June 5, 2022

For 50 years, Roe v Wade has dangled like the sword of Damocles over the American political landscape. Pro-life dreams and pro-choice nightmares have fixated on the reversal of the Supreme Court case — which established a woman’s right to choose as an extension of the “right to privacy” guaranteed by the 14th Amendment.

Everyone knew Roe was shaky. Even Ruth Bader Ginsburg, a lifelong pro-choice advocate, expressed regrets that the abortion question hadn’t been decided by a stronger case, one that centred on a woman’s right to bodily autonomy rather than the nebulous notion of “privacy”. Instead of surviving on the merits, the validity of Roe became largely a question of precedent: the best argument for the continued upholding of the decision was the fact that it had, so far, been upheld.

This was exciting to some, terrifying to others, and destabilising for the entire nation. For pro-lifers, the case was an annoying obstacle that forced them to chip away at abortion protections through piecemeal measures — such as outlawing certain types of late-term abortion or burdening clinics with so many onerous regulations that they were forced to close their doors — while praying that the Supreme Court might eventually skew conservative enough to let an outright ban make it through. For pro-choicers, Roe was nothing less than a bulwark against a return to the bad old days when desperate women died of septic shock and punctured wombs after trying to terminate their own pregnancies with coat hangers.

On all sides, extreme rhetoric ruled the day, fuelled by a sense that abortion protections were perpetually hanging by a single thread. Yet nobody ever seemed to really believe the thread would break — until this week, when a leak from inside the Supreme Court revealed that the justices intend to rule in favour of overturning Roe.

This glimpse of the future of abortion rights is grave, even if women’s ability to access the procedure currently remains unchanged. Unless one of the five justices in favour of the ruling changes his or her mind, the toppling of Roe is inevitable.

And yet, in the long run, perhaps this is a good thing.

This is not to downplay the short-term negative impacts of the decision, which will cause deep and immediate disruptions to women’s lives, to the healthcare system, and to local government that must now legislate abortion access on the state level. In some states, including New Jersey and Delaware, laws already exist to protect abortion rights in the event that Roe is overturned; in others, such as Texas and Mississippi, the Supreme Court’s decision will trigger laws that either severely restrict or fully eliminate legal access to the procedure.

Overnight, the distribution of reproductive rights will become wildly uneven: women who live in more liberal states will still be able to obtain an abortion easily. Women who don’t — or who can’t easily travel to a state with fewer restrictions — will almost certainly face terrible hardship in the event of an unwanted pregnancy.

American politicians, who could avoid taking a stance on abortion as long as Roe remained in place, are now staring down a campaign season in which it will be among the most pivotal issues in play.

But given the choice between a national reckoning on abortion and another 50 years of waiting nervously to see if Roe will crumble under its own weight, does anyone really prefer the latter? Women’s bodily autonomy should never have depended for so long on a single Supreme Court decision, especially one with such well-documented weaknesses.

The leaked draft, written by Justice Samuel Alito, notes that “Roe and Casey have enflamed debate and deepened division” — and he’s not wrong. The Supreme Court is a lousy tool for making lasting policy, and the perception that abortion rights were always just one winning court case away from a 180-degree reversal has allowed this issue to be dominated by the most extreme voices on both sides.

On the Left, radical pro-choice activists have demanded unrestricted abortion basically until the moment of live birth, engaged in coarse cheerleading such as the #ShoutYourAbortion hashtag, and cheered for a Yale student who announced that she had aborted half a dozen pregnancies as a form of performance art. Meanwhile, on the Right, deranged anti-choicers had shrieking meltdowns over the “sluts” who wanted access to birth control, suggested that exceptions for rape and incest were biologically unnecessary because the body would “shut that whole thing down”, and waved giant placards with images of mutilated babies outside women’s health clinics.

Amid all this, it was easy to forget that the general American public has far more complex views on this issue, and far more in common with each other than with the loudest activists on either side. The majority of Americans are, in fact, quite pro-choice — when it comes to abortions within the first trimester, which 61% of people believe should be legal in all or most cases. But the majority also greatly favour restrictions to later-term abortion: 65% believe that second-trimester abortion should be largely illegal.

So the fact that, in all this time, Democrats have failed to advance pro-choice federal legislation that might have codified abortion rights into law seems short-sighted. They have chosen instead to let Roe be the only thing standing between us and the impending chaos of abortion access being decided state-by-state. And the fact that they’ve done so even as the Right pushed through the Hyde Amendment (which prohibits federal funds such as Medicaid from being used to pay for abortions) and the federal ban on certain late-term abortion procedures is nothing short of foolish.

This reckoning should have happened years ago, if not decades.

The next best thing, though, is for it to happen now. And with the fate of Roe no longer hanging in the balance, with the binary question answered, maybe we can have a more nuanced conversation than we’ve had for the past 50 years. Imagine if, rather than endless back and forth shrieks of “Woman hater!” on one side and “Baby killer!” on the other, we started on the common ground shared by a substantial majority of citizens — and actually began the difficult but important work of codifying abortion access into law.

Democratic politicians, particularly, have long been elected amid promises to be staunch advocates for a woman’s right to choose; Joe Biden even vowed during his presidential campaign to introduce legislation that would explicitly enshrine the protections provided by Roe as actual law, not just case law (although he’s now pivoted to using the fall of Roe as a clarion call to elect more Democrats in November).

But with all eyes on the Supreme Court, these promises were largely symbolic; now, for the first time in decades, Americans will be looking to their elected representatives to take meaningful action on this issue. If ever there was a moment for Congress to stop its dysfunctional peacocking and actually do its jobs — including the sort of across-the-aisle collaboration that has historically been a vital component of passing legislation on contentious issues — it’s this one.

None of this promises to be easy, especially against the fraught backdrop of our polarised political landscape. A successful resolution requires pro-choicers to confront the unpopularity of later-term abortion and be willing to compromise by allowing restrictions on it — perhaps in exchange for easier access to early-term medical abortions, and definitely in exchange for free, over-the-counter access to hormonal birth control.

Pro-lifers, similarly, would need to abandon their quaint obsession with sexual moralising, and support family planning and other policies that make it as easy as possible for women to avoid unwanted pregnancies. Everyone would need to reacquaint themselves with the concept of compromise for the sake of the common good.

Whether our elected representatives would do what they should do to build a legislative consensus on this topic remains to be seen. And between the majority support for legal first-trimester abortion and the availability of mifepristone (including by mail) for terminating pregnancies up to 10 weeks old, we can at least be thankful that a return to the bad old days where women died in agony after botched back-alley abortions is probably no longer in the cards.

But there is still a price to allowing this issue to revert to the states. It will deepen the divide between red and blue America, to the extent that something as fundamental as a woman’s right to save her own life by aborting an ectopic pregnancy will depend on where in the nation she lives. Even in a country as big and diverse as this one, some issues require national unity lest they tear us apart.

And perhaps it’s too late for all of this; perhaps the leak of this draft decision, an unprecedented violation of our democratic norms and a very bad sign for the integrity of the Supreme Court, is the writing on the wall. Maybe our legislators have simply lost the ability to cooperate across the aisle, to build a consensus on anything, ever, let alone an issue as explosive as this one. Maybe this is the real deal, the pre-apocalyptic dysfunction that heralds a long and catastrophic decline.

But it is also an opportunity: to pull ourselves back from the brink, to find momentum amid the chaos, to build a coalition that may differ wildly on the issue of abortion rights but shares a desire to see the country survive and move forward. Because as much as we may mourn it, the era of Roe is over. What matters is what comes next.

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