Is There a Solution to America’s Abortion Quandary?

Large numbers of women are still processing the recent decision by the U.S. Supreme Court to overturn almost 50 years of legal precedent and strike down Roe vs. Wade. Even though most knew the decision was coming, that didn’t ease the shock, grief, and outrage felt by those who believe that the demise of Roe will jeopardize the right of women and girls to make decisions about their own bodies without government interference.

Pew Research reports that 61% of Americans believe that abortion should be legal in most or all cases, with exceptions. At the same time 56% of Americans believe that a fetus that can live outside the womb has a human right to life.

This fundamental divide has created an implacable collision between pro-choice women who argue: “Fine, if you don’t want an abortion, don’t get one, but don’t take away my choice,” and pro-life women who contend that “Pro-choice advocates offer greater legal protections for bald eagle eggs than they do for a late-stage fetus that can survive outside of the womb.”

Roe vs. Wade Was Flawed Law

The Supreme Court did not ban abortions in their recent decision. Rather, they simply ruled there is no constitutional right to abortion and left it to the states and their voters to decide the issues. Under the legal system established by the U.S. Constitution, the power to make laws is vested in Congress and retained by state legislatures. It is not the role of the Supreme Court to substitute the preferences of its nine Justices. The Court’s function is not to legislate but to determine the legality and the rule of law on legislation enacted by the people’s elected representatives at both the state and federal levels. Under Roe, state legislatures and state voters have been denied the ability to fulfill voter preference. Worse, allegiance to Roe has become the compellingyardstick for confirming federal judges.

When Roe was decided in 1973, it protected abortion only up until the point that a fetus could live outside the womb – the 24th week of pregnancy. Over time, liberal Court justices made the Roe deadline of 24 weeks meaningless by allowing “mental distress” as sufficient justification for abortion all the way up to the point of birth, and in rare cases beyond.

In the absence of Congressional legislation, the 1973 Burger Court used the Fourteenth Amendment’s Due Process Clause (particularly the word “liberty”) to strike down a Texas law. Justice Harry Blackburn, writing for the Court majority, took the liberal position that the Due Process Clause protects a woman’s “liberty” from state interference, and that the word “liberty” includes a woman’s personal, qualified right to have an abortion. 

What has been ignored in Blackburn’s majority opinion, is that women were not granted an unfettered constitutional right to have an abortion anytime up to the time of birth. Justice Blackburn divided pregnancy into three trimesters. In the first 12 weeks, a woman has an unqualified right to an abortion; during the second trimester (13 to 24 weeks), a state can regulate abortions in “ways that are reasonable related to maternal health”; and in the third trimester, “a state can regulate and even prohibit abortions.”

How Common Are Abortions in the U.S.?

The U.S. Center for Disease Control (CDC) reported 629,898 abortions in 2019 compared to 3,745,540 births. Thus, less than 15% of pregnancies end in abortion. U.S. abortions are continuing a downward slope, since hitting a peak of 1.6 million abortions in 1990. Widespread use of contraceptives and the “morning after pill” are credited with greatly reducing unwanted pregnancies.

What Will Happen Now That Roe vs. Wade Has Been Overturned?

The Court’s decision returns this important issue to the people of each state to decide through the legislative process. Currently, 24 states and the District of Columbia have laws, statutes, or state constitution and provisions that protect Roe’s abortion rights. That won’t change; in fact, it is likely that remaining restrictions in blue states will be weakened or eliminated. California plans to provide a financial incentive for a travel and tourism promotion program to recruit pregnant women to come to California to have their abortions.

Some 10 states are expected to pass legislation that restricts abortions. Missouri may ban abortions “except in the case of medical emergencies.” South Dakota has a trigger law that could ban abortion unless there is an “appropriate and reasonable medical judgment.” Utah has a trigger law that could ban abortions “except in the case of rape, incest, saving the life of the mother, or serious fetal medical complications.” Alabama, Arkansas, Louisiana, Mississippi, Oklahoma, and Texas could impose similar restrictions.

How Does the Rest of the World Handle Abortion?

The United States is one of only seven countries in the world that allows elective abortions through all nine months of pregnancy. The other countries are China, North Korea, Vietnam, Canada, the Netherlands and Singapore. 72 countries allow for abortion subject to gestational time limits — the most common being the end of the first trimester, or the end of 12 weeks.

