Post Roe Politics

The passage of the constitutional amendment on abortion in my home state of Ohio on Tuesday has many pundits weighing in on its meaning and impacts on politics going forward.

Some on the right have even suggested that they wished that the Supreme Court would have never overturned Roe v.Wade turning the abortion issue back to the states.

I am not of that opinion.

Roe v. Wade was bad law and it should have never been decided by the Supreme Court.  

Much of the emotion around abortion was avoidable. Abortion became the contentious issue it became 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.

When abortion was made "legal" nationally only four states allowed it. After Roe v.Wade was decided 46 states had to immediately amend their laws to conform with the decision. There was nothing close to a national consensus. It immediately became a divisive and contentious issue.

The key issue with abortion is the core question of balancing rights.

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 that was conceived in her body? 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 (a limit of abortion within the first 20 weeks) 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 were left with a divisive and contentious issue that 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  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.

People tend to believe that Europe is far more liberal than the United States but that does not extend to the issue of abortion. Denmark restricts abortions to the first 12 weeks. Russia 12 weeks. France 14 weeks. Sweden 18 weeks.I have written before on some of the facts about abortion that are seldom publicized.

The data in the U.S. indicates that less than half of one percent of abortions are performed due to rape, incest or where the life of the mother is at risk. How does it make any sense for Republicans to reject these as reasons for an abortion since they are so rare to begin with?

The data also indicates that 92% of all abortion are performed by the end of the first trimester (13 weeks).Why are Democrats so determined to argue that abortions must be available to women throughout the entire pregnancy to the detriment of the unborn child when it so rare anyway?

These are both extreme positions in looking at the data and facts.

I understand the argument of people sticking to their individual principles and values.

However, politics and the laws that govern us are derived from a collective consensus and compromise taking account of diverse opinions and views of what is right and wrong. Problems are not solved unless there is a willingness to compromise to reach consensus.

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%.

Source: https://news.gallup.com/poll/1576/abortion.aspx

It is also true that a substantial majority believe that abortion should be totally illegal (19%) or should only be allowed under certain circumstances (48%)--67% total. Only 32% agree that it should be legal under any circumstances which essentially became the national standard in the aftermath of Roe.

Source: https://news.gallup.com/poll/1576/abortion.aspx

In my opinion the Ohio vote was a reaction to what a majority of voters considered an overly restrictive law that passed through the Republican legislature and was signed by Governor Mike Dewine (R-OH) that would have banned any abortions after six weeks with no exceptions for rape or incest.

It is another example that proves that politicians who attempt to legislate to the extremes of any issue are not likely to prevail with the public for long.

I would have expected a similar reaction from voters if Democrats had been in control and passed a law legalizing abortion up through nine months. In that case, I am very confident that Republicans could have gotten abortion rights curtailed though a similar ballot issue favoring the rights of the unborn child.

My personal view is one of giving the full measure of respect for the life of an unborn child.

However, I also understand that it is next to impossible to roll back what some believe to be their "choice" after it has been the "law of the land" for 50 years.

I also understand that to settle an issue requires compromise with those that may not share the same views and values that I have.

If I was a Republican legislator my first goal would be to see to it that partial birth and late-term abortions were clearly and unequivocally made illegal.

I would work to limit abortions to no further than the first trimester which is where Roe v. Wade had initially ruled that there was no state regulatory interest. Thereafter, the Roe decision ruled that the state could reasonably regulate abortions. In addition, if 92% of current abortion are in this period the argument that this limit is a major intrusion of the rights of a women compared to the unborn child is very weak. 

Where an abortion was being considered I would make it a requirement that the mother would have to view an ultrasound of the unborn child (paid for by the state) prior to the procedure so as to be fully informed on what she was doing.

I would also require that every woman seeking an abortion be required to be given information and alternatives regarding adoption for her child.

In my view, this is the position Republicans should be taking going forward.

Propose legislation within these parameters and dare Democrats to vote against it.

Call their bluff.

Are they really willing to declare they will not vote for an abortion law that has reasonable restrictions?

Is their position they have to have unlimited abortion rights or nothing?

If so, it becomes clear they are not really concerned about protecting a woman's right to choose.

The vast majority of the views of American voters are within the parameters I outlined above.

Most do not want abortion to be free of restrictions.

Clearly most also do not want abortion to effectively be outlawed.

I don't see the post-Roe v. Wade reaction by voters to be the big negative to Republicans that many see over the long run.

What we are seeing is the natural order of the issue developing and the formation of public consensus on where the proper balance is between the rights of an unborn child and a woman's choice.

Yes, it is messy right now. I predicted this would be result last year when it leaked that Roe v. Wade was going to be reversed and the abortion issue would be decided state by state.

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.

The benefit in the end is that the abortion issue will ultimately be decided by public opinion rather than nine justices.

This is how it is supposed to work.

When this plays out fully we will reach a point where abortion will no longer be the contentious and divisive political issue it has been.

This is a point we would have undoubtedly reached decades ago if the Supreme Court had not interceded in an issue that it had no business being involved with.

The issue will fade into the background just as it is in Europe and the rest of the world.

This will largely benefit Republicans in the long term as Democrats will no longer to be able to fundraise and use as a wedge issue with women voters.

The best way to get there is for Republicans to recognize the reality of where we are today and calibrate as required.

As I stated in my blog post before Roe was reversed, politicians who pass laws that don't have broad support of the voters, have short careers in politics.

One only has to look at the history of Prohibition in the United States to understand the truth of that statement.

I wrote about that subject in these pages back in 2015.

In 1920 the 18th amendment of the U.S. Constitution took effect banning the manufacture, sale, transportation or importation of intoxicating liquors in the United States.

It took 2/3 of each House of Congress and 3/4 of all state legislatures to pass that amendment.

That level of consensus by politicians on any issue today is impossible to fathom.

However, only 13 years later the 18th Amendment was repealed (the 21st Amendment) with a like number of politicians taking the exact opposite position on intoxicating liquors.

Such is the power of the people.

If you are a politician, ignore it at your own peril.