Asperities

Abortion Politics at a Late Stage

Now that the US Supreme Court has adopted Justice Alito’s leaked draft judgment and overturned the 1973 Roe v Wade precedent that found a constitutional right to abortion in the ‘penumbras’ of the US Constitution, it will be a revolution in American life. It will be a democratic revolution too, because it won’t outlaw abortion—as pro-choice protesters angrily claim—but instead transfer decisions on it from the US federal judiciary to the voters and legislators of the fifty states.

John O’Sullivan appears in every Quadrant.
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Doubtless that will bring us many, various and unpredictable legal surprises. For, though you would never guess it from the media, neither most Americans nor other Westerners think or know a great deal about abortion law. Sixteen years ago, I described my experiences when the topic was raised over dinner tables in Washington and Paris:

Washington liberal: “Mr O’Sullivan, our American obsession with abortion is so embarrassing. Why can’t we be like Europe? They’re much more sophisticated. It’s not even a political issue there. Please pass the blue sweetener.”

Myself: “Well, that may be because the laws in most European countries are much stricter than those in the US. Women have no constitutional right to an abortion. In Britain, for instance, except in cases of severe handicap, abortions are not permitted after the twenty-fourth week of pregnancy.”

Washington liberal: “What! That’s barbaric.”

Paris sophisticate: “My dear John, you Americans are too absurd. This sexual abstinence, your fundamentalist Christians, all this political fuss about abortion. How do you explain such an obsession? This Armagnac is delicious, no?”

Myself: “Yes. Well, that may be because the courts have ruled that there can be no restrictions on a woman’s right to an abortion. An abortion can be performed on a fully viable fetus—even, in the case of partial-birth abortion, as the baby is leaving the womb.”

Paris sophisticate: “What! That’s barbaric.”

Neither side even knows much about its own abortion laws. Most Americans do not know that Roe v Wade—taken together with a second Supreme Court judgment, Doe v Bolton, delivered on the same day, that effectively removed some of the protections in Roe—allows a woman and her doctor a legal abortion for any reason at any time before birth and arguably even during birth. The courts have confirmed this in countless cases but especially in those striking down state and federal laws to prohibit or regulate “partial-birth abortion”—the procedure in which a baby is partly delivered and, while in the birth canal, has his or her skull crushed and his or her brains sucked out.

This is an unfettered right to abortion posing as a clinical decision. 

Before any non-Americans sense feelings of moral superiority stirring in their breasts, however, they should check on their own countries. With rare exceptions such as Poland, the rules are usually interpreted to allow any abortion that a woman and her doctor can agree about. In Britain that’s mutated into a sexual and medical culture in which abortion is seen as the contraception of last resort.   

Until recently, moreover, America’s media and main cultural institutions have been keen to protect that ignorance. Pro-life organisations face censorship of their films, restrictions on their protests, and marginalisation in political debate. Even so, repeated polling over the years—with an exception discussed below—suggests that Americans would oppose late-term abortions if they knew about them. One consistent finding, for instance, is that abortions should be “generally illegal” in the second trimester, let alone the third. Or as the American Enterprise Institute’s public opinion expert Karlyn Bowman has put it: “Most Americans oppose most abortions.”

In its own terms, the US debate balances opposite opinions. On the one hand Americans favour such regulations as parental notification laws and information about alternatives; on the other hand they insist a woman should have a right to an abortion in cases of incest, rape or genuine health threat. And such outcomes would be better than the legal status quo threatened by Alito’s draft opinion.

But this apparent balance conceals doubt, ambiguity, a disposition not to learn too much about abortion law and practice, and a nervousness about its central moral problem.

If the entity in the womb is indeed a baby, as Ramesh Ponnuru argued in his still very relevant 2006 book The Party of Death, then the debates over restrictions and exceptions can only be secondary: “the fundamental question in dispute [becomes] whether all human beings have a right not to be killed [or] whether we accept the existence of a category of human non-persons”.

When technologies enable parents to see their baby in the womb at ever-earlier stages and thus to recognise it as a baby and not as “a clump of cells”, they are faced with a choice on which the usual regulations offer no guidance. They must choose either to kill or to let live. And about that choice there were deep disagreements.