There are 24 countries in the world where abortion is completely prohibited. Another 50 countries permit abortions only when the woman’s health is at risk. 

What Happens Next?

What can supporters of Roe do now? Many will argue in anger that a woman’s rights have been shredded. Expect progressives to advocate abolishing the Senate filibuster and/or packing of the Supreme Court with four new liberal justices. Candidates seeking elective office will use the Roe decision for fundraising and paint their opponents as misogynists and racists. 

What Would a Compromise Abortion Solution Look Like?

Can a divided America find common ground between its pro-choice and pro-life advocates? Can Congress do its job and pass bi-partisan national legislation that provides a reasonable right for women to choose to terminate their pregnancy within the first 12 weeks, while protecting the legal rights of the unborn child from late-term abortions? What might compromise legislation look like?

Abortion Should Be a Medical Issue, Not a Political Issue

The world’s most enlightened nations treat abortions as a medical issue, not a political issue. According to The American College of Obstetricians and Gynecologists (ACOG), “Induced abortion is an essential component of women’s health care. Like all medical matters, decisions regarding abortion should be made by patients in consultation with their health care providers, without undue interference by outside parties. Women obtaining abortions are entitled to privacy, dignity, and respect.”

The cost of abortions, like all other medical procedures, should be covered under basic government (Medicaid) and private medical insurance plans toeliminate discriminatory income inequality arguments.

99% of AbortionsOccur in the First 20 Weeks

According to the U.S. Center for Disease Control in 2019, 98.7% of all U.S. abortions were performed during the first 20 weeks. Much of the current abortion debate could be eliminated if legal abortions were ended after week 12 (88% of abortions), or after week 16 (96%), or even after week 20 (99.5%). Fighting endlessly over the last one-half of 1% seems irrational.

First Trimester: Hopefully, both sides would agree that abortions should be legal for hospitals, clinics, and physicians during the first trimester, or the first 12 weeks of pregnancy, if supported by a reputable physician, and with appropriate medical counseling on risks and adoption alternatives. This would be bitterly opposed by some religious groups whose faith ordains that life begins at conception.

Banning abortions within the first 12 weeks of pregnancy is medically implausible. FDA approval of abortion pills like mifepristone, which stops the fetus from growing, and misoprostol, which empties the uterus of the fetus, means that medical abortions have replaced surgical Dilation and Evacuation (D&E) as the preferred choice for safe global abortions during the first 10 weeks.

Even with a total abortion ban, telehealth appointments, with pills mailed directly to people’s homes from doctors and clinics all over the world, would allow those who seek to end their pregnancies safely, to do so privately without surgery. Turning nearly a million U.S. pregnant women each year into criminals for seeking abortions in the first trimester makes no rational sense when self-managed telehealth alternatives will be available in at least 24 states and in medical clinics throughout the world. 

Second Trimester: This is an area where national legislation could give each state maximum flexibility to craft its own preferred exceptions and restrictions in consultation with its medical ethics boards. Some states may limit abortions only to “appropriate and reasonable medical judgments necessary to preserve the life of the mother.” Others may add exceptions for rape and incest; fetal abnormalities; or exposure to extreme drug use, or teratogenic medications. Other states may include economic hardship; or intimate partner violence; or too many children; or any other conditions as viable choices. Some states may insist on parental notification for children under 15 or 18.

Third Trimester: Third term abortions are rare, accounting for less than 1% of procedures. Fetuses that can survive outside the womb should not be legally aborted except when medical professionals agree that the mother’s physical heath is endangered, or that there are serious fetal medical complications. 

A national, conservative compromise that contains both protection for women’s rights in the 1st trimester; protections for the unborn child in the 3rd trimester; and allowances for each state to craft their own exceptions in the 2nd trimester, may not be acceptable to either the extreme right or the extreme left. My hope is that enough moderates on both sides of the aisle can craft a compromise national solution to replace Roe vs. Wade. If not, we are doomed to 50 separate state rules, perpetual anger, and a hodge-podge of confusion for the next 50 years.  

Bob Hazard has a strong belief that if you put committed, intelligent people together in a room and lock the door, some creative solution will emerge that is potentially different and better to benefit the entire community.