NRPLUS MEMBER ARTICLE I s there an unimpeachable right to abortion somewhere in the Constitution? Should abortion policy be left up to each state’s discretion? Does the 14th Amendment give government the power to ban abortion? Is legal abortion incompatible with the principles of the Declaration of Independence?
These arguments are endlessly complex and highly contentious. But if you spend any time observing our public debates over abortion, you’ll notice that these topics are rarely addressed.
Instead, political fights over abortion policy feature two arguments that seem not to respond to one another. There are those who recognize the humanity of the unborn child and argue that our political system should protect his right to life just as it does yours or mine. And there are those who rest their case for a right to abortion at the feet of Supreme Court precedent, implicitly arguing that Roe v. Wade has removed the need for them to justify abortion itself.
To be sure, many thinkers indulge in philosophical discussions about the ethical questions at stake in abortion. But in policy fights, legal-abortion supporters almost never defend abortion qua abortion. They don’t admit that abortion is killing and justify its legality anyway; they don’t explain why we should privilege one person’s bodily autonomy over another’s autonomy and right to life.
Instead, they cloak their views with euphemisms such as “women’s rights” and “reproductive freedom” and, when challenged, retreat to the comfortable ground of proclaiming Roe “the law of the land.” The legal battles over abortion during the COVID-19 outbreak illustrate the fundamental problem with this status quo, which ensures that the acrimonious debate will stretch on interminably absent major changes.
Since March, several states have included surgical abortion among the many elective procedures halted during the pandemic, aiming to limit the spread of disease and conserve medical resources. Abortion-advocacy groups have hauled these states to court, insisting that a health-care crisis is not sufficient reason to abridge a so-called constitutional right. In one of the most egregious examples, the American Civil Liberties Union sued Arkansas for requiring women to test negative for COVID-19 prior to having an abortion.
In short, abortion advocates and their allies argue, Roe and subsequent jurisprudence mean that states may not, for any reason, restrict a woman’s ability to obtain an elective abortion at any stage of pregnancy. By and large, federal judges have agreed with them, prohibiting states from limiting abortion as one of many nonessential procedures.
This pandemic has underscored a problem that already existed, exposing not only the insatiable greed of the abortion lobby but also the way in which U.S. abortion jurisprudence has established an unworkable system for adjudicating these disputes. When the Supreme Court in Roe manufactured a right to abortion, it gave judges the power to impose a nakedly political decision on the entire nation, including states that correctly view the ruling as a hijacking of the Constitution. As a result, supporters of abortion can avoid defending their views before the public and instead demand that judges handicap their opponents.
The anti-constitutional decision in Roe, bolstered by subsequent rulings, has allowed proponents of unlimited abortion to hang their hat on precedent — or “super-precedent,” as they would have it — rather than on their preferred policy. But those who cry precedent on Roe are the same voices lobbying the Court to overturn less favorable rulings, such as Heller or Citizens United. It is not precedent they defend but the status quo that one particular precedent created.
Meanwhile, the American people are content to believe that Roe legalized abortion only in the first three months of pregnancy and that states may regulate the procedure thereafter. Such a status quo would comport with what a majority of Americans want, but it is not the landscape that Roe created. If it were, states would not be losing the battle to limit elective abortion during a global pandemic.
Relatively few know that Roe’s misinterpretation of the Constitution — combined with Doe v. Bolton’s loophole for maternal health — permits abortion on demand through all nine months of pregnancy. Even fewer realize that these flawed decisions enable judges to block pro-life policies that most Americans support.
The moral and political question of abortion has starkly divided us for more than half a century, and it cries out for a just solution. To the extent that we have not achieved one, it is because flawed jurisprudence enables abortion advocates to dodge the debate while preventing abortion opponents from doing anything to alter the status quo.