Kids’ Doc in Jos

Roe v. Wade

In 1973, the US Supreme Court decided, in the case of Roe v. Wade, that the US Constitution guaranteed women unimpeded access to abortion at any time right up to birth. While technically Roe allowed for some legal restrictions in the last trimester, even those were made meaningless by Doe v. Bolton, decided the same day and supported by the same five justices who supported Roe. Among other things, Doe established that a woman’s physician could, with no guidelines or restrictions, use any criteria to decide that the woman’s health was at risk, so justifying an abortion right up to the time of birth.

Steve Knight says that, while he used to believe Roe should be overturned, he has changed his mind and now supports it. Here are the points that appear to specifically relate to Roe:

Steve believes that overturning Roe would be an undemocratic abuse of judicial power. He says, “the dominant narrative right now, in my opinion, is simply one of fear that suggests the only/best solution is to get conservative judges on the Supreme Court so that they can legislate from the bench.”

Response: that’s a strange argument since the original decisions did exactly that, legislate from the bench, and have been heavily criticized even by some pro-choice advocates on that ground. In the period leading up to Roe, the issue was being debated and decided by the political process state by state. Roe took the issue out of the hands of elected representatives and decided it by judicial fiat.

Here are some quotes from Benjamin Wittes, a fellow of the Brookings Institutions who favors liberal abortion laws. He makes these points in the context of an article whose overall point is that the pro-choice position and liberalism have been seriously harmed by Roe and the controversy it has engendered.

Still, the liberal commitment to Roe has been deeply unhealthy—for American democracy, for liberalism, and even for the cause of abortion rights itself.

Since its inception Roe has had a deep legitimacy problem, stemming from its weakness as a legal opinion. Conservatives who fulminate that the Court made up the right to abortion, which appears explicitly nowhere in the Constitution, are being simplistic—but they’re not entirely wrong. In the years since the decision an enormous body of academic literature has tried to put the right to an abortion on firmer legal ground. But thousands of pages of scholarship notwithstanding, the right to abortion remains constitutionally shaky; abortion policy is a question that the Constitution—even broadly construed—cannot convincingly be read to resolve.

The [constitutional] right to abortion remains a highly debatable proposition, both jurisprudentially and morally. The mere fact that liberals have to devote so much political energy to pretending that the right exists beyond democratic debate proves that it doesn’t.

Steve says abortion is “national issue that requires a national solution.”

Response: There is no reason to say this for the particular issue of abortion. One could say the same thing for crime, health care, education, drunken driving, homeless, and anything else. For better or worse, the American system is built on an evolving balance of state and federal powers and the abortion issue is mostly in the areas regulated by states. Again, even pro-choice Wittes feels that the cause should be argued in the states in a democratic process:

In the absence of Roe abortion rights would probably be protected by the laws of most states relatively quickly.

… In short, overturning Roe would lead to greater regional variability in the right to abortion, but this would be a worthwhile price for pro-choice voters to pay in exchange for greater democratic legitimacy for that right and, therefore, greater acceptance of and permanence for it.

More importantly, though, asking for a national solution does not mean much without specifying what the solution will be. Would Steve Knight be willing to accept as a national solution a “Right to Life” constitutional amendment?

Steve says, “While the partial-birth abortion ban is a good thing, I would personally support a late-term abortion ban, covering other methods”

Response: a ban on late-term abortions would require overturning Roe, which guarantees an absolute right for the woman to end her pregnancy up to the moment of birth. The ban on partial-birth abortion was upheld in part because the Court found that there were other, equally effective, ways of killing the maturing fetus.

Let’s take a bit more detailed look at the cases. First, you might think I’m exaggerating when I say the the Court established the woman’s right to abortion right to the time of birth. Didn’t it allow for unrestricted abortions only in the first trimester, with some restrictions possible in the second, and with the states able to impose limits in the last trimester? Yes, but …

• In the first trimester the decision is left to the woman and her physician: no surprises here.
• From the beginning of the second trimester to the point of viability (generally considered the end of the second trimester at the time), the State can “regulate the abortion procedure” to protect maternal health, perhaps, for example, by requiring a certain standard of available medical support.
• After viability, when the fetus could live if born, the State may regulate or even forbid abortions “except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” As I said above, Doe v. Bolton established what was meant by the health exception: the mother’s health concerns are whatever her doctor says they are, including “all factors - physical, emotional, psychological, familial, and the woman’s age - relevant to the wellbeing of the patient.”

