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America’s Abortion Debate Is Serious Not Literal

In Federalist 84 Publius objects to a national bill of rights. He observes that similar measures proclaiming all manner of liberties in state constitutions “would sound much better in a treatise of ethics than in a constitution of government.” One might make a similar comparison about the recent war of opinions and footnotes between Justices Thomas and Ginsburg on abortion. Their jurisprudential debate pertains to important questions, even ultimate ones. But it would sound much better in a legislative record than in a court of law. But Roe v. Wade has relieved legislators of the responsibility to grapple seriously with serious issues, while simultaneously empowering judges to pose as Platonic guardians on a question that requires political, not judicial, resolution..

When the Court denied certiorari this week in a challenge to an Indiana abortion ban, Thomas concurred on the Court’s per curiam opinion that upheld Indiana’s law on treating fetal remains after an abortion with respect instead of like “infectious waste.” However, he also wrote separately in this opinion disagreeing with the Court’s refusal to hear the 7th Circuit Court of Appeal’s opinion that struck down Indiana’s law that prohibits abortions motivated by race, sex, Down syndrome or disability. Thomas specified that states that prohibit abortions in this manner have a “compelling interest in preventing abortion from becoming a tool of modern-day eugenics.” His opinion said such bans apply to a “mother” who makes these choices, to which Justice Ginsburg objected, via footnote in a dissent, that “a woman who exercises her constitutionally protected right to terminate a pregnancy is not a ‘mother’….”

These questions are, again, vital and profound. But an equally important question is why they are being debated in footnotes and concurrences shuttled between Justices’ chambers rather than in the legislative forums where they could actually be politically resolved.

The reason, of course, is Roe. The battle of opinions between Thomas and Ginsburg, whatever its philosophical merits or faults, illustrates how constitutionalizing this issue has paralyzed the polity’s ability to resolve it. Because the Court will not permit legislative compromise, neither side seeks it. On the contrary, both gravitate to the extremes.

That point is illustrated by Alabama’s recent abortion ban, whose sponsor, state Rep. Terri Collins, rejected exceptions for rape despite having supported them in previous measures. Collins said the bill was not meant “to be our long-term bill but to get the courts to revisit this issue of, is the baby in the womb a person?”

In other words, the law’s sponsor never meant for it to be enforced. It was meant to be taken seriously but not literally. On abortion, legislators are able to do that—pass laws they would not support if they were actually going to be enforced—precisely because Roe is in place. The protection of Roe also, not incidentally, freed the Alabama law’s critics to denounce it literally in the confidence that, as an actual legislative measure, it was unserious.

Neither of these dynamics is politically healthy. The task of legislators is not to posture in order to provoke jurists who are actually in charge. Rather, legislators’ job is to legislate and, crucially, to be accountable for it. They are not accountable for that which no one actually believes will occur, especially when the reason is that judges will not permit it. Nor is it politically healthy for the Court to shelter one side’s absolute position while disenfranchising the other’s.

Roe has shoved the abortion debate to the poles of banning everything or permitting anything. It has distorted politics by causing disenfranchised citizens to vote on either side of a single issue because the Court discounts their voices.  But perhaps the most important result is how Roe has also let legislators off the hook for operating at extremes. The result is cost-free showboating and absolutism at both ends.

In the absence of Roe, legislators would be compelled to deal seriously with literal things, knowing the laws they pass will be enforced on their voting constituents. It is unlikely that legislators so situated would operate at extremes that are foreign to public opinion. They would instead be encouraged to confront moral complexities in a serious and moderate way—complexities that few serious people would resolve absolutely or at least without engaging the opposing argument.

One can certainly argue that, in its nature, the issue of abortion is not prone to moderation. Granted, the claims of both sides—bodily autonomy on one versus the preservation of life on the other—tend toward absolutes. But in the real political world, which is to say one in which the Court allows politics to operate, there are almost never total, unregulated rights to anything. Mary Ann Glendon, whose pro-life credentials are impeccable, has written that European countries that have struck compromise positions—more support for child-rearing, more restrictions on abortion as pregnancy advances—have been able to do so because they do not think about abortion in terms of absolute rights.

Roe, instead, has created a legislative fantasy-land free of meaningful politics or serious accountability. The odds that a legislature like Alabama’s would actually ban abortion without exceptions if it knew the law would be enforced are slim. (If pro-choice advocates are as confident as they claim in the popularity of their cause, they would do better to take down Roe’s defenses and allow the legislative process to work.) Similarly, legislators in pro-choice states can oppose any restriction on abortion at any time because they can hide behind judicial robes.

Yet polling consistently shows that Americans would resolve abortion to neither side’s absolute satisfaction. Self-descriptions of “pro-life” or “pro-choice” yield close and seemingly insurmountable divisions. But when pollsters ask more nuanced questions, which legislators would be compelled to do in the absence of Roe, they get more nuanced answers. The most common position by far is that abortion should be “legal only under certain circumstances.” This can be framed as one will: “Permit abortion but regulate it” or “ban it with exceptions.”

