Supporters of abortion rights have been reacting with outrage to news about the leak of Justice Samuel Alito’s draft opinion which suggests that Roe v Wade will soon be overturned.  Women, in particular, are angered by the prospect of losing their right to choose, a right they have taken for granted for the last fifty years.  Demonstrations are being held throughout the nation, and protesters are expressing a concern that other rights that are not explicitly listed in the US Constitution, such as same-sex marriage, are threatened by the current conservative Supreme Court.

Surprisingly, opponents of abortion rights, who have been looking forward to this moment for decades, have not so far fully participated in the debate.  They caution that it makes sense to wait till the final decision is made by the Supreme Court.  Some have also chosen to focus attention on the leak itself, in an attempt to describe it as a major act of insurrection, on the same level as the January 6 riots, to be blamed on the left.  Of course, there is no evidence to support such an accusation since the identity of the leaker remains a mystery at this point.  At the same time, it seems clear that Republican operatives would prefer, in view of the coming mid-term elections, avoid any discussion of the abortion issue since polls indicate that Americans are generally against overturning Roe v. Wade.  That is why they are circulating a memo containing talking points to help manage the situation before November.  The talking points are meant to paint an image of the party as compassionate and a consensus builder, while depicting the democrats as extremists who support all abortions and want taxpayers to pay for them.

In an era when truth is no longer valued, I suppose political astuteness matters more than facts.  Therefore, Republican political operatives may well be able to convince many voters that they are compassionate and consensus builders, even though the facts suggest the opposite.  But Amanda Marcotte, in an article published by Salon, denounces these talking points in very strong terms.  For example, reacting to the statement that “Republicans DO NOT want to throw doctors and women in jail. Mothers should be held harmless under the law,” she says:

“Of course, this is a lie.

Lousiana is already drafting a bill that would imprison both doctors and patients for abortion under homicide laws. Twenty-six states have or are expected to pass abortion bans, and nearly all come with criminal penalties. In Texas, a woman was already arrested for abortion, and the charges were only dropped when negative national attention fell on the state. But sustained media outrage will fade when such arrests are common, which is what Republicans are clearly counting on.”

To the statement that “Republicans DO NOT want to take away contraception,” she gives the following reply:

“Of course, this is the Republican Party that, under President Barack Obama, repeatedly threatened to shut down the government in an attempt to take away contraception services. This is the party that has waged an all-out war on public clinics that provide contraception services. This is the party that had a total meltdown when the Obama administration passed a rule requiring insurance plans to cover birth control. Their most popular pundit at the time accused women who use birth control of being sex workers. Republicans took the anti-insurance fight to the Supreme Court, where the anti-abortion justices signed onto a plan to cut off birth control coverage that women had already paid for. This is the party that, under Donald Trump, cut off funding for birth control services and appointed an HHS secretary who believed employers should be able to fire women for using birth control. This is the party that, under George W. Bush, backed a massive program to teach every public school student that condoms don’t work and birth control pills make you unlovable. Sen. Rick Scott of Florida, who is the head of NRSC, personally signed a bill as Florida governor to take birth control services away. Plus, more Republicans all the time are admitting they want to overturn Griswold v. Connecticut, the decision that legalized contraception.”

On the suggestion that the Democrats are extremists on abortion matters, she says:

“The document goes on to lie about the science, which is standard operating for the party of vaccine and climate denialists. It repeatedly calls Democrats ‘extremists,’ even though Democratic views are in line with the strong majority of Americans that want Roe upheld. It recommends that Republicans talk about ‘late-term’ abortions, eliding the fact that red states define ‘late’ as two weeks after the first missed period, before most pregnant people experience symptoms.”

In a recent article in the New York Times, Jennifer Schuessler reviews the history of abortion jurisprudence, which has strongly relied on arguments about history.   Regarding Roe v. Wade, she says:

“In its 1973 decision in Roe v. Wade, the Supreme Court found a constitutional right to abortion, grounded in what it described as a ‘right to privacy’ provided in the Fourteenth Amendment. And that legal argument was bolstered by a historical narrative.

