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Roe v Wade deserves to fall It has destabilised the nation for far too long

Americans, by and large, do not have extreme views about abortion. Credit: Bettmann/Getty Images

Americans, by and large, do not have extreme views about abortion. Credit: Bettmann/Getty Images


June 5, 2022   6 mins

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.


Kat Rosenfield is an UnHerd columnist and co-host of the Feminine Chaos podcast. Her latest novel is You Must Remember This.

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Russell Hamilton
Russell Hamilton
2 years ago

I think this article gets it exactly right. The thing to do is legislate for what most people want – all others can continue their campaigns to persuade people to their point of view.

R E P
R E P
2 years ago

The reason that there has been no legislation from Congress is that Roe v Wade helped keep the Democrat base motivated. The leaders are delighted to have this issue. Regardless of your views on abortion the idea that this was ever a Constitutional Right was always dodgy.

Last edited 2 years ago by R E P
James Anthony Seyforth
James Anthony Seyforth
2 years ago

The supreme court should legislate to enforce what is ethical and within the constitution.

There may well be a time in the future when a majority want full term abortion to be legal, does that mean it should be legal at any point in the future? I don’t think so.

The USA is a republic and perhaps secondly a kind of modern democracy. I think it would be a sad day when it does become a republic in name only and instead the majority opinion rules everything on every issue.

The whole purpose of the united States republic is to protect people from erroneous decisions and from themselves. As paradoxical as it might sound people make hasty decisions on mass. And since no single person or group can get to dictate the total ethics or laws of a nation the best way is to have redundancy in judicial and directive systems. I e. wins here and there for each group at different times and contexts. If that was reversed for a democracy like the UK, the USA could never lead the world, and it would genuinely fall to pieces in my opinion.

Francis MacGabhann
Francis MacGabhann
2 years ago

For the record, nobody, even the Catholic Church, opposes the removal of the relevant section of the fallopian tube in the case of ectopic pregnancy. This is about the hardest case there is, and it’s remarkable that it’s the one defaulted to in an article ostensibly about reasonable compromise.

Last edited 2 years ago by Francis MacGabhann
Chess S
Chess S
2 years ago

I agree with the basic premise of this article but you’re right: ectopic pregnancy is a medical emergency and is treated as such by the medical profession. It is not relevant to any debate about abortion.

elaine lange
elaine lange
2 years ago
Reply to  Chess S

You are correct. But people are presenting an emotional response rather than a reasoned response. This is by design to sway the midterms, pure and simple. As Maya Angelou said: “People remember how you made them feel.”

Simon Diggins
Simon Diggins
2 years ago

Very conscious that this will be two men commenting on something that is never going to affect them personally, or, at least, as personally as a woman forced to decide to carry a baby to term and then raise the child afterwards. Conscious also that any move back to a ‘status quo ante Roe’, even with some of the legislative and medical work arounds, is not going to affect all women equally: those who are poor are going to have less choice than those who have the wealth to travel or find sympathetic doctors who will declare that a termination is a medical necessity.

So, with respect and humility, the article was a lot more reasonable, nuanced and respectful of strongly-held viewpoints than your comment suggests. ‘Hard cases make for bad laws’ is a common saw and, maybe, the ectopic pregnancy example falls into that category. However, the author points out that a significant proportion of the American people hold a middle position between the extremists; I read the article as a hope that, out of the inevitable chaos that would follow the overthrow of Roe, that middle position would emerge.

Stephanie S
Stephanie S
2 years ago
Reply to  Simon Diggins

Maybe the men commented first as women didn‘t read the article yet. I agree with Francis that to prove a point the author chose the case of ectopic pregnancy and a medical procedure to save the woman’s life. Any reasonable pro lifer would agree that this is perfectly acceptable. Also to provide birth control by charities or certain state supported agencies would be probably supported by 90% of the population.
H.Clinton and Warren name later term abortions: “women’s reproductive health”, which is cynical avoidance of calling the procedure what it is: killing of a live foetus/child. Any woman who had a miscarriage at 4 month pregnancy can tell you, that what she lost wasn’t just small part of herself like an appendix, but a small human being. Why not call it by the proper name: the ending/killing of a very small fully formed life .
“Reproductive health” in my opinion is a birth control device or hormones to prevent pregnancy
 New methods for women to avoid pregnancy are now so much easier to get than 20 or 30 years ago.

