Abortion has remained America’s most intractable political issue because it defies compromise. If you believe that abortion is the murder of unborn children, no justification exists save perhaps for the life of the mother. Roe v. Wade created a national right to abortion on the grounds of privacy: the decision to get an abortion was between a woman and her physician. This is weak tea—the right to privacy, taken on its own, hardly seems like a reasonable justification for murder (if that’s how you seen it). It’s no wonder that the late Justice Ruth Bader Ginsburg criticized the legal reasoning behind Roe even as she fiercely supported a woman’s right to choose.
The Supreme Court sought to resolve this tension—if not the underlying constitutional question–in 1992, in Planned Parenthood v. Casey, greatly expanding its justification abortion rights:
“With abortion, “the liberty of the woman is at stake in a sense unique to the human condition and so unique to the law,” the decision read. “Her suffering is too intimate and personal for the State to insist…upon its own vision of the woman’s role, however dominant that vision has been in the course of our history and of our culture.”
The nature of this suffering has been amply documented by social scientists and historians, and here we find the greatest justification for preserving the status quo of legal abortion.
Until fairly recently, childbearing posed mortal peril. As late as the 1930s, more than one in two hundred American women died in childbirth. Maternal mortality fell sharply after the Great Depression, but the historical memory persists. Indeed, the United States continues to have a maternal mortality rate several times as high as other countries in the developed world. American women deserve the right to make such a vital decision about their own physical health.
And if that’s not persuasive, consider the responsibility of carrying a child to term, and the care a newborn requires. So long as chastity was the only way a woman could control her own fertility, she couldn’t be an equal citizen. Her ability to pursue an education, develop a career, or run for elective office was compromised. The social science on this point is overwhelming, as noted by an amicus brief from over 150 economists and other academics submitted to the Supreme Court last September. Abortion rights, and birth control more broadly, increase women’s education, employment, and earnings.
Perhaps the end of abortion still seems defensible under these conditions, if they are measured by a women’s right to manage her own sexual life. Some abortion opponents might dismiss this line of reasoning as “murder for jobs.” But this ignores the consequences of an abortion ban for the prospects of the children that would come into the world.
If Justice Alito’s leaked draft remains essentially unchanged, abortion would almost instantly become illegal in about half the states, including Utah. Middle class women would be merely inconvenienced, as they could easily travel to other states to get an abortion. But poor women wouldn’t have this option, and many who would have hitherto sought to terminate their pregnancies will be forced to give birth. It’s not rocket science to imagine that unwanted children born to poor mothers might not be facing the best life prospects. How can we do that to children, let alone their mothers?
This is what’s at stake in the Court’s move to undo 49 years of federally guaranteed abortion rights, established in 1973 and again in 1992 in Casey by a court staffed by eight justices appointed by Republican presidents (the 9th, Byron “Whizzer” White, had voted against Roe in 1973.) There’s no doubt the Court weighed the gravity of its decision, as three justices noted in a concurring opinion: “So to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court’s legitimacy beyond any serious question.” I feel confident in saying that hasn’t changed in the past thirty years since Casey.
Abortion rights should remain available because they undergird women’s participation as citizens in a free country. But don’t take from me, take it from the Supreme Court in Casey:
“The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”
I can’t improve on that.