The fateful step of the Supreme Court in the judicialization of abortion in 1973 effectively removed it from the political process for almost half a century. The passionate sentiments of Americans on the matter were shifted from legislative disputes (where they belonged) to the makeup of the Supreme Court, resulting in the crass, overtly political, and circus-like nomination battles that have characterized nearly all of them. recent appointments.
But now the court seems ready to return the matter to the political realm. I say this not so much because of what happened with the Texas law, but because the court has to hear the arguments in Dobbs v. Jackson Women’s Health Organization, a Mississippi case squarely targeting Roe v. Wade.
The Texas Heartbeat Act which currently causes such angst can be considered a sideshow. Keep in mind that by refusing to issue an injunction, the Supreme Court did not approve the substance of the law. It only ruled that the respondents did not have standing.
The writers cleverly devised a ploy to evade an injunction, and they succeeded. But for what purpose?
In due course, someone will sue an abortionist 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 the injunction is not the same as completely evading judicial review. So for weeks or months it will be almost impossible to get a legal abortion in Texas.
To bring about a temporary stop to abortions, Gov. Greg Abbott and Republicans in the Texas legislature have shown contempt for any value other than crippling scrutiny. Do the Republican drafters and lawmakers who passed this law really want to invite the kind of espionage and information to what they envision the law? Do they really want bounty hunters to get rich off the backs of troubled women? Do they really want to make Texas look like East Germany?
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 gestation except in health emergencies and fetal abnormalities. There are no bounty hunters or curious neighbors looking to settle scores or teach someone a lesson.
The court has yet to uphold a state law restricting pre-viability abortions, but Dobbs may be the case that does.
It would be much healthier for our society if we asked citizens to debate and decide for themselves on these issues, in their own states, without the help of nine Supreme Court lawyers. These are exactly the kinds of problems that free people must solve if they are to be considered self-sufficient. Almost all abortion polls have found that most Americans support legal abortion within the first 12 weeks and oppose it (to varying degrees) thereafter. Polls asking whether Americans support Roe are pointless because few know what he is saying.
If the Americans fall somewhere in between, both political parties have gone to extremes.
The past five years have demonstrated the dangers of excessive polarization. We tear ourselves apart for mask mandates, for God’s sake. Are we well equipped to debate and discuss an issue that is even more emotionally volatile? Nonetheless, if the Supreme Court overthrows Roe and Casey, or limits their range, the ball will be back in the citizens’ court.
I’m not optimistic about the possibility of compromise or mutual understanding on this issue, but allow me to offer some personal memories that may help. My husband and I, as adoptive parents, have been active in adoption and advocacy charities for many years. Adoption brings people together on both sides of the abortion divide. We met Hillary Clinton and Mary McGrory, a fierce Liberal columnist who was on the enemies list of former President Richard Nixon, at adoption events, as well as the former Republican congressman and majority whip Tom DeLay. He and his wife had raised three children in foster care.
I was happy to help Erica Pelman launch In Shifra’s Arms, a Jewish charity dedicated to helping women experiencing pregnancies in crisis. The ISA made it clear from the start that its goal was to help women, not to push for changes in laws. There were pro-choice and pro-life women on the board, united in the desire to let women know that they were not alone.
A Guttmacher Institute survey of why women have abortions found that more than a third of the women in the study had considered placing their children for adoption, but rejected it because they believed that it was “morally unreasonable” to give birth. It seems very doubtful that the 7 million adopted Americans would agree. It is estimated that between 1 and 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 who are waiting to adopt babies with Down’s syndrome.
Adoption is a loving alternative to abortion. Maybe we can start to listen and get along if we start there.
Mona Charen is Policy Editor at The Bulwark and host of the “Beg to Differ” podcast.