With Alabama and several more states passing extreme pro-life laws even as New York and others pass extreme pro-choice ones, the abortion wars are peaking again — pushed by the purists on both sides even though most Americans remain firmly in the middle.
It’s all a reaction to the fact that the Supreme Court looks more likely to overturn Roe v Wade than it’s ever been since the ruling came down 46 years ago, though the justices modified Roe in the Webster (1989) and Casey (1992) cases.
In particular, state legislatures dominated by pro-lifers are passing laws in order to get a case before the high court, so that the justices have the chance to “overturn Roe.”
That means these laws will be struck down by intermediate federal courts because they plainly defy the Supremes’ ruling legislation: That’s the point.
It also means that Alabama, Georgia and the rest aren’t legislating to express the will of their voters: They’re playing an abstract game, passing laws that won’t take effect as a legal ploy. They win points with pro-lifers without outraging moderates who disagree but don’t much care about symbolism.
If the Supreme Court did let the laws stand, voters in places like Georgia (a swing state) would rebel, demanding something more moderate. The whole nation would see a pro-choice version of pro-lifers’ long drive to reverse what they saw as extremism.
In fact, the justices aren’t going to go all the way. It won’t find that the Constitution bans abortion — because it’s clearly silent on the question of when life begins. And Justices John Roberts and Brett Kavanaugh will preserve some right to privacy, limiting state intrusion into women’s decisions.
And that muddled middle, granting some claims of both pro-lifers and pro-choicers, is where most Americans stand. They’re repelled by the thought of a woman being sent to prison for a first-trimester abortion, as some of the pro-life laws might require, and by the prospect of abortions on the day of birth or even after birth, as recent pro-choice legislation might allow.
That same muddled middle has been decisive in Western nations where elected representatives, rather than courts, have decided abortion law: Early abortions are clearly legal, late ones aren’t, and there’s little fighting about moving the line either way.
Note, too, that however the Supremes rule, the reality of abortion availability will vary enormously across America, as it does now. Public sentiment has made clinics few and far between in areas hostile to abortion — and New York, California and other states legalized abortion years before Roe, and will keep protecting it no matter how the court rules.
That frustrates the purists, who’ll never stop crusading for total victory. But most people (even those inclined to one side) put a higher priority on issues where they can move the ball, or that matter more for their own lives.
Compromise, even on so basic a question, is vital to the functioning of a free society. Unless public opinion shifts drastically and decisively, or technology makes the whole debate irrelevant, compromise in all its messy glory is going to carry the day across these United States.