Considering a World without Roe
Some considerations on the politics of Roe v. Wade.
The recent vacancy on the Supreme Court has stirred up a considerable amount of discussion about Roe v. Wade, the 1973 case that granted constitutional protection for abortion and took the basic question of abortion’s legality out of the legislative realm (although it did not remove the power to regulate the procedure).*
This post is not about abortion, per se, insofar as I am not seeking a debate on its morality. Hence, for purpose of this post I am not trying to stake out an overt position on the policy. I am simply thinking here about the way in which our institutional structures interact with this highly contentious issue and policy about it is made (or not made).
I do make the following assumptions:
- Pro-choice advocates often see the issue as one of the inherent right of a woman to have control over her own person and body.
- Anti-abortion advocates see this as a matter of life and death for the embryo/fetus, and indeed many see abortion as a modern holocaust, with all the commensurate moral implications of the word.
- Abortion won’t go away, even if it is declared illegal across the land.
The top two assumptions alone underscore the contentious and highly charged nature of the debate. No one should discount the degree to which abortion rights are seen by many as essential human rights for women in terms of personal autonomy, nor should anyone discount the fact that many people see abortion as literal mass murder. Still, the third point also hits at the reality of the situation (and it is an observation with a historical track record). I think it is important to accept that no matter what happens, no matter how the Court rules, and no matter what laws are passed, this issue is not going away.
Another factor that underscores the difficulties of this discussion, I know that my language choices in the above (“pro-choice,” “anti-abortion,” and “fetus”) are all contested terms in this discussion (everything in this debate is contested). I use “pro-choice” because I think that, on balance, that is the driving policy preference for that group (they believe that women ought to have an individual choice–there are those who favor choice, for example, but who are not “pro-abortion”). I use “anti-abortion” because that is the action that is opposed, abortion. I use “embryo” and “fetus” as a linguistically accurate medical terms.
But none of that is what I want to write about. What I want to ask, as an intellectual exercise, is whether having Roe overturned is what everyone thinks it is. Further, I wonder if the general health of our system might not be served by its removal. Not surprisingly (to any regular reader), I am especially interested in the way in which our institutions play into this debate.
No More Roe?
Most people, whether pro or con, take an extremely simplistic view of the situation. Let’s start with this: Roe supporters and Roe opponents both over-estimate what the decision does. Both groups often assume (or, at least talk like) overturning the case means the end of abortion.
Of course, this is not the case. If Roe is overturned then the question of abortion’s legality shifts from the judicial realm, where it has resided since 1973, to the legislative realm. It will not signal an end of the debate, but the transmigration of the debate into another place. I expect that a lot of anti-Roe folks will be ultimately surprised by that fact.
Likewise, it isn’t as if the current legal status of abortion is one of unfettered access. There are a large numbers of laws regulating abortion to the point of making access to the procedure quite limited in some states. Take, for example, Mississippi. Via the LAT from March of 2018: In a state with only one clinic, Mississippi approves the most restrictive abortion ban in the U.S.
Mississippi lawmakers on Thursday passed what may be the most restrictive abortion law in the nation — a bill that prohibits women from obtaining an abortion more than 15 weeks after their last menstrual cycle.
[…]
No other state restricts abortions as early as 15 weeks. Mississippi’s current abortion law — which bans most abortions at 20 weeks — is already one of the most restrictive in the nation.
There are two issues here to focus on. Let’s start with the headline’s observation that their is only one abortion clinic in Mississippi. That means that, effectively Roe or no Roe, it is incredibly difficult for a woman to get an abortion in the state, for good or for ill. If the case were overturned tomorrow that remaining clinic would close but the basic level of access for most women, especially poor women, would not change.
In general it is the case that there are already significant restrictions in some states in terms of access. Despite Roe, federalism has effects on the implementation of the policy. Other rules, such as those designed to use building codes or hospital connections for clinics can also restrict access regardless of Roe. 538 had a piece from 2014 that shows a number of the types of restrictions that states might impose.
The second issue is the 15 week demarcation line. This is interesting because in most of Europe, a less religious, more liberal place (on balance), the typical cut-off to unrestricted access to abortion is 12 weeks. Indeed, because of Roe, the US has some of the most liberal restrictions in the world. As Megan McArdle noted in a WaPo column recently wherein she criticized the original decision:
That poor drafting quasi-accidentally left America with some of the most permissive abortion laws in the world, far beyond what most legislatures would permit if the matter were open to public debate. Today, the United States is one of only a handful of countries to allow elective abortions after the 20th gestational week.
And that, in turn, is the biggest problem with Roe: It has given the most religious developed country in the world one of the world’s most permissive abortion laws. This is not some peculiar quirk of the American political psyche. The abortion law is out of step with what the majority of the population wants, and given the seriousness of what’s involved, it is Roe, more than any other opinion, that is driving both the radicalization and the judicialization of American politics, as pro-lifers fight like caged tigers to amend the law through the only avenue left open to them.
It is worth considering the degree to which there is a clear disjuncture between the permissiveness created by Roe and deep public sentiment in some quarters about the procedure in general. At a minimum this underscores a seeming paradox: more secular Europe has stricter gestational limits on abortion than does the more religious United States. That does raise some concerns, on democratic grounds, as to whether leaving abortion solely in the judicial realm is appropriate.**
Institutions and the Politics of Abortion
This disjuncture also is heavily relevant to our institutional context.
Consider the degree which popular SCOTUS discussions are all about abortion. How many times have we gone through some version of “will the nominee support or oppose Roe?” It is the sine qua non of SCOTUS nominee discussions for many citizens. It is as if the function of SCOTUS is to decide abortion policy and abortion policy alone. Even back in those quaint old days in which presidents promised that their was no Roe litmus test for nominees, we all knew that was not true save in the most literal of senses.
As I noted the other day, the life tenure of Justices makes every appointment a multi-decade proposition. So, if we take that parameter, throw in a issue that is either seen as a fundamental human right or the new holocaust, and you get, as McArdle noted, people fighting like “caged tigers.”
So, if SCOTUS is the way to manage abortion policy, then the way to manage SCOTUS is via POTUS. As such, for a lot social conservatives, abortion is a major issue (if not the issue). One of the ways to understand evangelical support for Donald Trump in the general election in particular is abortion. The reason social conservatives applauded Mitch McConnell’s shredding of institutional norms over SCOTUS nominations was abortion. The jubilation at Kennedy’s retirement is over abortion.
