Law & the Courts

The 50-Way Abortion Fight

Signs at the March for Life rally in Washington, D.C., in 2017. (Aaron P. Bernstein/Reuters)
If Roe v. Wade is reversed, it will be only the beginning.

The state legislatures are full of activity related to abortion. This is as it should be.

New York passed a law making it easier to perform grisly late-term abortions and then celebrated by lighting up the Empire State Building in pink, as though a baby girl had been born rather than sentenced to death by surgical dismemberment. Other states are considering similar laws, while in Georgia abortion has been prohibited once a heartbeat is detectable, and in Alabama the procedure has been almost categorically outlawed.

This is what the post-Roe world is going to look like: divisive, ugly, and possibly irreconcilable — democratic, in a word.

This raises two conjoined but discrete issues.

The first is the question of Roe v. Wade itself as law.

Roe is the great textbook case of judicial activism, an absurd and legally indefensible substitution of the political preferences of seven justices of the Supreme Court for the actual text of the Constitution, which was quite silent on the question of abortion for nearly two centuries before Justice Harry Blackmun et al. discovered an ancient constitutional right to abortion lurking in the penumbras of the law. Unless you are committed in principle to the proposition that it is the role of the Supreme Court to act as a national moral superlegislature — the American answer to Iran’s Guardian Council: black robes, scholarly pretensions, and all — then Roe is obviously indefensible as a constitutional question.

If you doubt that, try this: Rather than starting with the conclusion that the right to abortion must be protected and then searching the Constitution for support, try doing the opposite: Read the document itself with a little bit of intellectual honesty and see whether the right to abortion is sitting there so plainly that the laws made by the nation’s lawmakers on behalf of the people who elected them should be nullified. There are many abortion-rights supporters who have concluded that as a strictly legal matter, Roe is somewhere between mistaken and preposterous. Almost no one honestly believes that the case was decided on the constitutional merits— and very few abortion-rights advocates honestly expect it to be endlessly affirmed on its constitutional merits, either. This fact is often implicit in their writing, and in their sputtering vitriol.

But the question of what is legal is separate from the question of what should be legal. It is very strange (if you are unused to enduring such great concentrations of stupidity) when a figure such as Representative Brian Sims angrily defends abortion on the grounds that it is legal. Of course abortion is legal. Abortion opponents intend to change the law. It was legal in the United States to own slaves, once. It was legal in Germany to work toward the complete extermination of Jews as a people. The abortions that are performed in the United States are, mostly, legal abortions. That is what abortion opponents propose to put an end to.

What will that mean?

Wired’s Virginia Heffernan offers a hysterical account of that question, placing abortion restrictions in the company of such phenomena as “honor killings and clitorodectomies.” American progressives, being parochial, often invoke the condition of woman in backwards Islamic societies in such debates, apparently unaware of the fact that Islamic law takes a relatively liberal view of abortion. Pakistan, for example, has relatively loose abortion rules and one of the world’s highest abortion rates. There are many countries that have stricter regulation of abortion than does the United States, and the prominent ones among them are not Iran and Afghanistan but . . . France, where abortion-on-demand is permitted only through the twelfth week of pregnancy and very tightly restricted thereafter. Most European countries have stricter abortion laws than does the United States in terms of restricting terminations after the first trimester, though as a practical matter first-trimester abortions (the great majority of abortions) may be easier to procure in many European health-care systems. France, Germany, and Switzerland are not very much like Yemen. (An exception to the common European practice is the situation in the continent’s formerly Communist countries, where abortion has approximately the legal status of a minor dental procedure.)

Abortion opponents have so long been focused on Roe that some of us have lost sight of the fact that its being overturned — which seems to me very likely — is not the end of a long fight but the beginning of one. The post-Roe world will not be one of uniform prohibition of abortion. It will begin with 50 long fights in 50 state legislatures and will likely founder for some time in a series of compromises and stalemates that leave neither side satisfied. That, too, is the usual democratic state of affairs.

Outlawing abortion will say something about us as a society. The fact that such a thing had to be outlawed in the first place, being contemplatable at all, says quite a bit more about us as a society, and as a species.

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