If Supreme Court Justice Samuel Alito’s draft opinion overturning Roe v Wade becomes final, much of America will transform, in an instant, from having one of the world’s most permissive abortion regimes to having one of its most restrictive.
In 1973 Roe granted American women a right to terminate their pregnancies up to the point of fetal viability (currently around 23 weeks), a right few other women in the world can claim. But if the draft opinion holds, America’s states will be empowered to ban abortion in all cases from the moment of fertilisation. Oklahoma has already passed a nearly absolute prohibition on abortion, and 12 other states have “trigger” laws in place that will create similar regimes the second Roe is overturned. These statutes will align many states’ abortion policies with those of a dwindling number of Latin American countries and a handful of nations governed by sharia law.
A false choice exists between robustly protecting abortion rights on the one hand and banning all abortion on the other. Lost in the whiplash from switching between these policy extremes is the curious fact that neither extreme enjoys the support of large numbers of Americans. According to a recent survey from the Pew Research Center, a strong majority of Americans believe abortion should be legally available, but a strong majority also believe it should be subject to some restrictions after the first 12 weeks, and especially as the fetus approaches viability. This broad consensus suggests that political compromise around abortion rights is conceptually possible. And yet it remains elusive. Sorting out why is crucial to the fate of abortion rights in America.
The draft opinion’s main conceit is that abortion should be left to democratic politics rather than the courts. But for many reasons political negotiation around abortion feels hopeless. For starters, unlike in most nations, where abortion regulation occurs at the national level, abortion legislation in America occurs state by state. Federalism’s main benefit is the policy experimentation that subnational legislation facilitates, but this kind of policy diversity also diminishes the need for compromise.
These dynamics can lead to clashes, especially around matters of great moral urgency. In the 19th century, conflict over the rights of enslaved people crossing state lines into free states and territories paved the path to civil war. Eerie similarities have already arisen around abortion, even if violence on the scale of war is not imminent. Texas and Oklahoma have authorised private bounty hunters to bring civil suits against anyone who assists women seeking abortions. And it’s a safe bet that some state legislators will seek to ban “abortion tourism” directly by authorising prosecutions of women who leave the state to seek abortion services. Indeed, a Missouri legislator has already proposed its own “bounty hunter” bill that would apply even to abortions performed outside the state.
The legislative polarisation that enables these kinds of policy extremes is manufactured. Many of America’s state legislatures are grotesquely gerrymandered. Manipulation of legislative district lines insulates the governing party from political accountability and creates an abundance of “safe” seats that are not competitive in general elections. This makes primaries the most closely contested elections in America. The most partisan elements in each party’s electorate end up choosing the eventual general-election victors.
More broadly, America’s society differs from most of the world in its tendency to view rights as absolute entitlements, or nearly so. In other countries there is greater readiness to seek compromise between clashing rights. The US rights framing has led courts and the public to characterise the abortion debate in America as an irreconcilable conflict between the “choices” of women versus the “lives” of fetuses (or, one should really say, of zygotes and embryos). Justice Alito’s draft opinion uses the presence of this “fetal life” interest to distinguish abortion rights from other constitutional rights, such as the right to use birth control or the right to same-sex intimacy. Whatever the merits of this argument, Justice Alito’s binary pushes partisans on either side to dig in, hampering compromise.
Other countries have more nimbly handled the various interests at stake in debates over abortion, and in ways that have facilitated rather than frustrated politics around this complex issue. For example, the German Constitutional Court, the Bundesverfassungsgericht, has long required the state to take account of embryonic life in crafting abortion legislation. But it has encouraged the state to do so not through criminalisation, which drives abortion underground, but rather through the provision of social welfare (German law only allows abortions within the first trimerster after mandatory counselling.) Prenatal and postnatal health care, paid childcare, generous work leave, employment guarantees, direct financial assistance and other forms of support for families help to make childbirth a genuine choice for women and, at the same time, make it more likely that they will choose to become mothers. In this way, the state can participate in protecting life through choice rather than by denying women autonomy.
There’s good reason to think that a deal along similar contours would be acceptable to large numbers of Americans: abortion freely available in the first trimester; available thereafter based on certain factors such as health, life, or serious genetic defects; and a robust suite of social services to afford women a meaningful choice. As it stands, though, the states most likely to ban abortion outright are the ones least likely to support families during pregnancy and after childbirth. Texas, for example, ranks at the bottom of the country in rankings of prenatal and maternal health care. It is last among all states in the percentage of women of childbearing age who have health insurance and who have a primary care physician. None of the states that will prohibit abortion once Roe is overturned offers women any paid maternity leave or requires employers to do so.
Getting to a place where abortion restrictions in these states are more moderate and are accompanied by social policies that give women true agency over their reproductive lives requires serious structural changes in US politics, which are not forthcoming. Forced to choose between extremes, we will polarise even more, and the carousel of political dysfunction will continue to go round.
When we are told that ending Roe returns abortion to the democratic process, draconian abortion bans and political acrimony is what that means. Unless and until that changes, American women will be on their own.
Jamal Greene is the Dwight Professor of Law at Columbia University.