17 Comments
May 23, 2022Liked by Tom Ginsburg

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!"

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May 23, 2022Liked by Tom Ginsburg

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.

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Democrats need it to be a "war on women" because Democrats are bankrupt of useful ideas for how to improve society and thus need these group wedge issues to fester and boil in order to inflame voters to support Democrats. And Democrats control the primary media channels. So we will never have any compromise... because compromise does not serve the political interests of Democrats.

And before I get this "yeah, but Republicans!" response... consider the "war on women" political wedge. So, any restrictions at all on abortion are evidence of a war on women. How can any compromise evolve from that?

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Be careful what you wish for. Even with Germany's paternalistic oversights on abortion, the German abortion ratio is not *that* far off the USA's (129 abortions per 1000 live births vs 194 abortions per 1000 live births as of 2018-2019) . Germany is also an outlier among European major powers in having such oversights. However, public health insurance covers abortion due to rape and when the mother's life is seriously threatened. German state governments pay for abortions desired by low income women. So I'm not convinced your Germanic 'compromise' will satisfy either side.

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The compromise was already achieved by Roe v. Wade. The 24 week viability standard is workable. Some may say that it isn't because we can remove the fetus earlier and earlier from the womb. However, the fact that the fetus can be relocated earlier to an artificially created environment does not accelerate its intrinsic development or capacity on its own to survive outside of the womb.

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