Eric Sondermann
Some weeks down the road, likely in June, it is quite probable that we will be treated to breaking news of a U.S. Supreme Court decision overturning in whole or part the 49-year-old case of Roe v. Wade.
Such a decision will be presented as earth-shattering by breathless media. Certainly, many will receive the news with shock. Among those most adamantly pro-choice, that shock will be accompanied by dismay.
Perhaps we should all take a breath. The reversal of Roe would usher in a new era, for sure, with new policies state by state and new political battles. Most likely, such a ruling would embrace the concept of federalism and put this ultimately contentious issue back in the legislative sphere. What it would not do is somehow make abortion illegal across the board.
Consider my views to be much in line with the conflicted thinking of the majority of Americans. Ask me an either-or question and I will answer that I am pro-choice. Though that comes with hesitancy and asterisks. I am far more supportive of a woman’s right to end a pregnancy early on than in the later months, when the fetus is far more developed and viable.
Those most animated in both the pro-choice and pro-life camps cite polling data to support their unyielding stance. The reality is that public opinion is far more equivocal. I regard my own thinking as largely in synch with the ambivalent, questioning, though ultimately pro-choice attitude of most of the country.
However, pro-choice need not be the same as pro-Roe. The two are not synonymous.
While not a lawyer, and not even playing one on television, it has long struck me that the Roe decision was of dubious Constitutional merit. It is one thing to attach a right of privacy to the 14th Amendment and quite something else to see in that Constitutional clause a design of trimesters.
One can believe in a “living Constitution” and still think that a bit much.
Sign me up with Colorado-raised Justice Byron White, a JFK nominee to the Supreme Court, who was one of two dissenters in the Roe case. Trimesters might have been an appropriate legislative remedy. But such a prescriptive model hardly belongs in judicial decree.
Even Justice Ruth Bader Ginsburg, no slouch when it came to defending women’s reproductive rights, criticized the Roe decision for being too far-reaching and immodest.
It is all well and good to support a woman’s right to choose without endorsing a ruling that exceeded the boundaries of reasonable judicial scope. Something about the ends not justifying the means.
Decade after decade, no issue has cleaved this nation quite like that of abortion rights. No other issue has contributed as much to the hardening of the political divide and the crippling, polarizing poison that defines this age.
When the questions center on the very meaning of what constitutes life and on the relative rights of the mother versus the baby-to-be, passions run high and respectful dialogue is difficult.
Yet, such conversation – and, yes, even compromise – are what is required.
America is not alone in confronting this toughest of issues. Other countries have similar debates, but without the unending acrimony to which we have long grown accustomed.
In my analysis, that is a function of our reliance on the judiciary to resolve what should be hashed out through political give and take.
For a half century, one side has felt effectively stonewalled by court edict when it comes to their political power to affect their deepest convictions. Is anyone surprised that such a door slam has bred intense resentment?
If, as many expect, the court returns this issue to the judgment of 50 state legislatures, neither pro-choicers nor pro-lifers will get everything they want. Blue states, including Colorado, which is already addressing the subject, will pass liberalized abortion laws. Red states will opt for more restrictive codes.
Of course, that is imperfect. But perfection is impossible in all realms of government and especially with this ultimately divisive question.
Arizona’s preferences will not be the same as those of Arkansas. Just as Maryland and Mississippi will enact different laws. That is called federalism, the concept behind the union of our 50 states. It, too, is imperfect, but in this case might be what the doctor ordered.
Certainly, there will be inequalities in the options a woman has based on the state in which she lives. That is a consequence of federalism, as well.
Proposals, such as one in Missouri, to criminally prevent a woman from traveling to another state for an abortion, should be quickly dismissed as absurd. Americans enjoy interstate commerce and the freedom to travel. If it is permissible to visit another state for a joint replacement or cancer treatment, there should be no more punitive standard in this instance.
The return of this issue to legislative and voter authority would bring along other benefits. For one, the Roe-ordained model of trimesters has long been on a collision course with advances in medical technology.
Beyond that, it might serve to elevate more reasoned, moderate voices and hush, even a bit, the most zealous ones. America is not about to do a kumbaya coming together around this issue. But it would be major progress if we could just narrow the debate.
Most of the country, save the most vocal activists on each pole, refuse to accept that a newly-conceived zygote has all the rights of a human being or that a fully-developed, healthy, late-term fetus enjoys no such rights.
Let us continue to argue these essential differences, but perhaps bring the goalposts in from the far extremes.
New ground rules around abortion are coming. Calmer voices are sought. For those on the side of choice, it is necessary to keep in mind that those of an opposite viewpoint are just as earnest in their beliefs and values, and just as entitled to the democratic process.
Eric Sondermann is a Colorado-based independent political commentator. He writes regularly for ColoradoPolitics and the Gazette newspapers. Reach him at EWS@EricSondermann.com; follow him at @EricSondermann.
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