Born after 1970? It’s likely that you would not recall a time when abortion was illegal in many states across America. It appears that outside of those who fight for “women’s rights,” now take this freedom for granted — and, as we will learn in this coming presidency, it’s the freedoms we take for granted which are the easiest to lose. How fast we forget.
Thanks to a landmark decision by the United States Supreme Court in 1973, abortion was made legal in all 50 states, even though many of the states fought and continue to fight this decision. The Supreme Court agreed 7 to 2 that the right to privacy under the Due Process Clause of the 14th Amendment extended to a woman’s decision to have an abortion.
*In other words, in 1973 it became illegal for states to reject a woman’s right to an abortion until “fetal viability,” defined as “potentially able to live outside the mother’s womb, albeit with artificial aid.” When this moment in time happens isn’t percisely identifiable, but there are clear timeframes before fetal viability when an abortion would be allowed.
While in an ideal world this issue would not be part of our political process, due to various religious and ethical disagreements around when a clump of cells becomes a person, abortion is still one of the leading issues in political campaigns today. Yes, lost jobs to outsourcing and other social issues are part of American voting concerns today, the reality is that what separates Right from Left starts and ends at what liberals call “women’s rights” and what conservatives call “murder.”
There are many reasons for a woman to have an abortion. I have been very fortunate to never have had a reason to go through this process, but I know women who have, and I know that it was always a painful choice. In some cases, the woman was not ready to be a parent. In others, the woman’s health was in danger. In one case I heard of from a friend of a friend, the fetus was determined to be so severly deformed that it would not survive outside of the womb. Abortion is not a “Woman’s Rights” issue, it’s an issue of Human Rights, specifically what is a human and when should a human begin to have rights, and when should those rights trump those of their host?
Men rarely see this as an issue that matters to them personally either, until they are effected by a wife, sister or friend who is in need of an abortion. Perhaps a birth control method failed despite using it correctly (because no birth control methods are 100% perfect), or the woman cannot safely hold a child to term, or a family member was raped and impregnated by force, not choice. When we position abortion as “Women’s Rights,” we’re having the wrong conversation. We also just don’t remember what it’s like to not have these rights.
Roughly six-in-ten Americans (62%) know Roe v. Wadewas a decision about abortion, but among adults under 30 years old, only 44% know. Younger adults also are less likely to view abortion as an important issue: 62% of Americans ages 18 to 29 say it is “not that important”compared with other issues, while 53% of adults overall say this. — Pew Research
We have gone many years when the country established a legal provision to enable women to have an abortion in every state since 1973. This doesn’t mean it was easy to find a clinic to provide these services or that women could have the procedure done without being called baby killers outside of the clinic or forced to wait 24 hours to have an abortion or read information with false data around health risks prior to having a procedure done. It only meant that a woman should be allowed to have an abortion prior to fetal viability. The amorphous legal area surrounding this is appears to be as grey as ever, if not more so than it has been in the past. Without the Supreme Court constantly turning down state laws attempted to ban abortion outright, this map would look even more bleak (*for those who are “pro-choice or in need of an abortion)
In Roe v. Wade the Court established a right of personal privacy protected by the due process clause that includes the right of a woman to determine whether or not to bear a child [source]. While I’m far from a legal professional, my understanding is that the rulings which justified Roe vs. Wade are fragile at best and easily overturned with a shift of Supreme Court political weight just a tinge more towards conservative.
Roe vs. Wade is centered around The 14th Amendment:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Furthermore, the 4th Amendment protects people from being searched without probable cause.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Should these privacy protections protect a woman having an abortion? If you view abortion from a scientific perspective, the answer appears to be clearly yes. However, to play devil’s advocate, one only needs to view abortion as murder to then state that police are allowed to approach the scene of a potential crime if they believe a crime is in process. It is, of course, much more complicated than that — but in very simple terms, if you believe abortion is murder (religiously or ethically) then if you have “probable cause” that an abortion clinic is helping women terminate pregnancies, you no longer would be able to uphold the right to privacy. (Again, I’m not a lawyer, just explaining this as I understand it as background context for where I’m going with this post — if you disagree please comment below and explain why I’m understanding this wrong.)
State vs. Federal Rights: Who Should Decide Abortion Legalities?
Strict constitutionalists want the Supreme Court justics to interperet the constitution and judge based on these interpretations. As a conservative member of my family expressed, he believes Roe vs. Wade set a dangerous precident for allowing justices to interpert the constitution in such a skewed way to enable other future justices to do the same for any topic. Others would argue that the Constitution is a blueprint for the success of our country, but when it was drafted in 1787 (and in its subsequent additions), America — and the world for that matter — looked a lot different than it does now.