In reality, then, Roe and Doe together guarantee that a woman can have an abortion up to the time of birth, for any reason, as long as her physician (who may be the abortion doctor) agrees.

Didn’t the Court uphold state requirements for parental consent in minors, and such restrictions?

Before viability, regulation is allowed, in the sense of making sure things are done “properly,” as long as such regulation does not impose an “undue burden” on the woman’s right to an abortion. Planned Parenthood v. Casey (1992) tried to clarify what regulation is allowed, and upheld the constitutionality of requirements for parental consent, informed consent, and 24-hour waiting period, but struck down the requirement for notifying the husband. (see Wikipedia article). The key difference between the spousal notification requirement and the others was that the Court found that the former would prove to be an “undue burden” on the woman’s right to choose to end her pregnancy.

What about the partial birth abortion? The Supreme Court upheld the ban on that.

Yes, the Court decided last year in Gonzales v. Carhart that the US act forbidding partial birth abortion was constitutional. However, a crucial basis of this decision was that there were other ways of killing the baby (or fetus, if you prefer) even up to the moment of birth. Primarily, “The Act prohibits intact D&E [partial birth abortion]; and, notwithstanding respondents’ arguments, it does not prohibit the D&E procedure in which the fetus is removed in parts.” In other words, the ban does not impose an undue burden on the woman because the baby can always be taken out in pieces rather than whole.

A general ban on late-term abortions, or even any obstacle that would “unduly burden” the woman, would be flatly unconstitutional as Roe and Doe stand.

Conclusion

Opinion surveys of Americans generally show that a minority favor unrestricted abortion, a minority favor completely outlawing abortion, and a larger group favor abortion in some cases. It is true, then, that a complete ban on abortions would not be “the will of the people.” On the other hand, Roe takes the opposite extreme position, a position also opposed by most Americans, such as those like Steve Knight who oppose late term abortions.

As Wittes points out, overturning Roe would, far from outlawing abortion, put it on a more solid democratic basis. It has been said that if Roe is overturned, the US will be the only democratic country to have outlawed abortion. This is not so, since the question would be simply thrown into the political process. It would also be fair to point out that the US is the only country to have legalized abortion by going around the legislative process.

Whether you support a complete ban on abortion or a limited right to it (say, up to 20 weeks, with exceptions beyond that for serious health risk to the mother), Roe is the obstacle that stands in the way.

References:

Benjamin Wittes, “Letting Go of Roe,” The Atlantic, January/February 2005.

See links to the court cases discussed.

Part 1: Summary of Steve Knight’s Position

This week I came across a blog post by Steve Knight on the subject of the politics of abortion. His post was triggered, he explains, by the fact that he was mentioned in a national news article as a young, pro-life, evangelical voter who now supports Obama for president. I hesitate to add to the millions of paper and web pages written on the subject, but since Steve and I have a lot in common (even belonging to the same mission organization) yet differ on this issue, and because his blog entry and comments are cogent and civil, I’d like to respond. Anyway, that’s what a blog is for, right?

I will try to summarize Steve’s arguments here but it would be best, of course, to read them in context, so I recommend reading his entire post first.

Steve explains that, although he still considers himself a pro-life evangelical,  “I simply do not believe that criminalizing abortion is the best way to reduce the number of abortions in this country.” He goes beyond that, however, to bring into question the whole moral position of the pro-life movement, and whether abortion is really as wrong as pro-lifers make it out to be. His main arguments are these:

1. Many women and girls are caught in a cycles of poverty. We should be doing more to help them escape from this state. Meanwhile, we should not stop them from having abortions which, he implies, could help them cope. Having a child can be a burden to women that they should not be forced to bear. (See also point 4)
   

   “We had the means and the desire to keep a child. My concerns are for the many women who are in desperate situations where this is not the case.”

   Lack of access to abortion in some states would create “all kinds of problems for young women who find themselves in these desperate situations. Parents who can’t even say the word “sex” around their children will now have their pregnant teens fleeing to states where abortion is legal.”

2. The early unborn baby or fetus (”fertilized egg” is what he calls it) does not have rights commensurate with those of the mother, or he is “uncertain” about those rights.
   

   “I suspect there may be many like me who have serious questions about the “human rights” of a fertilized egg.”