Abortion is polarizing and it is given more significance in our politics because of various institutional factors, not the least of which being presidential appointments to the Supreme Court and their lifetime tenure. Since the contentiousness of the policy is not going away, perhaps we would be better off moving that debate to legislatures, both at the state and federal level.
So What?
Ok, you say, I have read this ridiculously long post: what’s your point?
My point is this: Roe is not the on/off switch that is gets treated as. Federalism already has created a context in which abortion is far more accessible in some places than it is in others. While a post-Roe world would further depended that divide, it would also force a different kind of debate about the policy area–one that would take presidential elections and the Supreme Court largely out of the discussion. That last point alone might make overturning Roe worth it.
There is also a argument to be made that a more democratic outcome could be reached if this matter were returned to the realm of legislative politics. And I say that knowing the flawed nature of our democratic institutions, as well as the fact that fundamental rights ought not be subject to mere majoritarianism. Still, we are already in a highly imperfect policy circumstance, and one that I think is creating distortions to broader national politics. It seems possible that removing abortion from a central issue in presidential elections, and in our central understanding of the Supreme Court, would be worth the trade off of state-level decisions.
As such, McArdle may have a point:
Somewhat paradoxically, the way to make abortion less contentious is to throw the matter back to the states so that people can argue about it. Debating the difficult decisions regarding gestational age and circumstances would force people to confront the hard questions that abortion entails, which tends to have a moderating effect on extreme opinions.
Returning the matter to the states would give most people a law they can live with, defusing the rage that permeates politics and has more than once culminated in acts of terrorism against doctors who perform abortions.
If you’re pro-choice, it’s probably hard to swallow the idea of “permissive in New York and illegal in Alabama”; you’d much prefer to keep the status quo. But that’s politics: both sides settling for less than what they want. The alternative is for one side to seek total victory in a total war. That’s not an alternative you should endorse unless you’re surer than any American can be that your side will be the one that ultimately wins the war. After all, Roe once seemed like total, permanent victory. Not anymore.
This strikes me as especially true given that, again, abortion access is not currently uniform across the US. In short, Roe provides far less policy clarity than is needed for such a contentious policy issue at the same time it distorts how the US electorate looks at the presidency and the Supreme Court.
—-
*I am aware that subsequent SCOTUS cases have altered abortion policy since Roe was originally decided. Nonetheless, Roe is the linchpin, judicially speaking, and it is certainly the shorthand everyone uses in this discussion, so I will stick with it here.
**Those who think I only have concerns about democratic quality and representativeness when it comes to liberal/Democratic concerns, please take note.
I’m not sure why you think that the Supreme Court would stop at overturning Roe v. Wade. The abortion issue is so often framed at giving the fetus rights, and then balancing the fetus’ rights against the woman’s — I don’t see how a fetus would have less rights in New York than Ohio.
It might have been a state issue in the 1950s and 1960s, when the whole thing was framed as “loose woman does bad things”, but there’s been a long push since then to give the fetus rights, so it isn’t like gambling (unsavory, but not violating anyone’s enumerated rights either way, left to the states).
Overturning Roe v. Wade is just step one. The court may flinch with Roberts as a swing vote, and not go further, but replace RBG with another far right justice, and they will go there.
@Gustopher: Yes, fetal personhood would change everything.
I am not saying that is impossible. I do, honestly, find it unlikely, as that would buck majority opinion on the subject rather substantially, something the court doesn’t tend to do.
I expect that a lot of anti-Roe folks will be ultimately surprised by that fact.
I don’t understand this comment, other than as a dismissive insult about the intellect of pro-lifers. There are people who seem to think that overturning Roe will lead to abortion being banned across the country, but they seem to be exclusively pro-choicers.
It might have been a state issue in the 1950s and 1960s, when the whole thing was framed as “loose woman does bad things”, but there’s been a long push since then to give the fetus rights
Hmm. It’s almost as if trying to short-circuit the democratic process and use the judicial system to enforce a policy agenda might produce some unfortunate blowback. Who could have guessed?
Mike
@MBunge:
A lot of people don’t understand this basic fact. And if you note in the post, I likewise think a lot of pro-Roe people don’t fully understand the implications.
To the bigger point of your article, if Roe were overturned, the remaining Mississippi clinic would not close as a direct result, though we assume the Mississippi legislature would pass a law to close it the next day. The point is that overturning Roe would free state legislatures to pass more restrictive laws, but Gustopher‘s concern notwithstanding, we assume not all legislatures would do so. Different states will go different directions.
In fact, ending Roe would make state legislatures more important and, presumably, more contentious (wherever that leads). Today, Roe supporters are far more passive toward their state legislatures because they have SCOTUS as a backstop. Roe opposers are far more energized to try and use their state legislatures to reduce or remove the impact of Roe. The overall result is to make state legislatures as a whole more conservative. Remove Roe and I think you will see that trend reverse pretty fast. Even now, Roe supporters would serve themselves better to start focusing on their state legislatures.
@Joe:
Exactly. And towards the US House (who has little say in this at the moment).
The energy is all focused on presidential appointments to SCOTUS.
@Steven L. Taylor:
I think it’s a mistake to assume that the new, Trump-approved Supreme Court will behave according to norms. Banning abortion has been the main goal of a large segment of the Republican Party, and I don’t thing something as quaint as norms is going to get in the way.
My prediction:
First Roe v. Wade will be overturned, but not by overturning the right to privacy. The Court will find that the privacy right does not apply in this case because of X. X might be anything from fetal personhood, to a vague “cheapening of human life”, to religious freedom for evangelicals. X will probably be a surprise legal argument that leaves people scratching their heads. “At implantation, the embryo has entered into an implicit contract with the woman and would suffer grievous harm…”
Then, in a separate case, X is used at a federal level to ban abortions nationwide, when some group is found to have standing.
At the same time, roughly, the right to privacy (now no longer controversial) will be used to beat back regulations of business, as the government is found to be interfering with the intimate decisions of the business. “Whether or not to kill ones workers is one of the most important decisions a business can make!”