When the definition of when life begins is disagreed on by scientists and liberals and ethicists and religious zealots and well-meaning conservatives, there is nothing one can do but interpert the constitution based upon personal ethical beliefs.
The first amendment, often known as “Freedom of Speech” along with “Separation of Church and State,” really says the following:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
So, everyone can share their thoughts about everything, and no one can be refused the ability to assemble for both religious and non-religious purposes. No where in the constitution does it define when life begins. Science tells us one thing and religious texts tell us another. As an agnostic myself, I trust the scientists. But removing my personal belief from the equation, who are any of us to say when life begins? Along the same lines, couldn’t we argue that every viable egg not fertilized by a sperm since the beginning of puberty is murder as well? Conservatives would argue that the moment the sperm fertilizes the eggis when life is created, however, is a parasite which is surviving off of its host without fetal viability truely a human yet?
Removing religion from the equation, I have ethically been troubled by this question. Although I consider myself pro-choice (most certainly in the first trimester or in cases of the mother’s health), I have always found difficulty with the answer of when we are removing cells from the body to when a life is being terminated. Even without religion, one must determine ethically when life becomes life. For some the thought may be the world is overcrowded to begin with and if a mother does not want to have a child, then we should not bring an unwanted life into the world. In an extreme version of this, we could argue that a woman has the right to kill her child three months after it has been born because she has no means of supporting it and in trying to support its life she would not be able to feed herself and would also die. This is a barbaric exhageration, but I think when we try to fight the religious issue we walk into walls, but in dicussing the ethics behind when life is life we could have a more productive (albeit always inconclusive) conversation and debate. Ironically, in the latter case, the same conservatives who are so “pro life” often to not believe in supporting the mother/parents once the child is born to ensure a basic healthy life. It is important that we don’t allow this hypocrisy to be lost in the conversation, no matter what “side” you are on.
Regardless of what I think about when life begins, or what you think, or what scientists think, or what conservatives think, the reality is that with the Trump presidency and the current state of the Surpeme Court we’re likely going to see a reversal of Roe vs. Wade in the next 4–8 years. Even without this, many states are working hard to pass strict anti-abortion laws
In what, from the perspective of a civilian bystandar, seems criminal, a Republican-controlled Congress has blocked Obama from replacing the late Anton Scalia on the Supreme Court. This means that Trump will get to replace at least one justice. Replacing one conservative justice with another will not shift voting balance. What will shift the balance, and most likely lead to reversal of Roe vs. Wade, will the the retirement by choice or force, or death, of aging liberal Surpeme Court justices: Ginsberg, Kennedy and Breyer are aged 79–83. One or more of these justices will likely be replaced in the first Trump presidency. If Trump wins a second stint and makes it a full 8 years, it’s quite likely more than one will be replaced with an extremely conservative judge.
And — what happens with a ruling like this is that you take away the right to an abortion from women who need it most — those who doctor’s deem medically need an abortion to save their own life when it’s clear both lives will be lost in the delievery, or the child will be lost soon after birth due to deformities. Many strictly anti-abortion friends of mine (who live in liberal states) are always soft on rules around the mother’s health, but we don’t get to make the rules — the states do, and as we see in Ohio’s legislation, they don’t care about the mother’s health, only the so-called “right to life” of the “child.”
Ohio & Texas: Testing the Waters for Reversal
This past week, Ohio either took a step back or a step forward (depending who you ask) by passing the strictest time-based abortion law in the nation. Dubbed “The Heartbeat Bill,” a woman would be unable to get an abortion once a heartbeat of a fetus could be detected — this is SIX WEEKS into a pregnancy, often before a woman realizes she is pregnant. In other words, this all but criminalizes abortions except in the case of immediate action. In comparison, the state’s current law bans abortions after the 20th week of gestation, unless a doctor determines that the fetus isn’t viable outside the womb or if the pregnancy puts the mother’s health at risk.
In Ohio, Republican Gov. John Kasich has 10 days to determine whether to pass of veto this bill. In the current “red-fluenza” of our country, these types of bills are no longer scary for politicans to support. “If Kasich signs the bill, or if he does nothing within 10 days, the measure would become law early next year. A veto would stop the bill unless three-fifths of the state House and Senate vote for an override,” according to CNN.
Two other states — Arkansas and North Dakota — passed similar laws in the past, but those measures were founded to be unconstitutional in federal court. Texas, in a well publicized fight this year, had the restrictive parts of its abortion lawstruck down by the Surpreme Court. Even though abortion has been legal since 1973, for many states it’s still a matter of the Supreme Court protecting these rights.
