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Compromise on Abortion Isn’t Impossible. In the Long Run, It’s Inevitable

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A police officer watches pro-life and pro-choice supporters demonstrating to mark the anniversary of the Supreme Court's 1973 Roe v. Wade abortion decision in Washington. REUTERS/Jim Young

The present passion surrounding the abortion issue has produced political panic and apocalyptic rhetoric on both sides.

For instance, pro-life firebrand Jeanine Pirro used a May 3rd segment of The Five on Fox News, to decry the unspeakable slaughter associated with termination of pregnancies. “And my stats that I have,” she indignantly declared, “are that there are 63 million abortions a year in this country!”

On the other side of the issue, numerous pro-choice commentators warned that if the Supreme Court moved ahead with its leaked intention of over-ruling Roe v. Wade, then other Constitutionally protected elements of American life would be subject to similar judicial assault. A typical sub-heading: “Rights to contraception, gay marriage and interracial marriage could be endangered under a draft Supreme Court ruling.”

Such inflammatory observations promote the notion of a pending “abortion crisis” that implacably polarizes the people, ignoring contradictory evidence that indicates that Americans may be closer than ever to achieving consensus on this enduring dispute.

The first priority toward reaching that goal must be to clear away the accumulated layers of lies and misunderstandings that distort the public’s perspective.

As one example, Judge Pirro (yes, a former member of the New York State judiciary) isn’t just wrong about the human cost of abortion, she’s wrong by a factor of 100 to 1. While she claimed the United States endured “63 million abortions a year in this country” the most recent statistics from the Centers for Disease Control and Prevention (CDC) show an actual 2019 total of 629,898.

Pirro’s obvious mistake derives from a widely circulated estimate by the National Right to Life Committee of 63.4 million as the total number of abortions during the 49 years since the Supreme Court handed down Roe. That means that the number of abortions during the half century since its national legalization averaged 1.3 million each year—or more than double the most recent accounting in 2019. In other words, far from facing an “abortion crisis” the number of abortions in the United States has gone down steadily and dramatically, even while the population has increased.

The rate of abortions compared to live births hit its all-time high in 1984 (364 per 1,000 live births) but stands at well below 200 today. Such numbers indicate incontestable (and continuing) success for anti-abortion activism—especially if its true purpose is not just to win political or legislative squabbles, but to spare as many as possible of the unborn and to allow them to enter our world of life.

Certainly, a final judgment overturning Roe by the highest court in the land will expedite that process, which helps to explain why abortion defenders so frequently cite the purportedly imperiled prospects of more broadly supported rights—to contraception, or interracial marriage—rather than focusing on a procedure which continues to split the public. This may amount to a deft public relations strategy, but it raises illusory fears with scant basis in reality.

Is interracial marriage, for example, actually “endangered” by the judgment on Roe? The most recent Gallup Poll (released in September of last year) showed that a record 94% say they “approve of marriage between Black people and white people.” Since 1967, when Loving vs. Virginia unanimously overturned the anti-miscegenation laws in 16 Southern and border states, opinions of mixed marriages have shifted rapidly and consistently.

Today, of course, no elected official or jurist could survive in any position of authority if he or she argued for a new ban on mixed-race marriage. In fact, it’s difficult even to imagine such an issue arising before a court whose two Black members (Clarence Thomas and the newly confirmed Ketanji Brown Jackson) are both married to white spouses.

But no similar transition has occurred regarding the issue of abortion. Roe v. Wade sparked spirited dissent from Justices White and Rehnquist when first decided, and immediate resistance from activists, religious leaders, and politicians. At the time, some 20 state legislatures had already legalized abortion with certain restrictions; for many skeptical observers, the court’s sweeping decision represented an unnecessary and inappropriate intrusion in the normal legislative process.

That concern, more than a faith-based issue of morality, produced Justice Alito’s carefully reasoned judgment to reject more. It’s a serious mistake to see his draft decision as an emphatic “No” on abortion meant to replace Justice Blackmun’s resounding “Yes” of 1973. In fact, the most striking aspect of this new decision is its rarity: showing an important governmental institution that is foregoing power rather than seizing it and exercising it. Nothing in the current turn of events will settle disagreements on abortion, permitting a series of legislative battles with the normal give and take, rather than embracing the absolutes of one side or the other.

At the end of the process, we will most likely join the rest of civilization in allowing the populace and its elected representatives, not unaccountable jurists with lifetime appointments, to reach decisions that express the public will. As George Will points out: “In 39 of the 42 European nations that permit elective abortions, the basic limit is at 15 weeks of pregnancy or earlier.” Coincidentally, perhaps, that’s the same standard that Mississippi imposed in its recent legislation that has won apparent court approval in Dobbs vs. Jackson Women’s Health Organization. “Around the world,” Will notes, “fewer than 20 nations allow abortions after twenty weeks of pregnancy on any grounds.”

According to a recent study by the Pew Research Center, Americans hold nuanced and non-absolutist views on the subject, that should combine with the proven virtues of our federal system, to allow a workable resolution to debates that have tormented the country for fifty years.

No, most of our fellow citizens don’t believe abortion is a form of murder—that’s why only a miniscule percentage embrace the thought that a woman (or her doctor) should be jailed or executed for terminating a pregnancy. On the other hand, the notion of making abortion available without restriction or condition also commands nothing near majority support. Pew reports that 80% of the public opposes the notion of legal abortion under all circumstances, and 90% disagree with the idea of legal abortion under no circumstances.  As on many other issues, Americans tend to come together to cluster in the middle.

The court system with its emphasis on right and wrong, guilty or not guilty, wasn’t built to shape practical politics. That’s why the dominant role of judges in this arena for the last half-century has served to give America the least modulated and moderate abortion approach of any major nation.

But now the issue returns, appropriately, to state legislatures, elected bodies that cannot function without deals, concessions and conciliation. Compromise on abortion isn’t impossible; in the long term, it’s inevitable.

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