AC Harper
AC Harper
2 years ago

Sadly I doubt that any Federal Law will be passed any time soon over abortion. It’s too clear an issue to distinguish between Red and Blue, and will be exploited for political reasons.
What has changed since Roe? Technology has improved, contraception, pregnancy testing, medical abortion, surgical abortion. What hasn’t changed is people or politicians seeking political advantage.

Last edited 2 years ago by AC Harper
Kieran Saxon
Kieran Saxon
2 years ago

Insightful. Especially pertinent was the piece about two polarised sides screaming at each other. There is unparalleled technology available to aid informed debate and it is currently being suppressed by screaming, sloganeering, and labelling (“fascist”, etc) aided and abetted by social media giants.
Also concerning is activists trying to control knowledge on likes of Wikipedia. The potential for informed discourse is unparalleled, sadly it is being reduced to “four legs good, two legs bad”, and it is being driven by hard left, I’m afraid.

Carlos Danger
Carlos Danger
2 years ago

I agree — that the two sides compromise seems to me too the best way to handle it. But it’s like belling the cat. Putting a bell around the cat’s neck is the best way to save the rats’ lives. Great, how do they accomplish that? Ay, there’s the rub.
If Roe v. Wade is overruled, all the states that want abortion can have unrestricted abortion (as they have now). All the states that want to ban abortion can do that (for the first time since 1973). And those states in the moderate middle can continue in the moderate middle.
Why agree to a national compromise? Then none of the states can do what they really want. I think the war goes on.
But as mentioned, it’s not 1973 anymore. Medication abortion drugs will be easy to smuggle into states that ban them. Patients might be bused to nearby states for free. People are endlessly creative. Deaths or injuries due to botched abortions seem unlikely.
To some extent, this angst over the abstract focuses on the wrong thing. What matters is not what those at the top rule but what those at the bottom do. Real change generally has to come from the bottom up rather than the top down.
As one of George Eliot’s characters in Daniel Deronda put it, “And as to the causes of social change, I look at it in this way — ideas are a sort of parliament, but there’s a commonwealth outside, and a good deal of commonwealth is working at change without knowing what the parliament is doing.”
No matter what the supreme court says, women will work to find a way to do what they want to do. In that sense, what the supreme court says will, in the long run at least, mean little.

Last edited 2 years ago by Carlos Danger
Lourenço Almeida
Lourenço Almeida
2 years ago

Is seems to me pro-choicers fail to see the main point of pro-lifers. It is not about “moralising sex”. Its about life and death. If anybody could tell when human life begins, then the issue of abortion before that moment would be based on morals and personal choice. But is seems to me that there is not a moment in time, from conception to death, when one can say that a non-human was transformed into a human. There is no discontinuity from conception to death. A 1 month foetus is very different from the resulting of 2 cells where one fertilizes the other, just as a grown up adult is very different from a kid and a kid is very different from a 6 month unborn. Other than being born, all is continuous. And being born is increasingly a matter of convenience, as more and more babies are delivered with surgery. I don’t agree with late pregnancy abortion, but I would understand someone who does, based on the assumption that before birth there is no human life and no human rights. And the argument would come back to whether the minute before birth a foetus is fundamentally different from what it is a minute later when he gets out (even if he still can’t breathe or eat by himself and needs an incubator to survive). I think most of us would agree that “killing babies” is unacceptable. The question is whether abortion is about killing a human being or not, and what you should do if you’re not sure. Would a hunter shoot something that seems to be moving behind a bush, if he is not sure whether the agitation is caused by a hare or by his son, scouting for game in the vicinity? If you know abortion is terminating a human life, you have to be against it. If you know it is not, you have to define when does life begin because before that moment it is called abortion and after that is homicide. If you’re not sure…what should you do?

