Sunday, August 31, 2014


Before Roe v. Wade, American women had abortions.  Some were self-administered and very dangerous, even fatal; some were black-market, expensive and very dangerous, even fatal; and some were safe, expensive and out of the country, where the law couldn’t do anything to you, even when you returned.  And for many of those who went to term, there were abandonments (dropping newborn babies in dumpsters or leaving them on door-steps in strange neighborhoods) and there were orphans, millions of orphans.  But for those who seriously considered abortion, what there was very few of was a happy couple welcoming a newborn into a loving family life.

Roe v. Wade, the 1973 Supreme Court decision that is so “controversial,” the decision that forbids a state to outlaw abortion for the first trimester, was not a close 5-4 decision pitting conservative justices against liberal justices.  The decision was 7-2.  The makeup of the Court was 6 justices installed by Republican presidents and 3 justices installed by Democratic presidents.  Five of the six Republican justices voted with the majority and two of the three Democratic justices voted with the majority.  Bet you didn’t know that.  It was not a close decision, nor was it a party-line decision.

Roe v. Wade was not a pro-abortion decision either.  It forbade states from criminalizing abortion in the first trimester alone; it threw the decision whether to criminalize abortion back to the states for a second trimester abortion; and it made a third trimester abortion a federal crime.  Looked at without partisan emotion, it was a very balanced decision.

Roe v. Wade is not any more “pro-abortion” than the repeal of Prohibition was pro-alcohol.  The repeal of Prohibition forbade Congress from criminalizing the sale or consumption of alcohol, it did not approve of alcohol, or of drunkenness or of drunken behavior.  Roe v. Wade did not approve of abortion either; it merely forbade Congress and the states from criminalizing abortion for the first trimester of a pregnancy.  It forbade a state from charging with murder a mother who ended her pregnancy in the first trimester, that’s all.  Repealing Roe v. Wade will not end abortions; it will just make them illegal and less safe.

And there is a reason why no first-term abortion cases have gone before the Supreme Court in nearly 40 years in an attempt to overturn Roe v. Wade.  The reason is that it would not be over-turned.

No one likes abortions, even if some pro-Life forces claim that pro-Choice people do.  No one likes abortions; they are messy and they surely play with life at the edges.  But I do not believe that most pro-Life people really want mothers who abort their pregnancy to be charged with first degree murder and spend the rest of their natural lives in prison.   Some pro-Life advocates claim that the abortion doctor should be charged with murder and the mother let go with a reprimand, but that would be like charging the for-hire hit-man with murder and letting the guy who hired him off the hook, and that is clearly upside-down thinking.

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When does Life begin?  At conception, at birth, or somewhere in between?  Scientists – the folks logically responsible to answer this question – have not answered this question.  Religions, on the other hand, have answered the question, loud and clear (even if they are not all in agreement).  Just recently Pluto was re-classified as a non-planet; the reason was that there never was a clear scientific definition of “planet.”  Honest.  Scientists are still a bit fuzzy as to what exactly a planet is, but Pluto fails even these tentative definitions.  And scientists are even fuzzier about when Life begins or exactly what Life is.  And the Law surely has no clear guidance on the matter, and it would be improper if it did.  Imposing on the Law the notion that Life begins at the moment of conception imposes a religious belief on the Law, and that is specifically forbidden by the Constitution – and forbidden by common sense as there is no objective or universal agreement on the issue.

Some pro-Life folks claim that more than 50,000,000 American fetuses have been aborted since Roe v. Wade.  This does not change the argument, does it?  If abortion is truly murder, then 50,000,000 mothers should have been executed with lethal injection, or be on Death Row.  Does anyone really want that?  And what really would be the benefit of 50,000,000 more orphans, 50,000,000 more abandoned children waiting to be adopted, when there are not enough adopting parents to go around now without an extra 50,000,000 abandoned souls in need?  Or 50,000,000 more children on Welfare.  And 50,000,000 more minds to educate for at least 13 years when our public school system is in such bad repair.  And 50,000,000 more people needing jobs when we don’t have enough to go around now.  I am not arguing that abortion is OK, just that criminalizing it or preventing it altogether has some nasty unforeseen consequences.

Surely a woman who has multiple elective abortions is a woman careless with life, whatever “life” means.  This author would be willing to support a law whereby women who have three elective (not rape, not incest, not life-threatening to the mother, not major damage to the fetus) abortions be forcibly and irreversibly sterilized.

I am not pro-abortion.  I am for the government minding its own business when it is not the government’s business.  And I surely do not want to see 50,000,000 women locked up for life for a choice they hated to make in the first place.

But why am I writing about abortion in the first place?  First, one of the worst things about the abortion argument is that it keeps us from debating the really important stuff (do our elected leaders represent us, if not then why not, and what will we do about it?).  And first, to make the point that people of good will – people with different labels (conservative and pro-Life, liberal and pro-Choice), people with fundamentally different views on when Life begins – can come together on policy, on what is the government’s proper role.  And let the rancor melt away.  And if they can do that – if ideological opponents can respect each other over an issue that divides them – they surely can come together to fight a battle where we all want the same thing: forging a democracy which represents us!

Addendum: Wednesday, 12/24/2014
And I'll bet you didn't know THIS about the Roe v. Wade decision.  First, the decision was not a decision of the "liberal" Warren Court, it was a decision of the Warren Burger Court (and Burger was a Nixon appointee).  Second, the Court's makeup was 8 Protestants (3 Presbyterians, 3 Episcopalians, 1 Lutheran and 1 Methodist) and 1 Roman Catholic (no Jew on the Court), and the 1 Catholic voted with the majority.