Either way, Americans do not support absolutes unless constraints imposed by the Court force them to pick a side. A genuine political debate with, crucially, actual consequences would produce varying degrees of restrictions by state—which is appropriate under a system of federalism—but also likely a degree of moderation in all of them that is absent in today’s conversation.

That is generally the case with rights claims. As Glendon notes, they tend toward the absolute, discourage moderation and banish politics. That is nowhere clearer than in the case of Roe. With considerable numbers of Americans identifying with parties on the basis of their views of abortion—which has become a synecdoche for a variety of other issues—overturning Roe might be the quickest route to a genuine political realignment that breaks today’s two-party stalemate.

Instead, we are now approaching the fifth decade of Platonic guardians’ abortion precedent on the Supreme Court providing cover to legislatures to act without consequence. In turn, these legislators are pushing the issue toward extremes they do not actually support in order to get the Justices’ permission to take the more moderate course real-world politics would dictate. This distortion of politics is Roe’s true legacy.

Reader Discussion

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on May 31, 2019 at 12:48:11 pm

. . . . Journalists prefer polarity and arguing to Platonic debate. ROE WILL NEVER BE OVERTURNED.
Most serious legal minds realize this certain future will require a new compromise to allow the U.S. to return to the honorable nation it was after Roe until science advanced and made the 'viable=ity' time limit dishonorable.
. . . . Abortions of tiny new humans with two-tone Fetal heartbeats and connected by an umbilical lifeline to another are wholly disrespecting of the beginning of Fetal human life. Arkansas Act 301 restricted abortions in the interests of medical regulations so audible Fetal heartbeats discovered after 12weeks gestation were legally recognized as another human. There were exceptions for preserving the physical health of the mother and the improper exception for rape and incest. This law is already supported by a super-majority of Arkansas' voters and by a majority of SCOTUS sitting today. Polls of acceptance of Act 301 are as irrelevant as polls about do you believe one plus one is two? It doesn't matter because Roe was based on privacy which ends when the public (or doctor) hears a heartbeat.
. . . . . I spoke to Honorable Antonin Scalia on February 26, 2015 and he advised me of how this debate would soon end. Honorable Antonin Scalia also apologized to me for his Citizens United mistake which upset the democratic idea of one person getting one vote. Honorable Antonin Scalia had faith SCOTUS would self-correct and overrule Citizens and Roe and its progeny would soon be UPDATED.

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Curtis
on May 31, 2019 at 16:49:08 pm

"the laws they pass will be enforced on their voting constituents"

Oh, were laws outlawing sodomy enforced? Or were 99.9% of people who engaged in it never even arrested, not to mention every brought to trial or thrown in jail? It seems that nearly all homosexual men engage in it, and nearly all homosexual men were never arrested for it when it was outlawed.

Do you really think most people who had abortions or most doctors who performed abortions used to be arrested and serve prison time?

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Lawrence of Texas
on May 31, 2019 at 17:02:36 pm

Let's assume that you have a right to defend oneself against extreme pain--like that experienced during childbirth. You have a right to terminate a pregnancy to avoid the [very likely] extreme pain of childbirth.

What would a reasonable constraint then be? What are reasonable constraints on self-defense?

-Surely you would be able to terminate the pregnancy whether or not you were raped, since either way it can end in the extreme pain of childbirth. (And do you want women filing a rape allegation just to get an abortion?)
-Surely you wouldn't have to go through a waiting period just like you don't if someone attacks you with a sword or tries to drive over you in a car. Self-defense is on-demand.
-Surely you would have to be able to terminate the pregnancy at any time (trimester), since it could always end up in the extreme pain of childbirth.
-Surely this would apply to people of all ages, since everyone can kill in self-defense to avoid extreme pain.
-Surely you don't have to notify or get permission from your parents or spouse before you act in self-defense.

So how is this right of self-defense to avoid the extreme pain of childbirth not an absolute right in that it applies at all times to all pregnant people, since all pregnant people will eventually have to go through the extreme pain of childbirth unless they have an abortion in self-defense to avoid that extreme pain?

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Kagan
on June 01, 2019 at 09:19:25 am

“the laws they pass will be enforced on their voting constituents”

Do you really think you and a congress-person (or a police office) are equally likely to be arrested for smoking marijuana, having gay sex, carrying a gun in public, or having an abortion? Or do you think these laws are never enforced against congress-people (and police officers) but are only enforced against you and me to keep us in check?

The whole point of legalizing these things is legalizing anything that congress-people (and police officers) are never arrested for--even though they are just as much a part of the voting constituency as you and me.

Laws should only be upheld as constitutional if they are actually equally enforced against all people regardless of sex, race, income, or whether or not they are currently employed by the state (as police officers, office-holders, etc.).

If police officers aren't arrested for it, it's unconstitutional. If the rich aren't arrested for it, it's unconstitutional. If women aren't arrested for it, it's unconstitutional.

