After Roe

What would happen if Roe v. Wade were overturned?

Interesting piece, this.

Professor Rosen's premise- that the consensus of our society is that early term abortions across the board are OK, while late term ones are not- strikes me as being on the right track, but to miss the mark by a little. Most of the polls I've seen indicate that a majority of the American people would also want to see early term abortions regulated, even if they are not prohibited. In fact, polls ever since Roe v. Wade have rather consistently indicated that while American support the decision by about two-to-one, that majority breaks down when questions are asked not only about late term abortions, but also abortions performed for the reasons for which most of them are performed- as birth control. Most Americans seem never to have realized that to support Roe is as a practical matter to support precisely that usage of abortion. In fact, a case can be made that Americans- even in claiming to support Roe- believe that abortions performed for the reasons nearly all of them are, in fact, performed, should be prohibited!

If Roe were overturned, few states would pass outright bans on abortion. In fact, I'm not sure that any would; exceptions for threats to the life of the mother, and perhaps rape and incest, would likely be standard. It is likely that a several states would pass laws about as permissive as Roe. Most, however, would almost certainly restrict abortion in some way. How do the American people feel about the matter? The results of polls notoriously depend on how the question is asked; support for Roe seems in most people's minds to equate with opposition to outlawing abortion across the board. When their attitudes toward abortion and the law are examined in greater detail, however, it becomes very clear that the national consensus on abortion has been far to the Right of Roe ever since the decision was handed down.

Certainly Rosen is correct in blaming Roe for our society's polarization on the issue of abortion. Face it: on one hand, if it be granted that a fetus is human and alive (and it is both; it is homo sapiens, and its cells are merrily dividing away from the moment of conception!), taking its life except for the weightiest of reasons is morally unthinkable. I don't think that would truly even be controversial in any circles except those inhabited by very most radical of feminists. But it as hard as it would be to make a purely rational case that any reason other than a direct threat to the mother's life is weighty enough to justify the taking of that life, such questions are never settled by reason alone. The argument will always be at least as emotional as it is rational.

Rationally, a fetus is not responsible for the circumstances of its conception, and whatever inherent value we place upon its life must be truly inherent- independent of those circumstances. The ethical question is whether there are circumstances in which other considerations would carry greater weight.

In concreto, that's a tough philosophical argument to make. Is it really true that even the life of another member of species homo sapiens has greater inherent value that of the fetus? If forced to make the impossible choice between the life of a child and that of an adult, our bias would ordinarily be to opt for that of the child. It seems that the stage of development a member of our species has reached is not ordinarily an argument that it has less value than the life of another member of our species- unless the life of the less developed is preferred to that of the more developed!

Must a fetus reach a certain stage of development before the value of its life is equated with that of a person who has already been born? Certainly that question lies at the heart of any morally responsible attempt to wrestle with abortion, and the process of working that matter out as a society is one of the things which, as Professer Rosen observes, was... well... aborted by Roe. The question, as a result, remain unanswered. And if such a stage of development can be identified, what is it? Why that stage, and not some other? The arbitrary character of any "line in the sand" subsequent to conception has always been one of the strongest ethical arguments for severely restricting or even banning even early abortions. Surely a consensus outside the extreme social Left could be reached that abortions, in principle, ought not to be performed after viability, for example. But medical advances make the age of viability earlier and earlier. Is there, as medical experts assure us, a point beyond which the line cannot be pushed back? If so, what is it? And if subsequent developments push the point of potential viability back even further, should the legal line become earlier as well?

Eventually- try as we might to avoid it - we have to recognize that once we reach a judgment in principle that some human lives are more valuable than others, any criteria we pick for deciding which are which will be arbitrary, and subject to horrific exploitation. This is one slippery slope that is both very slippery, and very scary; there are already voices being raised for including the elderly and other inconvenient humans in the "disposable" category, and not necessarily on a voluntary basis. For that matter, the fetus, of course, does not give its consent to be aborted!

History teaches us that the very logic of the road we embark upon with such a judgment carries us, if followed, to some very dark places; it has taken us there before.

Certainly the trauma involved in carrying an infant conceived as the result of rape or incest to term would be a grave factor on the other side of the scale. Would it tip that scale? Logically, I would say no; as cold-blooded as this sounds, rape and incest victims recover, whereas aborted babies do not. Again, a fetus is not responsible for the circumstances of its conception!

Both politically and emotionally, I would say yes. Fewer than two percent of abortions are the result of rape, incest, or a threat to the life of the mother, taken together; a powerful case can be made that if a line can be drawn there, that is where it should be drawn. And there is not the slightest doubt in my mind that both personal opinion and public policy on abortion will always be based as much on emotion as on logic. Given the stakes, as both sides perceive them, how could it be otherwise?

I, for one, would have a hard time living with my conscience if I ever again voted for a candidate at least for president who unqualifiedly supported Roe (in my days as a pro-life Democrat, I used to do it routinely, on the ground that other issues were just as important. They are not; nothing less than the value we place on the lives of the weakest and most defenseless of our own species is at stake here). But while I would disagree with him philosophically, I could easily see myself supporting a candidate who favored severely restricting abortion without outlawing it entirely- especially if his opponent were unqualifiedly "pro-choice."

Compromise seems like a dirty word especially to the most idealistic among us. It especially seems so where human life is concerned. Yet it is the stuff of which democracy is made- even on questions where there are moral absolutes. While each of us has to make his own decision on this, were I in a position to save the life of a single baby by supporting a candidate who favored merely placing greater restrictions on abortion (reserving my personal right to advocate even more severe restrictions), I would do so in the proverbial New York minute.

That, after all, is how the political side of the debate over abortion is going to have to be solved. Eventually- one way or another- Roe will be overturned, not only because it is a piece of monumentally bad constitutional law and even worse logical reasoning, but because of the damage removing abortion from the healthy crucible of democratic debate and legislative resolution has done to our society and to our democracy. And when it is overturned, some sort of a middle ground- most likely something like the consensus of which Professor Rosen speaks- will probably emerge in most states to take its place.

At that point, the question will at least be back where it should be. The task will then be to change hearts, not to argue philosophy- because whether it ought to be so or not, once abortion is put back on the political table it will be the emotions rather than the intellect which will determine where the lines will be drawn.

That, and the very best bill we can get in each of the several states.

HT: Real Clear Politics