Considering that the US is the most advanced society in the world, it’s odd that we struggle so extensively with basic issues relating to procreation. Our nation is dependent upon new births to sustain our culture and way of life. Yet we have been unable to establish a consensus on some important issues affiliated with childbirth and abortion.
We need a federal policy that accommodates the principles of the two competing groups focused on birthing, one that believes women should have total freedom to decide if they will give birth, and one that believes that unborn fetuses are living humans entitled to protections afforded to every American by the Constitution.
The purpose of this essay is not to change anyone’s beliefs or principles about abortion. Rather it will delineate the obstacles that have dogged the establishment of federal abortion policy in the country.
Abortion advocates believe women should have absolute control over the entire reproductive process. The ability to have an abortion from the moment of inception to the birthday is the gold standard for this group.
Pro-life proponents believe that life begins at inception and to abort a fetus at any time for any reason is murder.
On January 22, 1973, the Supreme Court, in Roe v. Wade, set guidelines for the accessibility of abortions. “Abortion is legal but may be restricted by the states to varying degrees.” States have separately passed laws to restrict late-term abortions, require parental notification for minors and mandate the disclosure of abortion risk information to parents prior to the procedure.
Despite calls at the federal level to weaken abortion rights, New York State recently enacted a law, The Reproductive Health Act, that reconfirms that abortions are legal within 24 weeks of the start of a pregnancy or at any time when necessary to protect a woman’s life and/or her physical or mental health. New York wanted to ensure the right of abortion even if the Supreme Court overturns Roe v. Wade prospectively.
Additionally abortions by authorized health professionals, including physician assistants, are now legal. And, the ability of a woman to obtain a late term abortion in New York has been made much easier if the woman can get approval of her physician. This literally means that an abortion, days before birth, can be arranged if a doctor believes that the birth would put undo stress on the woman. Most pro lifers find this provision unacceptable and too lenient. As an aside, in 2015 1.3% of abortions performed in the US occurred after the 21st week of gestation.
Both sides in the abortion controversy have ongoing efforts to agitate their opponents and gain advantages. Advocates are encouraging new laws similar to New York State’s, which is among the most liberal in the country. At the same time states that find abortion anathema are nipping at the edges of the controversy by making it more difficult to have abortions by requiring longer waiting periods, notifying parents, limiting where and by whom abortions can be obtained and so on.
The sword of Damocles is hanging over abortion advocates as the Supreme Court becomes more conservative. This should be an incentive for pro lifers to lock in a policy now. Notwithstanding this fact, prospective candidates for the Court in recent years have reiterated that stare decisis will greatly impact any decisions they make as a Supreme Court justice. Stare decisis means that judges look to previous similar issues to guide their decisions. These past decisions are known as precedent. Since Roe v. Wade has been legal for decades, it would be highly unusual for a new Supreme Court to defy this precedent and attempt to ban abortions, but it is possible.
There are many details that need to be worked out before this country ever enacts a federal abortion law. The cut off for a woman to make an abortion decision is paramount. According to most, it should be based upon the moment a fetus could be viable outside of the womb. However the target date may change with new technology.
Late-term abortions are anathema to many people including some liberals, except for reasons of health. Since so few take place each year, it should not require any great concessions by either side to settle this issue. However if past debates in Congress are a barometer of impending problems on this matter, it will not be easy to establish a mutually acceptable policy.
Since the current state of the abortion law allows abortions until the 24th week, and late-term abortions are minimal, Congress has a good start. The issue is whether pro-lifers will ever give up their crusade to ban abortions or continue to make life miserable for women in certain states.