What if it were possible to end the political stalemate over abortion? Such a lofty goal may be politically impossible in the current climate, but not because policy solutions are unavailable. If the public were given a chance to consider practical approaches that respect the competing interests at stake it might be possible to build a consensus that would force an end to the hollow grandstanding that has defined the abortion debate for decades.
What might be the shape of such a settlement?
Imagine Federal legislation that formally, nationally, protected a woman’s right to an at-will abortion up to 20 weeks of gestation, pre-empting state laws on the matter. Beyond that point, an abortion would still be available to deal with instances of physical or psychological danger to the mother or severe fetal defects. Those situations would have to be certified by two doctors.
State authorities would continue to regulate abortion from a purely medical perspective, but standards would have to rise from state medical boards, not legislatures. State level regulations would be subject to pre-review and approval from the Secretary of Health and Human Services. In other words, legislators would no longer be able to haze pregnant women with politically motivated “health standards.”
There would be alternatives available for states wishing to adopt more intensely “pro-life” standards. A state could lower the threshold for “at will” abortion to 12 weeks if they also implement the following, subject to pre-review and certification by the Secretary of Health and Human Services:
– Comprehensive, fact-based sex education in all public schools including information on contraceptives, effective contraceptive use, and abortion.
– Requirement that all insurance policies include contraceptive coverage.
– The state provides contraceptive coverage for the uninsured.
– All uninsured have state-provided access to pre-natal care and coverage of birth expenses.
If you want to know what people really care about, look at what they do with their money. To the extent that a state finds a vital interest that justifies intruding further into the rights of a woman over her body, the state should shoulder the burdens of that intrusion. “Pro-life” would finally mean something more than “forced birth.”
What about rape and incest? Women would have unfettered access to abortion through the first trimester. Later, that access would still be available in severe cases, which would presumably include instances of violence or abuse under the standards of psychological health.
What about the viability standard in Roe v. Wade? A full discussion of the Supreme Court’s evolving position on abortion rights is beyond the scope of this effort, and would strain the capabilities of your this author. That said, there are certain aspects of this proposal that are unique, setting it apart from anything the Court has previously reviewed.
Justices have only ever been given the opportunity to review laws restricting abortion rights. This would be the first review of an abortion regulation that also created and regulated a national statutory right to an abortion.
Roe was an extremely broad decision. It may be possible for the Court in light of social and scientific developments in the past 40 years, to de-emphasize “viability” if given the right law to consider. With the appropriate protections for women’s health the Court could perhaps allow tighter abortion regulations earlier than viability without abandoning half a century of jurisprudence on privacy rights.
What would pro-life forces gain from this legislation? Even the base standard of the law would be more restrictive than any abortion legislation that has ever been upheld by the courts. States willing to back their “pro-life” values with real support for women’s liberty could enact fetal protections stretching farther into pregnancy than at any point since Roe.
What would pro-choice forces gain? Abortion would be available, everywhere, to women in extreme scenarios at any stage of pregnancy. A basic right to an abortion would finally be established in federal statute, not just in judicial opinions. Women would be freed from state legislation that harasses them for choosing an abortion. Abortion, as a political question, would be largely settled on a consensus basis in favor of a woman’s right to her own body.
How is this proposal different from the 20-week standard proposed by House Republicans? There are subtle problems with that bill. The entire exercise is founded on a dozen introductory paragraphs of embarrassing bunk “science” of a style that has become a Republican trademark. More important, the House’s bill is a pure abortion ban that does nothing whatsoever to respect, establish, or protect a woman’s rights.
The House bill would not pre-empt state laws, merely creating a new Federal ceiling for abortion rights. States could senact more restrictive provisions on their own. State laws harassing pregnant women and shutting down access to reproductive health would be unaffected. The House bill is a fundraising and GOTV effort created to motivate a political base. It is already doing everything it was ever intended to accomplish.
Over the past forty years, our culture has experienced a steady growth in its respect for life and its willingness to protect the quality of life by expanding the rights of women. Abortion law under the Roe standard has put those two interests at tension in ways that is straining our political system.
The country needs a comprehensive, consensus-based legislative settlement, respecting the inescapable rights and ambiguities at stake in the debate. A proposal like this might achieve a new balance based not on unreasonable absolutes, but on our growing humane respect for life both before and after birth. Our political system is currently in no condition to deliver something so bold, but if the public has access to tangible policy beyond the increasingly irrelevant pro-life/pro-choice dichotomy, we may in time be able to move past the political dysfunction this issue has helped to feed.
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