The Editors: Roe v. Wade has made abortion politics impossible. It needs to be challenged.
The recently passed abortion laws in Georgia and Alabama have raised the temperature of the national debate nearly to the boiling point. The law in Georgia, keyed to the detection of fetal cardiac activity, would restrict abortion after about the sixth week of pregnancy; it also defines human beings in the womb, at any stage of development, as “natural persons.” Alabama’s law bans abortion at any stage of pregnancy. While these laws allow exceptions for cases where a woman’s life would be endangered by carrying the pregnancy to delivery, neither law has exceptions allowing abortion in cases of rape or incest.
Much discussion of these bills has described them as “extreme,” while almost universally neglecting the most significant cause of such “extremism.” Many commentators recognize that these new laws are designed to mount a legal challenge to Roe v. Wade—but they fail to notice that these laws’ blunt restrictions are a mirror image of Roe’s broad rejection of any practical or effective limits on abortion. When abortion rights advocates defend Roe in order to reject any proposed restriction of abortion, they are taking an extreme position. That leaves no ground open for any compromise on less extreme laws. Pro-life legislators are going to meet the same tooth-and-nail opposition whether they aim to ban all abortions or, as recently seen in the U.S. Senate, attempt to require that infants born alive during an abortion receive medical care.
Consistently over decades, polls show that a significant majority of Americans support stricter restrictions on abortion than allowed under Roe, yet not as stark as those established by these new laws. American public opinion on the legality of abortion is conflicted and contradictory. According to one poll conducted this month, half of voters believe that the six-week “heartbeat laws” are either “just right” or even “too lenient;” another poll found that two-thirds of U.S. adults oppose overturning Roe. But under Roe and its successor decision, Casey v. Planned Parenthood, the abortion limits many voters want, even while abortion remains legal, are rendered unconstitutional. About 60 percent of Americans support legal abortion during the first three months of pregnancy, but far fewer—less than one-third—support it up to six months. But Casey’s “undue burden” standard disallows abortion restrictions anytime before fetal viability (around six months), which is not what most Americans would choose.
There is a large gap between what Roe requires and what Americans believe about abortion. But addressing this gap remains politically unimaginable for pro-choice activists at the same time as they present the possibility of Roe being overturned as an acute political crisis. In reality, the reverse is the case. The ongoing political crisis is a consequence of the persistent failure of Roe and Casey to settle the abortion question and the failure of the Supreme Court to offer any sign that these cases ever will.
In her majority opinion upholding Roe in Casey v. Planned Parenthood, Justice Sandra Day O’Connor wrote that “the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.” On the abortion question, this call has manifestly and expressly failed for more than 45 years, while distorting national politics and contributing to national division. The wreckage of these cases needs to be cleared for the country to move forward.
The Alabama and Georgia laws are far from perfect. They should have been accompanied by equally vigorous support for women struggling with pregnancy. They will almost certainly be suspended by injunction before they are implemented, and whenever they eventually reach the Supreme Court, they are unlikely to be upheld in all the details of their current form. If these laws are upheld and Roe is overturned or limited, they will need to be modified in order to be practically and justly enforced. But the legislative work of answering the challenging moral questions about abortion will at least be possible. While that will not end political divisions over abortion, it would allow us to engage them more honestly.
This story has been updated.