needed to change their laws on abortion to conform to the decision.
This would seem to indicate how far removed the court's decision was from the legislative framework and the consensus of the public in most states at the time of the ruling.
It also seems to be lost to most who are apoplectic that Roe might be overturned is that the draft opinion would merely return the question of abortion (and any restrictions thereof) to the states.
At its core, the decision would leave the question of how to balance the rights of the mother and the child to the elected representatives of the people closest to them in their individual state.
Which right is to be given precedence? The right of a woman to choose or the right of the baby to live?
If we had let the constitutional process play out as our Founders intended our system of governance to work I believe that a balance similar to what is in place in most of the rest of the world would have been adopted legislatively in most states across the country.
This might have even led to a U.S. constitutional amendment that would have explicitly drawn the line on where any rights of the mother ended and the rights of the unborn child began.
Instead, we have been left with a divisive and contentious issue that has devolved with extremes on each side of the issue. One extreme is that abortions should be legal at any point up to and including birth and the other is arguing that abortions should be outlawed even in cases involving incest, rape or the health of the mother.
Neither view is anywhere close to how the rest of the world views this issue or where the consensus of opinion is for most Americans. Their views are more nuanced and influenced by the complex and difficult moral issue it presents.
In fact, most people would be surprised to find out that the United States is one of only seven countries out of 198 nations worldwide that permits abortion after 20 weeks of pregnancy.
The Trump administration pointed this out in 2017 and The Washington Post immediately jumped on this and put their fact-checkers on it to prove that this fact could not possibly be correct.
There was only one problem---it was true.
This statistic seemed dubious at first, because it seemed extreme for just seven countries out of 198 to allow elective abortions after 20 weeks of pregnancy. But upon further digging, the data back up the claim.
Further, what is telling is that the research from both sides of the reproductive rights debate confirm this figure. It’s not easy to boil down complex abortion laws in a cross-comparative manner like this, and there are some minor caveats associated with this talking point. Still, we did not find the caveats rise to the level of One Pinocchio.
We award the elusive Geppetto Checkmark when a factoid surprisingly (my emphasis) turns out to be true, as in this case.
What is the Geppetto Checkmark?
This is reserved for claims that are "the truth, the whole truth and nothing but the truth."
If it was a "surprise" to The Washington Post I can assure you it would be a surprise to most everyone that is filled with rage today about the possibility that Roe v. Wade might be overturned.
I have found it humorous that a few of the people who are outraged that the issue of abortion rights might be returned to the states have stated on Twitter that they will be forced to leave the United States if that occurs.
What are their options if they want to leave?
They are pretty slim.
How about North Korea, China or Vietnam? These communist counties are the only ones that have more liberal abortion rules than the United States.
This is what The Washington Post research showed about the seven countries (out of 198) that allow abortions after 20 weeks.
Note that even Canada has abortion laws that defer to its provinces rather than a national rule. In effect, it is very similar to how the U.S. might operate if Roe v. Wade is overturned.
Here’s a look at the seven countries. We sorted them from the most liberal on gestational limits to the least:
North Korea and Vietnam: No specified gestational limit, though regulatory mechanisms vary.
China: “Abortion is virtually freely available in China, and there are no defined time limits for access to the procedure,” according to Pew Research Center. China now has a “two-child” policy, and human-rights advocates have criticized China’s population and family planning laws.
United States: No federal ban on gestational limit, but 43 states have prohibitions on gestational limits, from 20 to 24 weeks, or the point of “viability,” according to the Guttmacher Institute, a reproductive rights research group. There are some exceptions made, usually for the life or health of the mother.
Canada: No federal gestational limit, but provinces and territories vary as to whether they will offer abortion services after a certain gestational age. Some offer abortion services up to 12 weeks, others up to 24 weeks. (This is similar to how states operate in the U.S.) Abortions after 20 weeks are not always readily available for Canadians, so women are often referred to a clinic in the United States, according to an abortion rights group in Canada. These procedures may be paid in full or in part by provincial governments.
Netherlands: Abortions are allowed up to 24 weeks. After that period, abortions are allowed only if the unborn fetus has an untreatable disease and would have little to no chance of survival after birth, or for the physical or mental health of the pregnant woman.
Singapore: Abortions are allowed up to 24 weeks. After that, abortions are only allowed to save the life of, or for the physical or mental health of, the pregnant woman.
You can see from polling over the years that the American people are clearly divided over the issue nationally. There is nothing close to a national consensus.
In fact, those who identify as pro-life have grown substantially over the last 25 years as the Gallup survey shows below. 33% identified as pro-life in 1995. It was 47% in 2021 when the most recent Gallup survey was done. The percentage who consider themselves pro-choice has declined from 56% to 49%.
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| Source: https://news.gallup.com/poll/1576/abortion.aspx |
It is also true that a substantial majority (67%) believe that abortion should be illegal (19%) or should only be allowed under certain circumstances (48%). Only 32% agree that it should be legal under any circumstances which has essentially become the national standard in the aftermath of Roe.
