America’s Abortion Debate Is Broken
America’s Abortion Debate Is Broken
Polarization and extremism have made compromise impossible. Is it too late to follow the examples set by other countries?
The leaked U.S. Supreme Court opinion in the case of Dobbs v. Jackson Women’s Health Organization has Americans facing the prospect of a world without the abortion protections guaranteed in Roe v. Wade. This long-sought Republican victory will return regulation of a contested moral issue to the states. Might it also provide us with an opportunity to lower the temperature around the issue of abortion? After all, other countries have adopted compromise solutions that recognize the various interests at stake, without experiencing decades of extreme partisan warfare. We would do well to learn from them.
Abortion is a deeply adversarial issue because it involves a tradeoff between the interests of an unborn fetus and of a prospective mother. In the United States, political entrepreneurs have framed this as an either-or choice: either you insist on absolute protection of unborn life or you insist on absolute freedom from state interference on decisions to terminate a pregnancy. But these absolutist views are out of step with those of most Americans, who for the last fifty years have had relatively stable public ideas on the issue—supporting the availability of abortion in many, but not all, circumstances.
How did we get here? The world before Roe was worse for women seeking abortions, but also one in which abortion was not a central or partisan issue in American politics. Before that 1973 decision, a Gallup poll found that more Republicans than Democrats favored leaving the abortion decision to a woman and her doctor. There were passionate opponents of abortion, but they didn’t align neatly with one party or the other. No longer. Presidential elections are now heavily influenced by the power to appoint pro-life or pro-choice justices. Notably, in 2016, Senate Majority Leader Mitch McConnell blocked the nomination of Merrick Garland to the Supreme Court, making the presidential election that fall, in good part, a referendum on the Court. It is not much of a stretch to say that abortion politics helped to give us Donald Trump, along with the three new anti-Roe judges he was able to appoint.
The Supreme Court has tried to facilitate compromise solutions, most notably in the 1992 decision of Planned Parenthood v. Casey, which allowed restrictions that did not impose an “undue burden” on the woman seeking an abortion. This decision overturned Roe’s strict prohibition of regulation during the first trimester, but reaffirmed the decision’s central holding, which protected the right to abortion prior to fetal viability. Rather than settle the issue, however, the Casey decision led to a raft of state rules and restrictions, and even more extreme political mobilization. Is there another way?
Other countries have taken a different, less absolutist path that starts with recognizing that there are indeed multiple interests at stake. Germany provides the best example in this regard. During World War II, Nazi eugenics laws facilitated selective abortion of “undesirable” populations, while enforcing an absolute prohibition on abortion for “Aryans.” In reaction to Nazi atrocities, the German constitution of 1949 declared human dignity to be a core value, and abortion was prohibited. Human life was to be protected as a way of marking a break with the past.
As in other parts of the western world, however, the 1960s led to massive social change, and women began demanding greater control over reproductive issues. In 1975, Germany’s Constitutional Court held that unborn children had a right to life, and that with few exceptions, abortion could be banned. The Court specifically rejected the idea, which is implicit in Roe, that an unborn fetus had no constitutional interests during the first trimester. At the same time, the Court argued that the ultimate goal was to prevent, not punish, abortions, and so gave room to the legislature to craft a compromise. In 1976, Germany decriminalized abortion in the first 12 weeks of pregnancy, if accompanied by counseling and a waiting period. Later-term abortions were to be allowed in cases of serious risk to the physical or mental health of the mother. This remains the basic framework today, and it was adopted by national legislation rather than being imposed by a court.
The German compromise recognizes that the pro-life and pro-choice camps are not completely at odds and that there is a middle ground to be found. Unsafe abortion is a major cause of maternal deaths: both sides should be able to agree that no woman should die from avoidable complications in her pregnancy. Abortion can be an emotionally and physically taxing procedure: both sides should be able to agree that minimizing the number of abortions is a desirable goal. The German system takes into account the legitimate arguments of both sides, and, as a result, abortion has not become a central issue in electoral politics.