I don’t think Roe opponents would be at all pleased if the decision were thrown back to the state legislatures. (This is one instance in which they’ll happily sacrifice their support for federalism and states’ rights.) While it’s true that a woman in State A might not be able to obtain an abortion, what would prevent her from traveling to State B? Yes, poverty might, or other circumstances, such as disability–but, the Roe opponents will argue, she could get someone to take her. Or some dedicated baby-killer will set up a minimal or no-cost transport service.
If Roe is overturned, the anti abortion movement will immediately begin pressuring Congress to invoke a nationwide ban on abortion. If Roe had been overturned in recent SC term, the House would likely have passed such legislation already. How the Senate would act is an open question, but McConnell would be under enormous pressure to invoke the nuclear option.
@CSK:
My guess is, depending on how they make it illegal, they claim crossing state lines to commit a premeditated crime. If it gets classified as homicide for instance, planning the “crime” (booking the appointment = hiring the hitman) in your home state and arraigning the transport to the state where abortion remains legal could be prosecutable even if the actual “crime” was committed elsewhere. True, they’re not going to be able to physically stop women short of road blocks or searches at airports but that doesn’t mean they can’t or won’t go after the women once they come home.
@KM:
The woman would be committing a “crime” in a state that doesn’t regard abortion as a crime. Her home state would have no jurisdiction in the matter.
To me, this is almost a textbook example of how the 10th Amendment was intended to work.
A quick refresher:
Roe v. Wade found the right to abortion in the penumbra of an implied right. It’s one of the best-known examples of ex post facto reasoning.
Should it be struck down, abortion instantly reverts to being a matter for each state to decide on its own. And each state then does decide on its own, and we have 50 different little experiments boiling away all over the country.
Then, in a couple of years, we can look at how each of those experiments worked out and see how we each want our state to adjust their laws.
California says state-funded abortions up to two years after birth? Whatever. Let’s see how that works out.
Utah says miscarriage is a misdemeanor, and masturbation get fined? Their state, their rules.
People are already voting with their feet, and state legislators (who will NOT be happy to be handed this hot potato, but that’s their job) tend to be a bit more responsive to voters than national legislators — or Supreme Court justices — or presidents. Let them pass whatever laws they like, then get their feedback at the ballot box.
Plus the thought of the pro-life and pro-choice organizations having to split their attention (and, more importantly, their budgets) among 50 different states entertains me. I’m not that fond of either lobby, and the sheer inconvenience they’ll suffer is a major plus to me in and of itself.
For most of 50 years, abortion arguments have been the closest thing we’ve had to political masturbation — a whole lot of energy spent on something that ultimately does nothing but gratify the energy expender. Overturning Roe v. Wade and sending it back to the states would make these fights actually mean something — and might actually resolve something.
@KM: Prosecuting a woman in Misissippi having a legal medical procedure in another State wouldn’t pass any legal test. That would effectively sanction Mississippi to set the Law in other States. Can states today prosecute residents for smoking weed in Colorado?
Here’s what you all are missing which illustrates the flaw of political Parties: The Republican Party has raised landfills of money and generated fervent turnout for at least 30 years on this issue. If it’s goes away, they know that money and turnout goes with it. It would be foolish for them to give this up. Look for them to find a way to keep Roe and blame Democrats for stopping them.
Bottom Line… If Roe goes away, it only means that women go to other states and mail order Abortion pills flood places like Mississippi.
For the record, my personal opinion is that the age of viability, which is around 20 weeks, is a fair cutoff for elective procedures.
@KM: The best analogy I can come up with is crossing state lines to commit a marriage banned by the laws of one’s own state. (Age of consent, consanguinity, number of previous marriages, or some other state-governed condition.) I believe in those cases, the “full faith and credit” clause rules and even though the marriage might have been planned in the forbidding state, it’s still recognized as valid.
Or maybe a gun sale might be comparable. A sale might be illegal in one state, but legal in another. Suppose I live in a state where it’s legal to possess, say, a 30-round magazine for an AR-15, but illegal to sell it? What if my neighbor and I hop across the state line to where such a sale is legal, make the exchange, and then go home?
My hunch is that it would take a majorly obsessed prosecutor to bring such a case, a tremendously unsympathetic jury to indict and convict, and a major hard-ass judge to sustain the verdict and impose a sentence — and the judge and prosecutor would get serious backlash from the general public.
On the other hand, if a group were to organize a modern-day “underground railroad” to take women across state lines for abortions, that group would be a lot easier to target under conspiracy charges, and would be more likely to get convicted than an individual. See the eventual Utah v. Planned Parenthood court case for details.
Just to clarify: that’s not my opinion on what should happen, but my opinion on what probably would happen.
There was a state representative in PA who said at the time the Casey case was before the Supreme Court in 1992, “If the Supreme Court overturns Roe v. Wade on Monday, we will have a bill passed to make all abortions illegal on Tuesday. We have the votes.” I saw no reason not to take him at his word then, nor any reason to believe the ground has shifted since.
@Steven L. Taylor:
“I am not saying that is impossible. I do, honestly, find it unlikely, as that would buck majority opinion on the subject rather substantially, something the court doesn’t tend to do.”
The Federal Government under both parties have taken plenty of actions which buck majority opinion rather substantially, and I see no reason why an issue which is a centerpiece of campaigning and as strongly held by the base of the party in power such as abortion would be different. Why do you?
@Jim Brown 32: Here’s what you all are missing which illustrates the flaw of political Parties: The Republican Party has raised landfills of money and generated fervent turnout for at least 30 years on this issue. If it’s goes away, they know that money and turnout goes with it. It would be foolish for them to give this up. Look for them to find a way to keep Roe and blame Democrats for stopping them.
That’s an extremely valid point, but you didn’t mention the converse is also true: the Democratic Party has also raised landfills of money and generated fervent turnout for at least 30 years on this issue. They are just as invested in keeping the status quo as the Republican party. In both cases, keeping things as they are lets them continually use the issue for fundraising and rabble-rousing without ever having to be held accountable for actually doing anything.
This really needs qualifying – a lot, actually.
It is true that in most countries in Western Europe there are either waiting periods or that a physician (sometimes even two) needs to sign off on an abortion after the first trimester.
These waiting periods, however, are fairly meaningless, because everyone has easy access to affordable, heavily subsidized healthcare. Which means that, practically speaking, it is not much of a hurdle to have to return to a clinic or hospital a couple of days later.
