Prompted by the Supreme Court’s willingness to revisit its abortion jurisprudence, abortion politics is rapidly changing. In Colorado, the Reproductive Health Equity Act (RHEA) has been signed into law. Colorado is competing with states like Maryland, Illinois and California to provide the most unfettered access to abortion in the country.
At the same time, other states are drastically curtailing access to abortion. Oklahoma recently passed a law that would prohibit nearly all abortions. The changes appear to reflect a blue–red dichotomy, but this may change. Anti-abortion and pro-abortion advocates defy simple characterization by sex, race, ethnicity, educational status, political or religious beliefs. And the rush toward extreme laws may be prompting reconsideration across the ideological and political spectrum.
If the Dobbs Supreme Court case modifies or overturns Roe/Casey as anticipated, is America destined to be perpetually divided into anti-abortion and pro-abortion states? Or could the states, liberated from the yoke of Roe, finally be able to resolve the issue in a democratic way?
There is reason to believe that the primary arguments employed by either side in the debate will come under greater scrutiny post-Roe. And while there will always be spin and propaganda, the abortion debate is uniquely positioned to yield to the demands of science. Much in the same way that the climate change debate has fittingly, but inexorably, moved toward a shared understanding, the abortion debate in the states may yet converge as well. What follows is how this controversy may play out in living rooms and statehouses across the country.
Rebooting the debate
Some of the pro-abortion arguments will quickly fail. One of the oldest and most flawed demagogic claims has been that thousands of women died each year from illegal abortions before Roe, and if abortion were to be restricted, thousands more would unnecessarily die. Dr. Bernard Nathanson, co-founder of the National Association for the Repeal of Abortion Laws (NARAL), admitted that the mortality figures from illegal abortion were fabricated to elicit support for abortion rights. Even the term “back-alley abortion,” which conjures up images of a dark and dirty alley where unscrupulous men induce abortions with coat hangers, is misunderstood and used by abortion advocates to promote sympathy for legal abortion. The term originated to describe the way most abortions were performed before legalization — through the back entrances to physicians’ offices to avoid law enforcement agencies. In the 1960s long before Roe, Planned Parenthood estimated that 90% of illegal abortions were performed in physician offices. And the decline in morbidity and mortality from illegal induced abortions and spontaneous abortions (miscarriages) reflected the improvement in antisepsis and medical technology that preceded Roe by decades. In 1972, the year before Roe, there were 24 deaths from legal abortion and 39 maternal deaths from illegal abortion reported to the CDC. The risk from abortion, legal and illegal, has declined much further in the interim.
The second spurious argument that defies logic is that without abortion women will have “forced pregnancies.” Cue the handmaidens. This infantilizes women and denies their agency. Other than the rare instances when a child is conceived in rape, pregnancy involves consensual sex. Pregnancy is a predictable outcome of sexual activity, even for those who use contraceptives. It may be a failure of Colorado’s “comprehensive sex education” curriculum that young women frequently overestimate the efficacy of various contraceptive methods; 13%-21% of sexually active women using barrier contraceptives, 4%-7% on oral contraceptive pills and up to 1% of women using IUDs will become pregnant each year. Even if every single fertile woman between the ages of 15-44 utilized an IUD, there would be between 6,000 and 12,000 pregnancies each year in Colorado. Abortion has become a “back-up” contraceptive method in jurisdictions with no abortion restrictions.
The third and most widely embraced pro-abortion argument revolves around the concept of autonomy. Women should have absolute control of their bodies and choices. It follows that abortion should be a private decision between a woman and her medical provider. However, while autonomy is a powerful value, it is not absolute. Virtually all laws in our state and country impose limits on our autonomy. They are integral to the proper function of any society. Restrictions on autonomy are most common and most compelling when one’s personal autonomy conflicts with another’s autonomous rights. This is the blind side of the abortion autonomy argument. The argument neglects the bodily integrity and autonomy interests of the developing human. It fails to see abortion as the conflict of fundamental rights between two distinct and separate human beings. It also fails to acknowledge the essential interdependence of all human beings.
Old arguments fall
Other specious pro-abortion arguments include the notion that if abortion is restricted, women seeking abortion will simply have illegal abortions or travel to jurisdictions without abortion restrictions. While there may be some truth to this during transitions in abortion policy, in the longer term, multiple studies suggest otherwise. Abortion restrictions are associated with a reduction in abortions and a reduction or no change in live births. They incent couples to decrease sexual activity and/or use more effective contraceptive strategies. Evidence suggests that permissive abortion laws are associated with harm — increased STD rates, a more cavalier approach to abstinence or effective contraceptives and higher unplanned pregnancy rates.
Another claim that is heard more commonly in recent years is that legal abortion will reduce maternal mortality, which has become a growing problem, particularly in communities of color. This is a complex issue. There is little evidence to support this assertion. When countries such as the Netherlands and Rwanda liberalized their abortion laws, abortion-related mortality increased. On the other hand, deaths from abortion and maternal deaths fell after the prohibition of abortion in Poland and Chile. Poland, which has one of the most restrictive abortion policies in the world, has the lowest maternal mortality ratio in the world.
