Tuesday, December 14, 2021

Can Our Democracy Survive Overturning Roe v Wade?

On December 1, 2021, the Supreme Court met to consider the constitutionality of a Mississippi law prohibiting abortion after fifteen weeks gestation.  Most commentators have agreed that the six-person conservative majority will likely take the opportunity to significantly limit — or even overturn — the Court’s defining 1973 decision on abortion, Roe v Wade.  The decision is expected by summer.

At its simplest, there are two essential elements to Roe v Wade

  • First, it affirms a woman has a constitutional right to abortion prior to fetal viability, or about twenty-four weeks gestation.  
  • Second, during the middle trimester (12 to 24 weeks), a state may regulate abortion in the interests of maternal health (eg, mandating that it be performed in a hospital) but not ban it.

The Supreme Court could use the Mississippi case to overturn Roe v Wade totally, returning to the states the power to regulate or ban abortion completely.  More probably, it will take an incrementalist approach and simply affirm the constitutionality of Mississippi's prohibition of abortions after fifteen weeks.  Although the precise wording the Court would use is unclear, the result would probably be to remove the “pre-fetal viability” criterion for legal abortion.  Either decision would almost certainly lead to a legislative free-for-all as anti-abortion statehouses write new laws to restrict abortion further or outlaw it altogether.  

The potential for political chaos after either of these decisions is high.  The Guttmacher Institute reports that 

If Roe were overturned or fundamentally weakened, 21 states have laws or constitutional amendments already in place that would make them certain to attempt to ban abortion as quickly as possible. …
An additional five states have political composition, history and other indicators — such as recent actions to limit access to abortion — that show they are likely to ban abortion as soon as possible without federal protections in place.

The conservative (but not right-wing) columnist David Brooks writes:

I used to support overturning Roe because I thought it would be healthy to get the abortion issue out of the courts and back to state legislatures.  I used to think that most states would wind up where the nation’s center of gravity is — with restrictions but not bans.
But we’re now trying to deal with a miserably complex issue in a brutalized political culture.  Majorities don’t rule in this country; polarized minorities do.  The evidence this week is that the post-
Roe politics would make even our current politics seem tame.  I’m not sure our democracy is strong enough for that.

Where is the nation's “center of gravity” on abortion?  In fact, there is no simple answer to that question.  The debate that has raged for five decades without much change in American public opinion has focused on the extremes: at one end, abortion is “murder;” at the other it’s “just another medical procedure.”  That simplistic argument is not only irresolvable; it permits us to sidestep our intricate, highly nuanced and often painfully contradictory views.  A National Public Radio (NPR) - Marist 2019 poll on abortion — two years old but much more thorough than most — came to the conclusion that there is

a great deal of complexity — and sometimes contradiction among Americans — that goes well beyond the talking points of the loudest voices in the debate.  In fact, there's a high level of dissatisfaction with abortion policy overall.  Almost two-thirds of people said they were either somewhat or very dissatisfied, including 66% of those who self-identify as "pro-life" and 62% of those who self-identify as "pro-choice."
What it speaks to is the fact that the debate is dominated by the extreme positions on both sides," said Barbara Carvalho, director of the Marist Poll, which conducted the survey.  "People do see the issue as very complicated, very complex.  Their positions don't fall along one side or the other.  ...  The debate is about the extremes, and that's not where the public is."

Few of us take an absolutist stance.  Only a small fraction of us (13%) believe that abortion should be illegal under all circumstances.  A somewhat larger fraction (25%) believe that it should be legal under all circumstances.  Most of us, then, believe that abortion should be legal with some restrictions.  

Over 90% of abortions in the United States take place during the first trimester when most of us think they should be legal.  Furthermore over 40% of all abortions are medically induced.  (Interestingly, I’ve been unable to find a poll measuring our attitudes toward medically induced abortion.  I suspect we feel differently about it than about surgically induced abortion.)

Surprisingly, the vast majority (86% of those who expressed an opinion in this poll) were against overturning Roe completely (including 59% of Republicans), although roughly equal numbers wanted to add restrictions, reduce restrictions or leave the ruling the same.  Opinions about Roe v Wade have not changed dramatically since it was decided.

America's current debate over abortion has been along the ideological edges and does not reflect how the majority of us approach this difficult issue.  In fact, the Supreme Court’s 1973 Roe v Wade decision allowing abortion with certain restrictions captured remarkable well — and continues to reflect — the American public’s complex attitudes towards the procedure.  

One way of looking at Roe v Wade is as a safe space within our polarized country that makes possible debate over the impassioned and ultimately irresolvable conflict that surrounds abortion.  Within that space we can argue vehemently, groups can organize politically, conservative state lawmakers can tweak their laws, yet the basic provisions of abortion law conform to majority public opinion.

If Roe is overturned or dramatically limited, however, polarized minorities in certain states will make abortion illegal.  (Even in the states most likely to restrict or prohibit abortion, approximately 40% of the population believes that abortion should be legal in most or all cases.)  In some cases, abortion providers will try to continue to make them safely available illegally, anyway.  What will be the legal consequence?  Will we put the doctors in jail?  Over 70% of Americans oppose fines or criminal penalties for doctors who perform abortions.  Are we ready for vigilante justice?  In other cases, women will seek unsafe abortions, with predictable awful medical consequences.  

Without Roe’s restrictions (and in the presence of our highly polarized, sometimes violent abortion-debate milieu), I wonder with David Brooks whether we are morally capable of having a nonviolent — to say nothing of respectful, or even democratic — national discussion.