Likewise, if it is the case that a physician needs to sign off on a second-trimester abortion, there will always actually be one willing and able to do so. And again: healthcare is both easily acessible and either cheap or free. (Also, there is no need for clinic escorts to get past hostile protestors.)
If you compare this to the actual (rather than strictly legal) situation in the US, it turns out that in most of Europe it is much, much easier to get an abortion.
Specifically, Mississippi, with close to 3 million inhabitants, apparently has only a single abortion clinic, while in Europe it is possible to get an abortion in pretty much any hospital. Obviously, European countries have a lot more hospitals than only one per 3 million people.
On the purely practical side of things it seems many people who oppose a woman’s right to choose (would it even be a question if men got pregnant?) also oppose contraception.
Making both difficult to access would surely cause a unsustainable explosion in the number of unwanted children and as is all too obvious whilst GOP claim to care about the unborn they couldn’t give a toss about real living children.
I dread to think what the US would look like in such a scenario – something like Dickens’ London I guess.
@Nick Nelson: On the purely practical side of things it seems many people who oppose a woman’s right to choose (would it even be a question if men got pregnant?) also oppose contraception.
I’d be very interested in seeing some kind of substantiation for that assertion. Something beyond tired stereotypes and lazy projection.
Something like proposed laws banning birth control.
I’ve known a few misogynists of the pickup artist variant. They love contraception and are exceptionally pro-choice. If their pickup gets pregnant (because they tend to hate condoms), it’s up to her to get an abortion — and if she doesn’t, that’s her choice and certainly not their responsibility.
Oh, I’m sure you can find examples of people who aren’t interested in paying for other people’s contraception, but banning it? That’s gonna be a very, very tiny minority. That fight was over decades ago.
Since a law has already banned certain kind of abortion, I am absolutely certain that a Republican Congress would pass a ban on all abortions the minute it could do so. And I have no doubt that the Court would uphold their right to do so.
If my body is going to be used to act as a life support mechanism for another entity for nine months no matter what my opinion on the matter is, I don’t see any reason why we shouldn’t at random pick men to donate their kidneys and other body organs to save lives no matter what their opinions on the matter are.
@Kari Q: Pardon me for mansplaining, but the whole point of overturning Roe v. Wade would be to take the abortion issue out of the hands of the federal government entirely. Which means that Congress — Republican, Democrat, or Whig — would have nothing to say about it.
It would devolve back to the states — which, in my opinion, is where it should be anyway.
@Warren Weber:
There is a movement on the right to declare contraceptives such as IUDs and the Pill as “abortifacients” and make them illegal as well. I don’t know how widespread it is, but denying it exists is foolish.
https://www.nationalreview.com/2016/11/contraception-birth-control-abortion-abortifacients-ella-plan-b-iud-embryo-life/
@Warren Weber:
There is a movement on the right to declare contraceptives such as IUDs and the Pill as “abortifacients” and make them illegal as well. I don’t know how widespread it is, but denying it exists is foolish.
(I mistakenly linked twice in a previous comment. Moderators, please delete that one).
@Warren Weber:
That may be your preference, but that is not the preference of the pro-life movement.
@Warren Weber :
“Kicking it back to the states” doesn’t preclude Congress from attempting to create a national law to address the issue. After all, this is an issue where conservatives claim babies are being murdered willy-nilly. The term “murder” is of particular importance here. Do you really expect someone with that belief to suddenly accept that the US is OK with some states killing children because of states’ rights? How is it not murder to them just because NY says it’s legal? They’re not just going to shrug and say “well, that’s CA’s choice! Let’s see how it works out for them!” They think it’s MURDER they’re stopping but are suddenly going to back off after a victory and adjust their morals?
There’s no way in hell someone in Congress won’t have bills ready to go the second the Court strikes Roe down. Fetal person-hood, heartbeat or sonogram law, national abortion ban, etc…. Pretending that conservatives will accept states’ rights in this is ridiculous; if they manage to take down Roe, they’re going to keep on going as far as they possibly can because they damn well know how badly it’s going to end up and need to get it done immediately.
@Kari Q: If you want to actually deal with facts, an IUD is not a “contraceptive” at all, as it does not prevent conception. “Abortifacient” is the proper term for something that prevents a zygote from developing into a fetus.
“The Pill” is an actual contraceptive, as it does prevent contraception. The “morning after pill” comes in several varieties. Some of those also prevent contraception; others prevent implantation.
However, I have encountered very few people who consider an IUD as an “abortion.” The vast majority of pro-lifers focus their efforts against the surgical extraction (or chemical destruction) of a developing fetus, and consider the “abortifacients” issue an acceptable technicality.
It boils down to where one wants to draw the line between pedantry and serious discussion. The most common pro-life position I’ve encountered is banning non-medically-necessary abortions after fetal viability. (This has gotten more complicated as medicine advances — the current record for a surviving baby is one born at 21 weeks, four days. She’s currently in preschool and doing just fine.)
I give Roe v. Wade a lot of grief, but the “trimester” system they applied — while arbitrary — seems as good as any other. I suspect a lot of states would follow it — no restrictions for the first trimester, some limits for the second, and major limits for the third.
As far as IUDs and other “abortifacients” that involve a zygote or embryo, I don’t see any real efforts to ban those.
I think it’s also worth noting that it’s been Republicans who have been the ones to propose that birth control pills be sold over-the-counter. I personally am of mixed feelings on that, as I can see both sides, but it’s been Democrats who have stopped those moves.
@KM: The strongest arguments against Roe v. Wade are based in the 10th Amendment. If that is the path used, then any attempt by Congress to interfere would be, on its face, unconstitutional.
Hell, look at the mess over Trump’s travel ban — an area specifically assigned to the federal government by the Constitution, and specifically delegated to the president by law. How long do you think would pass between the bill being introduced and some California official running to the 9th Circuit to fight it?
And, in this case, they’d actually be right.
@Kari Q:
It’s fairly prevalent considering it’s one of the major “religious” objections to employers providing BC. It’s dog-whistled a lot though and gets rolled up into more generic terms. If you believe that life starts at conception, any BC that works after that is an abortifacient. That rules out quite a bit, including good number of the non-hormonal or inexpensive ones as well.
