CHICAGO, July 23, 2013 — America’s cultural landscape has changed dramatically since Roe v. Wade. With an intensifying emphasis on the value of life and the sanctity of personal choices, all of the competing rights at issue in the abortion debate have grown more precious, raising the stakes of the debate and inflaming passions.
A reassessment of abortion rights is long overdue, but political efforts to address the issue have been thwarted by the tremendous breadth of the Supreme Court’s rulings on the matter. The Courts have left little room for meaningful policy-making, which has turned abortion rights into a playground for demagogues.
Trapped between the over-reach of the courts and manipulations of cynical politicians, the abortion question is lodged in the public throat, choking off our capacity to deal with other issues. The vast majority of the electorate that lives between the poles of this debate must take a greater interest in a settlement or our wider political culture will grow ever more gridlocked.
Over the past forty years American culture has grown far more authentically pro-life. The use of the death penalty is on the decline. Extensive health and safety regulations have become a regular and accepted part of our landscape. We enjoy a far greater acceptance and support of people with disabilities or other physical, racial, cultural or sexual differences.
Adoption is now such a respected practice that a new generation can hardly imagine the stigma it once carried. It has developed into a competitive process, available only the most determined, with few children “available.” Children in our time are treated with a previously unheard-of reverence.
Women’s circumstances have also been transformed since Roe. For thirty years women have been earning college degrees at a higher rate than men. More women than men are active in the U.S. workforce. Women’s incomes are rising faster than men’s. Many women entering college in 2012 might have had no living memory of a male Secretary of State.
Our culture’s growing emphasis on the value and quality of life has contributed to a massive improvement in the power of women. Much remains to be done before women gain an equal footing, but enormous progress has been made since the Supreme Court considered the circumstances of a young Texas woman named Norma McCorvey.
Growing respect for life and expanding rights for women have fed the intensity of passions over reproductive rights. The two vital interests in conflict in the abortion debate are each more cherished by the culture than they have perhaps ever been. Something’s gotta give.
Abortion is a matter that eludes absolutes. No matter how it is framed, the law on abortion is always balancing valid, precious civil rights in a zero-sum game. Science describes for us the reproductive process in remarkable detail. From the living cells of sperm and ova, to a living blastocyst, embryo and fetus, we can identify the cycle in all its stages. The process is awe-inspiring and wonderful, but it offers no empirical marker to tell us definitively when a collection of cells becomes a person demanding legal protection.
Even if it did, those legal rights would have to be balanced against the legal rights of the woman on whose body that fetus depends and whose body will be torn and tormented in birth. We have placed protections into our constitution that forbid government from intruding into our homes without due process. Our bodies should be even more sacrosanct. If we are to establish with integrity the place where legal protection of a fetus starts and a woman’s rights begin to recede, we have to honestly confront the zero-sum game we are reluctantly playing.
When we balance competing rights, fairness demands that we consider the relative capacity of the parties to represent and promote their own interests. Pregnancies may not all be chosen, but they do not occur at random. While they can arise from rape, other forms of abuse, or mistake, a woman has relatively more control over the process than the fetus does. Never in history has a blastocyst asked to be created.
By the same token, women inherently have less freedom in the reproductive process than men. No male victim of exploitation or rape has ever found himself pregnant as a result. No man has ever spent months on bed rest with pregnancy complications, forcing him to quit school or lose his income.
No man has ever been forced to experience the pain and permanent physical changes that can accompany birth. No man has ever died in childbirth. Men of intelligence and integrity approach this subject with some humility, regardless of their convictions.
In recognition of the improving status of women and a strengthening of our humane interest in protecting life, opinions on abortion are shifting in awkward directions. Polling demonstrates that old pro-life/pro-choice divide no longer makes sense, as voters are developing more sophisticated opinions on the issue.
Gallup recently found that for the first time a majority of Americans identify themselves as “pro-life.” Different polls find that a majority of Americans are “pro-choice” and that those numbers are higher than they have ever been. Depending on wording, they are both right.
The explanation perhaps rests in the details of the Gallup poll. The same survey being used to indicate that Americans are more “pro-life” found that nearly 80 percent favor abortion rights in some or all circumstances, a figure that has remained fairly constant for forty years. Voters’ growing identification with the “pro-life” political label is not translating into support for core anti-abortion positions. Likewise, very few voters support the most extreme pro-choice positions.
Consensus is building toward a public policy that respects women’s rights to an abortion early in pregnancy while challenging the “viability” assumptions on which our current laws are based. The country is ready for sensible legislation at the Federal level that would establish uniform access to an early term abortion, while limiting late term abortions to meet extraordinary medical or psychological demands. That does not mean that our political system is prepared to deliver such a gift.
Supposedly “pro-life” forces in Congress and state legislatures are bogged down with bunk science and religious agendas. Meanwhile the defenders of women’s reproductive choices have been conditioned by years of playing defense with the courts at their backs. Decades played out under this strategy have left them incapable of compromise, unprepared to promote their positions in the public and deeply reluctant to engage in an authentic legislative debate.
The country and the courts may be ready for an alternative to the post-Roe abortion norm, but our political system is unprepared to respond. Breaking this costly stalemate could yield tremendous rewards for the country, but there is no sign of a political force with the courage to perform this service.
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