The price of overturning Roe v. Wade
Be careful what you wish for; you just might get it.
Pro-life activists have waited over 30 years for the Supreme Court’s makeup to shift against Roe v. Wade, and with Chief Justice John Roberts and newly-confirmed Justice Samuel Alito on board, many of these activists are thinking that the time is right for a full frontal assault on the constitutional right to abortion.
Almost as if on cue, mere weeks after Justice Samuel Alito took the bench, South Dakota passed a measure banning abortion except when the woman’s life is in danger. In step with this testament to wishful thinking, Mississippi has passed a similar bill out of committee that looks likely to become law, and a Missouri legislator has introduced his own version, along with a proposed amendment to the state constitution.
The upshot of all of this is unclear. Even if Roberts and Alito are willing to overturn Roe, there are still five votes to reaffirm the decision and reinforce its dubious status as “super-duper precedent,” or whatever Senator Arlen Specter calls it, despite its glaring jurisprudential flaws. A brazen challenge also risks awakening the pro-choice movement in a way that a piecemeal chipping away of Roe would not. Right now the pro-life movement has the debate going its way–asking for too much too soon may jeopardize the momentum.
America’s view of abortion has changed noticeably since 1973. Back when Roe was decided, the issue was primarily framed in the terms of a woman’s right to choose what to do with her own body. The fetus simply didn’t play much of a role in the moral debate. But decades of medical advancement has made the fetus a much more prominent player in the game. People see a fetus in the second trimester–with identifiable fingerprints, limbs, features and movements–and have an understandably harder time discounting it as just a jumble of cells. And partial-birth abortions of late-term fetuses turn the stomachs of even usually ardent pro-choicers.
Many in the pro-choice movement are starting to acknowledge that reality. Former president Bill Clinton started the trend by advocating that abortions be “safe, legal, and rare.” Why rare? If abortions are truly an unqualified good, there’s no reason to push for less of them. But now it has become clear that abortions are not good; they are to be avoided through the use of birth control or abstinence. Abortions have become seen as, at best, a necessary evil.
And this has the die-hard pro-choicers quaking in their Birkenstocks. Katha Pollitt, a writer for The Nation who apparently thinks it’s still 1973, frets, “Abortion has become a bit like flag-burning–something that offends all right-thinking people but needs to be legal for reasons of abstract principle.” The days of “my body, my choice” have long passed Pollitt by. Between advancements in birth control and fetal observation, the moral argument for abortion has weakened greatly, to the point that the morality now weighs heavier on the pro-life side. And when the moral ground is lost, a decision like Roe, founded primarily on moral and not legal reasoning, will face an inevitable extinction.
Surely this cheers the pro-life crowd, but there are hard realities that they must face as well. There is a practical need for abortions, at least in the earliest stages of pregnancy. Even responsible couples using birth control correctly face a risk of an unwanted pregnancy, and people widely support making abortion available in cases of rape and incest, or when a woman’s health or life is in danger. “Rare” abortions are truly the best that can be hoped for.
But making abortions less needed means preventing unwanted pregnancy through contraception, and many pro-lifers have been simultaneously working to limit access to various methods of birth control. This only creates demand for the abortions they wish to eliminate. At some point, the pro-life movement is going to have to decide between fewer abortions or less birth control. They can’t have it both ways.
In addition, if Roe is overturned that means the states will be responsible for setting their own abortion policies. States like South Dakota that are chomping at the bit for the opportunity to virtually ban abortion will begin to feel a shift now that the most radioactive political ball has been tossed in their court. When the inevitable practical results of state policies start emerging, the bans will simply be found to be politically untenable. Nobody will come forward to sing the praises of abortion, but neither will anyone celebrate the effects of unwanted babies, regretful mothers sneaking out of state, and self-administered abortions.
In the end, pro-lifers may eventually get the reversal of Roe that they have always wanted, but with it will come the realization that ending abortion simply isn’t possible. That’s when the hardest decisions will have to be made. And they’ll only have themselves to thank for it.