To be extra evil, if those drugs/devices are then declared illegal in a post-Roe state and you bring some back from somewhere saner…. you are now one of the drug dealers Trump railed about. Surprise!
@Warren Weber:
No, this isn’t right.
IUDs work primarily by killing sperm, preventing fertilization. They also help to prevent implantation of fertilized egg, should that happen.
The pill (at least the most common type used today) use hormones to prevent ovulation, meaning no egg is released. No egg, no pregnancy. They also make it more difficult for the sperm to reach the egg and work to prevent implantation, in case fertilization happens any way.
Since in both forms, preventing implantation of a fertilized egg is a possible occurrence, those who genuinely believe that life begins at conception would regard both as abortifacients and be opposed to both.
As for “serious discussion” I think you are fooling yourself if you believe that the mainstream of the pro-life movement, which regards abortion as murder, will be perfectly content to allow, say, New York to remain pro-life. If the Republicans have the majority in the House and Senate, they will (at the very least) be under serious pressure to outlaw abortion throughout the country. Many of them will be eager to do so.
@Warren Weber:
What? Are you saying they’re cool with it BEFORE viability?
The fetal heartbeat bill that just got demolished would have set the limit WAY before viability (12 weeks to be precise). They absolutely want to ban abortions before viability and have been steadily trying to whittle the time down for decades! I have no idea who you’re talking to but actions speak louder then words. Every bill the anti-abortion side puts forth is done with the intention to shrink the available legal timeframe down as much as possible with no regard to viability. Just because there’s one or two cases of 21 weeks doesn’t mean that’s achievable to the majority but hey, since it happened once it’s the new goalpost.
Viability also doesn’t solve the fundamental issue of whether its acceptable to force a woman to use her body for a biological process she doesn’t consent to. Going “hey, it’ll only be for 22 weeks instead of 40 so it’s all good” doesn’t make it any better. If we had uterine replicators that could kick in at 3-4 weeks, I could perhaps see your point but 22 weeks is nearly half a year. Biological viability requires time and time requires forcing an undue burden on a free person that you have to legally justify. The core dilemma is still in play.
@Warren Weber:
This, by the way, is a common pro-choice position, which is why the labels pro-choice and pro-life become meaningless; people mean different things by them. Pure pro-choice (abortion always legal) is a minority position. Pure pro-life (abortion always illegal) is a minority position. Hybrid positions (abortion sometimes legal, sometimes not) usually get a bare majority, but not always and it depends on how the question is phrased.
@Steven L. Taylor:
Indeed.
But you went out of your way to state that it’s the pro-lifers who are more likely to believe over turning Roe would totally ban abortion.
I think the opposite is more likely the case, with the pro-abortion crowd to be surprised to hear that it would just return to the states.
Have you talked to a pro abortion fanatic? Roe is EVERYTHING! Mention that the decision would revert to the states and most look at you with that deer in the headlights look.
Holy crap.
One of you guys finally hit upon one of the reasons that evangelicals supported Trump.
Can the rest of you dumbarses please now finally stop saying how hypocritical and anti-Christian supporting Trump is?
@Sleeping Dog:
So we’re back to the idea that maybe we shouldn’t have pushed for that all powerful central government after all.
Also, regarding contraceptives, please remember that hobby lobby was opposed to paying for 2 (3?) specific drugs. Even that horrible Christian company had no problem providing actual contraceptives to their employees.
@KM: This is why, if I ever run for POTUS, one of the planks in my platform will be something equivalent to a Manhattan-type national research project to develop uterine replicator technology. Another plank of my platform will be to outlaw abortion, but only if uterine replicator technology is widely available and cheap and the operation to get the foetus from the woman into the uterine replicator is paid for by the government (pass a tax for this purpose on pro-lifers–if they want to get rid of abortion that much, they’ll gladly pay for it. AND for the costs for raising the contents of said uterine replicators to adulthood.)
I suspect that the screams from both sides and from adoptee’s rights groups (how much of a tizzy are you going to get into when birth-mom is a contraption of steel and plastic?) will be able to be heard from the Moon, but it will actually be a good hard test as to whether pro-lifers really are “pro-life”, or are they just anti-sex?
Steven,
This post was a joy to read and really one of your most impressive contributions. This is a topic that is so difficult to discuss – much less taking a “what if” analysis and running with it – but you’ve navigated it quite well IMO.
More comments tomorrow, but suffice it to say that I think it’s hard to argue against your logic in this case.
@Jim Brown 32:
Winner winner; chicken dinner! After all, it worked for Reagan on the Human Life Amendment–on which he expended almost no effort beyond lip service because “the Democrats will only block our efforts.”
I would just like to point out one other notable comment from the article here:
I do believe this is the first time that I have seen anyone here point out that evangelicals voting for Trump is NOT stupid and hypocritical.
Bravo.
If Roe is over turned, I still find it highly unlikely it will become totally illegal anywhere.
Just from an economic standpoint, it makes no sense. People will literally up and leave for states where it’s legal, hurting companies where it is not. People will not move to states where it’s illegal, further reducing the labor market for companies in those states. (I’m obviously talking about degreed type jobs here.)
College admissions will drop as well in states where it’s illegal.
Which will bring it back up for rational debate. Which is largely impossible from either side with roe sitting up there. (Please don’t pretend that Democrats are noble and have not milked roe for every penny possible and to rally their base.)
Conservatives need to accept that abortion will be legal likely thru the first trimester.
Liberals need to accept that it’s not just a woman’s body involved here (science), and that there will be common sense restrictions on it.
The next fight will then probably be over govt funding of abortion clinics.
@TM01:
@Woke Wookie:
I am fairly certain I have noted this before.
Still, please note that I specifically stated “One of the ways to understand evangelical support for Donald Trump in the general election in particular is abortion.”
Why they voted for him in the primaries, especially early on, cannot be explained by this issue.
Part of my point is that abortion is such a major issue, and the SCOTUS nomination in particular, that evangelicals will overlook all of Trump’s obvious problems (e.g., his obvious infidelity) because of this one issue. It has become out-sized in its significance.
@Andy: Thanks.
what’s wrong with conservative values?
that guy gives a little more detail than my usual trenchant reply.