Finally, it is posited that abortion is a prerequisite for sexual equality. Without abortion, women are relegated to second-class citizen status — with stunted educational attainment and career trajectories. Once again, the facts belie this interpretation. Even after a cursory review of the historical record, one would conclude that women’s advancement preceded Roe by decades and there is no correlation between women’s progress and access to abortion on a population basis. Despite abortion rates declining in recent years, women now graduate college at higher rates than men and are increasingly represented in the pinnacles of their professions.
What the science says
The anti-abortion arguments can be distilled down to a few core principles. There is unequivocal scientific evidence that human life begins at conception. That an embryo and fetus represent vital human beings that have moral significance. That the abortion procedure incorporates a form of violence that would never be entertained in any other context. And that abortion harms women, their families and their communities.
Steven Jacobs performed an important survey that was published in 2019. Out of 5,337 biologists completing the survey, 96% affirmed that a human’s life begins at fertilization. This, even though 89% of the sample identified as liberal, 85% as pro-choice and 63% as non-religious. And 92% of those who expressed a party preference were Democrats. There appears to be little controversy concerning when human life begins in the biological community. Science has put this debate to bed — even if some pro-abortion advocates refuse to acknowledge it.
The vitality of the developing human is the area that has undergone the most rapid evolution since Roe was decided. Science has shown that human development is a seamless process and there is no scientifically plausible milestone to identify “personhood” along that continuum. Personhood at birth, as delineated in RHEA, is particularly problematic.
By the time a woman realizes she is pregnant, the human embryo is a sophisticated human being. In the second week after a skipped menstrual period, the embryo has a head, and her face begins to develop. There are emerging buds on the side of her body that will grow into her arms and legs. All the vital organs have begun to form, and the primordial heart begins to pump blood. To characterize the embryo or fetus as a “cluster of cells” as The New York Times has done or merely “pregnancy tissue” as Planned Parenthood does is disingenuous at best.
Technology has made the vitality more obvious. Through 4D ultrasound, we can track fetal movements. We can watch fetuses suck their thumbs, grimace and smile in utero. In utero twins can be seen having meaningful social interactions. Because of advancements in fetal surgery, we can literally remove the fetus from the womb, surgically correct a congenital abnormality and return her to the uterus as early as 19 weeks' gestation. By as early as 21 weeks, the fetus can survive if born prematurely. It is in the treatment of these preborn fetal patients and the care of extreme premature infants that we are vividly confronted with the humanity of the developing human. It is hard to argue that they are simply appendages of their mothers with no “independent or derivative” rights as dictated by RHEA.
The grim truth
Abortion advocates rarely speak of the abortion procedure, for good reason. In second trimester abortions, the fetus is systematically disarticulated/dismembered, and her head is crushed before she is removed in a piecemeal fashion. Most contemporary researchers now recognize that these fetuses can feel the excruciating pain associated with this abortion procedure as early as 12 weeks. Later in the second and third trimester, the fetus is killed, most commonly with an overdose of the medication digoxin, and then extracted. Digoxin poisoning causes intense nausea, retching, abdominal pain and delirium. The fetus is left to die an agonizing death in utero writhing in pain for up to 24 hours, depending on the digoxin injection technique utilized. In another context, we have a phrase for this — “cruel and unusual”.
The harms inflicted by abortion on individuals and society are only beginning to be fully appreciated. The immediate risks to individual women from infection, hemorrhage, organ injury and even death is well-known. However, there is substantial evidence that women seeking abortion have a markedly increased incidence of anxiety and depression. And that for many of these women abortion can aggravate their antecedent mental health issues. Studies suggest that abortion may lead to premature birth in subsequent pregnancies that has implications for fetal and maternal health. One could speculate that the scourge of infant and maternal mortality in Blacks may, in part, reflect the disproportionate rate of abortion in communities of color.
We have been led to believe that abortion results in markedly improved mental health, social and economic outcomes. To a large extent, this reflects dozens of scientific publications and lay articles generated by the “Turnaway Study” from the University of San Francisco’s Bixby Center for Global Reproductive Health. (The center advocates for abortion rights). As David Reardon has so eloquently pointed out, the Turnaway Study is fatally flawed. It exploited a nonrandom study design and had a prohibitively low participation rate. Consequently, the conclusions from this study were drawn from a small, highly biased sampling of women who sought abortion. If this study were on any other subject, no respectable scientific journal would have published it.
Can the violence in contemporary society partly reflect the violence we sanction in utero? Can we expect that people will respect each other’s inherent value and dignity if we promote the killing of vulnerable preborn children for social and economic reasons? The answer I’m afraid is that disrespect for life begets more disrespect for life and violence begets more violence.
Ultimately, the more these arguments are examined, the more likely people will move toward an anti-abortion stance. RHEA has accelerated this reappraisal. It has highlighted the cognitive dissonance in the pro-abortion movement. Why does an infant born prematurely at 22 weeks enjoy fundamental rights, but a 36-week fetus in utero has none? How can I be a feminist if I am complicit in a law that sanctions sex selection abortions on female fetuses? Am I a disability rights advocate if I allow abortion on fetuses with anticipated disabilities? These and other issues will continue to percolate and likely lead to considerable moderation of liberal abortion laws in states like Colorado.
The last dynamic that will change the tenor of the debate is the increasing willingness of Black and Hispanic voters to show their discomfort with their party’s abortion extremism. As people of color reassess their allegiances, the straight ticket vote may become a thing of the past. This could have a monumental effect on abortion politics and the electoral power of the parties in the future.