James N. Markels is an attorney and a regular columnist for Brainwash.
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9 Comments - add your own
Steve Skojec — March 6, 2006 at 11:26 am
While Mr. Markels is clearly correct that pro-lifers are heartened by the swing of popular morality and judicial tendency in their direction, I believe the bleak dilemma he attempts to portray is the result of short-sightedness and false premises.
For the true pro-life person, there is never a practical need for abortion - not ever. Not in cases of rape or of incest or of life of the mother. There is never a just taking of innocent life - an action rightly defined as murder - for the sake of alleviating emotional grief or even medical risk. If we acknowledge that the child is, in fact, a human being, then we have no more right to take its life than we do that of a newborn. Because a crime such as rape or incest has been perpetrated (and indeed it would seem that the incest would have to be some sort of incestuous rape itself for the child to be as unwanted as the act that conceived it) does not mean that another crime solves it, any more than the cold-blooded murder of the rapist satisfies justice, or the killing of the rape-begotten child when it begins to take on the facial characteristics of its mother’s attacker can be justified because of the mental distress it may cause the mother.
There are very, very few abortions performed in these cases, and just as few to protect the life of the mother. The advances in medical science have not only allowed us to more powerfully identify the human characteristics of the pre-born child, they have given us more tools with which to save it, and its mother as well.
In the case of something such as an ectopic pregnancy (a pregnancy that develops in the fallopian tube instead of the placenta) where the death of both mother and child are inevitable, even the Catholic Church, arguably the staunchest champion of the pro-life cause, makes allowance for the removal of the fallopian tube and the subsequent indirect loss of the child under the moral principle of “double-effect.” This is not, strictly speaking, an abortion, but the removal of an infected tissue that is fatal to the mother and child, and which does not directly or as its first aim end the life of the baby.
It is backward thinking which tells us that getting rid of abortions entirely will leave us with negative consequences such as illegal and unsafe home abortions and unwanted children. Those consequences are not a result of the lack of legal abortion - they are consequences of poor choices on the part of the people who have children that they do not want through irresponsible behavior. Because we do not provide clean needles and “safe” heroine administration to drug addicts does not mean we are responsible for the spread of blood borne diseases or overdoses. Negative consequences are part of any risky behavior, and to remove those consequences is to encourage that behavior.
A final word about birth control. I am aware of no efforts to curtail the availability of contraceptives other than the abortifacient “morning after pills.” These of course faill under the same category as chemical abortions, and should be limited, particularly considering their frighteningly unsafe track records. However, those of us who can attest to lives lived without the use of artificial contraceptives or abortions to aid us, even in difficult times - as millions of Catholics have chosen to pursue - neither are “necessary.” They may be convenient, they may at times feel like the only way out, but as with all behaviors that involve responsibility and personal choice, the real freedom of choice comes at the moment we decide to have sex with or without looking at the consequences.
Let’s not delude ourselves into thinking that just because people make mistakes that we should make it easier to alleviate the responsibility they rightly bear for those mistakes rather than holding them accountable for their choices. The freedom to choose entails the burden of responsibility for the choices made.
James N. Markels — March 6, 2006 at 3:49 pm
I was expecting a response much like what Mr. Skojec wrote, and I am pleased that he wrote it so well. Of course, that doesn’t mean I agree with it.
For one, “true pro-life people” are a distinct minority overall. The majority still supports legal access to abortion, but is coming to the general “safe, legal, and rare” opinion that Clinton enunciated. While the issue may be comfortably black and white for the hardcore pro-lifer, the majority has a more nuanced view, and that view is what will drive the later debate.
Also, while it is easy to say that negative consequences are no excuse for allowing abortion — that personal responsibility should reign supreme — the unfortunate reality is that these negative consequences are actually externalities. In other words, unwanted children being raised by unready mothers (as one example) will result in adults that are likely to negatively affect the rest of us. The correlation between legalization of abortion and the later decrease in violent crime, examined in Leavitt’s “Freakonomics,” is a striking example of this. Simply put, bringing an unwanted life into this world creates a whole host of effects that go far beyond merely sticking someone with the consequences of their own decisions.