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| Source: https://news.gallup.com/poll/1576/abortion.aspx |
The fact is that some form of community consensus is much more likely on a state level.
However, a Marist poll of New York voters that I cited in BeeLine three years ago found that while 62% of voters in the state considered themselves pro-choice, 75% said they opposed abortion after 20 weeks.
This is consistent with surveys done by Gallup as far back as 1996 that have shown little support for abortions after the first three months of a pregnancy.
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| Source: https://news.gallup.com/poll/1576/abortion.aspx |
Why have more people become more pro-life as the years have gone by?
I think a big reason is that science has shown that what was called a "clump of cells" is something much more than that. That clump of cells also becomes a human being with a beating heart much earlier than anyone knew 50 years ago.
Advances in ultrasound technology and neonatal care has caused many to reassess their views.
The Pro-Life movement has also been very effective in making their case and has not been deterred in their efforts over the last 50 years. It has had an enormous on public opinion effect despite the narrative of the Left and opposition by most of the mainstream media.
In my opinion, the Pro-Choice movement has also hurt their cause by advocating for more and more extreme abortion measures such as partial birth abortions and even arguing that the right to choose continues beyond birth.
Science and changing popular opinion are working against those who advocate for abortions on demand with no restrictions.
This brings us back to the original question.
Where do we draw the line between a woman's right to choose and a baby's right to live?
There is no issue that is so emotionally charged. Who cannot feel empathy for a woman who has to deal with an unplanned and unwanted pregnancy? To say it is life altering is an understatement. However, there is also another human life involved. A life of unknown and unseen potential.Once abortion became the province of the courts, the issue could no longer be addressed through democratic negotiation. It became an all-or-nothing proposition in the courts. Positions on both sides hardened, particularly among the culture warriors and the PACs. You had to be for unlimited abortion-on-demand, or against any abortion, anytime. Even the slightest concession was viewed as the slippery slope, the dam bursting. Nuance and compromise became impossible. Many people became one issue voters.Now, we live in a highly polarized culture and Roe, more than almost anything, is a root cause. Abortion has been weaponized by both parties. We also have high stakes dramas around every new court pick. It was never like that before Roe.I believe most Americans have a view on abortion closer to the Swedes and the Mongolians. The problem is, the court took away their power to decide for themselves.Roe should be overturned not because abortion is evil. It should be overturned because it's bad law.
We may be close to that point.
I hope the Supreme Court acts quickly in finalizing the decision now that the leak has occurred.
There is no benefit in letting this drag out now. I am seriously concerned about the security of our Supreme Court justices and its institutional credibility if something would change from what we know now.
For example, consider this tweet that was posted by a blue-check account on Twitter. This tweet has since been deleted by Simon Gwynn but how irresponsible and insane can you get considering the world we live in today.
Will it be a little messy for awhile if Roe is overturned and the states have to decide where they draw the line?
I expect so but I also expect that most states will end up with something that matches the views of the majority of voters in their states. If not, their representatives will have short careers in politics. That is the way it is supposed to work.
I would also expect the U.S. policies would also be much more in conformance with how the rest of the civilized world looks at the issue.
Abortions will be allowed but it will be restricted in most states,
It will most commonly be limited to the first 13-20 weeks.
Some states might limit it as early as when a heartbeat is first detected (Six weeks) but this will be a minority.
States like California, New York and Colorado might have almost no restrictions up until birth.
Will this result in inconvenience for some women who might have to travel to another state to get an abortion? That is undoubtedly true but that also might result in a more informed decision about their choice. Any temporary inconvenience also pales in comparison to the lifetime responsibility of raising a child.
I have little doubt that the Democrats in Congress would like to usurp the power of the states and try to pass some type of federal law permitting abortion.
However, how does that work? Is it even constitutional if it comes on the heels of a Supreme Court decision that suggests this is a state issue?
Even if it does, will the Democrats in Congress be willing to accept anything other than a full, unrestricted right to abortion at any time?
At the same time, if the Democrats try to force a vote on party lines where are we if Republicans regain control of Congress next year (and the Presidency in 2024)? Overreach by one party is sure to lead to overreach by the other.
The Democrats are trying to produce a narrative that the Supreme Court is crossing the line if it overturns Roe v. Wade.
However, the reality is that line was crossed when the Roe decision was made 50 years.
We need to get on the other side of the line where the Constitution is respected and fundamental issues such as abortion are not decided by nine jurists.
The issue of abortion and where the line should be drawn between the woman's right to choose and the baby's right to live can and should only be decided by the will of the people in the 50 United States of America.
Justice Alito seemed to sum it up very well in the leaked opinion.
"Roe was egregiously wrong from the start,” Alito writes. “We hold that Roe and Casey must be overruled,” he writes in the document, labeled as the “Opinion of the Court.” “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
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