Given the Trump presidency, it is only a matter of time before the Supreme Court shifts conservative and we will have a reveral of Roe vs. Wade. Trump has made it clear that while he will appoint conservative judges who will do what conservative judges do. This is not surprising, and we should not be surprised when it happens.
What Does a Post Roe-vs.-Wade America Look Like?
Current state laws on abortion vary dramatically by state and break down as you would likely imagine. Despite what “pro life” marketers claim, including Trump himself, the baby is not “ripped from its mother’s womb.” In most cases abortions are limited to earlier in the gestation period:
Compare these laws to the laws on the books prior to Roe vs Wade in 1973:
Here we can see that in 1973, prior to Roe vs. Wade, the majority of the country had outright banned abortion in all cases. Compare this to the currentlaws and we see a evolution of this legality, largely due to the passing of Roe vs. Wade, but also to the shifting demographics of America.
One of the arguments many “abortion I don’t care” Trump voters, pretty much always men, would say that women could always just “go to another state” if abortion were made illegal in their home state. Besides the reality that women in poverty, in domestic violence relationships, or in many other cases would not be able to just jump on a bus to their neighboring state to get an abortion, we also must consider realistically what these maps would look like today if redrawn based on current state viewpoints on abortion. While, for abortion/choice supporters, it wouldn’t look nearly as bleak at 1973, it would likely be detrimental to the lives of women in numerous states.
In order to come up with some sort of understanding of what a post Roe vs. Wade America will look like, I’ve reviewed a variety of polls and studies regarding views on abortion country-wide and by state in the recent past.
In an ongoing Gallup poll, we can already see some vary telling trends. Immediately passing Roe vs Wade, a little more than half the nation felt that abortion should be legal under certain circumstances. In 1989 through 1995, there was a large jump (by over 10%) in people who thought abortions should be legal under any circumstances. This figure dropped by the end of 1997 and remained just under 29% through the past year. In 1975, 77% of the population felt abortion should be legal at least under certain circumstances. By 1993 that number had increased to 82% of the population. Today, it is back down a bit to 79%. Still, these numbers seem promising (if you are pro abortion at least in some cases — would states today really limit abortions as they did predating Roe vs. Wade? Or has public opinion shifted so much that, as Republican-voting fiscal conservatives note, it won’t be that bad?
From the same series of polls, Gallup has asked whether Americans consider themselves pro-choice or pro-life. The pro-choice group has fallen prior to 1996 and our country has remained clearly divided on this issue:
The Gallup data is not segmented by state, but another poll by the Pew Research Center in 2014 sheds light on how this would break down by state:
If we were to map out states where abortion has more than 50% support for being legal in all/most cases, we’d end up with a map that looks like this:
This image was compiled using the above information. Any state with 30%-40% approval of abortion (the lowest approval rating) is bright red (i.e. Alabama, Arkansas, Kentucky, Louisiana, Mississippi and West Virginia all had the lowest support for abortion in the Pew poll. Highest support came from Vermont, Massachusetts and District of Columbia.) While state law does not always represent the will of its people, this gives us some insight into how much the people will push back in states against any anti-abortion bills that will be passed once Roe vs. Wade is overturned. Specifically, for every person who says “the woman can just drive to another state,” how possible will this be when states pass strict anti-abortion laws like the one on the table in Ohio today.
Will women in the sea of red really be able to pick up and drive to a blue state to obtain an abortion if needed? Of course not. This is not the objective of those who are anti abortion. The objective is to make it impossible for women to get abortions, period. For anyone naive enough to think that we have changed so significantly in our viewpoints since 1973, this data shows that while there is some moral evolution, there is still very much a large segment of the population that is against abortion in some or all cases.
This map sheds some light on the future of a post Roe vs. Wade America. This won’t happen overnight, but if we lose more liberal-leaning Surpeme Court justices the abortion rights laws will likely be overturned. And this is what our country will look like, give or take a few state’s laws.
Some closing thoughts on this topic tonight, courtesy of the Pew Research Center’s insights from its report:
There is a substantial ideological divideon abortion, with Democrats much more likely than Republicans to say abortion should be legal in all or most cases. This gap is even larger between liberal Democrats and conservative Republicans. Fully 84% of liberal Democrats say abortion should be legal in all or most cases, compared with only three-in-ten self-described conservatives in the GOP.
There’s a difference between what Americans think should be legal and what they think is moral.About half of Americans (49%) say that having an abortion is morally wrong, while 15% think it is morally acceptable and 23% say it is not a moral issue. These views differ by religious affiliation: While 75% of white evangelical Protestants say having an abortion is morally wrong, 25% of religiously unaffiliated people say so.
life with interest 