Roe, Wade and a State of Panic

Abortion rights got kicked back to the states and we're not thinking straight.

The Democrat and Republican parties wouldn’t want to admit this, but they share one special trait. Whenever a ruling is handed down or laws are threatened to be changed, they plant seeds of hysteria. “If you think it’s bad now, wait until you see what the other side is going to do next.”

As Congress discussed tougher gun laws amid a wave of mass shootings, some Republicans claimed that the ultimate goal of Democrats was to take away all guns. “Their real beef is with the Second Amendment,” Rep. Jim Jordan (R-Ohio) said about Democrats during a House Judiciary Committee meeting in early June. “This is just the beginning of their goal, plain and simple, to get rid of the Second Amendment. [President] Biden said it the other day. He said he wants to ban 9 mm handguns.”

Congress would go on to pass a significant gun reform bill in late June. The bill falls far short of asking to overturn the Second Amendment, but the worried voices of some politicians continue to ring in the ears of gun owners.

Yesterday, the Supreme Court ruled in Dobbs v. Jackson Women’s Health Organizations that an abortion clinic in Mississippi could not challenge that state’s ban on abortion after 15 weeks. In doing so, SCOTUS determined that Roe v. Wade and Planned Parenthood of Southeastern Pa. vs. Casey were unconstitutional.

In a 6-3 vote, SCOTUS found that “the Fourteenth Amendment clearly does not protect the right to an abortion. Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right...At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages.

“Roe and Casey each struck a particular balance between the interests of a woman who wants an abortion and the interests of what they termed ‘potential life.’ Roe, 410 U. S., at 150; Casey, 505 U. S., at 852. But the people of the various States may evaluate those interests differently.

“Finally, the Court considers whether a right to obtain an abortion is part of a broader entrenched right that is supported by other precedents. The Court concludes the right to obtain an abortion cannot be justified as a component of such a right.

“What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion is different because it destroys what Roe termed ‘potential life’ and what the law challenged, in this case, calls an ‘unborn human being.’”

Roe always sat on a flimsy foundation. Even the late Ruth Bader Ginsburg acknowledged that. The hope was that a balanced Supreme Court would keep Roe standing for as long as possible. Chief Justice John Roberts failed to convince his fellow conservatives on the court to make incremental changes without overturning Roe. He seemed to stand by helplessly as the foundation under Roe toppled.

In the process, Democrats imagined a host of other rights coming down with it. Contraception could be banned in some states, according to one article. "The states that are trying to limit abortion from the moment of conception — not even from the moment of pregnancy, as the medical profession would define it — could well try to challenge Plan B, emergency contraception, potentially even IUDs," the article quoted Wendy Parmet, director of the Center for Health Policy and Law at Northeastern University, as saying.

In an attempt to calm the waters, the White House’s Instagram page noted the Affordable Care Act ensures that “most private health insurance must cover birth control and family planning counseling without cost-sharing.” Moreover, U.S. Attorney General Merrick Garland said that states couldn’t ban the abortion-inducing medication mifepristone based on disagreement with the federal government on its safety and efficacy.

Concerns also grew that overturning Roe could eventually lead to the court ruling against same-sex marriages. After Friday’s ruling, Justice Clarence Thomas said that "in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is ‘demonstrably erroneous,’ […] we have a duty to ‘correct the error’ established in those precedents."

It’s not that these concerns aren’t without merit, because they are; it’s that they incite anxiety by portending future gloom and doom. This also effectively unites a party’s base so that now it’s not just about abortion, but a whole slew of other rights at stake.

Undoubtedly, it is a dark time for pro-choice activists, and those who fear other rights could soon be eroded. They have to be asking themselves, how could recent Supreme Court nominees who claimed at their confirmation hearings that Roe was set in stone so easily demolish it?

“Roe is not a super precedent because calls for its overruling have never ceased, but that does not mean that Roe should be overruled. It just means that it doesn’t fall on the small handful of cases like Marbury v. Madison and Brown v. The Board that no one questions anymore,” Amy Coney Barrett said during her hearing.

“…Casey specifically reconsidered it (Roe), applied the stare decisis factors, and decided to reaffirm it. That makes Casey a precedent on precedent,” declared Brett Kavanaugh.

Neil Gorsuch said something similar during his confirmation hearing. “Once a case is settled, that adds to the determinacy of the law. What was once a hotly contested issue is no longer a hotly contested issue. We move forward.”

Clearly, Supreme Court justices, like politicians, can change their minds.

Immediately following the Supreme Court announcement that Roe had been overturned, protests began in cities around the country. Pro-choice advocates got almost all of the coverage in the news, suggesting that pro-life champions were outliers. Unfortunately, the media ignoring the other side of the discussion highlighted an “us vs. them” mentality that permeates the situation. It’s this mentality that feeds hysteria and sends people toward extreme measures that seemed unimaginable only a few years ago.

The Shout Your Abortion campaign is selling this yard sign (warning: graphic language):

Pictures of aborted fetuses have often been used outside of abortion clinics by pro-life advocates to drive home the ugliness of abortion (warning: graphic images).

Look at abortion laws across the country today. In several states, including Colorado, New Jersey and Vermont, abortion is legal throughout pregnancy and for any reason. Partial-birth abortion, in which the fetus is removed intact and the skull is crushed, is legal in many of these same states.

On the other side, there’s Oklahoma, which recently passed a bill that effectively makes all abortions illegal except in the case of rape or incest or when the mother’s life is in danger. In Louisiana, no provision is made for terminating a pregnancy that is a result of rape or incest.

It was the Clintons who touted the idea that abortions should be “legal, safe and rare.” That placated advocates on both sides of the debate for some time, but by 2016 Hilary Clinton had removed “rare” from any talk about abortion. More and more Democrats feared that the word stigmatized women who sought abortions. The idea of “abortion on demand,” meaning women having the right to have an abortion for whatever reason and through at least the first six months of pregnancy, became a popular phrase.

For their part, Republicans talked a good game about being pro-life, but they didn’t really start to show their muscle until Donald Trump came into office. He’s the one who got three conservative judges on the Supreme Court. He was the first sitting president to attend the March for Life in Washington, D.C. In private, though, Trump is said to believe that the overturning of Roe will be bad for Republicans.

It is difficult to separate politics from the abortion debate, especially as our country continues to divide along political lines. And that’s unfortunate because many of the issues that are directly or indirectly impacted by Roe are important to address for our country as a whole.

Among the important topics that should be discussed on a nonpartisan, secular level:

• How do we ensure that young men and women learn to protect themselves from unplanned pregnancies (and, yes, we could add abstinence as one alternative)?

• How do we build up minority and underserved communities so that women and families have the resources to safely bring children into the world and provide for their needs?

• How do we impress upon states without exceptions to abortion that rape, incest and health of the mother are exceptions that even many pro-life people support?

• Why can’t we reassure women that unplanned pregnancies will not ruin their lives or keep them from fulfilling their dreams?

• What are possible ways to hold men more accountable when they are faced with an unplanned pregnancy?

• What resources are available for pregnant women, new moms and their children and how do we get more people to support them through volunteering and donations?

• How do we prevent dangerous illegal abortions from taking the lives of women who feel they have no other option?

• Is there an opportunity for abortion to be revisited on the federal level, and what should pro-life and pro-choice advocates be doing to prepare for that?

  The panic around the Supreme Court decision will eventually subside, which should create an atmosphere for intelligent debate. That is the only way we can hope to move forward as a country.