Pro-Resolution: A Solution to America’s Divisive Abortion Debate
The Pro-Life and Pro-Choice Positions are Fundamentally Incompatible without Political Compromise
Ever since the Supreme Court in 1973 declared abortion to be a fundamental right guaranteed by the Constitution, Roe v. Wade has been a lightning rod in American politics. No major election or federal judicial nomination passed without the issue coming up, with the so-called pro-life movement calling abortion murder and the so-called pro-choice lobby reasserting a woman’s right to control her own reproductive freedom. Senators talked about litmus tests and protesters picketed Planned Parenthood clinics. Physicians have even been killed by anti-abortion extremists. Meanwhile, a majority of Americans were just fine with where things stood, with Roe remaining the law of the land, notwithstanding numerous limitations that curtailed access to abortion over the years. And now that the Supreme Court has finally overturned Roe in Dobbs v. Jackson, absolutely nothing has been solved. We’ve simply been tossed back into a pre-Roe world, with chaos among the states and the volume of the debate raised higher. In short, we’ve discovered why that previous Court decided Roe in the first place: as a necessary but unhappy judicial compromise given the lack of will to find a political one.
Now, more than ever, we need a unifying, political solution. For want of a better phrase, let’s call it the pro-resolution position.
There’s no denying that the abortion question is a difficult one. Each side can make some forceful arguments, and if you’ve ever read Associate Justice Harry Blackmun’s majority opinion in Roe, certain passages do seem, in all fairness, more like judicial legislation than constitutional interpretation. But Associate Justice Samuel Alito’s Dobbs decision is no better. Even if you grant him — for the sake of argument — that Roe was “egregiously wrong from the start,” Dobbs takes the Court from a place of well-meaning, if misguided, compromise to one of sanctimony and disrepute. Rather than solve a fundamentally divisive issue, it merely (further) tarnishes the judiciary’s reputation. Now, more than ever, we need a unifying, political solution. For want of a better phrase, let’s call it the pro-resolution position.
The biggest takeaway from an examination of the pro-life and pro-choice positions is that neither one can legitimately claim a monopoly on correctness because each, when held up to rigorous logical scrutiny, produces clearly unacceptable results. What that means is the answer must lie somewhere in between. The only challenge is figuring out where.
What do I mean by unacceptable? Well, let’s look at the pro-life position first. It certainly sounds compelling to speak of life beginning at conception. Any couple who has tried to conceive a child and succeeded knows that something transcendent occurs well before birth, and medical science will back this up. That first trip to the OB’s office for an ultrasound confirms what the expecting mother was hoping: the embryo is thriving, with a beating heart. Is there life, as we know it? Of course. But the problem is, there was life even before conception, in the very real sense that the sperm and the ovum were both living human organisms. Shouldn’t we protect those forms of life as well? And even if we draw a line at the moment of fertilization, many natural miscarriages occur in the first trimester and beyond. If life begins at conception, shouldn’t we as a society try to step in and protect those forms of life? Then there’s the whole issue of pregnancies that result from rape or incest, or that involve serious genetic defects. If all human life is sacred, how do we value those embryos any less, as a common sense viewpoint would want us to do? So a claim that abortion is murder based on the sanctity of embryonic life is definitely problematic.
Clearly unacceptable outcomes also result from a pure advocacy of the pro-choice position. Those who favor a woman’s unfettered right to control their bodies before childbirth must reckon with the awkward fact that terminating a pregnancy for non-medical reasons in the last trimester seems uncomfortably close to infanticide. And even if one adopts a viability standard for when life begins and a woman’s right to choose ends, advances in medical science keeps moving that point of viability earlier and earlier. Are pro-choice proponents really willing to adhere to viability as the test if, as seems likely one day, a premature baby could survive in the early second trimester or even late first trimester?
The abortion debate won’t be “won” by either side because the pro-life and pro-choice camps are talking at cross purposes.
What all of this shows is probably what we’ve intuitively always known. The abortion debate won’t be “won” by either side because the pro-life and pro-choice camps are talking at cross purposes. It won’t satisfy pro-choice advocates to define life in biological or religious terms because we’re trying to establish a legal definition that takes into account the woman’s interests. And it won’t appeal to the pro-life adherents to focus on the life of the mother when the unborn child’s life isn’t granted equal weight. How can we hope to find our way out of this quandary? The way of compromise. By acknowledging there is no “right” answer, but we can still arrive at an acceptable resolution.
Justice Blackmun’s Roe opinion was intended to be precisely such a resolution. And in its result, it served that purpose admirably. Even as subsequently modified by the Supreme Court in the 1992 Planned Parenthood v. Casey decision, the essential ruling remained for decades, that a woman has a right to a legal abortion in some defined earlier stage of pregnancy, and the state has an interest in protecting the unborn infant’s life at the later stage of pregnancy. The only problem was, as numerous critics (legal and otherwise) on both the right and the left pointed out, the Supreme Court effected the resolution, not Congress.
