WEST PALM BEACH, Florida, January 29, 2013 — Forty years ago, the Supreme Court handed down a decision on Roe v. Wade, which effectively made abortion legal in this country.
Making this decision unique is that rather than quelling the discussion, and argument, that decision has only inflamed the debate on both sides.
Part of the reason for the continued ferocious discussion is that the Supreme Court ruling is incredibly vague in several areas. The Court ruled, on the one hand, that the right to privacy under the due process clause of the 14th Amendment protects a woman’s right to have an abortion.
On the other hand, the Court ruled that right must be balanced against the state’s two legitimate interests of protecting prenatal life and women’s health in regulating abortions.
The Court later attempted to clarify the decision, reaffirming the right for a woman to have an abortion “until viability.” The court defined “viable” as a fetus that is “potentially able” to live outside the womb of the mother, even with “artificial aid.”
In an effort to clarify the time frame even further, the Court noted that a fetus is potentially viable “at about seven months (28 weeks)” but then noted it could be viable even earlier, “even at 24 weeks.”
In other words, the Supreme Court decision effectively makes abortion legal but gives each State the right to define its “legitimate interests” in terms of legalizing abortion. It also did not cleanly define “viability.”
Immediately after the decision, most states made abortion legal. That blanket approval quickly faded, however, with numerous states stepping in to define who has the ability to obtain an abortion and when she can receive it.
Currently, 41 states prohibit some abortions after a certain point in pregnancy. Twenty-two states prohibit abortions at “fetal viability” and four states prohibit abortions in the third trimester.
Minors are increasingly restricted from having abortions without parental consent. Eight states now require parental involvement if a minor seeks an abortion, although many states also provide alternatives such as grandparent notification or approval by a court.
The number of facilities providing abortions has also dropped. North Dakota, South Dakota and Arkansas have only one facility each that provides abortions. Mississippi is poised to become the first state in the country with no abortion facility. Mississippi state officials are currently threatening to close down the lone facility for its failure to meet the requirement that physicians have hospital privileges.
At the same time, a new NBC News/Wall Street Journal poll finds that 54 percent of American adults believe abortion should be legal “always or almost all of the time,” and 70% of American adults do not want Roe v. Wade overturned.
None of this has halted or even slowed the abortion discussion.
Last week, during the March for Life, House Speaker John Boehner reiterated his personal commitment to overturning Roe v. Wade and making abortion illegal in America. He said he would make it a “national priority” to “make abortion a relic of the past.”
Overturning Roe v. Wade would likely prove difficult. The Supreme Court generally refuses to re-hear cases it has already ruled on, and technically Roe v. Wade is “the law of the land.”
Unlikely, but not impossible. A conservative president could place conservative justices on the Court, creating the opportunity to overturn the pro-choice ruling. Or a conservative executive backed by a conservative legislature could amend the Constitution to forbid abortion.
Most likely, however, is the abortion battle will be fought at the state level. States, which have already nibbled away at the corners of the legislation by implementing parental notification laws and requiring pre-abortion ultrasounds, will continue to exercise their right to regulate the terms of abortion.
Continued fraying of the law, much like the ruling of Roe itself, is not likely to end the discussion anytime soon. Moreover, compromise is unlikely.
The pro-choice quip, “Don’t like abortion? Don’t have one” enrages Pro Life groups almost as much as forbidding all abortions enflames Pro Choice advocates.
The two sides speak different languages, each with passionate subscripts that turn reasonable discussions into name-calling fistfights.
Pro Life activists fervently believe the debate is about unborn children, right to life and murder. Pro Choice activists simply do not see it that way. They talk about fetuses, government control, and women’s rights and empowerment.
Neither side hears the other or has much sympathy for the opposing argument.
Pro Life advocates cannot walk a mile in the shoes of a pregnant teenager and feel the realities she feels. At the same time, the Pro Choice activist, who does not believe life begins at conception, cannot sympathize with the argument of fetus over woman.
The most blissful situation would be a world where there was no need for abortion, no need for the debate. But that is not our world. The current abortion rate in the United States has leveled off at 15.1 per thousand. Abortion, unfortunately, is a reality around the world and has been practiced for hundreds of years in numerous circumstances.
We also know that when abortion is illegal or difficult to obtain, women often resort to homemade solutions with horrifying consequences. Abortion happens whether it is legal or not.
Even if the landmark Roe v. Wade decision somehow is overturned, or eliminated, or sidestepped, the debate will rage on. Even if abortion is outlawed in all cases, at all times, the debate will continue to rage.
The two sides will stare at each other across the great abortion divide, neither able to comprehend the other. Both angry and passionate in their stance, both full of fury and self righteousness. The two sides lack the tools to even communicate effectively with each other.
The debate is also about power. It is about who decides what women can or can’t do with their bodies, who decides when life begins and who decides what is right and what is wrong.
Regardless of whether Roe v. Wade stands or is shunted aside, the debate is far from over. Both sides desperately want the ability to decide.
And neither side is budging.