- How is it possible that the rights to abortion are still being questioned today? Are we going back in time or were these rights never fully established?
In 1973, many U.S. states were in the process of liberalizing their laws pertaining to abortion. The Roe v. Wade ruling struck down a highly restrictive Texas law, but also invalidated abortion laws in almost all 50 states, even laws that had already been reformed but did not fit the new Roe regulatory scheme. This scheme only permitted states to restrict abortion before viability in order to protect the health of the pregnant person and, after viability, states could further restrict abortion access. To opponents, Roe went too far, permitting “abortion on demand” through six or seven months of pregnancy (in 1973, fetal viability in a well-equipped hospital was around 28 weeks, though now it’s around 23 weeks). There were liberal critics of Roe too, who thought the Court should merely have struck down the Texas law and then have left it to the states or our national Congress to design new laws and regulations. While the judicial review process has evolved to protect the fundamental rights of marginalized groups, in a democracy, laws are supposed to be approved by elected officials, not appointed elites. So many on both sides saw Roe as an aggressive move by the Court.
- What does it mean to leave the matter to individual states?
Each state legislature, with guidance from its own state constitution and courts, would craft laws controlling access to abortion. But this will depend on what the majority opinion regarding the Mississippi law ultimately states. If the leaked draft opinion gets a five-majority vote, then states will be relatively free to impose severe restrictions. On the other hand, if the Court merely upholds the Mississippi law, without contradicting the principles behind Roe, then some states may pass 15-week cut-offs for elective abortion, and others may try pass more restrictive laws at the risk of being declared unconstitutional. If our federal congress manages to pass a law that the Supreme Court upholds, then that law would supersede all state laws. In the near future, we are very likely to have a patchwork of laws, with roughly half the states imposing more restrictive laws than were permissible under Roe, and the other half incorporating something like Roe’s regulatory scheme into their state laws.
- The draft opinion discusses the limitations of Roe v. Wade to argue that the document cannot be the basis for the right to have an abortion. What are these limitations? What does this tell us about the meaningfulness of constitutional rights and tradition?
Our federal Constitution does not explicitly guarantee a right to privacy, nor does it explicitly guarantee the equality of all persons without regard to sex. Some courts have interpreted our Constitution to include these rights, while others contend that our Constitution would need to be amended to include these rights. The ambiguity of our Constitution on these matters places a lot of power in the hands unelected officials (e.g., Supreme Court judges), which is a weakness in our democracy. Some have proposed adding term-limits to judicial appointments, so that these unelected elites would better reflect current voter preferences, and some have proposed permitting elected officials to expand the size of the Supreme Court when it appears to block the will of the majority. Many political commentators today are pointing out how elections matter, as our legal rights can never be taken for granted and always need defending.
- What role does social responsibility play in this debate?
We are very polarized around the issue of abortion, and our political parties have taken advantage of this to recruit voters. Social responsibility in a democracy involves talking with our opponents and trying to craft laws that protect individual rights, but that also reflect the diversity of beliefs in our country. Neither side seems willing to do this at present. The deep division around this issue is eroding our democratic institutions, as each side mostly cares about winning and not whether the process to achieve victory is democratic. Each side feels it’s on the higher moral ground and vilifies its opponents, which then leads to each proposing more extreme policies (e.g., no legal abortions or no legal restrictions). Right-wing political leaders are taking advantage of deeply frustrated voters who have had five decades to build a movement opposing Roe, while left-wing leaders simply call out their opponents’ anti-democratic and illiberal actions without meaningfully engaging their opponents’ supporters. The upshot is, if we want to live in pluralistic democratic societies, we need to engage politically with everyone, including those who hold very different beliefs and values than ourselves.
- What are the philosophical implications of such an event?
Philosophers tend to analyze societal conflict over abortion as a problem reflecting deep moral differences, which can be adjudicated through rational argument. We often ignore how moral views can change and be manipulated by political and social movements. When we treat the polarization around abortion as primarily an expression of deep and irreconcilable moral differences, and then defend the moral views and political objectives of one side, we merely give comfort to our friends. Instead, philosophers need to analyze the civil division over abortion, in part, as a social and political phenomenon amenable to democratic political action and strategy. This means calling out extreme views on all sides that do not reflect the views of voting majorities. This also means engaging with our opponents on what being pro-life or pro-choice really involves, and not retreating into camps that believe only they know what embracing these values means. Lastly, it means not engaging in a politics of shaming, and instead participating in sometimes difficult conversations without tearing apart our communities. Many culturally diverse democratic countries have reached some degree of civil peace on this issue, and we should try to understand how they have achieved this, such as through legislative compromises, improving health care systems, and addressing poverty and social inequality.
Laurie J. Shrage 