Having gotten involved in politics, the dirty little secret, I think, is this: Politicians on neither side want this issue resolved. It is a great issue to bring voters out, to get people outraged, to raise money. They don’t want it resolved.
--Carly Fiorina on The View, 9/21/2021
Carly Fiorina is correct; since 1976, her party has used abortion as an effective wedge issue -- despite the fact that prior to 1976 most Republican voters approved of Roe v. Wade. Abortion was legalized in New York in 1970 (three years before Roe v. Wade) with the support of a Republican governor [1]. Feminists have demanded that the Democratic Party incorporate pro-choice language into its platform -- despite the fact that the percentage of women who describe themselves as pro-life has never dropped below 41%, according to Gallup [2]. Over the years, Democrats have repeatedly used the abortion issue to fire up the base whenever the prospect of another GOP Supreme Court pick loomed, but it is unclear whether this appeal turns out more voters than it turns off. Judging by the 2000 presidential election results, this is a losing tactic. In its early days, the pro-life movement had more support among far-left pacifists than it had among establishment conservatives [3].
Fiorina cites a poll saying that most Americans think abortion should be legal in the first trimester, but most think it should be illegal after that. Polls have consistently shown that most Americans do not want a complete ban on abortion, but neither do they want it completely unrestricted [4].
Today, SCOTUS takes up Dobbs v. Jackson, concerning the constitutionality of Mississippi’s Gestational Age Act, which bans on abortion after the 15th week of pregnancy, with exceptions for severe fetal abnormality or medical emergency. What if Congress were to beat SCOTUS to the punch? After the passage of the Texas antiabortion law, Democrats in the House passed a bill codifying Roe v. Wade (the Women's Health Protection Act), which has no chance of being passed in the Senate in its current form. But what if the bill were modified to reduce the 24-week limit on abortions to 15 weeks? What if elected officials could get past the use of abortion as a tool to manipulate various constituencies and actually tried to resolve the issue in a way that most Americans could accept? Passage of such a law would still go against Roe v. Wade and would therefore require judicial review, but there is reason to believe that the current SCOTUS might go along with more limits on abortion. We shall soon see.
Many European countries limit abortion on demand to 12 weeks; after that, there are restrictions. If those on the pro-life side can live with a 15-week limit on unrestricted abortions, those on the pro-choice side should accept it. Of course, it’s not that simple; many activists on the pro-life side would not, in fact, be content with a 15-week ban. Still, a 15-week ban could be a step toward a commonsense consensus.
The country desperately needs such a consensus. In the face of the pandemic, climate change, and many other domestic and international threats to our institutions and security, we need something like a unity government. The country needs to come together around the problems that we all recognize and compromise on issues that divide us.
Activists on both sides will say that there can be no compromise on rights. In the context of this debate, this kind of table-thumping gets us nowhere.
Feminists claim that this is about patriarchal control of women's bodies. But there are more women than men in the US, and more women vote, and it has been that way for a long time. Most women do not favor the extreme position on abortion that certain feminists advocate in their name; if they did, the matter would have been settled long ago.
Pro-lifers should note that the abortion rate is lower in much of Western Europe, even in countries where abortions are paid for at public expense, and higher in other places in which abortion is illegal [5]. They should look at the results of Prohibition in the US. Outlawing alcohol through political maneuvers that failed to achieve consensus on the moral issue did not end alcohol consumption. It did generate an enormous black market to cater to the demand, which in turn led to the rapid growth of murderous criminal organizations. They should look at Ireland, where abortion was illegal for decades, but rather than ending abortion, thousands of Irish women simply went to the UK or other places for abortions every year, and the moral consensus that had initially supported the ban on abortion rotted away. The ban was overturned in 2018. Something similar is happening in Texas. In response to the new restrictions, many women are going to other states for abortions or using abortifacients.
The US abortion rate is 13 per 1000 women. If the goal is to save unborn lives, which state of affairs is preferable -- that of Switzerland (where abortion is legal and paid for by the government, and the abortion rate is 5 per 1000), or Colombia (where abortion is generally illegal, and the abortion rate is 34 per 1000)? [Ibid.]
If SCOTUS upholds Mississippi's ban on abortions after 15 weeks, but does not strike down Roe v. Wade, those on the pro-life side will still be free to picket abortion clinics, support women facing crisis pregnancies, and work to change hearts and minds, which in the end is the only effective way to prevent abortions.
If SCOTUS overturns Roe v. Wade completely, then will abortion just become an issue at the state level? And then will many states follow the path that Ireland trod, with abortion illegal, women getting abortions anyway, and eventually legalizing it? Maybe, but I doubt that it will go away as a national issue. I fear that, as Fiorina says, it is too useful as a political tool. It will become a legislative football, with both sides trying to enact legislation at the national level, and if such legislation ever passes, then the focus will be on overturning it.
This should worry progressives because it becomes an obstacle to necessary reforms in other areas. The filibuster has been a tool of reactionary politics for generations, but pro-choice organizations have opposed getting rid of it, because if SCOTUS overturns Roe v. Wade and the GOP regains control of Congress and the presidency, the filibuster will be the only way to prevent a national ban on abortions. Pro-choice activists have shown themselves willing to subordinate the entire progressive agenda to their issue.
Meanwhile, the Trumpist/fascist wing of the GOP has shown that it is willing to subvert majority rule and rule of law in order to get and retain power. If they can get just enough support to get their minions into key positions just long enough, then they will effectively be able to enact one-party minority rule. Wedge issues like abortion are key to their strategy, along with voter suppression and gerrymandering.
A SCOTUS ruling that allows states to ban abortion after 15 weeks but does not strike down Roe v. Wade may be the best outcome at this time. Such an outcome would disappoint or dismay single-issue voters on both sides, but it would reflect the longstanding position of the majority of the American people.
Image credit: Jarek Tuszińsky via Wikimedia
Notes:
See also How Republicans Became Anti-Choice | by Sue Halpern
[2] Abortion Trends by Gender (Gallup)
[3] The Vestiges of the Pro-Life Movement's Liberal Origins (University of Notre Dame, Church Life Journal)
[4] Trimesters Still Key to US Abortion Views (Gallup)
See also Polls: Most Americans support the right to abortion, but many are also OK with 15-week limit (Yahoo News)
[5] Abortion Worldwide 2017 (Guttmacher Institute)
See also https://www.nationmaster.com/country-info/stats/People/Abortion/Abortion-rate
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