The fateful Supreme Court decision to legalize abortion in 1973 effectively removed it from the political process for nearly half a century. Americans’ heated feelings on the issue shifted from legislative disputes (where they belonged) to the makeup of the Supreme Court, resulting in the crass, overtly political and circus-like nominating battles that characterized almost every recent appointments.
But now the court seems ready to send the matter back to the political realm. I say this not so much because of what happened with Texas law, but because the court must hear the arguments in Dobbs v. Jackson Women’s Health Organization, a Mississippi case aimed squarely at Roe v. Wade.
The Texas Heartbeat Act currently causing such angst can be remembered as a sideshow. Remember that by refusing to issue an injunction, the Supreme Court did not endorse the substance of the law. She only held that the respondents lacked standing.
The editors cleverly devised a scheme to evade an injunction, and they succeeded. But to what end?
In due time, someone will sue an abortion provider or best friend who named a pregnant woman after a clinic, and the defendants will respond by challenging the constitutionality of the law. At this point, when there is a real case or controversy, the Texas Heartbeat Act will make its way through the courts and eventually end up in the Supreme Court. Evading an injunction is not the same as avoiding judicial review altogether. So for weeks or months it will be almost impossible to get a legal abortion in Texas.
To secure a temporary halt to abortions, Governor Greg Abbott and Republicans in the Texas Legislature have shown contempt for anything other than crippling scrutiny. Do the Republican drafters and lawmakers who passed this law really want to invite the kind of espionage and information their law envisions? Do they really want bounty hunters getting rich off the backs of troubled women? Do they really want to make Texas look like East Germany?
The Mississippi law, on the other hand, is a direct challenge to the “excessive demand” standard set out in Planned Parenthood v. Casey. It would ban abortions after 15 weeks of gestation, except in cases of health emergencies and fetal abnormalities. There are no bounty hunters or nosy neighbors looking to settle a score or teach someone a lesson.
The court has yet to uphold a state law limiting pre-viability abortions, but Dobbs may be the case that does.
It would be much healthier for our society if citizens were invited to debate and decide these issues for themselves, in their own states, without the help of nine Supreme Court lawyers. These are exactly the kinds of problems that free people have to face if they want to be considered autonomous. Almost every abortion poll has found that most Americans support legal abortion in the first 12 weeks and oppose it (to varying degrees) thereafter. Polls asking whether Americans support Roe are useless because few know what they are saying.
While Americans fall somewhere in the middle, both political parties have gone to the extremes.
The past five years have demonstrated the dangers of excessive polarization. We’re tearing ourselves apart over mask mandates, for god’s sake. How well equipped are we to debate and discuss an even more emotionally volatile issue? Nevertheless, if the Supreme Court overthrows Roe and Casey, or limits their reach, the ball will be back in the citizens’ court.
I am not optimistic about the possibility of compromise or mutual understanding on this issue, but allow me to offer some personal recollections that may help. My husband and I, as adoptive parents, have been active in adoption charities and advocacy for many years. Adoption brings people together on both sides of the abortion divide. We caught up with Hillary Clinton and Mary McGrory, a fierce liberal columnist who was on former President Richard Nixon’s list of enemies at adoption events, as well as the former Republican Congressman and Majority Whip Tom DeLay. He and his wife had raised three adopted children.
I was happy to help Erica Pelman start In Shifra’s Arms, a Jewish charity dedicated to helping women going through difficult pregnancies. The ISA made it clear from the start that its goal was to help women, not to lobby for changes to laws. There were pro-choice, pro-life women on the board, united in the desire to let women know they were not alone.
A Guttmacher Institute survey of why women have abortions noted that more than a third of the women in the study had considered placing their children up for adoption, but rejected it because they thought that it was “morally inadmissible” to give up a child. It seems highly doubtful that all 7 million adopted Americans would agree. It is estimated that 1 to 2 million couples are waiting to adopt children. In 2018, there were approximately 619,000 abortions.
Most people are shocked to learn that there is even a registry for couples expecting to adopt babies with Down syndrome.
Adoption is a loving alternative to abortion. Maybe we can start to listen to each other and get along if we start there.
Mona Charen is editor-in-chief of TheBulwark.com. A syndicated columnist since 1987, she worked at the White House under President Reagan and at the National Review. His books include “Do-Gooders: How Liberals Harm Those They Claim to Help – and the Rest of Us”.