Abortion Laws, Then and Now, 5/6
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In the 1950s, the women who wanted abortions had become pregnant selling sex, having sex outside of marriage, or having premarital sex. These sexual behaviors had long been regarded as morally wrong. Laws against abortion were part of the regime to reinforce the cultural norms against pursuit of sexual pleasure in ways deemed morally wrong. Those cultural norms were also backed at one time by laws that criminalized adultery and homosexuality.
By 1973, when Roe V. Wade was decided, much of the public was ready to get rid of such laws. Starting around 1963, in a span of about 15 years, the norms concerning premarital sex went from “You shouldn’t” to “It’s OK” to “You should.” Laws against abortion were anachronistic.
If you think that the fate of those laws should have been determined democratically, then Roe was wrongly decided. If you think that there is some higher Constitutional principle that invalidates those laws, then the Supreme Court can be correct to strike them down. More on that issue—the crux of the matter—later.
The religious conservatives who took offense at the Supreme Court’s ruling in Roe reached for a slogan that sounded appealing. They came up with “protect the unborn.” And from the perspective of those who insist that life begins at conception, it is a compelling argument against abortion. But before Roe, I do not think anyone would have told you that the purpose of laws restricting abortion was to “protect the unborn.”
Meanwhile, medical technology was making it possible to peek inside the womb. Married women, who in the 1950s had no interest in abortions, began to demand them. If the fetus has no heartbeat, better to abort than wait. And many parents prefer that a baby with a major birth defect not be brought to term. This meant that there was another side to the “protect the unborn” issue. Protecting the physical or mental health of the mother was a consideration.
But medical technology also has been able to lower the age at which a fetus becomes “viable.” For example, someone we know whose wife had given birth at 28 weeks sent us word that “Everyone is doing fine.” That makes late-term abortions more troubling.
Unless you hold to the view that life begins at conception, the moral issues concerning abortion are more complicated than they were fifty years ago. I think that it is good for the Supreme Court to get out of the business of trying to resolve those issues.
I would go further and say that “sending the issue back to the states” is not my preferred answer, either. I think that the libertarian approach is to leave the decision to the parents. If someone asked me my personal opinion about aborting a viable, late-term baby, I might lean against doing so. But I would not want my opinion hard-coded into law. I would rather trust parents to come up with the right decision for their circumstances.
I would not stretch the principle of parental choice to have it apply after a child is born. I want to see the state protect the born.
What is the alternative to saying that life begins at birth and letting parents decide about an abortion?
You could have a law that says that life begins at conception. The law absolutely forbids abortions, without exception. That would please a minority of voters who take such a strong religious view. Republicans may be forced by their primary voters to pass such laws, but they will not reflect the preferences of the median citizen. For ordinary voters, watching Republicans genuflect to religious conservatives will be like watching Democrats unable to separate themselves from Wokeism.
Or you could have laws that permit abortions, but with certain exceptions codified in the law. That might suit the median voter for now, but the arguments over defining and enforcing the exceptions will be impossible to settle. You’re taking a decision away from parents who know the particular circumstances they face and instead trying to spell out decision rules as law. Situations will arise in which those rules seem rigid and unfair. The result will be endless litigation and endless debate over proposed amendments. I am afraid that is the most likely outcome in states with Republican legislatures, which will not make anyone happy.
The idea that life begins at conception is not a religious view.
I know this is a charged topic, but I think you're capturing the libertarian angle that I haven't really understood before that I'm writing about (but like everything else I do, haven't finished).
In every other country, abortion rights are basically established by legislation. In that respect, the Supreme Court is seems poised to say, effectively, that "we're just like everywhere else". Our rights can be taken or given by a 50.1% majority.
Previously, abortion (and other court defined constitutional rights) had the super-majority levels of protection defined by the Constitution.
The American method is clearly less democratic, but also clearly much more libertarian. Individual rights are protected from legislative majorities. In practice, this made abortion a matter of individual conscience, rather than public morality.
In this respect, I interpret this outcome as a very significant libertarian defeat, and yet, I've not seen anyone make this case.
A second thought I've had is somewhat in conflict with this, but not mutually exclusive. And thought is that, while in theory we worry about cycling, we don't actually see cycling in legislation. In Europe, abortion seems to usually be a non-issue. It'd be better if that were true here. Maybe putting the decision before the legislative body is what settles an issue, and deciding it non-democratically through the courts is what creates polarization and ongoing political strife.