Why should that be a problem, you might say? After all, isn’t the Supreme Court in the business of adjudicating unresolved disputes? As it turns out, no. The Supreme Court is limited, in this respect, to deciding if a particular law is unconstitutional. And there’s nothing to be found in the Constitution that remotely speaks to abortion. The Court has on several occasions found a right to privacy or, more correctly, a right to be left alone, and that’s what Justice Blackmun ultimately relied on in Roe. But he got there by writing an opinion that reads, in the words of Archibald Cox, more like a set of hospital rules and regulations than constitutional analysis. Indeed, Blackmun had done legal work on behalf the prestigious Mayo Clinic in Minnesota earlier in his career, and he actually spent a week at the clinic while he was researching and writing his Roe opinion. What defenders of Roe today find uncomfortable to acknowledge is that plenty of left-leaning and centrist justices have called the ruling indefensible. Justice Ruth Bader Ginsburg, for instance, criticized the decision for taking the issue out of the hands of the legislative branch, where momentum for change was building. And Justice Byron White, a moderate jurist appointed by JFK, actually dissented in Roe, calling the majority decision “an improvident and extravagant exercise of the power of judicial review.”
Does an airline pilot somehow magically lose his or her flying skills at 65 instead of 70? Of course not. But the line has to be drawn somewhere.
To put it another way, the mainstream position about Roe and a woman’s limited, legal right to an abortion was: right result, wrong method. It’s like one of those Hollywood movies where the cop shoots the bad guy at the end. You’re sort of glad that a terrible killer got his just desserts, but you still have this nagging wish that the legal system had been allowed to do its job properly. But it does little good now to lament the method used in Roe. That was almost 50 years ago and we can’t go back and undo history, especially in light of Dobbs. In fact, a lot of the blame for why the Supreme Court felt the need to jump into the breech and solve the abortion problem goes to polarization in politics. If only more elected representatives would have had the courage and the tools to grapple with the issue without getting derailed by the rhetoric in the debate, we wouldn’t have needed Roe. Lawmakers are forced to make difficult, arbitrary distinctions of consequence all the time. Is a citizen somehow innately more capable of voting at 18 instead of 17? No. Does an airline pilot somehow magically lose his or her flying skills at 65 instead of 70? Of course not. But the line has to be drawn somewhere. And it’s no different when it comes to balancing a woman’s interests with those of the fetus.
But that only addresses the correct result part. As I said, we can’t retroactively fix the fact that it was the Supreme Court that used the regrettable method it did in Roe, and as a consequence conservatives in the past several decades clamored for appointing Supreme Court justices who would overturn Roe. Sure, the would-be justices would say all the right things at their Senate confirmation hearings about respecting stare decisis. But no one (other than Senator Susan Collins, apparently) was fooled. Once a clear majority of pro-life justices was in place, Roe would be jettisoned. And Donald Trump’s three hugely consequential nominations to the Court did just that. Dobbs is now the (new) law of the land, but it is no less reviled than Roe was. So what’s to be done?
One of the Court’s finest minds in history, and arguably its most apolitical, independent member in the past fifty years, was the late Justice John Paul Stevens. Stevens wrote a remarkable book — after his retirement from the Court at the age of 90! — in which he suggested some simple amendments to the Constitution that would address major problems facing America, such as gerrymandering and gun control. But in Six Amendments: How and Why We Should Change the Constitution, Stevens’ brilliant list of solutions didn’t include tackling abortion, probably because he viewed Roe as settled law. That doesn’t mean, however, that we couldn’t settle the issue once and for all with a constitutional amendment. Politically impractical? Only in the sense that the extreme right and left have been unable to come together on pretty much anything, including reaching a resolution of the perennial abortion debate. There’s nothing remotely practical about the new status quo: the Court’s reputation is in tatters, while in many states a woman’s access to reproductive health has been dangerously compromised. Remember, Planned Parenthood clinics do more than provide safe abortions; other vital health services like Pap smears are obtained there.
I don’t mean to trivialize the very real concerns many Americans have about legal abortion. While public policy necessarily cannot be based on religious practice and teaching, it absolutely can be informed by it. And pro-choice proponents do their cause an immense disservice by treating abortion as just another means of contraception that should be available to women. At the same time, any man in government — whether a member of the legislative, judicial or executive branches — needs to take a serious pause before adopting a high-minded tone about a situation he will literally never have to face in his own life.
In the spirit of Justice Stevens, I propose below a Constitutional amendment to resolve the abortion debate. While Congress could enact similar federal legislation, its authority would be predicated on the Commerce Clause, and given abortion might often be construed as an intrastate matter, or the Court might narrow its view of the scope of the Commerce Clause, it would be preferable to safeguard the right in an amendment. You’ll note the language avoids the uncertain standard of viability in favor of a specified number of weeks, chosen to give any woman ample time to recognize she is pregnant, obtain medical and other counseling, and make a thoughtful, informed choice, but not so much time as to encroach on the “late term” zone.
No government shall restrict a woman’s right to carry a pregnancy to full term or not, except if she chooses to end the pregnancy after 20 weeks of the term and her life or health are not at risk.
It’s entirely likely we as a nation will not summon the collective resolve any time in the near future to settle the question of legalized abortion through a constitutional amendment. So until we do, we will face perpetual uncertainty: will Dobbs fare any better than Roe as valid precedent? Meanwhile, how can our nation function with warring state laws that seek to either criminalize or safeguard abortion, with innocent young women and even Uber drivers in the crosshairs? Let’s be perfectly honest — an upper middle class woman will never need to worry about reproductive choice. But for a woman in poverty, whose only path upward might require not carrying an unwanted pregnancy to term, the specter of the back alley abortions that her grandmother’s generation faced is a terrifying thought. One can only hope, for all of our sakes, that we will eventually move beyond this divisive era. From the standpoint of political sanity — the pro-resolution standpoint — we certainly have the capacity to do so. Whether we have the will is another matter entirely.
