Are America’s Abortion Laws About to Get More Liberal? Let’s Hope So.
The United States has some of the most permissive abortion laws in the world. Contrary to popular belief, even many western European countries are much more restrictive of abortion after the first trimester than is the United States. For instance, both Germany and France ban abortion after 14 weeks, while Sweden bans abortion after 18 weeks. In contrast, the United States Supreme Court declared in a series of rulings beginning in 1973 (Roe v. Wade) that states cannot restrict a woman’s right to have an abortion before the child is viable (around 24 weeks).
But times may be changing. Amid signs that the potentially pivotal justice on the Supreme Court, Anthony Kennedy, is open to a more liberal approach to protecting the rights of the unborn, a dozen states (as well as the U.S. House of Representatives) have passed laws banning abortion after 20 weeks. These laws would still be much more permissive of abortion than is the case in Germany, France, or Sweden, and they remain well behind American public opinion, but they nevertheless move the debate in a direction that would once have been inconceivable. And yes, protecting the right to life is indeed a liberal cause, if liberalism is rightly defined in terms of the “freedom of the individual and governmental guarantees of individual rights and liberties.”
What is making the difference? Americans are becoming increasingly (if slowly) more pro-life, in part due to growing conviction that unborn children are, in fact, persons. As the New York Times pointed out in an article on Thursday, part of the reason for this is new yet still controversial evidence that a fetus experiences pain as early after 20 weeks. The Times reports:
With these bills, the anti-abortion movement is tapping into a powerful strand in the complex tangle of public opinion on abortion. Support for legal abortion drops when people are asked about the later stages of pregnancy.
In a Gallup poll last December, 61 percent of Americans said abortion should be legal in the first three months of pregnancy, but 27 percent said it should be legal in the second three months, and 14 percent in the final three.
Translated: According to consistent measurements, only one quarter of Americans think abortion should be legal after 14 weeks. Even the fetal pain laws that are based on controversial evidence fall well short of public opinion.
In a fascinating article at Slate a couple weeks ago William Saletan pointed out Americans support the 20 week prohibition by solid margins even according to the most carefully worded polls. Saletan writes:
The Post/ABC poll lays this bare. Here’s the full text of its question: “The U.S. Supreme Court has said abortion is legal without restriction in about the first 24 weeks of pregnancy. Some states have passed laws reducing this to 20 weeks. If it has to be one or the other, would you rather have abortions legal without restriction up to 20 weeks, or up to 24 weeks?”
It’s reasonable to speculate that the phrase “without restriction” alienated some respondents and made them more likely to choose the earlier time limit. It’s also possible that the passive language—“reduce” rather than “ban”—soothed people who might otherwise worry about a new abortion law. But it’s hard to believe that these factors could account for the enormous gap that resulted: 56 percent of respondents chose 20 weeks, while only 27 percent chose 24 weeks.
In fact, those numbers understate the pro-life tilt. Eight percent of respondents volunteered that abortion should never be legal. Two percent said they wanted an earlier time limit than 20 weeks. So the percentage of respondents who would have chosen 20 weeks if they’d answered the question as it was posed isn’t 56 percent. It’s more like 66 percent.
Saletan observes that whether or not fetal pain is mentioned, as well as whether or not the victim of the abortion is referred to as an “unborn child,” affects poll results. Indeed, he suggests, it may be that people are less interested in whether or not a fetus feels pain than they are influenced by the thought that the fetus is a child. As he puts it,
it isn’t clear to what extent people are moved by the risk of fetal pain, as opposed to fetal pain capability. Do they believe that a fetus capable of feeling pain is too fully human to kill? Or do they simply think it’s wrong to cause pain? There’s a simple way to force the issue: Offer them two choices at 20 weeks, an abortion ban or mandatory fetal anesthesia. What do you think they’ll say?
Saletan doesn’t answer the question, but it’s not hard to figure out what he thinks the answer is. As Walter Russell Mead has written, when it comes to competing rights claims, in the long run Americans always tend to fall in the liberal direction of protecting an individual’s self-determination. Whereas in the case of same-sex marriage this liberal inclination seems to support the Left, in the case of abortion it supports the Right. The more Americans think of the victim of an abortion as a human being, as an individual, the more they will want to see abortion restricted.
This suggests two things. First, the pro-life movement is wise to continue to emphasize the humanity of an unborn child. This claim is fundamental to the moral argument that abortion violates not only Christian convictions about human dignity, but basic liberal principles about the right to life. Second, the pro-life movement has a far greater chance of long-term success if it is politically flexible, seeking incremental changes rather than an outright universal prohibition of abortion. Indeed, the latter may never be possible.
This second point is hard for many people, especially Christians, to accept. If our politics is to be expressive of God’s law, if it is to be principled, how can we compromise at all when it comes to human life? Shouldn’t we take outright prohibition or nothing, and refuse all compromise? And of course, in the long run Christians should accept nothing less than full justice for the unborn, especially if the long run includes the Christian hope for the full establishment of the kingdom of God.
But politics is usually about the short run. It calls us to take into account not only what is ideal (i.e., God’s moral will), but what is possible; not only intentions (or virtue), but consequences; not only the hope of the kingdom of God, but a secular order that is as just as possible. And in the short run, in light of what is possible, it is clear that compromise is actually the best form of progress. A prohibition of abortion at 20 weeks is superior to a prohibition at 24 weeks. It leads us in the right direction. It has the support of the American people and potentially that of the Supreme Court because it is profoundly liberal. It may work. And consequences matter.
Posted on August 5, 2013, in Abortion, Liberalism, pro-choice, pro-life, Rights and tagged Anthony Kennedy, fetal pain, Roe v. Wade, Supreme Court, William Saletan. Bookmark the permalink. Comments Off.