#887 Musings Beyond the Bunker (March 26)
Good morning,
THE CULTURE WARS
American politics was hijacked some time ago by what are called “the culture wars.” The issues that typically animated American voters—questions of war and peace, the economy, entitlement programs, government expenditures and interventions, civil rights—all became less important, as visceral moral issues propelled by religious points of view, questions of historical legacy, what is taught in schools, and identity politics came to the fore.
Many attribute the beginnings of these “wars” to the era of Ralph Reed and the Christian coalition, whose ideals appealed to and were adopted by the Republican party. Chief among these cultural touchstones at the time were gay marriage and a woman’s right to an abortion. Prior to the assault by “family values” and anti-abortion activists, states enacted what seemed common sense extensions of basic human rights. For the Gay community, this included the right to marry. For women’s rights advocates, this included the right of a woman to seek an abortion for an unwanted pregnancy.
THE RECENT FIGHTS
The Supreme Court’s holding in Roe v. Wade enshrined a woman’s right to sovereignty over her body. In the wake of the Court’s decision, a number of reasonable guardrails on the right to abortion were adopted on a state-by-state basis, as states attempted to balance competing views on the practice, the “morality” of late-term abortions, and the health and welfare of mothers and fetuses. Certainly, there were battles fought as to the local laws and access in the more restrictive jurisdictions, but state restrictions in response to Roe maintained an uneasy balance of interests. When the Supreme Court overturned Roe, the most conservative states could act in the extreme, as balancing of interests and compromises no longer were necessary. Leaving the matter to the states enabled some states to adopt draconian laws like absolute bans, imposing limits on what measures could be pursued with at-risk pregnancies, and imposing potential criminal sanctions for those who provided abortion services (rendering many medical procedures designed to protect the health of the mother unattainable in those states).
There is a curious postscript to the debate about abortion. Many states have elevated the life of a fetus to the same level as that of the pregnant woman and, in doing so, have presented a number of unacceptable Hobson’s choices. There already are a number of accounts of women who might have an at-risk pregnancy who are deciding not getting pregnant, for fear of putting their lives at risk. After all, a state court may determine that the risk to the mother is speculative, whereas, in saving her life, the death to the “uterine human” inside her would be certain.
THE ABORTION PILL CASE
The Supreme Court yesterday heard arguments about the legality of delivering mifepristone, the common abortion pill, across state lines and to patients in states where medical abortions may be either illegal or severely restricted. This case is important because nearly two-thirds of all abortions are achieved through mifepristone and similar drugs.
The case was brought by anti-abortion activists (more about that in a bit), ostensibly arguing that the FDA shouldn’t have approved the broad use of the drug. The case was “forum shopped” to a federal court with a single Trump-appointed judge hearing civil cases, a judge notably outspoken against abortion rights. The result was preordained. The Fifth Circuit, arguably the nation’s most conservative, upheld the verdict. Now it is before the Supreme Court to decide. The plaintiffs, who are physicians, argued that they had standing because they were harmed by being required to care for women who took the pill. I think it likely that the Court will find the plaintiffs have no standing (avoiding a ruling on the matter at all). After all, how, really, are these doctors harmed? Further, limiting mifepristone’s use would cast in doubt the ability of the FDA and other federal agencies in matters of consumer safety.
FETAL PERSONHOOD
Today’s fight over the abortion pill on the federal level, while couched in arguments about the FDA’s approval process, in essence is a fight to restrict a simple and safe means to terminate a pregnancy in the earliest stages after conception. The view of the anti-abortion lobby is that a life already exists at fertilization. The attempt to restrict mifepristone is one of several steps the anti-abortion activists are pursuing to impose an absolute restriction on abortion rights.
Sure, there are anti-abortion folks who want to impose serious restrictions on the rights of pregnant women. They will claim a spate of late-term abortions. The argument that late-term abortion is rampant is, of course, a canard. The Pew Research Center reports that 93% of abortions occur in the first trimester, while 6% occur prior to 20 weeks. That said, a number of Republican legislators would be perfectly happy with a 15 week or 20 week ban. Unfortunately, there is a group, including those pushing the mifepristone case, who aren’t concerned with any compromise ban. They want no abortions. Period.
The Alabama judges who decided that a fertilized egg is a human in the recent IVF case were not alone in this belief. The initial argument against Roe argued for states’ rights, but many of those same advocates now are trying to federalize a ban on abortions of all types, through whatever means they can. The pill is only one salvo in this war. Another is the extension of Fourteenth Amendment rights to fetuses. With this Supreme Court, it is not beyond the realm of possibility that it will enshrine fetal personhood, in which case a fetus’s life would accorded the same rights as a living, breathing human. If the Court makes that determination, abortions, except in the most extreme of circumstances, will be outlawed throughout the country.
THE WILL OF THE PEOPLE IS NOT RELEVANT
The pro-choice lobby may argue that the battle for greater restrictions being fought on the state level is going their way. After all, a series of ballot propositions to amend state constitutions to provide for the right to abortion (or, in some cases, making pro-choice propositions more difficult to get on the ballot) have been defeated, including in many Republican dominated states. The culture wars, it appears, work both ways—but that’s only when talking about compromising seemingly disparate positions.
Poll after poll have shown overwhelming public support of reasonable restrictions on abortion and yet the religious right pushes against that popular view. Sixty-two percent (62%) of all Americans polled by the Pew Research Center believe abortions should be legal in most cases. And while only a miniscule of abortions are conducted after 20 weeks of pregnancy (no later than the middle of the second trimester), the battle rages. So why is there still a fight for absolute bans? What we are witnessing is a concerted effort by the pro-life faction to enshrine their religious point of view in each state and nationally, if possible, notwithstanding the will of the people. One can understand that they are unconcerned with public opinion, as they believe the killing of any “pre-birth human” is murder. It’s a moral issue born out of religious conviction. Never mind that their religious point of view by definition overrides the religious views of others. For some, a ban after 16 or 20 or 24 weeks, and the ability to perform an abortion when a woman’s physical or mental health is at risk, would seem reasonable places for a compromise to land. For those with greater religious conviction and who are at the forefront of this war, it’s hard to see a compromise. And so, the fight goes on.
Have a great day,
Glenn