The Future of Abortion
This past week, the Supreme Court of the United States reaffirmed the constitutional right to have an abortion, ruling that certain requirements for abortion clinics were overly restrictive and unconstitutional. The State of Texas had attempted to require any abortion clinic to include a doctor with hospital admitting privileges (basically meaning that if something went wrong with the abortion and there was an emergency requiring hospitalization, you could be immediately admitted into the hospital) and for all clinics to meet the requirements of an ambulatory system (basically, to have hallways wide enough for a stretcher to go down). The Supreme Court said that was overly restrictive and unconstitutional.
Of course, there is much that could be said about the decision and the underlying politics. First, the Supreme Court (and particularly the concurring opinion) seemed to strongly indicate that they felt that part of the problem was that the underlying justifications for the Texas regulatory rules were a sham. Although legislators claimed (at least somewhat) the justification of protecting women’s health, they were really intended simply and solely to restrict abortion. This perspective is both (probably) true and (definitely) irrelevant. Those two things (protecting women’s health and restricting abortions) aren’t incompatible; indeed, since over half of the babies aborted are female, one requires the other. And for another, even if the motivations of the legislators HAD been to protect women’s health, it wouldn’t have changed the analysis — it still would have infringed on a constitutional right as contemplated by the current Supreme Court.
Second, it is important to remember that there isn’t, so to speak, a constitutional right to have an abortion. Over a long and winding road of metaphors, tortured logic, and disregard for the balance of power, the Supreme Court first found an implied right to privacy, and then much later found that right to privacy to include a right to abort a baby. In order to find the right, SCOTUS has, at various times, had to put to rest any logically coherent view on levels of scrutiny, res judicata and standing to bring a claim.
Third, it’s a reminder that we must stick to the basics of the pro-life argument, rather than becoming too clever by half. The Supreme Court was absolutely right that the goal of the legislators was always to restrict abortion. Of course it was, and rightly so. We shouldn’t want to hide our motives — we are trying to save lives. At its core, the argument over abortion rights is a simple one; either fetuses are human lives, or they aren’t. If they are, you can’t kill them and thus abortion should be illegal. If they aren’t, then under some circumstances, abortion probably should be legal. The pro-choice movement will attempt to frame this as an issue of women’s rights, but of course that doesn’t hold much weight for at least two reasons. One, women’s rights are absolutely a critical issue that we should all support, with certain limits (limits that would apply, of course, to anyone's rights); one of those limits being the taking of innocent life. Thus, again, the question is a simple one — is the fetus being aborted an innocent, human life? Second, for a significant portion of the pro-choice movement, framing it as an issue of equalizing women’s rights is a cover. A significant portion of the pro-choice movement, if they are being honest, agree with one of the flagship shows for liberal ideology, The Daily Show. As they tweeted, “Hooray for #Scotus decision! Go knock someone up in Texas!” Ah, yes: good news, men! Abortion rights reaffirmed! Don't worry about women's agency, just go impregnate someone, anyone, everyone! Hooray…..women’s rights?
Fourth, this shows that the argument for voting for Trump (Supreme Court!) is very weak. This was a 5-3 decision. Even with Scalia, it would be a 5-4 decision. With Garland (who will be confirmed regardless of who wins the election) it would have been a 6-3 decision. Even if Trump nominated someone conservative to replace Ginsburg (the likeliest, although not definite, candidate to need replacement over the next four years), it would still have been a 5-4 decision. The future of the pro-life movement will not be decided by the courts.
Which brings us to the last point — if the pro-life movement is not going to be aided by the Court anytime soon, what is its future? And on that, we should be encouraged. Despite this setback, the future of the pro-life movement is bright. Over the past ten years, our arguments have become convincing. More and more of the country (48%) is beginning to identify as pro-life (versus 47% who identify as pro-choice). The fastest growing population group (Hispanics) are also the most solidly pro-life. And the science continues to show that our position is correct. There is a reason why European laws restrict abortion significantly more severely than American laws. Europe has always been more pro-science. We usually eventually catch up to Europe, and we will on this issue too. As we become more accepting of the clear science, our laws will begin to more and more reflect those of Europe. And that development will be a welcome one for evangelicalism, conservatism, the Church, and if we continue our pattern of convincing so many of the ethics involved, the entire country.