Last edited 2 years ago by Lourenço Almeida
Carlos Danger
Carlos Danger
2 years ago

That’s a thoughtful analysis. The way Roe v. Wade handled the issue was to divide pregnancy into three trimesters, and the first trimester treated fetal life as not being protected. So though no line was drawn as to when life became protected, it would be after that.
That seems to be what most countries do throughout the world. In Japan, for example, abortion is fairly easy to obtain up until about 7 to 10 weeks of pregnancy. After 12 weeks of pregnancy, it’s very difficult to get an abortion.
Doesn’t that get around the continuous spectrum issue you raise?

Michael Askew
Michael Askew
2 years ago

Kat Rosenfield is right that co-operation and consensus must be sought on such a divisive issue. However, she allows herself to engage in the same extreme caricature of one side of the argument that she so rightly deplores. 99% of those who believe that there is a second human life at stake when an abortion is performed are not arguing that a pregnant woman should be allowed to die when a pregnancy threatens her life. It is disingenuous to suggest that this will be common practice when the states draw up their own abortion laws. It is also disappointing that the writer and the “pro-choice” lobby so consistently fail to get to grips with the real issue: is an abortion the moral equivalent of deciding to have a haircut, or are there weightier issues at stake to do with the sanctity of life? At least be honest about your belief that a wanted baby deserves the maximum possible protection and an unwanted pregnancy is disposable. Neither is it fair to assume that different laws in different states means chaos and extreme hardship for women. Other than that, the author is correct – Roe needs to go. .

Matt Hindman
Matt Hindman
2 years ago

“To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. Conn. Stat., t*t. 22, 14, 16. By the time of the adoption of the Fourteenth [410 U.S. 113, 175] Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. 1 While many States have amended or updated [410 U.S. 113, 176] their laws, 21 of the laws on the books in 1868 remain in effect today. 2 Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857 [410 U.S. 113, 177] and “has remained substantially unchanged to the present time.” Ante, at 119.
There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.” 
Dissenting opinion by Justice Rehnquist

Martin Johnson
Martin Johnson
2 years ago

This should not be as big a deal as everyone is pretending. Pre-Roe I lived in Illinois where abortion was illegal. There were multiple tax-exempt organizations, known to all and even advertising their services that would arrange for a woman’s travel to New York where abortion was legal, arrange housing and the abortion itself, medical follow up, and return transportation. Financial aid for those who could not afford it. Everybody knew all about this, it was no big deal, and it worked. The number of botched abortions was insignificant because anyone who wanted one knew where to go and what to do, and those organizations were there to facilitate it.

Given social changes since then, abortion will be much more available than it was pre-Roe. Fewer women will be affected, and trips will be shorter, in many cases not overnight travel, just a day trip.

Of course, such a rational and humane solution will not be as attractive to the left as stoking outrage, so it might not happen. Still, it is an easily solved problem if people actually care about the women more than a political issue to exploit.

Carlos Danger
Carlos Danger
2 years ago
Reply to  Martin Johnson

As you point out, that pragmatic solution may not be attractive to the left. How about the right? Will they be satisfied by women simply getting their abortions out of state? Will some states try to stop their residents from doing that?

Tim Pot
Tim Pot
2 years ago
Reply to  Carlos Danger

I suspect that if there isn’t any clear evidence from the abortion procedure that it was a child that has just been aborted, even the right may quietly accept it. But when a former abortion doctor is able to explain the reality of a later abortion in terms of needing to count the various parts of a child so that nothing is left behind to endanger the mothers life, the right will no doubt continue to oppose.

Willie Grieve
Willie Grieve
2 years ago

Very good & thoughtful article. Great example of what makes UnHerd so valuable. Ireland did well to allow a Citizen’s Assembly to consider the reform of abortion law, call witnesses, talk it through, review their own assumptions & make sensible suggestions. Which enabled politicians to avoid being imprisoned by their mandated positions, and pass genuinely reforming legislation. Is the US too polarised to consider such an option?

Rosemary Throssell
Rosemary Throssell
2 years ago

When I saw the title to this article my first reaction was not to read it but I’m glad I did.
Thank you. Of course compromise is the only way to find a resolution, I’m just not sure it’s possible in this climate.

