by J. Peder Zane
The Supreme Court’s apparent decision to send the abortion issue back to the states may be a triumph for federalism and the concept of the separation of powers, but it is also a recipe for unyielding division. Abortion politics will become even more of a litmus test for tens of millions of pro-choice and pro-life voters at the local, state, and federal levels because their legislators will have far more power to shape policy. This, in turn, will further polarize our politics and empower the extremes because many voters will likely back candidates no matter their position on schools, crime, housing, jobs and debt, so long as they are the right kind of “pro.”
The abortion wars will continue because Justice Samuel Alito’s draft opinion essentially undoing Roe v. Wade settles nothing. Allowing the states to decide to regulate the medical procedure does not address the central issue: Is it permissible to intentionally take an innocent life? Although abortion rights activists are angry about the Court’s expected decision, it appears to give them a major victory by permitting the practice. It will do nothing to assuage those who oppose it.
Science and experience make clear that abortion is the taking of an innocent life. We don’t need biologists to tell us that life begins at conception – though almost all of them will. Those who deny this basic fact are engaged in magical thinking, pretending that fairy dust is sprinkled on the developing baby at some indeterminate point. When the sperm fertilizes the egg, a unique life is created. Little Johnny or Sue is beginning the journey that, hopefully, will lead to everchanging stages of childhood, puberty, adulthood, and old age. If they are aborted, their parents might have other children, but they will not look or act exactly like Johnny or Sue would have. This is why abortion is not just another medical procedure, but a wrenching decision.
This is also why the argument that abortion opponents want to impose their religious views on society is specious. The seventh commandment did not impose a new standard upon people; it articulated a bedrock principle of law and custom. Do any atheists oppose the injunction, “Thou shalt not murder”?
The abortion wars will continue because, as a wide range of legal scholars – including the late Supreme Court Justice Ruth Bader Ginsburg – have argued, the initial Roe decision was bad law. It invented a “right” that had never existed regarding a practice most states prohibited or severely restricted (in 1973, only five states allowed abortion upon request). To use the language of today’s abortion rights advocates, this meant that seven unelected men imposed their view on the entire country.
The standard they came up with, later refined by 1992’s Casey decision, hinged on the idea of fetal viability. This cast the developing child in its early stages as an invasive entity, akin to a cancerous tumor, that the mother has a right to remove until it is capable of surviving outside the womb.
Put another way, the court ruled that a man and woman who have engaged in an intimacy which can predictably lead to pregnancy, and who have almost certainly failed to avail themselves of cheap and widely available contraceptives, have the right to commit an act which in other instances would be considered a capital crime. The concept of viability seeks to create a false moral loophole. Pregnancy can be hard, but the real issue is not the mother’s concern about enduring those nine months; most likely her concerns center on the 18 years after that. This helps explain why poor, single women are much more likely to get abortions.
Despite all that, I support limited abortion rights – especially during the first trimester (13 weeks), when, the CDC reports, 93% of abortions take place. Why? It is important to recognize that women have terminated pregnancies since time immemorial. Although Justice Alito’s draft decision rightly argues that abortion is not part of the “history and tradition” of America’s laws, it is a constant of human behavior. In addition, nature aborts untold numbers of babies each year through miscarriages.
Sex can be impulsive and fleeting. Mistakes happen. And yet, having children is an incalculably momentous experience; it is the most profound commitment we can make during our one shot at life. There is no greater mismatch between a common act and its consequences. Forcing a woman to take on that life-altering obligation feels, and I can’t find a better way to express it, wrong. Yes, men and women should be more careful, and use contraceptives. Yes, they can put the child up for adoption. But requiring a woman to carry an unwanted baby is a very heavy demand by the state. Although many women who considered abortion say they are happy they did not go through with it, other evidence suggests that bearing unwanted children can have long-term negative effects. The 2020 scholarly book “The Turnaway Study: Ten Years, a Thousand Women, and the Consequences of Having—or Being Denied—an Abortion,” reported that “women who received an abortion were better off by almost every measure [economic, health, family outcomes] than women who did not, and five years after they receive an abortion, 99 percent of women do not regret it.”
So why not allow abortions through the ninth month? A few weeks after conception, little Johnny and Sue are human beings – but they are so small, unformed, and indeed, unrecognizable, that their humanity seems like an abstraction. I know that biologically and morally this is incorrect, but addressing the unwanted result of sex by terminating their lives feels different than aborting a 26-week-old baby that can live outside the womb. To those who say this view is guided more by desire and emotion than logic, I agree they have a point. On another level I do not believe this judgment is selfish emotion. It strikes me as a conclusion drawn from life experience.
I do not expect my view to persuade abortion opponents. Honestly, while I find their position more intellectually persuasive, I also know that if one of my family members had an unwanted pregnancy, or a severely handicapped fetus, I would want them to be able to terminate their pregnancy.
The abortions wars will continue because both sides are right.
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J. Peder Zane is an editor for RealClearInvestigations and a columnist for RealClearPolitics.