Strong pro-choicers, especially pro-choice feminists, denied the problem, treating the entity in the womb not as any kind of person but as merely a part of the female body and seeing the unwanted pregnancy as an illness. Governments feared that if whatever is in the womb had rights, they would be called upon to spend money on it—often a covert establishment motive in this debate. And friendly but critical reviewers of Ponnuru’s book like Peter Berkowitz in the Wall Street Journal presented a view that sought to ground the great muddled middle of US opinion in something more substantially principled. He thought Ponnuru’s argument ran up against a big obstacle, namely, a

complex intuition that seems to underlie the American ambivalence: Invisible to the naked eye, lacking body or brain, feeling neither pleasure nor pain, radically dependent for life support, the early embryo, though surely part of the human family, is distant and different enough from a flesh-and-blood newborn that when the early embryo’s life comes into conflict with other precious human goods or claims, the embryo’s life may need to give way.

The first thing to be said about Berkowitz’s reasoning is that it was a serious attempt to come to grips with the idea that the embryo is a person or will certainly become a person and thus has some of the rights of a person outside the womb. That was an improvement upon the majority’s nervous aversion to thinking about the embryo at all.

The second thing to be said—since Berkowitz rested his argument upon a moral intuition—is that the moral intuition of a large number of pro-life Americans has always cut through corrupt motives such as racism, resource management, or the temptation simply to wish away the embryo’s personhood, and directed the conscience of the majority to scientific evidence that the embryo is a human person with rights deserving of our respect.

In 2006 therefore it seemed likely that more and more ordinary Americans, following an intuition increasingly reinforced by technology, would choose to protect life in the womb. According to the Centers for Disease Control and Prevention, moreover, something like that happened. Abortions in the US peaked in 1981, at a rate of 29.3 per 1000 women between the ages of fifteen and forty-four. Since then the number has fallen by three-fifths; in 2019 the rate was 11.4.

 

WHATEVER the reason, the political debate did not follow these personal decisions. If anything, it went in the other direction. To be sure, the pro-life movement persuaded legislatures in several states to pass restrictions on abortion—Mississippi passing the law that is now before the Supreme Court and threatening Roe v Wade.

But the pro-choice movement advanced more significantly. It now controls the entire Democratic Party as well as receiving support from the media, the American Bar Association, and most other cultural bodies. Where such organisations once declared that abortion should be “safe, legal, and rare”, they are now enthusiasts for more extreme policies—for instance, allowing babies who have survived abortions to be “let die” outside the womb—“post-birth abortion”. On both sides of the Atlantic, Left-liberal parties now endorse removing the right of conscience from doctors and nurses to refuse to assist abortions. A resolution before the European Parliament approving this removal—contrary to Europe’s own human rights law—was passed by 378 to 255 votes in June last year. As I was writing this, forty-nine of the fifty Democrats in the US Senate voted for a national right to abortion without any restrictions whatsoever. (The motion was defeated by one vote.)

How do we account for this extremist drift? One possibility is that the longer we live in a moral climate shaped by everyday acceptance of abortion, the more our sensitivity to the value of human life diminishes and the more we question the need for its legal protection. That would explain the one discordant note in recent polling: a large increase in the number of Americans who believe abortion justified “for any reason”. A contrary interpretation is that abortion law is a debate distorted because it takes place less on the election hustings where all voters take part than before the courts where the electorate is a narrower progressive elite receptive to progressive answers.

The Supreme Court’s decision to accept Alito’s draft has handed a lot of painful moral decisions to all the voters and legislators in fifty states. Many surprises lie ahead. But most Americans seem unlikely to endorse post- and partial-birth abortion with the nearly unanimous alacrity of the Senate Democrats.

14 comments
  • maxpart27

    The Earth has a surplus six billion humans so any new ones should be defect free.

  • STD

    Yes Maxpart27, I must pay due respect and homage to your defection. Thing is that Downs Syndrome kids are the most pleasant and fun people, descent people will ever have the good fortune to meet.

  • rosross

    Ultrasounds are poorly studied and totally unnecessary for the vast majority of pregnant women. They are a money-making techo-toy which may indeed be contributing to the high rates of brain damaged children in this age. Particularly when used under 20 weeks when the cells are still splitting in the developing foetus.

    But yes, while people take pretty and potentially very dangerous photos of their developing child, it should raise awareness that abortion is the sacrificing of a life. Abortion must be legal but it should be avoided where possible.

  • rosross

    @maxpart27,

    Fear not, the world’s population is in serious decline, with even China having a vastly smaller population within a few decades. We are not even replacing ourselves and with infertility rates skyrocketing for decades and now possibly significantly increased because so many have received the genetic treatment called a vaccine for Covid, the question in times to come will be: How can the world keep operating when the numbers of young people are so low?

  • STD

    I now need to be euthanised on account of defective grammar and spelling- decent.