@TM01:
Yeah? Good luck with that. For decades y’all have been pushing the idea that abortion is murder and life begins at conception to the point whole denominations have changed their theology to suit and the movement has internalized those concepts. Now you want to say the first three or so months don’t count? That it’s OK to kill what they consider a baby but only in a specified time frame? How exactly are you planning to countenance that morally – life begins at conception but you don’t count as a person until you’re X months in??? Conservatives’ own rhetoric won’t allow it.
I would actually accept that statement if it weren’t for the “common sense” part. Let’s be real: what one person considers common sense can be another’s “WTF Are You Thinking?” due to implicit bias. For instance, late-term abortions. They are much rarer then first trimester ones. Clearly the woman wanted the pregnancy to let it proceed for more then half a year so the chance of her doing it on a lark are practically nil. It’s almost a guarantee they are being done for medical reasons yet there’s fierce opposition to them. Common sense would be restrict first-term since those would be what you’d consider frivolous and leave late-term alone but nooo, that’s not how the optics work. Graphic pics can only happen later on and that’s what strikes the emotional chord – carrying around pics of blastocysts or indistinct blobs of tissue won’t have the same impact.
I understand the necessity of restrictions and can accept reasonable ones. The big problem here is the term “reasonable”. I don’t think it’s reasonable to favor a being that doesn’t truly exist yet over one that does and that it’s morally dubious to deny certain reality (needs of woman) for potential (needs of possible child). I’m sure your rationale is different so our “common sense” isn’t going to align – who’s gets priority?
If this becomes a state issue and there is an exodus from states where abortion is illegal to those where it isn’t, it’s only going to increase the relative political power of red state America, as pro-choice dem voters will be voluntarily packing themselves into the pro-choice states. Leaving the red states and their two senators safe. It’s gerrymandering at a national scale.
Don’t get too caught up in narrative possibilities. Anyone can imagine a scenario and illustrate it with narrative, but that isn’t proof or accurate prediction.
What’s important is what conservatives want. This is true in all conflicts. “How” and “why” are secondary, with the “how” slightly more important. But the “what” matters most. That’s the enemy’s objective, and that’s what one must decide whether to let them have all of it, have some of it, or deny it to them altogether.
Dr. Taylor posits that overturning Roe would restore status quo ante bellum. Perhaps it will happen that way, but is that the enemy’s objective? And if it is, is it the ultimate one or merely provisional?
Of course the enemy’s fragmented. I’m sure there is a gamut of positions from fetal personhood on one end to severe restrictions on the other. One will be dominant, perhaps, or one may be advanced more smartly. So there have to be contingency plans to fight many of them.
@KM:
If they really felt that way, if it was not just lip-service, they’d have passed a law years ago.
@Kathy:
Not exactly. I suggest that it will shift the battleground.
I am also suggesting that status quo is already pretty restrictive in certain states, meaning that I am not as convinced that a post-Roe world would be as radically different as the status quo already is.
@Paine: I’ve been thinking a lot about this lately and one thing i’ve been pondering is that there is potential leverage over the rural senators. West Virginia, Alabama, Mississippi, Idaho, etc, are deeply, deeply dependent on welfare from the productive states like New York, California, Boston, etc. As bad as they are now, they’d be Mozambique without annual infusions of money from better places. A strongly Democratic House and President who were disciplined about holding that money hostage could possibly apply a lot of pressure on a rural GOP Senate.
@TM01:
I have never met one actually. However, I have met plenty of people who think the government’s role is to force women to carry their babies to term.
@Tony W: ‘Abortion is Murder’ is just virtue signaling. If they don’t support severe punishment for it, they don’t really believe it’s premeditated murder.
If conservatives can take a stand which a) makes them look holier-than-thou and b) doesn’t cost them a single Amero, that’s going to be their position most of the time.
@Steven L. Taylor:
I’d go along with the first paragraph, but not the second.
A SCOTUS precedent can’t just be repealed, there has to be a court case to do it. So which case will the enemy pick, and how will they advance it? I’d hate it if a state piles on so many restrictions that abortion is effectively banned, or if one bans it outright, or if one passes a fetal personhood law, and then the pro-choice sides sues and the case ends up repealing Roe.
@Tony W: Ah, the dreaded pro-abortion fanatic. They kidnap pregnant women in vans and force them to have abortions against their wills. Truly monstrous people. 😮
@Woke Wookie:
Actually, it is both cynical and hypocritical. Whatever.
But this is politics, these are hyper moralist Christians who, as it turns out, don’t mind voting for Satan as long he delivers on the the issues.
@KM:
The thing that gets me is that the pro-life / life begins at conception crowd don’t follow that belief with what would appear to be the mandatory next steps:
– Miscarriages have to be investigated as possible homicides.
– Drinking or drugs during pregnancy (including tobacco use!) would be prosecuted as assault and/or battery.
Without the right of privacy as the foundation for the allowance of abortion under certain circumstances (that is, regarding the consult/decision/operation between the woman and her doctor), then the life-at-conception principle demands that the life be protected at the same level of enforcement as independent persons. There would need to be allowances in the monitoring of the women, of course, as there is no right to privacy to shield the woman and her actions in her private life anymore. This would enable the government to track her and her attempts on the other person’s (zygote’s or embryo’s) well-being!
@TM01:
Please see @teve tory.
@Franklin: @TM01: Indeed. I am not saying that conservative Christians are off the hook for supporting Trump’s rather obvious non-Christian (if not anti-Christian) behavior.
I am pointing out how elevating abortion to this level of significance can lead to a great deal of rationalization.
@al Ameda: Yep. If, like Franklin Graham, you said that Bill Clinton was unacceptable as president because “If you’ll lie to your wife you’ll lie to the country”, and then you support Donald Trump, you’re a complete and total hypocrite. Just because you think abortion is worth sacrificing every other principle you’ve ever claimed to hold, that doesn’t make you not a hypocrite. That’s just gibberish.
@Woke Wookie: Speaking as one who has credentials to comment as both a conservative and an Evangelical–30+ years with Baptist and Independent church bodies before I could no longer take it and went mainline–the stupid and hypocritical part is not supporting Trump because he’s pro life–even though he changed his position 3 times in one day finely resting on “keep what we have now”. The stupid and hypocritical part is supporting all his “character flaws” when for 4o-some years they’ve been saying that character matters and that’s why people shouldn’t vote for a liar/apologist for rapists/war monger like Hillary.