Steve Skojec — March 6, 2006 at 4:51 pm
Thanks for your response.
I personally believe that the more “nuanced” position is not, strictly speaking, a pro-life position at all. If abortion is reprehensible, it is so because it is the taking of an innocent life. If it is the taking of an innocent life, then there is no possible justification for it. The circumstances are really irrelevant. Either it’s murder or it isn’t.
Now, that’s the logical - and I mean that in the syllogistic sense - pro-life view. It’s a rock-solid, no compromises position, and it happens to be my position. But I know that it is not the popular position. But the problem with the popular position is that it allows for compromise on an issue which, if examined objectively, can allow for no compromises. It is absurd to abort a child as it would be to kill a toddler because one was not financially stable, or was gravely ill and felt that they couldn’t care for the child, or perhaps decided too late that the child was unwanted.
The question of whether a child is wanted or unwanted is a question of the will. My three-month-old daughter is a frequent headache. I have to change her diaper six times a day, including explosive accidents that ruin her clothes. I have to feed her every two hours. I have to try to calm her while she’s screaming and kicking my laptop on to the floor because I made the mistake of trying to use my computer while holding her. I happen to be out of work, and in a very poor financial situation, and her endless neediness keeps me from being very effective at searching for jobs. Should I, if the love I feel for her were to fail, be allowed to decide that her life is less important than my own? Should I be allowed to drown her in the tub, and grieve for her while maintaining that it was a choice between myself, her mother, and God? Should I be allowed this choice, even if it was safe, legal and rare?
Of course not. And there is no difference in the case of abortion, except that the love which we feel upon holding, seeing, touching, smelling a newborn is something we have not yet experienced with a pre-born child.
But many who call themselves pro-life do make exactly these sorts of exceptions. And it’s why this has been such a long and protracted battle. One doesn’t win with half-measures and compromises on an issue of life and death. One cannot call something an evil but then find examples of when that evil is a good. This is moral relativism at its most insidious.
Dr. Levitt does show a correlation between legalized abortion and the drop in violent crime, but he is careful to point out that it is a correlation, and not a causal relationship. He does not say that it is a good thing that the correlation exists, and does not advocate abortion as a solution. He in fact notes that even if a person views the worth of one newborn as equivalent to 100 fetuses, at 1.5 million abortions a year, is the loss of 15,000 lives - approximately the same number of people who die from homicides each year in the United States.
“And it is far more than the number of homicides eliminated due to legalized abortion.” He says. In economists terms, he goes on, this is “terribly inefficient.”
But I would go further. Aren’t the 1.5 million children (or the 15,000 in perceived worth by those who think a fetus is worth 1/100th of a newborn life) aborted every year a crime of breathtaking proportions?
In ethics, it is always dangerous to espouse a philosophy where the ends justify the means. The fact that the negative consequences of unwanted pregnancies are externalities that effect society doesn’t justify the elimination of those children. We can’t quantitatively predict the outcome of their lives.
Dr. Levitt makes his own case for this by comparing two anonymous children - one white, well loved, well raised, and given every opportunity; one black, no mother, abusive alcoholic father, full fledged gangster by his teens. Despite what statistics would say, the white boy became Ted Kaczynski and the black boy became Roland G. Fryer, young black economist and Harvard professor at age 25, seeking to address black underachievement through his professional work.
When we begin setting the parameters for who lives and who dies, we play God. But unlike God, we don’t see the future. Fryer was a good candidate for abortion, but the world is clearly a better place because that didn’t happen. How many didn’t have the chance?