   “So I have to admit that I’ve become somewhat agnostic when it comes to the question of ‘When does life begin?’”

   “I would give deference to the life of the [woman] over the potential life of the fertilized egg inside her.”

   “When most abortions take place, it is hardly more than a fertilized egg that is “killed” (basically the size of the head of a pin). To be sure, the potential for that fertilized egg to grow into a fetus and into a baby is there.”

3. People shouldn’t go to jail for having or doing abortions.
   

   “I don’t believe a woman or a doctor should be put in jail for having or conducting an abortion.”

   “Who goes to prison if Roe v. Wade is overturned?”

   “How do you plan to pay for all of the new prisons that will need to be built?”

4. Pro-life people do not care adequately for the “women and girls who are caught up cycles of poverty and desperation.” In fact, they are more aligned with the racist oppressors, the Republican party. Since they are not doing much (or not enough) to help these women, they have no right to make their plight worse by preventing them from aborting their “fertilized eggs.”
   

   “I also find myself disillusioned by the apparent hypocrisy within the pro-life movement, which has tightly aligned itself to the Republican Party with its economic policies which seem to say to women, ‘You have to carry your baby to full-term, and we’re not going to do much to help you financially.’ It’s an almost Darwinian ’survival of the fittest’ political platform that is inherently racist when you realize the abortion rates are highest among black and Hispanic women.”

   “I’d just like to challenge you and others who are in favor of overturning Roe v. Wade to continue articulating … what real, concrete assistance is being given to women and girls who are caught up cycles of poverty and desperation.”

   “…my point is that if you’re not willing to ‘pay the price’ to adopt a child, support a pregnant teen, financially invest in a woman living on minimum wage to help her make the choice to keep a child, then your ‘pro-life’ advocacy is cheap and easy.”

   “How can we work together to seek justice for the poor and the oppressed who do not feel they have a safe, supportive environment in which to bring a child into this world?”

5. Most pro-life people have never been personally affected by the issue and so, it seems, should not judge others.
   

   “To be honest, abortion has never had any real-life implications for me. [For most] people in the abortion debate, the actual people affected by abortion are just hypothetical and theoretical to us, and what happens on a daily basis has no real impact on our lives. I say this to my own shame, but also to hold a mirror up to my pro-life friends who fervently believe abortion should be made illegal in this country.”

6. Decreasing the number of abortions is a good goal but overturning Roe v. Wade is not the best way to do it. Overturning Roe would be an undemocratic abuse of judicial power, would put people in jail, and would increase the oppression of the poor and minorities. Steve would support a ban on late-term abortions.
   

   “…but the rallying cry of the pro-life movement is ‘overturn Roe v. Wade,’ and I have to confess that is something I no longer support.” (emphasis in original)

   “… the dominant narrative right now, in my opinion, is simply one of fear that suggests the only/best solution is to get conservative judges on the Supreme Court so that they can legislate from the bench. ”

   “While the partial-birth abortion ban is a good thing, I would personally support a late-term abortion ban, covering other methods.”

7. “Much of the birth control used by evangelicals essentially promotes ‘abortion’ by not allowing the already fertilized egg to implant on the uterine wall.”

I think we can condense these points further as follows:

• Many pregnant women are in desperate situations which will be made worse by having a baby. Many are impoverished, uneducated, minorities, young, afraid of what their parents will say, and so on. In other words, they are victims. Abortion provides them some measure of control and the means to improve their situation, or, at least, prevent it from worsening.
• Many if not most pro-life supporters are actively or passively complicit with the oppressors and, as such, lack moral standing to judge their victims’ attempts to help themselves. Many evangelical pro-life supporters are hypocritical by supporting the Republican party policies, using abortive methods of contraception themselves, and failing to help the very women who need it.
• The question of when personhood begins, in terms of a being having a right to protection, is controversial and perhaps unanswerable. Therefore, it is reasonable to support the welfare (rights?) of the woman over that of the developing or potential person. At some point in development, however, abortion should be banned (”I would personally support a late-term abortion ban”).
• Abortion is a bad thing but, in the balance, it would be worse to criminalize it by overturning Roe.

Steve makes many thought-provoking points indeed, especially telling against a knee-jerk, closed-heart anti-abortion stance. I’ll look more at some of these points in my next post. Meanwhile, I still don’t know who I’ll vote for!