Grassroots/Hank Kalet

The Abortion Wars

Given the fast-moving news cycle, one might be forgiven for missing a headline on the Associated Press website that could foretell where the current Supreme Court may land on abortion rights: “AP-NORC poll: Most say restrict abortion after first trimester.”

The court, which is stacked heavily with anti-abortion justices, including three appointed by Donald Trump, will hear a Mississippi case in the fall that may determine “whether states can ban abortions before a fetus can survive outside the womb.”

The Mississippi law, which was adopted in 2018, was blocked by lower courts as a violation of Roe v. Wade, which ruled that women have a right to abortion until a fetus can “survive outside her womb.”

As AP reports, Mississippi is “not asking the court to overrule” Roe, but is seeking court approval to ban abortion after 15 weeks, even though most experts peg viability at between 24 and 28 weeks.

The court, over the last 48 years, has allowed the chipping away of abortion protections, granting states the right to regulate abortions. This has resulted in parental notification laws, waiting periods, and the imposition of rules that make running abortion clinics overly expensive. The result has been to restrict access without banning it.

The Mississippi law — and other similar laws in other states — would change that, banning abortion for an approximate eight-week period in which the fetus is generally not considered viable, which is defined as being able to survive once delivered. Viability, however, has always been a problematic standard. Scientific advances have altered the math, allowing medical personnel to keep a fetus alive much earlier in this development. Essentially, it has become more of a moving target, and it has allowed conservatives an opening.

Viability, Robert H. Blank wrote in The Western Political Quarterly in 1984 (an article that predicted the impact that science would have on the abortion debate), was devised essentially in “an apparent effort to accommodate a variety of interests and compromise on a non-negotiable issue.” Roe is based on a right to privacy, which meant that the state lacked a “compelling interest” to interfere until the end of the first trimester. Beginning in the second trimester, the state can “reasonably” regulate procedures in an effort to “preserve and protect maternal health.” Roe, in theory, protects abortion during this period, requiring the state to clearly explain why it should be able to interfere.

It is at viability when things change, the court ruled in Roe. It is at viability, the court said, when the state “has an important and legitimate interest in the potential life” and can impose a ban on post-viability abortions, essentially saying that life begins at viability — an argument that splits the difference between the traditional religious argument that life begins at conception and the feminist demand that women have sole control over their bodies.

This, as Blank writes, is for many an either/or debate. Either life begins at conception and, therefore, that life deserves protection even at the expense of the mother’s life, or it begins at a later point, the mother’s life and rights being paramount.

The court has a conservative majority. The six Republican appointees — Chief Justice John Roberts and Associate Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — are viewed as likely to be anti-abortion. The anti-abortion movement has been waiting for a case like the one in Mississippi, and the question is whether the justices will accommodate them or avoid upending the apple cart. This is not a legal question. It is a political one and an ethical/religious one (which is why the late Ruth Bader Ginsburg was right to question the ruling in Roe — it should have been decided on First Amendment, freedom-of-religion grounds).

Enter the latest polling. If the AP-NORC poll is correct, the public still wants the court to split the difference, wants to maintain a woman’s right to abortion, but is ready to limit it severely.

Nearly two thirds of those polled support the right to choose during the first trimester — approximately the first 13 weeks. Two thirds, however, also told pollsters that abortion should be banned beginning in the second trimester, a timeline consistent with the Mississippi ban. This should not matter to a court that is removed from the vicissitudes of politics, but the Supreme Court has never been that kind of court. It is a political body that keeps an ear to the ground on issues of major public import.

The Mississippi law may not end Roe, but it would severely cripple it. Once viability is decoupled from scientific concensus, we will see — already are seeing — bans that would start earlier and earlier, restrictions that not only would undercut the compromise reached in Roe, but ultimately would make Roe meaningless.

That would be a disaster. It would send a signal from the court that women’s actual lives are secondary to the potential life created by a fertilized embryo, and it would create a two-tiered system in which the rich and those who live in liberal states have access, while poor women in conservative states are shut out.

Hank Kalet is a poet and journalist in New Jersey. Email hankkalet@gmail.com; Twitter @newspoet41; Instagram @kaletwrites; Substack, hankkalet.substack.com.

From The Progressive Populist, August 1, 2021

Populist.com