James N. Markels — March 7, 2006 at 12:19 pm
“Either it’s murder or it isn’t,” sort of sums up your position, in as black-and-white terms as possible, when I (and the majority) think that the issue is not quite so black-and-white. A zygote simply does not hold the moral sway that a second-trimester fetus does. In other words, while the debate has nudged the sliding scale of when a fetus is a person with rights toward conception, it isn’t at conception yet. Nor do I think will it ever be. Objectively, while a zygote might be scientifically “human” and “alive,” it is a far cry from a newborn, much less a toddler. We don’t prosecute women who miscarry because they forgot to tell their pharmacist that they are pregnant, and are then prescribed a medication that causes the miscarriage. Nor should we. Women miscarry for a variety of reasons early in gestation, but we don’t treat them as crime scenes. Should we? Your approach seems to call for it.
I also agree that it is not a sure bet whether a particular unwanted child will turn out badly, but it is overly disingenuous to then argue that we must not consider the general consequences as a result.
Steve Trinward. — March 8, 2006 at 12:29 am
Excellent commentary, as well as a fine job of holding forth in these comments. The one issue that is not being considered here, however, is that of what it is that makes us beings worthy of having ‘rights’ and therefore being eligible for the defense of those rights. I would maintain that if we draw the line at “in possession of human DNA” (as the “from conception” advocates firmly hold it), we are thereby not only eliminating any aspect of ‘choice’ (beyond the decision to share (hetero)sexual intimacy) from the equation … we are also eliminating any possibility that ‘rights’ might pertain to, for example, cetaceans or other primates - let alone the theoretical conditions of androids, extra-terrestrial life or other entities, humanoid or otherwise, who (not that) might qualify for equality of treatment at some future date.
My own formulation defines the truly ‘human’ state as one which includes the capacity for cognition, or ‘thinking about thinking’ … and I willingly concede that someone who once possessed such capacity and has lost it, should also have the ‘rights’ to which those still holding that capacity are entitled. I go further, in stating that even a newborn human infant is entitled to such protections; although the capacity for cognitive function may not yet be demonstrable, the potential is clearly there. (A second condition for “‘life” of any kind being present, at least beyond that of a house plant, would seem to include a condition of self-awareness; this will become important in the continuation of the thesis I’m presenting.)
And now we begin to work backwards: If a newborn has such ‘rights’ then surely a late-term fetus does, since some such ‘preemies’ have been delivered before term and ended up just fine. And with medical advances that boundary is moving further backward every year. It may well reach the point in the foreseeable future when a second-trimester fetus may become capable of surviving removal from the womb. In such a case, that would strengthen the argument for some sort of ‘rights’ being grantable to any fetus at such a developmental stage.
Now let’s go back to the beginning, to the alleged starting-line of “conception.” I say ‘alleged’ because truthfully there is still no way of knowing when that moment takes place, or even if it has after a given (hetero)sexual encounter. Medical science has pushed things back to where it is now possible to detect a pregnancy even a bit before the succeeding ‘missed period’ … but we are still dealing with a timeframe between 3 and 4 weeks after the moment of fertilization, which still obeys Heisebberg’s Principle in being incapable of direct measurement.
So this gives us two new boundary-points to consider: (a) the moment at which one confirms that a conception has taken place (usually a month or more after the actual but unverifiable instant?); and (b) some stage at which there is clear evidence of a conscious and self-aware being present within a given woman’s body. This latter point is actually quite easily measured, and long before the advances of obstetrics and prenatal medicine it was considered a real milestone in the birthing process. I refer of course to what in the frontier days was called “the quickening” — the first time the fetus within showed its presence with a kick! This action could be considered clear evidence that something is alive in there, and is letting us know that fact. Other evidence lacking, one could call this an assertion of his/her presence by a developing baby!
