Since abortion is a matter of life and death, politics ought to be secondary when we reflect on the issue. But political considerations aren’t trivial. Over the last 20 years, Democrats have captured the middle ground on abortion. Bill Clinton approximated the public mood by declaring that abortion should be “safe, legal, and rare.” Republicans, on the other hand, have found themselves embroiled in an awkward debate about whether rape victims should be required to carry their pregnancies to term. This asymmetry has been around as long as Roe v. Wade. But why should conservatives let Roe define them?
Robert Bork, who died in December, was among the most prominent critics of the infamous abortion ruling that the Supreme Court handed down 40 years ago this month. Ted Kennedy, opposing Bork’s nomination to serve on that court, fatuously declared that “Robert Bork’s America” — an America without Roe — “is a land in which women would be forced into back-alley abortions,” among other things. Kennedy’s claim, repeated nonstop by Democrats, has led to wide public misunderstanding about Roe v. Wade: specifically that, without it, abortion would be illegal everywhere in America.
That misunderstanding has been useful to the pro-choice side. For pro-choice activists and their allies, allegiance to Roe v. Wade has become a litmus test, even though one can, in theory, be pro-choice and anti-Roe. After all, without Roe, voters would still be free to legalize abortion on their own. (This was, indeed, the editorial position of The New Republic for many years.)
Pro-life activists, on the other hand, have every reason to oppose Roe as an egregious example of judicial usurpation. But because they are forced to direct so much of their energy against Roe, they, too, can leave the public with the impression that an America without Roe would be abortion-free.
It wouldn’t be. A recent NBC/Wall Street Journal poll finds that only 9 percent of Americans believe that abortion should be illegal in all circumstances, with another 35 percent believing it should be illegal except in cases of rape or incest, or to save the mother’s life. Another 31 percent believe that abortion should be legal always, with 23 percent believing that it should be legal “most of the time.” In the NBC poll, the percentage of Americans believing that abortion should be mostly legal has increased over time, whereas the percentage believing that abortion should be mostly illegal has decreased.
One of the many injuries that Roe has imposed upon the country is that it has made it hard for this middle 58 percent of voters, who think abortion should be legal in some cases but not all, to find a home. Most Americans reject the radical feminist argument that abortion is the ethical equivalent of clipping one’s fingernails. But they’re also uncomfortable with the notion that every blastocyst is sacred. Just ask Richard Mourdock, the Republican candidate for Senate from Indiana last year, whose opinion that “even when life begins in that horrible situation of rape, that it is something that God intended to happen” caused him no shortage of problems.
Most conservatives have dismissed the Mourdock case as a clumsy flub, one that a more skilled candidate would have avoided. But Mourdock was accurately representing the principled pro-life position: that life begins at conception, and that it is morally inconsistent to discriminate against life conceived by rape or incest. And voters recoiled at the consequence of that principle.
It’s likely that, in a Roe-less world, few states would formally endorse the idea that life begins at conception; indeed, the question of when life begins would take center stage in legislative debates. President Obama famously averred that answering this question was “above my pay grade.” But most Americans believe that life begins at some point well before childbirth. If our abortion laws were determined by voters, instead of judges, they would almost certainly reflect that fact.
In that Roe-less world, in the bluest states, perhaps, abortion would have been legalized in most or all circumstances. In the reddest, it would have been limited to the standard exceptions. But many states would likely have decided to limit abortions to the first trimester at most, and possibly to gestational ages of eight weeks or lower.
These distinctions are not insignificant: According to the Centers for Disease Control, in round numbers, about 65 percent of abortions occur within the first eight weeks. Another 25 percent occur in weeks 9 through 13, with the remaining 10 percent after 13 weeks (the first trimester). Measures to limit abortion by gestational age would, indeed, make abortion safe, legal, and rarer.
By the seventh week of pregnancy, the fetal heart has started to beat. What should we call a politician who opposes abortion after the seventh week? Is he pro-choice, because he believes that many abortions should be legal? Or is he pro-life, because he opposes half of all abortions performed in the U.S.? It’s a question that Roe v. Wade has preempted us from asking, and from answering.
Chris Christie captured this in-between viewpoint in an interview with CNN’s Piers Morgan. Describing his views in 1995, he said, “I would call myself . . . a kind of a non-thinking pro-choice person, kind of the default position.” But “when my wife was pregnant with our daughter Sarah, who is now 15, we happened to go to one of the prenatal visits at 13 weeks. My wife didn’t look at all pregnant at that point, visibly, and we heard this incredibly strong heartbeat. As I was driving back to work I said to myself, you know, under my position on abortion I would say that a week ago that wasn’t a life. I heard that heartbeat, that’s a life . . . I’ve been pro-life ever since.”
Today Christie holds a standard position on abortion: that it should be illegal in all circumstances except for rape, incest, and a threat to the life of the mother. His story illustrates the power of emphasizing the lives of unborn children as they grow and develop. It appeals to those who want abortion to be rarer, but not entirely illegal. It offers blue-state Republicans a way to talk about the issue that falls within the mainstream of public opinion in their states. It’s a way to improve and expand the degree to which fetal life is valued. Ultimately, it requires us to recognize that many people whom we consider to be pro-choice are equally pro-life.
— Avik Roy is a columnist for NRO.