Fraters Libertas

The Legacy of Bad Law

A reader from Denver comments on the Kim Jeffries post from yesterday and the legacy of Roe vs. Wade:

As an ardent pro-lifer, I do not doubt what Kim Jeffries is saying for one minute. There currently is a whole field called "Crisis Pregnancy Centers" that, quite literally, are doing the Lord's work when it comes to steering away young women from the abortion route. And I do not doubt Sarah Stoesz when she says that "the organization offers pre-and postabortion counseling services, and that while some women suffer from depression caused by pregnancy-related hormonal changes, there's no scientific evidence to support claims of a clinical diagnosis called postabortion syndrome."

This is the juncture at which we have arrived in the abortion debate: One side thinks the other is lying thru its teeth. This sort of thinking has gotten me to thinking: What if Roe v Wade wasn't even decided at all? What if the pro-abortion side hadn't gone for the 80-yard bomb and got the touchdown when SCOTUS ruled in its favor?

Before Roe was decided, at least 4 states (NY, CA, AK, and HI, though there may have been more) had loosened their laws regarding abortion. My best hypothesis on this would have been that if Roe was not a factor, many more states would have loosened their regulations as well. While a fight would have still emerged, it would have been less of one as all attempts at resolution and compromise would have been made.

Here's another thing to consider: As the abortion procedure(s) became more and more legal, the states that made it legal would have also acted as a big laboratory for how the abortion procedure(s) would have been refined. As the years would have gone by, we would have seen how the abortion procedure(s) would have been made more humane and how abortion drugs would have been used in a more refined and humane manner than RU-486 would have been. Also, we would have seen, under the imprimatur of Medical Research, confirmation of post-abortion syndrome as a medical condition and would have developed ways to handle the psychological/social impacts of abortion. This has happened with every other medical procedure out there.

What do we have instead? We have one side, when its right to abortion was confirmed, simply digging in its heels and defending that right, at all costs. That same side will do all it can to defend its right to abortion, including using the law as a means to brutally shutting down its political opposition (see Scheidler v NOW, just decided this year in favor of Scheidler, ruling that the RICO statutes cannot be used to shut down anti-abortion protestors). As a result, the procedures used in performing abortion have not changed at all since at least the 1960s, and the number of doctors performing abortions has dropped considerably since then. On the other side, we have people willing to use violence to stop abortion clinics from operating. When that failed, the tactics shifted to using such phrases as "BABY-MURDERER!", to blockading abortion clinics, to even holding prayer sessions in front of them.

What's even worse, if you were looking for an immediate consensus on resolving this debate, is the descendants of the original fighters on both sides of the issue are now carrying on the fight in the same virulent manner. Right now, neither side will give other even a little bit of breathing room to do research and refinement. So we are essentially stuck with this debate as any means of using pharmaceuticals (such as RU-486) will be seen as simply an attempt to end the debate, rather than furthering the cause of research. Just wanted to let you see what is now, and what could have been. Pax.

This analysis strikes me as accurate. The framing of the abortion issue as one of "rights" to be granted by judges, instead of a question of public policy to be decided by legislatures has frozen the debate in time, to the detriment of everyone involved.

Over the years, my pro-choice friends have been surprised to learn that overturning Roe Vs. Wade won't mean abortions will be made illegal in this country. Rather it will just allow state legislatures to decide. And given the current political environment, I'd say about a third of states would allow very liberal access, about a third would have some restrictions, and about a third would have severe restrictions. Sounds like a scenario most Americans could live with.