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Everyman
on June 01, 2019 at 09:39:03 am

"knowing the laws they pass will be enforced on their voting constituents. It is unlikely that legislators so situated would operate at extremes"

On the contrary, where gun-control laws are most zealously enforced are the places that have the strictest gun-control--see L.A, Chicago, New York, and D.C.

The more police per capita, and the more arrests per capita, the stricter the laws are in that area and the lower the speed-limits in that area. It's when legislators know their laws will be enforced by the book that they pass the laws they really believe in--and lower the speed limits to bring in as much "revenue" as possible. If people know their political enemies--like gun-owners--will be arrested, they will give police as many excuses as possible to arrest them.

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Antiga
on June 01, 2019 at 09:54:13 am

When laws start being enforced is exactly when legislators go to extremes. It was when the 1968 gun control law started being enforced that they pressed for more---machine gun bans, assault weapons bans, background checks, waiting periods, gun-free school zones.

When legislators see progress--high arrest rates--that they pile on ever more laws. The more gun-owners are arrested, the more gun-control laws they pass--in hopes that ever more gun-owners are arrested, until all the gun-owners are in jail and they can outlaw all guns completely.

This is what happened with anti-war protestors during WWI and WWII. The more people who were arrested, the more vicious the anti-speech laws became until they were arresting anyone and everyone who protested the war, or the draft, or just the president.

The same will happen for abortion. If doctors start being arrested for performing abortions they will pass every law necessary until all abortion-doctors are in jail. Whatever excuse (law) is necessary to arrest the last remaining few abortion-doctors, will be passed as soon as possible.

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Concentration Summer Camp
on June 01, 2019 at 12:43:14 pm

"The odds that a legislature like Chicago’s would actually ban carrying handguns in public for self-defense without exceptions if it knew the law would be enforced are slim."

No, they're 100% and the supreme court didn't strike down the law in McDonald v. Chicago for over 30 years! They still haven't struck down background checks, waiting periods, excise taxes, semi-automatic bans and a whole host of other gun-control laws that have imprisoned far more people than all the people who've been jailed for having or performing an abortion before Roe.

Thousands more people served time in prison in Chicago for carrying guns than all the doctors and women were arrested for abortions in all fifty states for the 100 years that abortion was illegal preceding Roe v. Wade.

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NARAL
on June 01, 2019 at 15:06:20 pm

Bloody brilliant, Sherlock!

And after all, let us remember that all that is apparently going on in the womb is nothing but "embryonic pulsing" - er, that is according to the New York times:

https://www.breitbart.com/politics/2019/06/01/new-york-times-describes-fetal-heartbeat-embryonic-pulsing/

I mean what is a little pulsation anyway?

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gargamel rules smurfs
on June 02, 2019 at 19:03:36 pm

When the police started arresting teenagers for drinking alcohol in the 1910s, did we get sane commonsense alcohol-control laws? Or did the US pass a constitutional amendment banning everyone from drinking alcohol?

Legislators don't become more moderate when their laws are enforced, they became ever more extreme until they can finally get prohibition.

We need the judiciary upholding our rights precisely because legislators never stop at commonsense abortion laws or gun laws or speech laws. Once they get a few reasonable laws enforced and they see their enemies behind bars, they immediately move towards empowering the police to lock up everyone who disagrees with them or has a different morality than them.

How many people who run for office say, "I support gun-control and we have enough" or "I support limiting abortion, and we've limited it enough" or "I support speed limits and we've lowered them enough, get rid of speed traps"?

No, we only vote for people who support gun-prohibition, or abortion-prohibition, or silencing the masses.

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Carlos
on June 03, 2019 at 11:49:14 am

“ a woman who exercises her constitutionally protected right to terminate a pregnancy is not a ‘mother’….”

How can there be a “constitutionally protected right to terminate a pregnancy”, if there is not also a constitutional right for a mother to withhold adequate nutrition and shelter from there child? And if it were true that a woman who exercises her “constitutional protected right to terminate a pregnancy”, can be exonerated because she is not a mother, why wouldn’t a mother be allowed to terminate the life of her child at any point in that child’s life by simply declaring a “constitutional right” to withhold adequate nutrition and shelter from one or all her children, by declare I am not the “mother” of said child, so I am not culpable.

“Oh what a tangled web”, some are willing to weave to deny the humanity of the son or daughter residing in their mother’s womb.

Abortion, which is not of commerce, like slavery, or reordering man according to sexual desire/inclination/orientation, which objectify the human person, and deny the essence of being a beloved son or daughter, is not a State’s Right issue, it is a human rights issue.

“When God, Is denied, human dignity disappears.” - Pope Benedict XVI
To deny The Spirit Of The Law, is to necessarily deny the Spirit of our Constitution, and thus to deny God is a call for tyranny to prevail.

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Nancy D.
on August 27, 2019 at 06:01:06 am

[…] abortion debates, ably limned by my colleague elsewhere on this site, have reduced one side to euphemisms such as “embryonic pulsing” where presumably […]

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What Would Hobbes Do?

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.