Middle ground on abortion can finally now be pursued
A middle ground on abortion has now become possible.
To adopt it, our country must veer away from absolutist positions. This will be hard for both sides of the issue. Pro-life advocates have based their efforts for the last half century on the belief that life begins at conception. Pro-choice advocates have defended Roe v. Wade as though the words of the Constitution included “right to privacy” and “abortion.”
As long as the United States Supreme Court held the latter view, pro-choice advocates had no incentive to compromise on a more limited right: say, that a woman has the right to an abortion early in her pregnancy but not later. Had Roe v. Wade never been issued 50 years ago, the right-to-life effort would have been directed at each of the 50 states, urging laws that limited abortion to, say, instances of rape or incest, or where the mother's life was at risk otherwise.
After Roe v. Wade, however, the opinion itself became the target, and discussion of compromise was postponed until a middle ground would be constitutionally permissible.
That time has arrived.
It will be difficult to put aside politically charged characterizations of this issue. President Biden and Speaker Pelosi announced that abortion will be on the midterm election ballot this November.
Former President Trump immediately took credit for the court's opinion because of his three appointees to the court.
The abortion rights bill that the Senate defeated in May shows the political nature of our present debate. Forty-nine senators voted to create a national right to abortion up to viability. However, their bill nullified several constraints on abortion the court had allowed, including a doctor's religious objections.
Senators Joe Manchin, Susan Collins and Lisa Murkowski, each of whose support would be needed to reach a compromise, claimed it went too far. This allowed Republican senators to mischaracterize the bill as “abortion on demand,” putting the Democrats outside of the mainstream.
Speaker Pelosi has now warned that if the Democrats lose control of the Congress this November, a national ban on abortions will result. That is also an exaggeration. For one thing, Democratic senators would filibuster such a bill; for another, President Biden would veto it, even assuming that it could pass in Congress with only Republican votes.
President Biden claimed this was the first time the court had taken away a constitutional right. That is inaccurate. The Supreme Court held, in 1923, that the liberty and property rights protected by the Constitution included employers' rights to make contracts with employees that states could not abridge by minimum wage and maximum hours laws. The court took that right away in an opinion 14 years later.
If President Biden knew of this precedent, he chose to ignore it, since the “right” the court created in 1923 would be unpopular today, and its removal popular. Constitutionally, however, it is identical to Roe v. Wade: the court found a right in the Constitution in the absence of any specific textual basis, and the court felt free to “unfind” the same right years later.
Stability of Supreme Court rulings is a myth. The court has reversed itself more than 200 times in its history, overcoming
every time.
The abortion issue now returns to the states and to Congress, where it resided before 1973.
A sensible compromise would protect a woman's right to decide on an abortion early in her pregnancy and protect the possibility of life thereafter, unless the woman's health was at serious risk.
Congress could pass such a law applying to all the states.
If a national consensus is lacking, then each state can set its own balance between a woman's freedom to choose and the protection of potential life, but no state could constitutionally restrict a woman from traveling to another state.
By its decision last Friday, the court has made a compromise like this newly possible.