  • Carlos

    I’ve taken it upon myself to ‘educate’ those in my circle who advocate for abortion. Without exception, advocates commonly and mistakenly believe that abortion = first trimester termination, a reasonable position albeit with pros and cons. When confronted with the fact that (in most Australian States and territories) abortion = 1st, 2nd and 3rd trimester termination, virtually on demand, they are aghast and refuse to believe this to be the case.

    To push on with the argument usually ends in tears and histrionics as the truth is too awful to contemplate.

  • Lewis P Buckingham

    The minority certainly sound angry.
    The line is that the Supreme Court is bound by earlier decisions so should not overturn them.
    They assume an existential right to abortion for American women guaranteed by the constitution and already established by two judgements.
    The obvious fact that they have been overruled by their colleagues is sheeted home to the fact that the recent appointees did not agree with them.
    However its even more clear that the recent appointees did also not agree with the original Justices, who also were appointed.
    To the Minority this means SCOTUS is illegitimated as inconsistent.
    However the opinion was not on the rights of women to euthanase their unborn to full term, it was as to which jurisdiction had the power to decide.
    https://catholicherald.co.uk/u-s-supreme-court-ends-constitutional-right-to-abortion-by-overturning-roe-vs-wade/
    This then has some interesting social consequences to do with net reproductive rates [NRR] and migration.
    Increasingly there has been internal migration in the US from states that have high tech jobs which need fewer workers and which have poorer stable power supply to states with more jobs and stable power and industry.
    The standout is Californians moving to Texas.
    https://www.bizjournals.com/sanantonio/news/2022/01/28/new-texas-migration-lone-star-state.html
    Texas is Pro life.
    California not so much.
    Families need work, secure power and support by government.
    By definition they are open to having children.
    If they fall below the NRR they die out in two generations.
    Even the Hispanics have deserted Biden.
    The constitution, in this judgement, never had any hidden, reserve or implicit power to define what happens in women’s bodies.
    The states do.
    One wonders what the court may decide with the right to ‘carry’.
    Perhaps there may be a case on conflict in the constitution, where an implicit right to free association is negated by the wholesale right to bear arms.
    One would think that the right for children to associate freely in a classroom would be a constitutional right and prior to a person preparing to ward off the British by carrying a collection of hand guns, the big killer in the US.
    As for Biden, on abortion, as Obama may have said, he’s on the ‘wrong side of history’.

  • Stephen

    Firstly this is not a comment relating to whether I think abortion should be allowed or not. Secondly I am not a lawyer or legal scholar of any sort. My concern relates to the high degree of “creativity” required to see through “penumbras and emanations ” a right to abortion in the US Constitution. I have long felt that this was a serious legal corruption that allowed Judges to make legal texts mean what they want them to mean rather than what the black letters on the page actually say. A few years a go I read a piece on this subject by the late US Supreme Court Judge Antonin Scalea strongly supporting this view.
    Roe V Wade is a good example of Judges being creative and seeing things in the US Constitution which just are not there. I therefore think that overturning it is a good thing. Now the abortion issue becomes one of legislation at both or either State or Federal level. Even a Constitutional amendment could be made, although difficult in the US.
    Whatever happens now the fiction of it being allowed by the constitution is finally dead and should not be mourned.

  • Brenden T Walters

    Roe was a political decision. Mabo was a political decision. The purpose of the Supreme Court of the US or the High Court of Australia is to interpret the law, not make the law. There is no right to abortion in the US Constitution.

  • Brenden T Walters

    The NSW Parliament cheered and clapped at the passing of their latest abortion law. Was that really the will of the people? How did they arrive at that? I wonder how the Justices of the Supreme Court of the US liked their 1973 betrayal of their Constitution being overturned. They probably have more burning issues.

  • bomber49

    Why get bogged down in the morality of abortion. Australia modelled itself on the US, which explains the differing covid rules of each state. My State (SA) was the last State to enshrine the right to abortion in legislation, only last week. I’m ambivalent on abortion, but anti when it comes to late termination. I think the US Supreme Court was correct to pass the responsibility back to individual states re the right to abortion as it is not a constitutional matter.

  • Brenden T Walters

    We get bogged down in the morality of abortion? Morality if God’s law. Your opinion is irrelevant, bomber 49, the only opinion that matters is God’s.

  • Stephen Holgate

    Legislation should be for the democratically elected legislators not for the judiciary. Regarding abortion itself, my strong sense is that the safest place on the planet should be your mother’s womb.

  • Rebekah Meredith

    The issue with overturning or upholding Roe vs. Wade was whether or not a right to abortion exists in the U.S. constitution.
    The issue with abortion, itself, is whether or not it is ever permissible to commit murder.

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