Tuesday, June 28, 2022

Why We Shouldn't Fear Democracy Deciding the Abortion Issue

On Friday, the United States Supreme Court overturned Roe v. Wade, the landmark 1973 decision which found in the Constitution a right to abortion through the first six months of a woman's pregnancy.   Pro-life groups celebrated, while those who favor abortion rights mourned the decision.  Both responses are premature. Imagine a baseball game that was halted in the second inning for nearly 50 years due to a rain delay.  Now the game is finally ready to begin again.

Among legal scholars, even the strongest supporters of abortion rights struggled to defend the legal reasoning of Roe v. Wade.  The decision is replete with factual support as to justify why the line should be drawn at viability, then near the end of the second trimester.  But the decision seemed based on what the majority deemed would be good policy, not the law.  

When people speak of Roe, they rarely defend the legal reasoning of the opinion. Rather they support Roe because they like the outcome, never mind how convoluted the path the Court traveled to arrive at that outcome.  When the possibility of reversal of Roe came about, liberals screamed about stare decisis, that legal principle that precedent, especially those long-standing, should be respected.  Yet, l don't recall liberals feeling constrained by precedent when it came to the Court carving out new legal terrain when it came to the issues they care about, issues like civil rights and same sex marriage.

On January 21, 1973, democratically-elected state legislatures were busy sorting through the complex and difficult issues regarding legalization of abortion.  Nearly half the country had already legalized abortion, and several more states were on the verge of doing so  The democratic process was working.  Then the next day, January 22, 1973, the United States Supreme Court took the issue away from the states, finding that somewhere buried in the Constitution was the constitutional mandate that states must allow abortion for the first six months of a woman's pregnancy.

As discussed above, Roe was a flawed legal opinion.  But it was also flawed politics. 

The primary question of the abortion debate is not when life begins, but when that pre-natal life should be protected by law.  The decision involves weighing the woman's interests in controlling her own body with the undeniable medical reality of fetal development.

Most democratic countries decided the issue, not by judicial fiat as did the United States, but by their legislatures.  Unlike the United States, most of those countries ban abortion earlier in the pregnancy than the Court did in Roe, drawing the line generally between 12 and 16 weeks.

And that's where public opinion in the United States has always been.  Although strong majorities say they support Roe, substantial majorities also say they don't support second trimester abortions which were constitutionally protected by Roe (Not sure why the media doesn't point out the obvious - that people don't know the holding of Roe).  People support abortion if the procedure happens early in the pregnancy.  90% of abortions happen in the first trimester (some studies say as high as 93%), 10% in the second and less than 1% in the third.  Almost all third trimester abortions are for health reasons. 

By taking the abortion issue out of the democratic process, the Supreme Court radicalized abortion politics.  Both sides, but especially those who say they are pro-life, were given permission to take the most extreme position possible, knowing that Roe prohibited them from putting their words into action. Republicans are now going so far as jettisoning the traditional pro-life exceptions to abortion bans, i.e. rape, incest, threat to life of the mother.

That's about to change. 

Some of my favorite writers are affiliated with The Bulwark, a principled conservative media conglomerate that rose up to counter Trumpism..  My issue with many of the Bulwark writers though is that while many are leading voices in the fight to protect our democracy from Trump-inspired autocrats, in the next breath they express fear in actually having decisions about contentious issues made by the people through their elected representatives. Instead they are fine with un-elected federal judges deciding these issues for the American people...as long it's the right policy, of course.  That's not democracy.  Why The Bulwark's writers don't seem to sense the contradiction in their positions is a mystery.

The Bulwark is correct that in the short term the crazies will rule the abortion debate.  Not only will many red states completely ban abortion, several blue states will move in the other direction, opting to allow abortion for all nine months of pregnancy, for any reason.  Six states already have that law in place, a fact rarely mentioned in news accounts.

But, with Roe gone, those legislators will eventually have to face the political consequences of their positions.  For Republicans, banning abortion will no longer be a theoretical question, but one which will directly impact the lives of their constituents.  Democrats who prefer the nine month approach, which goes even beyond Roe v. Wade, will find public opinion sharply against them.  

Candidates and elected officials will eventually have to moderate their position or lose at the polls.  An early example took place in Indiana's May primary of this year.  Reps. Curt Nisly and John Jacobs both took the most extreme position on abortion they could muster.  That didn't make Indiana GOP voters happy.  Nisly lost renomination by 46 points while Jacobs lost by 27.

Democracy is slow, it is ugly, it is confounding.  But it is also cathartic, a way we have of resolving divisive issues in this country.  Because the abortion fight never happened in the United States, and instead that decision was made for us by the Supreme Court, our body politic was left with a gaping wound that has never healed.

After a bloody battle, both sides in the abortion debate will be forced to talk to each other instead of at each other.  And they will have to compromise.  My guess is that compromise in most states is likely to look like Mississippi's 15 week ban, with the traditional exceptions for rape, incest, and life of the mother.  Again, that's where public opinion has always been.

I don't fear democracy deciding the abortion issue.  I welcome it.  

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