Just sayin’…
@teve tory: What make you think they can’t rationalize “public sex with a dead animal?” Has anyone asked them to try? They’re rationalizing voting for an operator of whore houses, c’mon!
@Just nutha ignint cracker: That was his words, not mine 😀
Frankly I think they’d vote for a convicted cannibal child molester if he was a republican. They’d say Whatabout Obama’s twelfth cousin 49 times removed who may have been neighbors with a headhunter in the Congo or some shit. Look at Illinois. Arthur Jones, the Republican, is literally a Holocaust-denying Neo-Nazi and Governor Rauner won’t endorse the Democrat against him. It’s a dumbass cult at this point.
http://artjonesforcongressman.com/holocaust/
@Robert in SF: Also there’s a question whether since a lot of zygotes get flushed out due to problems in cell replication any medication which allows such deformed zygotes to remain hooked to the woman’s uterus should be mandatory for all women….
….welcome to thalidomide, guys. (That’s one explanation as to what is going on with thalidomide–not that it causes deformation in embryos but that it allows zygotes which would otherwise be “shed” by the body due to deformities to actually hang around. I have no idea how true this is.)
@Robert in SF:
These have already happened. A woman in Indiana in 2016 was prosecuted and sent to prison for 20 years for taking medications to induce an abortion; a court overturned the prison sentence. Granted, she took the medication but the same would likely apply if there were unanswered questions about a miscarriage.
And Wisconsin has jailed a number of pregnant women who were drug-takers.
I honestly don’t know what is going to happen if Roe is overturned, but I doubt there will be an exodus from Red state colleges to pro-choice state schools. Not one woman I have ever known has said “hey, just in case I were to have an unplanned pregnancy, I should go to college in [liberal state], rather than the one that is better for my planned major.”
I wish I could be as sanguine as you are Mr Taylor. From a purely technical point of view you are correct-overturning Roe would throw the issue to the states and there are some good arguments to make that that is a good thing.
Unfortunately, like others have pointed out, for all practical purposes I don’t think it will stay with the states long if we have Republicans in charge of both branches of Congress, and a solid conservative majority on the Court. If you think the current Republican party would have any issue with being hypocritical about trying to make it illegal nationally and overriding state laws, you’re dreaming. And if you don’t realize that quite a lot of judges on the court are quite happy to argue backwards from a desired conclusion (heck, its basic human nature to do so for pretty much everyone though some fight the tendency better than others, and judges aren’t immune to bias) you haven’t been paying attention.
@Just Another Ex-Republican: My basic counter would be as follows: even controlling all branches of government, the GOP could only muster repeal of the individual mandate (not “repeal and replace”) and a tax cut (the lowest of low-hanging fruit for a Republican congress). They have been unable to tackle anything else of consequence. As such, I question their ability to pass massive overhauls to the most controversial policy issue that we have.
@Jen:
And it usually takes thousands of Ameros to move any distance. 50% of Americans can’t put their hands on $500 cash.
@Steven L. Taylor:
With the current Senate, they probably can’t. Either Collins or Murkowski would probably vote no, killing it. But given another vote or two in the Senate and control of the House, they will.
I’m amused at the Republicans (like TM01 and Warren) trying to assure us that all that talk about outlawing abortion was really just b.s. and why would anyone ever imagine that they meant it? Because red states have been pushing laws to make it practically impossible to get a legal abortion, while still leaving just enough room so the laws can stand. Because, as Steven pointed out in the other post, there are states where it’s virtually impossible for a woman who isn’t wealthy to get one right now. Because for most of Republican lawmakers, there’s no downside to voting to make it illegal.
@Steven L. Taylor:
“They have been unable to tackle anything else of consequence. As such, I question their ability to pass massive overhauls to the most controversial policy issue that we have.”
Whether abortion is controversial in the public as a whole, it is not controversial within the Republican base. Since Republicans in office are more afraid of primaries than they are of general elections, I cannot foresee any significant number of defections among Republicans.
@TM01:
Oh, yes, it will hurt the states that do this, but why do you think that would stop them?
Is that a twinge of regret you have there, hiding as an optimistic, “rational” thought?
Maybe, some day, you will realize that voting for religious crazies has negative consequences that were entirely foreseeable from the beginning.
@TM01:
Do we compel anyone, under any other circumstances, to give of their own body for another’s benefit?
We don’t require blood donations, or organ donations — not even from dead people. Do we have a right to? Most reasonable people would say no.
This honestly makes no sense to me. Very few people are going to uproot their entire existence based on this issue alone. Perhaps some will, but most people have jobs and families, etc. They are going to rail against this, but you don’t preemptively move thinking you might one day need access, and the numbers who move to make a political point are going to be vanishingly rare I think.
I’m late to the conversation so I’ll limit my opinion to just two thoughts:
One, abortion will be taken up at the national level because women going to other states for an abortion will be considered interstate commerce which is regulated at the federal level.
Two, fetal personhood will be pushed which will kill off in vitro fertilization and other assisted reproduction techniques since they involve the creation of multiple fertilized eggs.
States’ Rights? I definitely do not believe that devolving Roe/Wade back to the states is the end of this.
Assuming no shift in the power balance in DC, I expect Republicans, who in the past 8 years have paid no electoral price for their extreme partisan behavior, to continue to pursue all manner of abortion restrictions in every state. And should the Supreme Court eventually throw Roe under the bus and back to the states, I expect these congressional Republicans to make a serious attempt to criminalize abortion by way of federal laws.
It is very easy to imagine a situation where, say, a woman in Oklahoma, travels to, say, California to get an abortion. What would prevent (electoral consequences, in Oklahoma?) an ambitious prosecutor from going after her on the grounds that the she crossed state lines to commit a crime?
@al Ameda:
IANAL but I’m pretty sure it’s not a crime in State X if you leave State X, go to State Y, and do something there which is legal there. I moved from Florida to Washington State, smoked a LOT of legal weed in WA, then moved back to Florida. I’m pretty sure I can’t be prosecuted here for doing that. I’m sure the lawyers have a term for that, and if we’re lucky it’ll be in latin, which is more fun than boring english.
