Activism around the issue of abortion has become one of the central issues of our political culture. It is an issue that sharply divides Americans by gender, religion and party affiliation.
And it’s not going away any time soon. To a large extent, the 2016 election may have been decided on the abortion issue. While Donald Trump made immigration the central issue of his campaign, his flip from being pro-choice to anti-abortion helped drive the evangelical vote into his camp. Trump’s promise to appoint anti-abortion judges to the Supreme Court helped to drive the turnout of the rural evangelical vote in 2016.
Now that Trump has named two conservatives to the Supreme Court, the anti-abortion movement has gained steam. That movement wants to challenge and overthrow the 1973 Roe vs. Wade court ruling that allows abortions up to a certain point in a pregnancy.
That move to challenge Roe v. Wade was the reason the Georgia Legislature (along with some other Republican-dominated state legislatures) recently approved the “heartbeat” bill that will, in effect, ban abortions in most circumstances.
Under Roe v. Wade, the new Georgia law and its siblings would be ruled invalid. What proponents of the heartbeat bill are trying to do is start litigation that they hope will land in the Supreme Court and ultimately, overturn Roe v. Wade.
That is, of course, a long-shot. Nobody knows what the Supreme Court will do when the issue comes back before it. Roe has been the law of the land for over four decades; that doesn’t mean it won’t be overturned, but the Supreme Court has a strong tradition of following precedent. In other abortion cases since Roe, the court has not challenged the status quo. New justices may see the law differently, but even justices who personally oppose abortion may not vote to overturn Roe v. Wade.
Roe has been criticized over the years, even by some who favor abortion rights. The ruling revolves around the court’s determination that a woman has a “right to privacy” rooted in the Constitution. But of course, neither “privacy” nor abortion is discussed directly in the Constitution. Some believe that while the court reached the right decision in Roe, it went about that by extrapolating legal doctrines that don’t really exist (the same thing has been said about the 1954 Brown v. Board of Education decision that ended school segregation.)
While it has been criticized, the court did attempt in 1973 to balance a variety of rights involved in the abortion issue. The ruling did not grant unfettered or unrestricted abortions, as some critics portray it.
Essentially, what the court did in Roe was to allow a woman to have an abortion unquestioned during the first trimester of pregnancy (13 weeks.) During the second trimester, the court ruled that the state had a stronger interest in abortions and could issue regulations regarding the “protection of maternal health.” During the third trimester, the court ruled that the state had a compelling interest in fetal viability and could enact laws to protect “potential life.”
Of course, nobody really knows at what point “life” really begins. The most conservative view from the religious right is that life begins at the moment of conception. That view is very different from the court’s ruling which suggested that “life” doesn’t begin until a fetus is viable outside the womb, somewhere between 13-26 weeks.
Politically, the abortion issue is becoming more polarized by party affiliation. Republicans are largely anti-abortion while Democrats are largely pro-abortion. I expect that polarization will continue to harden in the 2020 elections.
Public opinion is divided on the issue overall. A 2014 poll suggested that only 21 percent of the public thinks abortions should be illegal under all circumstances; 28 percent think it should be legal under all circumstances; and 50 percent think it should be legal only under certain circumstances.
Most Americans are ambivalent about abortion. If you could break it down, I think a vast majority would approve of abortions during the first 20 weeks of a pregnancy, especially if the mother were very young, a victim of rape or incest or the mother’s life were in danger.
As the pregnancy goes beyond 20-26 weeks, I suspect many Americans would favor limiting abortions, except in the case of the mother’s health, or if the fetus has some abnormality that makes it unviable. Those are medical issues that are far beyond what any court could rule on.
While the spate of state “heartbeat” laws might eventually go to the Supreme Court, I’m not sure those will overthrow the Roe decision.
I don’t know when life begins in the womb. You don’t know. The court in 1973 didn’t know. The court today doesn’t know, either.
All things considered, Roe was a fairly balanced decision. For a court today to re-plow that same legal ground and come up with a totally different conclusion seems unlikely.
To challenge Roe, and lose, would undermine the anti-abortion movement forever.
To challenge Roe, and win, would create a political backlash among an electorate that largely supports some access to abortions.
Seems like a direct challenge to Roe via the “heartbeat” bills is a lose-lose situation for the anti-abortion movement. It’s an all-or-nothing strategy, a frontal assault rather than a more subtle flanking move.
Let’s see how all that turns out.