Don’t take abortion politics too far

Ryan Neely, Reporter

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The national dispute over abortion has reached a turning point recently, with many states now enacting strict measures on the procedure. Alabama’s law is the most extreme, essentially banning the procedure. While proposed restrictions on abortions typically involve restrictions on how late a pregnancy can be terminated and exceptions in the cases of rape and incest, Alabama’s bans all abortions that do not endanger the health of the mother, with doctors that perform abortions getting a prison sentence of up to 99 years. This policy goes beyond what most Republicans believe. Even President Trump opposes it.

The famous landmark Supreme Court case Roe v. Wade serves as a legal precedent that prevents states from placing these sorts of strict restrictions on abortion, but state politicians clearly seek to bring a new challenge to this precedent.

If this challenge does reach the Supreme Court, there is no reason to believe it will be successful. Contrary to what activists on both sides of the abortion debate like to believe, Brett Kavanaugh indicated back during his confirmation hearings that Roe is settled law. John Roberts also expressed this view during his confirmation hearing. Those are two of the five conservative justices whose votes would be required to overturn Roe.

Keep in mind, knowing what we do about the legal philosophies of Roberts and Kavanaugh, they certainly disagree very strongly with the legal basis of the decision in Roe. The Supreme Court, however, relies on the precedent set forth on prior cases to make sure that everybody understands how the laws they live under work, as well as to make sure that laws do not radically shift meanings whenever the balance of the Supreme Court changes.

The Supreme Court has overturned precedent before though. The most prominent example is Brown v. Board of Education, which overturned the “separate but equal” doctrine established by Plessy v. Ferguson. There’s one key difference here: Brown was a unanimous decision. That will never happen with a potential decision overturning Roe. The four liberal justices will not budge.

Now, to be fair, opposition to the Roe decision are not necessarily based on an opposition to its result. The logic it was based on was extremely flimsy. It hinged on the previously established “right to privacy”, which is basically the emperor’s new clothes of constitutional rights, in that it doesn’t actually exist, and the Supreme Court just made it up. Allegedly this right is implied by the other constitutional rights defending specific forms of privacy, meaning that the Supreme Court need not abide by the constitution itself, but the general gist of it, relying entirely on their own values in the given situation. Look, I’m not pretending to be a lawyer here, but here’s a nice compilation of objections to the decision (published years ago, responding to a different situation). Roe is not a masterpiece of legal doctrine by any stretch of the imagination

The currently established precedent won’t stop people from debating the issue ad nauseum though, even when many prefer policies that the supreme court would not even allow. As our media landscape becomes more divided (via the internet), so too does out political landscape. All too often we are deciding between extremes. In this case, there are many people who want to make all abortions illegal, and others who are far too eager to eliminate any and all restrictions that are put on abortion, regardless of what they even are. Just look at Beto O’Rourke, who wants abortions to be legal into the third trimester.

I suppose if you are hooked this new wave of social media political activism, it may seem like a moderate position doesn’t even exist. Frequently, both sides make arguments that consist of the worst possible (and most uncommon) results of a given policy. The right points to the possibility of a woman having an abortion just before viability simply due to getting cold feet about raising a child. The left points to an instance of a pregnant 11-year-old rape victim who would not be able to have an abortion. Both of these cases are used to advocate for one extreme position or another.

Moderate restrictions on abortion would prevent both situations. Situations, which, as both sides would point-out, are quite rare. Just over a year ago, there was a bill that would limit abortions to 20 weeks across the entire country, with exceptions for rape, incest, and the life of the mother. It failed to break a filibuster. The vote was mostly along party lines, with some on both sides defecting. Notably, Bob Casey, a Democratic senator from our state, voted in favor of it.

If somebody is in favor of a 20 week ban, but opposed to the more strict laws imposed by many of these states, are they pro-life or pro-choice? Perhaps that terminology is obscuring the issue rather than clarifying it.

Pro-choice activists often make the feminist case against abortion laws, something along the lines of “how can men make rules for women” (quite ironic in this case, as the governor of Alabama is a woman), but this just doesn’t make any sense. All politicians ever do is make rules for other people. You do not have to have a personal stake in an issue in order to have an opinion.

The more compelling case against abortion laws is the one derived from a libertarian standpoint. According to it, even if you don’t like it, it isn’t the government’s job to pick a winner on such a complicated social issue, and the moral burden would ultimately fall upon the people.

The counterpoint to that argument is that, given that it is the government’s role to protect individuals from other individuals, it should protect the fetus. This, of course, sparks the dispute of whether the fetus should have the same rights as a normal person.

Many people have religious attachments to this issue, but basing laws off of religion is generally not a good idea. There are means of disputing this that do not rely on religion, such as pointing out which aspects of the fetus develop at which points in time in order to make a cut-off point. This, however, is a very complicated question, and unfortunately, one that most politicians just aren’t interested in.

Abortion isn’t like other social issues, where attitudes shift over time. A Gallup poll shows opinions on the legality of abortion have remained the same since 1976, with the majority supporting it  “only under certain circumstances”. One side cannot win here. If Roe v. Wade had not prevented states from making their own decisions on this matter, we could have simply let each one make their own judgement, but that ship has sailed.

Given that most Americans support moderate abortion policies, and that the other extremes cannot be satisfied at the same time (and aren’t going away anytime soon), it would be best for both sides to rein themselves in. Still, many Americans do have sincere beliefs on the issue, and we all need to accept that. Nobody wakes up in the morning thinking about how they can make the world a worse place.