In Defense of Roe

Roe held that the state could “could regulate (but not outlaw) abortions in the interests of the mother’s health” in the second trimester of pregnancy and ban abortions only in the third trimester of pregnancy as a fetus developed more “potentiality of human life.” Its successor case, Planned Parenthood v. Casey, affirmed a right to an abortion until a fetus became viable outside the womb.

Unlike slavery and civil rights, abortion is not an issue that lends itself to absolute moral clarity. There are obviously two sets of rights involved, but exactly when legal personhood for the fetus begins has always been contested, as seen in historic laws that banned abortion only after “quickening.” 

The cultural genius of Roe is that it created broad parameters that reflect how we think about pregnancy and abortion: At some point during gestation, the fetus becomes a person with a right to life and liberty, but drawing that line will always be a compromise and imprecise. Honest brokers on both sides of the abortion debate will acknowledge that the opposing side has a case.

Survey data show that Roe was remarkably effective at balancing the rights of the fetus and the mother in a way that fits with our societal values. Sixty percent of Americans support abortion in the first three months of pregnancy and only 13 percent in the final three months. Even more telling is data showing that 93 percent of abortions are performed before the 13th week of pregnancy, and just 1 percent are done after 21 weeks.”

“individual freedom trumps federalism. Though abortion will never be a clear-cut issue, once we have broad societal agreement on how to delineate between the interests of the mother and the interests of the fetus, women across the country deserve basic protections for their bodily autonomy and privacy.

Keeping abortion legal for at least part of pregnancy doesn’t mean that pro-lifers won’t be able to reduce its incidence. The abortion rate has declined for decades despite the procedure’s availability. So has the unwanted pregnancy rate. These are outcomes worth celebrating, as they reflect women being in more control of their own bodies.

Overthrowing Roe and Casey would threaten that progress and broad consensus by stoking a new culture war in which states rush to ideological extremes that run roughshod over the rights of women or fetuses, depending on the state, some of which are already trying to restrict access to their residents’ ability to receive or even fund abortions performed elsewhere.

Post-Roe America would be one with fewer rights and, likely, more political divisionThere’s no perfect policy on abortion, but in 1973, the court struck a compromise that most Americans continue to endorse. That victory, I fear, is about to be undone.”

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