Court Restores Balance to Abortion Debate
Today, thanks to the Supreme Court, the pro-life movement lost its major weapon to deprive women of legal abortions.
The pro-lifers thought they had found a way around their inability to get Roe v. Wade overturned even with Republican majorities in the House and Senate. Their strategy was to whimper about “women’s health and safety,” as if either were jeopardized or as if the pro-lifers cared; get GOP-controlled legislatures to pass hard-to-meet regulations; and then cheer as abortion clinics and doctors couldn’t meet those rules. Texas shut down half its clinics, and the other half were threatened by regulations that would require operating rooms to be capable of performing brain surgery, and hospital-admitting privileges for doctors who worked there.
That all ended today. The court majority exposed the rules for what they were: “undue burdens” or, in layman’s language, ridiculous.
The 5-3 decision was the court’s most sweeping ruling on abortion rights since 1992, in Planned Parenthood v. Casey, which said states couldn’t place undue burdens on a legal procedure. In saying that Texas’ provisions were undue, the case will strike down similar regulations in other states and may well curtail other unnecessary but burdensome restrictions such as rules on the width of hallways and waiting times.
Justice Ruth Bader Ginsberg described how ludicrous it was to single out abortion clinics for special rules, since childbirth is far more dangerous, yet no law says you have to go to a hospital to have a child. And driving women into a back alley to have abortions would surely create an actual threat to a woman’s health.
For most Americans, abortion is a more complicated subject than our bitter, partisan arguments would indicate. Polls show that we want to both call ourselves pro-life while having pro-choice abortion laws.
People oppose laws like Texas’ that violate Roe. But a majority of Americans supported a partial-birth abortion ban first proposed in 1995 and finally passed in 2003. Republicans outmaneuvered Democrats, who found themselves defending grisly late-term abortions and looking more pro-abortion than pro-choice in their defense of it. While it was true that such abortions are relatively rare, they weren’t as rare as the Democrats had long argued. By the late 1990s, the exception for the “health of the mother” had been extended to “psychological health,” and there were too many cases of what Democratic Senator Daniel Patrick Moynihan said approximated infanticide. In 2007, the Supreme Court in Gonzales v. Carhart upheld the ban.
Until viability, at about 24 weeks, the law recognizes a woman’s right not to continue the pregnancy. On one extreme, some pro-choice advocates would extend that later than 24 weeks. On the other extreme, some pro-life Republicans insist that a fertilized egg has the same rights as a full human being, and that a woman accidentally pregnant, even in cases of rape or incest, should be forced into motherhood without thinking about what kind of mother she would be or the effect on the infant. As Barney Frank, the former Democratic congressman, once put it, “Republicans’ concern for the child begins at conception and ends at birth.”
Most Americans live somewhere in the murky middle on the issue. The Supreme Court’s decision today could throw abortion back into presidential politics with a thud.
Now Republicans will have to find a new way to deprive women of their constitutional right. When Donald Trump, now the Republicans’ presumptive nominee, early on in his campaign said that abortion should be illegal and that a woman having one should go to jail, he didn’t realize that the pro-life movement drew the line at the politically untenable position of punishing women. Republicans weren't going so far as to risk losing the woman’s vote for time immemorial. Trump drew back, but if he is not getting that vote anyway, what is there to lose by embracing his position?
The politically potent Christian right was forged when Roe was decided in 1973. For some, abortion is the only issue that matters. Today’s decision may reinvigorate them.
For their part, Democrats can do more to move back to the middle. Their party platform in 2004 said that abortion should be “safe, legal and rare.” In 2008, they dropped the “rare.” It’s a mistake they should correct at their 2016 convention, to come closer to where most Americans are. Not for that reason alone, but it’s the winning position.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
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