I’ve never liked the “it’s my body i can do what i want” argument because we do put restrictions on what people can do with their bodies when it affects other people. I think the better argument is that a few-week old embryo is not a person. A fertilized egg is clearly not a person. Forced Birth grandstanders hate and besmirch the ‘would you save a living toddler or a petri dish of blastocysts’ thought experiment because it reveals that even they don’t really think a blastocyst is morally equivalent to an actual human being. It’s just a free way to parade your self-righteousness.
@teve tory:
What restrictions? I’m actually having trouble coming up with some that are remotely comparable
– You cannot sell your organs
– Children must be vaccinated before attending school (in many locales)
– Some states have criminalized spreading AIDS. (Which is less “restricting what you can do with your body” and more “don’t commit assault” in motivation)
– prostitution is illegal (less what you do with your body, more of a ban on an activity for commercial reasons)
– Suicide is illegal (this is the closest I can come up with)
Am I simply unimaginative today?
@Steven L. Taylor: To which I say: Healthcare is truly difficult, and the entire animus the R’s had towards Obamacare was based on lies and misinformation, which makes it difficult to actually replace since so many parts of it are actually quite popular. Plus it’s only been a rabble rousing issue for 7 years. Abortion? Their go-to argument for decades-a lifetime for many of them. And simple, in their minds–no more abortions, what’s so complex about that? They’re wrong, but complexity and nuanced thinking isn’t a notable strength of the party any more. And that’s before you even get to the fact that many of them, even in Congress, are true believers and, as you noted, aren’t going to give an inch on what they feel is morally superior. If it’s a holocaust, you have to STOP it, not just hope the states (including those notorious God-hating socialists on the coasts) will see the light.
Now whether they succeed or not is another question. But the pressure on the Republican members of Congress will be far more intense than the blowback they faced for not killing off Obamacare completely. I believe it would be at the serious death threat level, if you’re a Susan Collins and the only R voting to stop a law from making it illegal. Nor do I think all the red-state D’s would hold out either-their constituents want it stopped!
There’s a regular theme around here and elsewhere about how people keep thinking Trump can’t possibly mean what he says, then he actually does something that proves he does mean it. It applies to the base, anti-abortion activists, and current R’s in Congress as well. They want abortion stopped, period, not sent back to the states, and they aren’t going to be satisfied with Roe going down. Whoever said they will have a bill in Congress the day after it’s overturned is being too optimistic. They’ll have a bill lined up and ready to go (and be talking about it) as soon as the Court takes up an abortion related case, just waiting for the opinion to drop. And if Congress passes it, and courts start blocking it, there goes those activist judges again (the most likely outcome, in my mind–Congress critters are basically cowards, they’ll vote for it and hope the judges stop it so no one blames them).
I hope you’re right and I’m wrong. But your theory that it might be better addressed at the state level (which I actually agree with, in a vacuum) is going to run head on into your assumptions 1 and 2. People aren’t going to bend on something they are so emotionally invested in. All the venom that currently infects the Presidential race on this issue will still be there, AND it will become an even larger part of Congressional elections and state elections too.
@al Ameda:
Being pro-life would kind of prove that that’s not really Satan.
Nice try tho.
@teve tory:
Bill Clinton taught us that sexual assault and rape is ok as long as you support abortion.
Perhaps you missed that news babe who said she didn’t care about Bill’s rapes and would gladly give him a BJ because of his support for abortion.
Don’t lecture people about hypocrisy.
@Gustopher: You generally can’t do anything to hurt a person that’s in your care. Do you have a right not to feed your kids? Feeding your kids is stuff you have to do with your body. Pregnancy is a unique situation so it’s hard to analogize to other relationships, but if you acknowledge that an embryo is not, morally speaking, equivalent to a thinking, feeling human being, a lot of difficult questions disappear. In the first few weeks of gestation an embryo is no more a thinking, feeling human being than a tumor is. It’s a pre-human seed. That’s why the Forced Birthers love late-term abortions->lots of gruesome pictures of baby-looking things we can empathize with. You can’t much empathize with a blastocyst.
@Just Another Ex-Republican: Part of my point is that it is easier to do the holocaust routine when you don’t have to vote on it. When you don’t have to address the rape and incest question. When you don’t have to deal with the issue in the context of a vote. Further, there is the filibuster in the Senate.
Legislating major policy has always been hard–it has become near impossible of late.
This is true, but I am not so sure that diffusion of the issue to all those offices might not be better than what we have now. Further, from a democratic theory point of view, maybe we need the debate to happen across those offices.
@Steven L. Taylor: There are already loud demands to get rid of the filibuster. Yes, it’s one of the few things McConnell seems to have a spine about, but again, if that’s what stops the law, the pressure to get rid of it will become almost impossible to resist.
Well, as I said, I truly hope you are right. I fear you are wrong. Maybe I just need to remember my FDR 🙂
@Just Another Ex-Republican: I may well be wrong.
I just see so much legislative dysfunction in the context of institutions that already make major, controversial legislation difficult and see it hard to believe that something that controversial would make it through the process.
Steven,
I think you’re largely correct in this post. I can see how overturning Roe could actually improve abortion rights and access over the long run as advocates would pour their passion, dollars, and efforts into other efforts besides manning the walls for Roe.
And I think it acknowledges the reality that judicial declarations are transitory and that securing the right to abortion over the long term rests on a tenuous court balance and the insistence on stare decisis, which is not a stable foundation. Legislative actions would be more enduring.
Let’s also remember that overturning Roe and any moves to zygote/fetal personhood would require stem cell research to halt.
@Nick Nelson:
Well, considering the powers that be were happy to conscript young men and send them off to be slaughtered in battle (in wars those same powers declared) , I doubt they’d change their opinion if men got pregnant. In fact, for a long time the whole point of not allowing abortion was to make sure there were enough births to provide a steady source of cannon fodder for future wars.
They see the mass of men, as they see the mass of women, as tokens to be moved around at their whim.
If the zygote/embryo/fetus is all that friggin important, remove it from the woman’s body and stuff it into your own. Don’t commandeer someone else to act as a life-support system simply because your own morality demands it. And if you think that’s perfectly justified, why shouldn’t vegans be able to insist that you eat a vegan diet because of THEIR morality?
So before you start whining about being pro-life, give up your hamburger, guys.