The Real Problem of Roe v. Wade (It's Not What You Think)

Forward: The Texas abortion law has thrust the abortion issue back to the forefront of the culture wars, and, for some, it might seem inappropriate for a white American male in his early sixties to be commenting. If you're one of those people, I ask for your forbearance, because this column is not an attack on the right to choose. Nor is it a defense of it. Rather, it is an exploration of how, as Americans, we got to such a divisive place.

Ever wonder why you never hear about abortion protests - for or against - in other countries? Seriously, think about it. Where are the mass marches in India or Brazil or Morocco? They happen, once in a while, but it's nothing like the constant frenzy that the issue provokes in the U.S.

Why is that?

I thought it would be interesting to research abortion laws around the world. Would I find clues to the silence? What I found was interesting. 

Abortion was legal in exactly zero countries until North Korea legalized it in 1950 (probably to cut the number of mouths to feed). Later in the 50s it was followed by a number of other communist nations such as the Soviet Union, and then in the 60s Cuba. The first Western nations to follow suit were the Netherlands and the U.S. in 1973.

Today, abortion is widely available, even in Catholic countries like Ireland and Italy. In fact, there are only five countries out of 199 that bar abortions in all circumstances: Abkhazia (yeah, I'd never heard of it either), El Salvador, Honduras, Nicaragua, and Vatican City.

Here's where it gets interesting. Do you know how many countries have full abortion-on-demand, regardless of circumstances?

Four.

That's it.

They are: Canada, North Korea, South Korea, and the United States. Virtually every other country allows abortions, but with gestation limits.

Liberal Denmark, that other early-70s abortion pioneer is twelve weeks. France? Fourteen weeks. Sweden? Eighteen weeks. Hey, how about Mongolia? Fourteen weeks.

The world average is about thirteen weeks.

The global consensus seems to be: the later a pregnancy is terminated, the bigger the tragedy. Aborting an eight-month-old fetus is a morally worse thing than aborting a lesser-formed, two-month one. 

Of course, there's no celestial arbiter that can say this is true, at least not one we can speak to. It is just how most countries have decided they feel about the issue, and they crafted their laws through democratic consensus. The message to women: if you're going to do this, our societies will allow it, but it must be early in your term.

These countries represent every conceivable religion and political system, yet they arrived at remarkably similar positions. The majority are democratic, so they got there through democratic consensus.

America did not, and that's the problem. We arrived where we are through judicial fiat, otherwise known as "Roe v. Wade."

That Roe was a horrible decision, Constitutionally speaking, is understood by all serious judicial observers. Justice Blackmum made up a Constitutional right to privacy out of whole cloth - in this case, the 14th Amendment - because he needed some thin reed on which to achieve a policy outcome the Burger Court clearly wanted. In reality, the Constitution is silent on abortion and the right to privacy, which means our fifty states should be able to decide the issue for themselves.

Just because Roe was bad jurisprudence doesn't mean many weren't quite happy with the outcome. The ends justify the means, if you convince yourself the ends are important enough.

But there have been consequences to legalizing abortion via judicial fiat rather than the ballot box. 

Once abortion became the province of the courts, the issue could no longer be addressed through democratic negotiation. It became an all-or-nothing proposition in the courts. Positions on both sides hardened, particularly among the culture warriors and the PACs. You had to be for unlimited abortion-on-demand, or against any abortion, anytime. Even the slightest concession was viewed as the slippery slope, the dam bursting. Nuance and compromise became impossible. Many people became one issue voters.

Now, we live in a highly polarized culture and Roe, more than almost anything, is a root cause. Abortion has been weaponized by both parties. We also have high stakes dramas around every new court pick. It was never like that before Roe.

I believe most Americans have a view on abortion closer to the Swedes and the Mongolians. The problem is, the court took away their power to decide for themselves.

Roe should be overturned not because abortion is evil. It should be overturned because it's bad law. 

But what happens then? To hear the hysterical left talk about it, the world will come to an end, and no woman will ever be able to terminate a pregnancy. 

That won't happen. 

Even before Roe, twenty states permitted abortions (under varying circumstances). That was fifty years ago, in a far more culturally conservative era.

Legislation would be passed very quickly in most states. My guess is that fifteen or twenty would continue with our current policy, and the remaining will have gestation limits. And while it's possible, I doubt any states would opt for a complete ban. What do I base that on? Texas, one of our most conservative states, went with a six-week limit. (This is admittedly very short, but it's what their duly elected representatives wanted. It can be changed if it doesn't prove popular. The will of the people has to matter.)

And what if you're a woman, and your state's laws don't work for you? Well, I'm not suggesting this is convenient, but you can always drive a few hours to the next state. Anything that important to your life should be worth the inconvenience.

Ultimately, things will calm down. My evidence for this? The rest of the world.

The problem is, Democrat operatives, and even a few Republican ones, don't want this. A lot of money is raised on the back of the abortion wars. In the wake of Texas, abortion will likely dominate the 2022 midterms, just as it's quickly dominating the Virginia governors election, coming in a few weeks. This is unfortunate, because there are so many other things we need to be talking about.

You will notice I haven't offered my own opinion on abortion, and that's because it's besides the point. The point is that we've approached this issue in the wrong way. Roe wasn't just a horrible decision, constitutionally, it was a significant progenitor of today's culture wars.

Time for it to go.