America battles over choice

The fourteenth amendment to the United States constitution, adopted in 1868, lays down that no state shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” But last week, as you’ve no doubt heard, the supreme court ruled that “person” in that context does not include women – or at least not as far as reproductive freedom is concerned.

After fifty years of mostly being focused narrowly on the supreme court, abortion now becomes an issue that will infuse political debate throughout the country. Since the two major parties are almost totally polarised on the issue – pro-choice Republicans and anti-choice Democrats, once common, are both now almost extinct – it is likely to add an extra element of bitterness to an already troubled partisan landscape.

Prima facie, however, it appears that it should work to the Democrats’ benefit. Public opinion was strongly against overturning Roe v Wade and even more strongly against a comprehensive abortion ban. But the Republican Party, driven by its religious and culture-war fundamentalists, seems certain to continue advocating more and more extreme measures.

It remains to be seen whether that apparent political advantage will translate into real electoral success. Certainly the Democrats need something to go their way: with just over four months until the midterm congressional elections they are taking water badly, facing loss of the House of Representatives and at real risk in the Senate.

Some pundits, however, are suggesting that the polarisation over abortion is less than it might appear. This enables them to indulge in their favorite habit of “bothsidesism”, arguing that both sides are equally unreasonable and equally far removed from the sensible majority in the middle (which, of course, includes themselves).

So, for example, John Halpin, after describing Republican extremism on the issue, goes on to say that the Democrats “will probably move away from a sensible Roe-like defense of abortion rights to a more extreme position of abortion at-all-times with no restrictions,” which he implicitly includes under the description of “the worst forces of zealotry and ideological arrogance in America.”

And Emma Camp at Reason describes a legislative initiative from Virginia governor Glenn Youngkin as “unlikely to draw opposition from abortion moderates,” a group that she sees as both large and as “stuck between two increasingly radical camps.”

Readers might remember Youngkin from last year’s Virginia election; he represents the relatively non-Trumpy wing of the Republican Party. His proposal would ban abortions after the 15th week of pregnancy, “with exceptions for rape, incest, and cases where the mother’s [sic] life is endangered.” He also indicated he might be prepared to extend the deadline to 20 weeks in an effort to “build a bipartisan consensus.”

But the idea that this or anything like it represents a sort of middle ground on the issue is problematic, at both a theoretical and a practical level. As a matter of principle, any criminalisation of abortion means giving up the basic ground of a woman’s right to decide about her own health care. The rest is just detail: it’s like Ukraine haggling over just how much of its territory Russia should be able to seize by force. The haggling can only begin once the basic principle of territorial integrity has been given up.

At the practical level, however, the difference runs the other way. The vast majority of abortions happen prior to 15 weeks; data from 2019 indicates only 4.3% being performed past that mark, and a number of those would be covered by Youngkin’s exceptions. Late-term non-therapeutic abortions, despite their omnipresence in the debate, are extremely rare.

So if Youngkin’s initiative were to become typical for Republicans, it would amount to a political earthquake: while maintaining the principle of abortion restriction, it would in practice give up on almost everything the fundamentalists want. For that reason, the chance of it happening seems to be approximately zero.

In reality, wherever the Republicans have control (that doesn’t include Virginia, where Youngkin has to deal with a Democrat-controlled state Senate), they have promoted laws that would criminalise the majority of abortions. Unless and until the weight of public opinion is able to force them back from that position, that is where the debate is going to take place.