Tom Peargin
Tom Peargin
2 years ago

For those who believe a zygote possesses a soul, abortion is murder. For those who do not believe this, all elements of establishing when and under what circumstances abortion is ethical are going to be arbitrary. We have a democratic system of government which allows the majority opinion to establish these arbitrary elements. That is as it should be, but in the end, many people will be unhappy no matter what. Even so, that is why states should establish these criteria, not the supreme court.

Carlos Danger
Carlos Danger
2 years ago
Reply to  Tom Peargin

Good points. Let me take them a little further.
As you say, some will be unhappy no matter what. Even if each state can decide for itself, the anti-abortion side will still be dissatisfied that millions of babies are being killed in the United States each year. The pro-abortion side will still be dissatisfied that millions of women are being denied the fundamental right to control their own bodies.
I agree that the supreme court has no business deciding this issue. It’s for the people to decide. What do you think of a national compromise, legislated by Congress? I think that’s what Kate Rosenfield is talking about. Would that be achievable? Would that be better than leaving it up to each state?

Terry M
Terry M
2 years ago

We have a common definition of when life ends – the cessation of brain waves – that should be applied to whether the fetus is a human or not. I believe brain waves start in the growing infant at about 16-18 weeks, so about the middle of the second trimester.

Warren T
Warren T
2 years ago
Reply to  Terry M

Isn’t every “fetus” is human? Also, the heartbeat starts at around day 22. I guess it all depends on whether you think someone’s heart or brain is more important.

julia bliss
julia bliss
2 years ago
Reply to  Warren T

The heartbeat does not start around day 22. There can be mildly detectable electrical activity that pro-lifers like to call a fetal heartbeat.
If you talk with doctors, you will find that there is no distinguishable “heart” at that point, and thus no heartbeat. There is also no fetus 22 days after conception, but an embryo.

Marcia McGrail
Marcia McGrail
2 years ago
Reply to  julia bliss

If you talk with doctors, you will find all sorts of nonsense. The point should always be – what IS the embryo? Ape? Chicken? Abort those anytime you like. Or is it a human embryo? – human from conception. Is it a rat fetus or human fetus? Nit-picking and name dropping are psychological ploys intended to discombobulate and deceive. You don’t feel that this child should be allowed to actually develop?: perhaps you feel s/he should be fully functioning at day (sorry, which day did you choose?) What you sneeringly phrase ‘
pro-lifers like to call a heartbeat.’[
] is indeed the early signs of electrical activity starting the incredibly complex developmental journey to a fully functioning human heart. Stunning. You can watch that journey and be struck dumb with the wonder of a human developing from 2 individual cells containing all the information necessary to become (if not killed first) 3 trillion highly specialised hormones, blood cells, liver, lymph, bones, sinews, fingerprints, 32 feet of bowel etc a dancer, lumberjack, teacher, warrior, priest, king etc. Women have many reproductive choices. The child has one.

Billy Bob
Billy Bob
2 years ago
Reply to  Terry M

The most premature baby to survive is 21 weeks, so 16-18 weeks would seem about right I think for the cut off limit to most people, myself included.

Samir Iker
Samir Iker
2 years ago
Reply to  Terry M

And, funnily enough, that’s about the point at which majority opinion seems to swing from pro abortion to anti abortion

Gerard McGlynn
Gerard McGlynn
2 years ago

It is horrendously complex, but at the end of the day wasn’t it ‘Life’, Liberty, and the Pursuit of Happiness ?

Brian Villanueva
Brian Villanueva
2 years ago

What a revolutionary idea: in a republic, contentious political issues should generally be left to the peoples’ elected representatives.

John Riordan
John Riordan
2 years ago

“…that would explicitly enshrine the protections provided by Roe as actual law, not just case law..”

Great article in general, but here I raised an eyebrow and no mistake: what planet is the author on, that she doesn’t think case law is “actual” law.

Case law is the ancestor of statute and this ought not to be forgotten, especially since making lazy assumptions about the politicised process by which statute is created may well result in everyone realising that maybe it might have been better to leave it to case precedent all along.

I say this because I suspect that the political process by which the US government tries to enact abortion rights into federal statute might well make the arguments to date look like a picnic by comparison.

