Thoughts on the Recent Supreme Court Abortion Decision

The recent Supreme Court decision rescinding the right to an abortion has created a new legal and social landscape in the U.S.  The long-term effects of this decision cannot be fully anticipated, but following are a few thoughts about its underpinnings.  But, as this debate continues, we need to avoid demonizing those who don't share our beliefs.  Some may be operating from political opportunism, but many are sincere in their desire to prevent harm to life. We disagree with their position but respect their right to hold those beliefs.

Some thoughts . . .

This issue is not settled - not even close:  How will this debate end?  It won't:

• Abortion opponents will not stop with this Court decision.  Eventually, Republicans will capture the presidency and majorities in both houses of Congress.  If they have fewer than 60 votes in the Senate, they may suspend the filibuster in order to pass a country-wide abortion ban. The Supreme Court - in its current configuration - would likely uphold such a ban, despite arguments that this would infringe on states' rights.
• If a national ban is passed, expect an unending battle: eventually, Democrats will gain both houses of Congress and presidency.  It's almost certain that they would try to pass new legislation undoing the Republican ban.  Will this Supreme Court uphold this reversal?  It seems unlikely that the current bench would allow such a law to take effect.
• If a right-wing court continues down the path of eradicating individual rights and strengthening corporate power, pressure will grow on Democrats to enlarge the Supreme Court.  Packing the Court may seem like a good idea at first, but, once started, where does it end? What is to stop Republicans from reciprocating by further stacking the Court?  Does this tit-for-tat stop with a 13-person bench?  15?  25?

One of the more interesting elements of the abortion debate is the nexus between opposition to abortion and the historical institution of slavery. Today's anti-abortion policies are linear descendants of institutional slavery.

• It is striking that most of the states opposed to abortion are former slave states. (This includes Alabama, Arkansas, Georgia Kentucky, Louisiana, Mississippi, Missouri, South Carolina, Tennessee and Texas. The former Confederate states not included in this list - North Carolina, Virginia and Florida - have experienced a sizable in-migration of northerners in recent decades).  States that were solid members of the Union – with the exceptions of Ohio and Indiana - have generally remained supportive of abortion rights. One feature of slave states was a willingness to vest powers in government to control the most intimate aspects of the lives of "inferior" populations. The institution of slavery controlled every aspect of the enslaved, including who they could marry, whether they could raise their own children, where they could live, whether they could travel, etc. It appears that acceptance of governmental control over personal decisions for certain populations may still be embedded in communal norms. Today, this tendency is revealed, not only in opposition to abortion, but opposition to any contraception by certain elements of the anti-abortion movement.  Such a position serves no purpose other than assuring state control over women’s reproductive processes.  Similarly, the stated concern for the welfare of the unborn child – while no doubt true for many individual advocates – is belied by reduced institutional support for children once they are born.  Medical and welfare benefits in the anti-abortion states are general quite poor in comparison with “blue” states .  If a child’s well-being were truly primary, anti-abortion states would have the best post-natal care and pro-abortion states would have the worst.  In reality, the reverse is the case (for example, see https://wallethub.com/edu/best-states-for-child-health/34455).
• Nowhere is the nexus with slavery more pronounced than the recent emergence of proposals to adopt an updated version of the Fugitive Slave Act. The FSA of 1850 made it illegal for slaves to flee to a free state and imposed penalties on anyone assisting slaves in their flight to freedom.  Today, states are considering legislation banning women from seeking an abortion in another state and penalizing assisting such woman.  The similarities between the original Act and current efforts are quite remarkable.
• Another notable aspect of the abortion debate in the U.S. is the failure to consider the rights of women relative to the rights of the unborn. Abortion opponents consistently place the rights of the unborn above the rights of the woman.  In fact, the rights of women seem to have no weight whatsoever. In other cultures, the debate considers the relative rights of each party.  For example, traditionally, Judaism did not favor abortion, but gave precedence to the well-being of the adult mother over that of the unborn fetus.  Thus, the life of a woman whose health would be jeopardized by pregnancy is clearly prioritized over that of the unborn child.  This was viewed as a humane and balanced solution to this ethical dilemma. Most anti-abortion legislation fails to consider the well-being of the mother, providing no exceptions for victims of rape or incest or those with serious health or mental health conditions.  The well-being of the mother is simply not considered in the balancing of these interests.  The assignment of complete rights to the unborn fetus and no rights to the adult woman carrying the fetus is astonishing.
  

In sum, the divisions of the abortion debate reflect more than modern-day ethical differences. Indeed, they reveal long-standing regional and cultural norms that date back to early colonial America and apparently continue to influence our public life to this day.