Why abortion fight will be split-the-difference agreement

Although many participants in it do not recognize this, and some who do rec‑ ognize it regret it, the intensity of the debate about abortion policy is waning. This is part‑ ly because in 2022 the

Supreme Court tem‑ porarily intensified the debate. And partly because the debate has been modulated by medical technol‑ ogy that has given the abstract debate the concreteness of visual vividness.

The Supreme Court’s initially divi‑ sive decision overturning its 1973 Roe v. Wade ruling has catalyzed a consen‑ sus, albeit nationally uneven and slowly emerging. The consensus is as blurry as the improved sonogram images that per‑ haps are helping to catalyze it are sharp: By 15 weeks, it is untenable to talk, as some abortion advocates do, about what is pictured by the sonogram as “fetal ma‑ terial.” It looks like a baby.

Robert Nisbet, a philosophically so‑ phisticated sociologist who provided intellectual ballast to conservatism in the second half of the 20th century, considered it incoherent for conserva‑ tives to make opposition to abortion a fundamental tenet of their doctrine. He said “the major theme of Western con‑ servatism” is “the preservation, to the extent feasible, of the autonomy of social groups against the state.” And particular‑ ly the preservation of “the family’s au‑ thority over its own.”

Abortion has been considered an in‑ tractably divisive issue because it sup‑ posedly was not amenable to the basic business of politics: the splitting of dif‑ ferences. Nisbet noted, however, that

“there is no record of any religion, in‑ cluding Christianity, ever pronouncing an accidental miscarriage as a death to be commemorated in prayer and ritu‑ al.” This, Nisbet implied, indicates an ancient, durable and widespread cultural tendency to say this: Societies that assert an interest in protecting life before birth are not required, by custom or a settled, articulated logic, to ban all deliberate ter‑ minations of pregnancies.

This month, the Supreme Court of the nation’s third‑most‑populous state allowed the legislature’s recently enact‑ ed six‑week ban on abortion to go into effect next month. (Before this, Florida had a moderately permissive abortion law.) But the court also, and perhaps more importantly, approved a ballot ini‑ tiative that this November might undo what the legislature has done: If the ini‑ tiative garners 60 percent support (cur‑ rent polling shows more than 60 per‑ cent support), it would establish a state constitutional right to abortion up to the point of viability (currently understood as 23‑24 weeks).

The Economist says that more than 1 million signatures (150,000 report‑ edly from registered Republicans) launched this referendum in the state whose 86,000 abortions in 2023 were one‑twelfth of the nation’s total. The Economist notes that Florida has been a destination for women from neighboring states with stricter abortion limits:

“Florida was one of the states that saw the greatest increase in abortions follow‑ ing the Dobbs ruling that overturned Roe v Wade. The state’s ban will cut off near‑ ly all access to abortion in the South.”

Until its recent deepening redness (Donald Trump carried it in 2016 and 2020 by 1.2 and 3.3 percentage points, respectively; Barack Obama carried it in 2008 and 2012 by 2.8 and .09 points, respectively), Florida was the largest swing state.

Virginia Gov. Glenn Youngkin, who calls himself pro‑life, has said he would sign legislation restricting abortion to the first 15 weeks. Another Republi‑ can governor, New Hampshire’s pro‑ choice Chris Sununu, accepts his state’s 24‑week (viability) limit, and especially with each state working out its consen‑ sus. At six weeks, many pregnant wom‑ en do not know their condition; recently, more than 90 percent of U.S. abortions have occurred within the first 15 weeks of gestation.

If most Republicans would reject a six‑week threshold, and eschew an unconservative clamor for re‑federaliz‑ ing the subject with a national abortion ban, the taint of extremism would shift to Democrats. Many of them insist on a right to abortion until birth, when so‑ nograms give a disturbing (one hopes) picture of what abortion would end, and why society can at this point reasonably assert an interest in protecting the visible infant’s life.

Alexander Hamilton said that be‑ cause the Supreme Court has neither the power of the purse nor of the sword, it is the government’s “least danger‑ ous” branch. Actually, the court today is the uniquely powerful branch because it lacks the power of the purse or sword, and must resort to persuasive public reasoning. Nowadays presidents and Congresses attempt this rarely, and only clumsily.

The debate the U.S. Supreme Court fueled two years ago is being ameliora‑ tive. North Dakota and South Carolina will continue to differ about abortion, but probably not forever as much they do now.