Cave quid volunt…

David Kingsworthy
David Kingsworthy
2 years ago

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.
The first section of this statement disregards the idea that for many Christians, careless life creation acts have consequences that are (or should be) morally difficult ones. When the moral question is removed, valuations of life are undermined.
The second section seems to imply that pro-lifers, who would surely prefer fewer unwanted pregnancies, are somehow causing people to make bad decisions. Perhaps this is actual pedantic moralizing, but personal responsibility could play a role here?

Katharine Eyre
Katharine Eyre
2 years ago

A truly excellent article – the final two paragraphs crystallise what I’ve been thinking these past two days.
In general, I believe that handing the issue back to the forum of elected representatives and competing ideas is what should have been done a long, long time ago. All of the squealing on the left rather mystifies me: if they believe that abortion rights are so self-evidently right, then they (or rather the Democrat politicians charged with conducting the debate) should have no problem whatsoever in putting together a strong, coherent and reasoned argument to bring into the forum. Having a nationwide meltdown is not really a ringing endorsement of your confidence in your own side of the argument.
What I am unsure about is whether starting this debate now is a really good idea. On the one hand, it could reeducate politicians and citizens alike in what it takes to talk out and resolve a fraught and contentious political issue calmly and in a civilised manner. It could be a first step in the reconciliation of “the two Americas” which have been attacking each other for years. On the other, less optimistic hand, it could be the hill on which the USA finally ruptures and turns into…well who knows?
As far as the institutional aspects which the leak entails, I will simply place a link to this excellent article by Bari Weiss, as it hits the nail right on the head: https://bariweiss.substack.com/p/the-shocking-supreme-court-leak?s=r

Warren T
Warren T
2 years ago
Reply to  Katharine Eyre

Educating citizens is a dream of a bygone era. Citizens are mind-numbed by social media and they don’t think anymore, sadly.

elaine lange
elaine lange
2 years ago

This article is spot on and recognizes the legal tightrope RvW walked for decades. Most Americans fall squarely in the middle of this debate. The only argument I have with this author is that the Hyde Amendment did not do what antiabortionists wanted. Medicaid is in fact used by many states to fund abortion via Planned Parenthood. Little will change with the new ruling if it goes into effect.The states that desire abortion will continue to supply it and those that don’t will continue to oppose it. It is no different than any other legislation. There will always be those for and against, hence we have elections. I don’t understand why termination rather than prevention is not emphasized by either side. And I don’t understand why women don’t exercise more self respect when it comes to their sexual partners.

Bronwen Saunders
Bronwen Saunders
2 years ago

Such a compromise would not be new. When Germany reunited, a new law had to be drafted to replace East Germany’s extremely liberal abortion laws and West Germany’s much more restrictive ones. The resulting law, Paragraph 219, allows pregnancy to be terminated during the first trimester subject to the proviso that the woman receive counseling first. While both sides object to certain elements of the law, it has held up for nearly 30 years and has taken the abortion debate off the table during that time. It is the pro-choice faction that now wants it repealed – and replaced with something more to their liking.

N T
N T
2 years ago

I’m curious to see how tossing Roe and Casey will affect follow-on decisions that cited those cases.

Dick Barrett
Dick Barrett
2 years ago

I think the time has come for a movement representing “abortion moderates” who wish to see a middle way, and who reject both a ban on early term abortion and, on the other hand, unlimited late-term abortion.

David McDowell
David McDowell
2 years ago

The author rather gives the game away with ‘on the Left, radical pro-choice activists have demanded unrestricted abortion … Meanwhile, on the Right, deranged anti-choicers had shrieking …’

Terence Fitch
Terence Fitch
2 years ago

Hard for a European to comment given we tend to have imperfect but good tax paid pre and ante natal healthcare as well as parental leave etc. It’s thought that almost half of US pregnancies are unintended and ‘In 2000, the United States ranked 27th among industrialized countries for their relatively high infant mortality rate’ plus more birth defects and infant child illness. (US Gov). So less abortion should/could lead to higher spending on healthcare? Sounds cold blooded but US society across parties needs to agree how to support an increase in unwanted or unwell children.