NOW … If we consider this timespan to be the true ‘battleground’ in this issue — so that actions taken before one knows one is pregnant are entirely up to the woman herself, and actions after this “quickening” must now consider TWO human beings as both having ‘rights’ of some sort — we can actually look at this issue with new eyes. Under this rubric, there is no barrier to a woman’s actions to take extra precautions after intercourse, to forestall a potential conception before a possible blastocyte has implanted (Plan B). There is also no real issue (other than the grueling process and recovery that is part and parcel of an actual abortion, even via some chemical means such as RU-486) if she discovers her precautions have failed or been too late, and chooses to avail herself of whatever measures are at hand to terminate this early gestation. The entity within is still not something with ‘rights’ … regardless of its fledgling DNA.
However, by this same condition, if a woman has not decided to terminate a pregnancy before that “first kick” presents itself, I believe that any subsequent decision to do so should be viewed as both unethical and tantamount to causing a ‘wrongful death’ except in cases where the woman’s own life is at risk. Meanwhile, if that early term has become inviolate, with pharmaceutical and other means readily available, and research into safer and more reliable forms of contraception is promoted rather than suppressed as it is today in all too many ways, the whole question of late-term abortions (or even early ones, after the point where a rational person has had time to make a logical decision?) should dry up and blow away.
James N. Markels — March 8, 2006 at 9:53 am
“Cognition” is an initially attractive approach, but it runs into a few problems. For one, it endangers those who are severely mentally handicapped. Two, since obviously a baby isn’t engaging in cognitive activity, the approach must rely on the fact that the baby is a “potential” cognitive entity, and thereby worthy of protection. For one to have potential, theoretically all we need to do is sit and wait and the baby will naturally develop cognition. But in that case, wouldn’t a zygote do so as well? We’d just have to wait 9 months longer. So I’m not a fan of the cognition approach.
Perhaps what will emerge is something like this: a woman has the right to remove a fetus from her body, but she does not have the right to then kill it. If medical technology can complete the gestation, then the fetus is entitled to it. If the fetus is simply too premature to survive outside the womb, then it dies.
The goal of public policy should be where the only women who are getting pregnant are those who want to get pregnant. Then, abortion would only be necessary for health emergencies and the like. However, people are not infallible, even when acting completely responsibly, so there needs to be a fall-back option of some kind after birth control. Moral absolutism will run into reality, and the majority will make the hard choice in favor of some form of legalized abortion. The only question is, what kind of abortion are we willing to live with? Before this was only answered by nine justices on the Supreme Court. Evenutally this will have to be answered by all of us, one state at a time.
Ben — March 8, 2006 at 4:20 pm
So in short:
1) It would be really nice and easy if we had some sort of definition of Human Being that was absolute, obvious, and theologically, scientifically, philosophically, and ethically supportable.
2) Hah. Reality chooses not to indulge us. Human Being is a concept with fuzzy gray borders, and we have to grow up and deal with it.
Ben
Curious George — March 9, 2006 at 9:54 am
This is a really good post. I am very interested to see people beginning to realize that abortion really is something that needs to be avoided at all costs, rather than simply “a choice.” I feel like pro-lifers should focus on the fact that abortion can NOT be an alternative to birth control, or to being held responsible for your own actions. Perhaps they should give up on the anti-birth control for the time being.
James N. Markels — March 9, 2006 at 12:29 pm
Slate’s William Saletan writes today (http://www.slate.com/id/2137775/) about how he attended an activist pro-choice forum and found only one or two people there willing to agree that there are too many abortions occurring. This is amazing to me. I don’t think it’s reasonable to believe that women are better off getting abortions than they are not getting pregnant in the first place. For one, abortions cost more, involve invasive procedures, risk long-term damage to the woman, and that’s not considering the many possible emotional effects. I don’t know a single woman who would rather have an abortion than have effective birth control. The whole POINT of birth control is so you don’t have to have an abortion or carry the child to term. Wouldn’t it be optimal for women not to need abortions because the only women getting pregnant are those who want to? Isn’t this the goal? Shouldn’t it be?
Perhaps I should have added in my piece that while the pro-life movement will have to realize that abortion can’t go away, the pro-choice movement is going to have to get used to the fact that abortion isn’t a good thing. It may be a necessary thing, but we’d all be better off in a world that didn’t need it.