Ruth Bader Ginsburg argued Roe v. Wade set the pro-choice movement back by turning abortion into a lightning rod issue by having an unelected court of men making such a sweeping anti-democratic decision…
Roe became a right-to-life symbol. Around that extraordinary decision, a well-organized and vocal right-to-life movement rallied and succeeded, for a considerable time, in turning the legislative tide in the opposite direction. Roe v. Wade invited no dialogue with legislators. Instead, it seemed entirely to remove the ball from the legislators’ court.
Ginsburg’s argument is supported by the experience of Europe where abortion was legalized via legislation and referenda rather than court action.
She believes that had the court’s decision been more limited in scope instead of sweeping in its effect then overtime, as was evidenced in her time, there would have been an even bigger bipartisan progressive movement for sweeping abortion reform, such as she saw for women’s workplace rights and no-fault divorce.
We may disagree on if democratically-elected legislatures would have gone far enough on their own, but we can all agree that at the very least every liberal state would have become pro-choice.
The simple fact is that deciding when life begins, and therefore entitled to the protections of the American government, is not a legal question. It’s a socio-political-philosophical question: does life begin at conception, or 8 weeks when there are the first signs of heartbeat and brain function, or second trimester, or third trimester? Should legal protections be added as the baby develops? “Women have a right to their own body,” isn’t a right that exists by law because so long as the government can prohibit your ability to consume whatever you want or do whatever you want with your body, i.e. drugs, prostitution, selling organs, nudity, suicide, cloning, human testing, social distancing, etc, then you do not have nor do YOU believe you should have, “have a right to your own body!” The only time people say this talking point is to moralize their position in order to shut down debate on this complicated issue. It’s never used in reference to anything other than abortion so effectively what is being said is, “Women have a right to an abortion,” but this is the beginning of a conversation; not an end.
The truth is that abortion is a matter of convenience, which isn’t to say it’s wrong because convenience drives most of human behavior, but “convenience” doesn’t hold the same moral weightiness as the idea of a god-given right. Again, I’m not saying abortion is wrong, but I’m just pointing out the issue is complicated and therefore I agree with Ruth Bader Ginsberg that Roe v. Wade went too far in taking choice away from our elected bodies.
And I’m sure many of you are wondering, “But what about a man’s right to an abortion?” Okay, probably not, but attorney Melanie McCulley coined the term “male abortion” and Karen DeCrow, former president of the feminist organization National Organization for Women supported this concept whereby early in the pregnancy men should be able to “relinquish all future parental rights and financial responsibility” in the name of gender equality. In other words, if a woman has a right to her body then shouldn’t a man at least have a right to his wallet? If a woman has a choice to keep the child or not then shouldn’t the man at least have the choice to pay or not? If you think the father shouldn’t have a choice then we are raising our boys wrong because we need to turn into an uber-conservative society where we only tell men to sleep with women who they’d be willing/ready to have a kid with because there’s always a chance the condom breaks. There’s a 1% chance that “Netflix and chill” becomes “Netflix and child.”
Pro-choice advocates also argue, “History is on our side” as if history is always morally right, but nonetheless, history could be on the side of the pro-life movement because of the advancement of technology. What is convenient today may be inconvenient tomorrow.
For example, if the argument remains centered on “right to your own body” then a woman could have the right to her own body, but not a right to kill her second-trimester baby. The two are becoming increasingly mutually exclusive as there have been babies who were incubated as early as the 20th week. Will abortion come to mean a woman can only abort a fetus/baby out of her body? It’s only a matter of time before we could incubate a baby from fertilization to birth. Future babies could probably be grown more safely in an optimized lab. How might public opinion change when it’s only the fringes of society who are getting pregnant and therefore having abortions?
In other words, are pro-choice advocates so sure they are on the right side of history? Will future generations look down on us for our views on abortion or consumption of meat and non-renewable resources in much the same way we look down on slavery? Slavery existed for 99% of human history. It didn’t end because of a “moral awakening.” It ended because cheap labor became cheaper than slave labor during the Industrial Revolution, i.e more convenient. Humans didn’t change. Convenience shapes our sense of morality more than we care to admit.
Or less further into the future, how might public opinion change when contraceptives become much more advanced with nano-technology and better biochemical drugs and medical procedures so that virtually no woman would have an unwanted pregnancy again?
As abortion becomes less common, making society more indifferent about the issue, there could simultaneously be a push to the right as Americans become more fearful of genetic engineering, perhaps, after reading stories of mothers deciding to engineer the fetus inside them into a baby minotaur. Imagine the Instagram views! So cute!
So as a consequence will Americans demand more protections/restrictions on altering “human life”? By the time we hear these stories, it may be too late because the United States and China are in a perpetual contest for power. If China starts genetically engineering their next generation to be sociopathic superhuman minotaurs then America may be forced to follow suit in order to stay competitive. Only a strong global movement to“protect human life before birth” will potentially stop this BioShock dystopia. We need to start thinking about these things now.
Ultimately, I’m raising some of these contentious points not to take a position on abortion here because there are strong pro-choice arguments you could make in terms of a mother’s life and personal liberty, but my point here is primarily to raise a constitutional/legal one, which is to say that this is clearly not a black-and-white issue.
As I already mentioned and as RBG argued, one of the unintended consequences of Roe v. Wade is that the sweeping decision ignited the evangelical movement to unite around the Republican party to help elect such politicians as Ronald Reagan and many more since on the state and national level.
Roe v. Wade more than any other case in modern history turned the court into a political lightning rod, which I’d argue, has attracted so much energy and attention that there is a sizable chunk of the American electorate who will always vote Republican or Democrat solely on the basis of whether they will nominate a justice who is more or less likely to overturn it. Therefore if a huge chunk of voters are only voting based on a single issue decided in the 1970s then how much effort will our elected officials give to the other 999,999 issues they’re responsible for overseeing? Politicians can guilt-trip their base into voting for them no matter how corrupt and incompetent they may be in every other respect.
What happens to government programs, laws, regulations, agencies, and officials who have little accountability? How do they behave in the shadows? Light is the greatest disinfect. Light incentivizes people to be honest and hard-working, but Roe v. Wade has absorbed much of it.
I believe by taking much of the abortion issue off the federal judge’s bench it would not only help depoliticize the court again, reduce the anger of constitutionalists, bring leftist evangelicals into the Democratic camp, and democratize the pro-choice movement, but it would also free up national attention to focus on other issues the populist left believes the federal government would be uniquely qualified to do, and because of that added attention, it may very well be so.