America would do well to create a system that balances the same goals that the German system does: protecting women's health, minimizing unwanted pregnancies, protecting the life of unborn children, and recognizing the bodily autonomy of women. Specifically, this could mean limiting access to abortions after the first trimester, modest waiting periods, and exceptions concerning the physical health of women. Such a system, which describes the current reality in virtually every Western European country, seems to be broadly in line with American public opinion, and in a functioning legislative process, would be attainable through national legislation.
How can we get there? Processes of political polarization, once set in motion, are very hard to reverse. Both parties have mobilized around the Roe decision for decades. GOP state legislators have passed numerous statutes trying to whittle it away, and many onerous restrictions will automatically come into force with a Supreme Court decision overturning Roe. They will not stop there. Future restrictions on abortion are likely to become much more draconian. For example, Republican-controlled states are likely to try to prevent their residents from traveling to other states to undertake abortions. Meanwhile, the Democrats’ proposed federal bill is very expansive, banning limits on abortion before fetal viability (around 24 weeks). It also seems out of step with public opinion.
As in so many other areas, the American political system is failing to deliver on policies supported by a majority of citizens. Five decades of polarization on the issue of abortion are unlikely to go away soon. But if we recognize that the complex moral questions around abortion are too important to leave to the most strident and uncompromising politicians, we might begin to do better.
We could start by convening citizen groups to deliberate on compromises across political lines. This approach was deployed some years ago in Ireland, where a Citizen’s Assembly, composed largely of randomly selected citizens, deliberated for a year and proposed a major liberalization of abortion law, which put Ireland’s abortion rules largely in line with the rest of Western Europe’s. Such a process might produce a model bill that could be passed at the federal level if Roe is overturned. If such a bill fails, it might still be adopted at the state level. And even if it’s not adopted anywhere, it will at least give us an understanding of what a popular compromise on abortion might look like.
Tom Ginsburg is the Leo Spitz Professor of International Law at the University of Chicago.
I like the idea of a citizen's assembly. It's important to note that the Irish process took a year. I once participated in a process conducted under Quaker rules (lots of listening) that resolved a controversial issue about which beginning positions were entrenched and opposite. It took a full year. What emerged was a creative solution impossible to anticipate and eventually accepted by all. Too often activists, pros, and inspired fanatics dominate the discourse in this country and make reasonable, thoughtful action impossible. A random group of ordinary citizens would presumably include some on either extreme and most at various places in the middle. Common sense, listening, some imagination and good will would likely lead to a resolution, perhaps one already favored by the majority in most polls, perhaps something new. I personally support the 24-week fetal viability standard but feel it's much more important that women continue to have the right to choose abortion if they feel it necessary, even if the timeframe allowed is smaller. The catch I see is that before the random selection were even completed, the usual suspects on both sides would be shouting, "The fix is in!"
A good summary of the situation, professor -- thank you.
I don't support your suggestion of a citizen dialog to draft a national policy -- I don't believe that there's sufficient recognition of a middle ground on the subject for such an effort to succeed. This forum was founded to be a haven for just such middle ground discourse. But, I expect the reactions to your article to largely fall into two categories: a) it's not possible to compromise because [reasons], or b) yes, compromise is the answer ... and the only satisfactory compromise is [THIS RIGHT HERE!]. I hope I'm proven wrong -- that would be a nice sign.
In the absence of a nationwide consensus, though, our federal system is going to "solve the problem" -- to few peoples' total satisfaction. Roughly 1/3 of states will permit unrestricted abortions up till the moment of delivery. A smaller number will prohibit all abortions without exceptions for rape, incest, or health of the mother. The majority will end up somewhere in a continuum between those extremes. Everyone will have some choices available to them, but people who hold the strongest opinions on both sides will continue to be horrified. I think that the rest of us -- who I pray will be a majority -- will be relieved.