Carlos Danger
Carlos Danger
2 years ago
Reply to  Terence Fitch

Good point. Turns out that the typical abortion patient is not the elite, educated, politically correct women we see out picketing for abortion rights. She is instead young, poor, already a mother, uneducated, and disproportionately black.
Of course typical is an average and changes in abortion law will have unpredictable effects. But if indeed the number of children raised in poor, single mother households (if they even have a home) shoots up, perhaps those children (and society in general) may have been better off if they had not been born at all.

Emre 0
Emre 0
2 years ago
Reply to  Carlos Danger

if indeed the number of children raised in poor, single mother households (if they even have a home) shoots up, perhaps those children (and society in general) may have been better off if they had not been born at all.

Incidentally, this line of thinking started the Planned Parenthood organisation in US.

Last edited 2 years ago by Emre 0
Mel Shaw
Mel Shaw
2 years ago

To what extent do the differing approaches to abortion reflect the wishes of the electorates in the respective states? And, if they are out of step, won’t future state elections bring about change? Or, is that too simplistic?

Warren T
Warren T
2 years ago
Reply to  Mel Shaw

You are precisely correct. It’s the same with every other issue as well. If the electorate doesn’t like the outcome, they can vote in new representatives. The only difference, of course, is when the Left doesn’t like the outcome of these elections. Then they try to force their will via the court system, which is what started this whole mess in the first place.

nigel roberts
nigel roberts
2 years ago

I rather like this article. Thank you for writing it, Kat.

Rex Royale
Rex Royale
2 years ago

“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.”

Hyperbolic, ever heard of adoption? Am sure PP would also subsidise out of state travel for women to travel for abortions in permitted states.

R. Lee Quinn
R. Lee Quinn
2 years ago

The idea that ‘in all this time’ Democrats have failed to codify Roe into law is totally disingenuous. The anti-majoritarian structure of the US Senate means that 60 votes [out of 100] are needed to pass most legislation. Also, 67 votes are needed to override a presidential veto. The only times since 1973 that Democrats had 60 votes in the Senate AND held the presidency were 1977-79 and 2009-2010. It’s also a HUGE mistake to assume that all Democratic senators of those eras were onboard with codifying Roe.
The idea that Democratic and Republican Senators will somehow come together and work to pass bipartisan legislation is magical thinking of the worst sort. Ain’t gonna happen.

Emre 0
Emre 0
2 years ago

A relatively sane take on the topic as it focuses on the legal aspects. The one I quite liked comes from Greenwald:
https://greenwald.substack.com/p/the-irrational-misguided-discourse

Dominic A
Dominic A
2 years ago

How about a compromise – pro-choice women with an unwanted pregnancy will carry their births to term, so long as a pro-life couple pays for the mother’s expenses and lost income during pregnancy and then adopts the child.

LCarey Rowland
LCarey Rowland
2 years ago

The moderate reaction and future direction that you indicate here is a very bright spot in the darkness of our present hyped-up controversy.
In a sense, your good advice here, Kat, almost seems like a life-raft for the United States, tossed into our shipwrecked Court crisis at a very appropriate time.
It would behoove us Americans who are, on both sides, so agitated, to receive your resolution as an effective strategy to get through this issue without tearing our institutions and our Court apart with rebellious over-reaction.
Our activists on both sides need to get busy and work out a resolution–legislative and clinical– that will enable each woman to respond to her natal circumstances without feeling like a criminal or a victim.
Thank you.

Dermot O'Sullivan
Dermot O'Sullivan
2 years ago

Reproductive rights?

Raymond Effinger
Raymond Effinger
2 years ago

Wow! A brave article indeed! 3things. 1.Every woman should be in charge of her own body. 2.Thank you Republican Party for doing this so early. The Democrats can now focus on other issues rather than worry about the inevitable. The federal abortion laws should be created in steps addressing the following: Health of the mother, rape and incest and of course, viability of the baby. 3. The Democrats need to ease up focus on abortion. Just win. Keep Trump influence out of the USA.

Maureen Finucane
Maureen Finucane
2 years ago

I’m surprised the author thinks a pro-lifer Republican can be reasoned with.

