One of the biggest misconceptions about Roe v. Wade is that it ushered in an era of deeply divided, hyper-polarized opinions about abortion rights. Though an advocate for reproductive freedom, future Justice Ruth Bader Ginsburg famously called the landmark decision a "heavy-handed judicial intervention [that] was difficult to justify," a ruling that "appears to have provoked, not resolved, conflict."
But that's just not true.
Regardless of heated and occasionally violent opposition from radical pro-lifers, for most Americans, Roe led to a half-century of remarkably stable cultural consensus about how to balance the rights of women with the rights of fetuses or, as pro-lifers prefer, unborn children.
Roe held that the state could "could regulate (but not outlaw) abortions in the interests of the mother's health" in the second trimester of pregnancy and ban abortions only in the third trimester of pregnancy as a fetus developed more "potentiality of human life." Its successor case, Planned Parenthood v. Casey, affirmed a right to an abortion until a fetus became viable outside the womb.
Unlike slavery and civil rights, abortion is not an issue that lends itself to absolute moral clarity. There are obviously two sets of rights involved, but exactly when legal personhood for the fetus begins has always been contested, as seen in historic laws that banned abortion only after "quickening."
The cultural genius of Roe is that it created broad parameters that reflect how we think about pregnancy and abortion: At some point during gestation, the fetus becomes a person with a right to life and liberty, but drawing that line will always be a compromise and imprecise. Honest brokers on both sides of the abortion debate will acknowledge that the opposing side has a case.
Abortion policy is about creating a workable, pragmatic compromise that allows people to live their lives on their own terms and peaceably argue for their point of view. Ending Roe risks allowing states to outlaw abortion altogether—13 states have "trigger laws" that will automatically ban abortion if the decision is overturned—or to try and ban out-of-state travel for women seeking the procedure.
But individual freedom trumps federalism. Though abortion will never be a clear-cut issue, once we have broad societal agreement on how to delineate between the interests of the mother and the interests of the fetus, women across the country deserve basic protections for their bodily autonomy and privacy.
Overthrowing Roe and Casey would threaten that progress and broad consensus by stoking a new culture war in which states rush to ideological extremes that run roughshod over the rights of women or fetuses, depending on the state, some of which are already trying to restrict access to their residents' ability to receive or even fund abortions performed elsewhere.
Post-Roe America would be one with fewer rights and, likely, more political division. There's no perfect policy on abortion, but in 1973, the court struck a compromise that most Americans continue to endorse. That victory, I fear, is about to be undone.
Photo Credits: Lorie Shaull from St Paul, United States, CC BY-SA 2.0, via Wikimedia Commons; Ron Sachs/ZUMAPRESS/Newscom; Ms. magazine, CC BY-SA 4.0, via Wikimedia Commons; Keiko Hiromi/Polaris/Newscom.
Music Credits: "Rebreather," by J-A-V-A via Artlist.
Written and narrated by Nick Gillespie. Edited by Regan Taylor.