Over the past decades, culture wars have been tearing at the fabric of our polity. Even in relatively prosperous times such as these, such clashes make dialogue less civilized and our country less governable. No issue has aroused more passion and division than abortion.
In Roe v. Wade (1973) the Supreme Court entered into a complex balancing act — weighing the rights of the woman against the protection of potential life. Justice Harry Blackmun, writing the majority opinion, delved into what medical science knew at the time about pregnancy and abortion. He built a complex architecture around the issue.
Dividing the pregnancy into trimesters, he concluded that in the first trimester, when abortions were generally safe for the woman and there was no viability for the fetus outside the womb, the decision to terminate the pregnancy was entirely between the woman and her doctor.
In the second trimester, since abortion could be risky to a woman’s health and the fetus was still without viability, it was the state’s responsibility to provide safe procedures.
In the third trimester, at the point of viability, abortions would be allowed only when the mother’s life or health was at risk.
Any legal decision based upon the current state of medical science is risky, and so it was with Roe v. Wade. Years later, in Planned Parenthood v. Casey (1992), the Supreme Court recognized that medical science had evolved. Abortions were safer for the woman deeper into the pregnancy, and the fetus was viable earlier in the pregnancy.
Thus, the court had to abandon the trimester architecture of Roe. It created a new and ambiguous standard. Any such law must not impose “an undue burden” on a women’s right to terminate a pregnancy. In writing the Casey decision, Justices Sandra Day O’Connor, Anthony Kennedy and David Souter explained that “a provision of the law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a women seeking an abortion before a fetus attains viability.”
In 2007, the Supreme Court in Gonzales v. Carhart upheld a congressional law banning partial-birth abortions, deferring to the judgment of Congress that such procedures were not medically necessary.
In Whole Woman’s Health v. Hellerstedt (2016), while the Supreme Court struck down a Texas law imposing unnecessary standards for an abortion clinic, Justice Stephen Breyer, writing for the majority, reaffirmed that the court, “now uses ‘viability’ as the relevant point at which a state may begin limiting women’s access to abortion for reasons unrelated to maternal health.”
When does viability begin? Medical science can provide no exact date. Is it 22, 23, 24 weeks? The range of viability today may be different in the future and affect the court’s jurisprudence.
The middle portion of a pregnancy, which includes the time of pre-viability and post-viability, is where the abortion debate may focus in the state Legislatures and the courts. Public opinion polls have shown a minority at extremes of the issue, wanting either to outlaw or permit all abortions. A majority is in the middle, supporting abortion in some cases and outlawing it in others.
Unfortunately, the political debate is dominated by the extremes. Politicians, especially presidential candidates, oversimplify the question, demanding that Roe v. Wade either be upheld or overturned. Few take the time to inform the public that the Supreme Court has long abandoned the Roe architecture.
The composition of the Supreme Court will matter. Justice Anthony Kennedy was the swing vote in most of court’s abortion cases. His successor, Justice Brett Kavanaugh, acknowledged during his confirmation hearings that Roe was “settled law.” This was not saying much, since the court’s subsequent interpretations of Roe have left much unsettled.
The recent Alabama law that proscribes abortions at any level, even if the cases of rape and incest, would test the limits of public opinion. Even the current court is unlikely to uphold this law.
In the future abortion cases, the court may grant states greater leeway and only set the outer boundaries. This will be far from settling the matter, as drawing such boundaries is not simple. A recent New York law permits late-term abortions, when the woman’s health is in question. It has a vague definition of what jeopardizes her health. Will the Supreme Court demand that such a standard be more precisely defined?
What of laws that may outlaw abortions in the pre-viability stage based upon gender or the likelihood of having a Down syndrome child?
It will behoove the public and politicians to bring a reasoned and modulated voice to the debate. We need no hyperpartisan rhetoric. Such talk clouds and inflames a painful and complex issue.
Robert J. Bresler is professor emeritus of public policy at Penn State Harrisburg. He lives in Lancaster Township.