SUSAN GRAHAM
SUSAN GRAHAM
2 years ago

Until the male born sex of our species has developed to conceive and carry a child – then feed/clothe and love that child for at least its first 18 years – if not for life as motherhood is a lifelong commitment – then in my opinion which I realise will be contentious – no male (how many females on Supreme court?) is qualified to make decisions regarding abortion- until or unless they can say ‘been there done that’ either on raising a child or personal experience of abortion. Never happen as only ‘real women’ can have a valid opinion. For a supposedly first world country, the USA is in many ways back in the dark ages. Ban abortion but keep their guns ! shoot the kids !- even the third world has better principles.

Ralph Cox
Ralph Cox
2 years ago

There is a wider issue for the rule of law. By overturning Roe v Wade, without clarity on the legal argument risks nullifying the power of the Supreme Court. Repeated use of the word “egregious” doesn’t overturn a previous Judgement.

The 14th amendment ‘due process’ clause may be tenuous, but the 9th amendment on rights is not, it’s simple clear, and unlikely to be revoked.

In addition, the 14th amendment is clear about citizenship, which begins with birth, not conception.

Republicans feel emboldened by their dominion over the legal system and ready to take on the American Constitution.

Last edited 2 years ago by Ralph Cox
Douglas Proudfoot
Douglas Proudfoot
2 years ago
Reply to  Ralph Cox

When you live by judicial fiat, made up out of thin air, you die by it. That’s the problem with “living Constituion” interpretation. It creates an atmosphere where, “On any given day, the Supreme Court could go 5 to 4 either way.”

The point of written law and a written Constitution is predictability. If judges are going to change the meaning of the words based on what they want to law or Constitution to be, rather than what it is, this activity creates an unstable legal chaos.

Roe v Wade was a chaotic ruling. When the 14th Amendment was adopted, in 1868, there were a lot of state laws against abortion. More were enacted afterwards, in the period between 1868 and Roe v Wade. However, nobody noticed the assumed right to an abortion in the 14th Amendment until over 100 years later, in 1973. That seems like a redefinition of the amendment to mean something completely different than it did when it was ratified.

Redefining an amendment over 100 years after it was ratified removes government by the consent of the governed. The meaning of the amendment when it was ratified is the meaning that was consented to. Changing the meaning after ratification is a form of bait and switch, basically fraud.

When the left can’t win by legislation, they have their judges legislate from the bench. Then they get upset when judge made legislation gets overturned.

Andrew F
Andrew F
2 years ago
Reply to  Ralph Cox

I am not an expert on USA constitution but your argument is typical of many on the left both in USA and UK.
Basically they believe that what they achieved by whatever means is set in stone and any changes are “undemocratic and illegal”.
Therefore stopping those changes by whatever means, including violent protests and legal subterfuge is perfectly legal and people opposing left violence are “far right”.
This was the left playbook for at least 150 years.

Winston Smith
Winston Smith
2 years ago

I’ve been thinking about this a lot, and I’m still not confident that I (or anyone) can guess the long-term effects of this radical change. I don’t think any of it is good, however. To borrow Bret Stephens’ very good point, this decision is in no way conservative: it represents radical rathern than incremental change, imposed by judicial fiat, and fueled by ideological zealotry. It shows none of the caution, humility, or respect for tradition that conservatism once claimed were guiding values. In that way it represents the “new Right” that is now ascendent, one part postmodern and one part Ayatollah Khomeini. It is also just dishonest: it was obviously crafted in secret, with the logic following from the conclusion, claiming that “we cannot know what might be the societal impacts of our decision, and neither should we care.” But of course you could guess what this would do to our society; anyone could. And so you get the sense this political armageddon was precisely what was anticipated, desired, and intended. The five activist justices of the Supreme Court, who were nominated specifically to attack this precedent, wish to break the seventh seal and bring on the final battle for the American identity.
Again, I may be wrong. But I see this activist movement as quickly leading to a level of domestic animosity almost unimaginable today. You will have organized left-wing efforts to ship mail-order abortifacients and organize cross-state access, you will have grassroots vigilantes organized to harass or detain such efforts, you will have police called in to protect or prosecute, you will have attacks and assassinations, and everywhere the Religious Right will lean back with dewy-eyed joy as the trumpets are blown and the forces of darkness are confronted openly on the battlefield. All because they could not be satisfied with a rusty and imperfect status-quo that held the peace.