State laws prohibiting abortion at all stages of pregnancy, Justice Harry Blackmun wrote in the opinion, were not of ancient or even common-law origin, but dated mostly to the late 19th century. Before that, he wrote, citing various scholars, abortion early in pregnancy was legal in most states.”

In his draft opinion, Justice Alito disputes that assessment.  Schuessler summarizes the important points in the opinion as follows:

“Justice Alito begins his historical argument by saying that the right to abortion is a recent invention. ‘Until the latter part of the 20th century,’ he writes, ‘there was no support in American law for a constitutional right to obtain an abortion. Zero. None.’

By contrast, he claims, ‘abortion had long been a crime in every single state.’ Until the 19th century, he maintains, American law followed common law, which criminalized abortion ‘in at least some stages of pregnancy.’ And the records of prosecutions, however scant, ‘corroborate that abortion was a crime.’

In the 1800s, he writes, states began passing laws that ‘expanded criminal liability.’ By the time the 14th Amendment was adopted, three-quarters of the states outlawed abortion at all stages of pregnancy, with the rest to follow within a few decades.”

The main difference between these two positions is that Alito, while agreeing that common law has provided the guidelines for abortion jurisprudence, avoids addressing the fact that common law did not criminalize what Blackmun referred to as “abortion early in pregnancy.”  As pointed out by Schuessler, an amicus brief submitted by the American Historical Association and the Organization of American Historians, the two main organizations of professional historians in the United States, challenges Alito’s conclusion.  The following is stated in the brief:

“When the United States was founded and for many subsequent decades, Americans relied on the English common law. The common law did not regulate abortion in early pregnancy. Indeed, the common law did not even recognize abortion as occurring at that stage. That is because the common law did not legally acknowledge a fetus as existing separately from a pregnant woman until the woman felt fetal movement, called ‘quickening,’ which could occur as late as the 25th week of pregnancy. This was a subjective standard decided by the pregnant woman alone and was not considered accurately ascertainable by other means.”

The amicus brief therefore insists that Roe read history correctly.  Both sides agree that new statutes were enacted to further restrict abortions in the 19th century, but according to the amicus brief, the early ones in the 1840s and 1850s “were often a response to alarming newspaper stories about women’s deaths from abortion. Yet despite these new laws on the books, abortion convictions remained rare.”  Later, there were more concerted efforts, driven by the American Medical Association, to further criminalize abortion.  According to the amicus brief,

“Mixed motives drove these physicians’ zeal, including consternation over immigrant Catholics out-reproducing native white Protestants, and resentment of married women apparently shunning their proper roles as mothers by choosing abortion. Their concerted efforts to strengthen abortion prohibitions resulted in more punitive statutes.”

Schuessler notes that the two sides have disagreements on the motives driving the anti-abortionists in those days.  For example, Alito dismisses the idea that anti-abortionists were concerned that birth rates among white Protestants were lower than those of Catholics and people of color.  Instead, he claims that proponents of abortion rights were often eugenicists who wanted to reduce birth rates among blacks.

I will not attempt here to pick a winner in the debate about history.  Going back to common-law practices may be legally acceptable.  But if the matter at hand is about the rights of women, then it seems to me that decisions are being made based on mere technicalities.  It is difficult to imagine that matters of civil rights for black people could have been properly decided by relying on an original constitution that acknowledged slavery as a fact of life.  It is also difficult to imagine that the rights of women should be decided based on laws enacted when women were seen as mere property.

On the matter of abortion, of course, the issue is also about the rights of the fetus, and supporters of abortion rights are essentially saying that women, not the government, must make decisions about what’s in their own bodies.  In one of the most extreme scenarios, a woman could be raped and the government would force her to carry the fetus for 9 months, go through the labor pains and give birth.  I see that as a major abuse of authority.  But that is also a very real possibility: the abortion law that went into effect in Texas last September makes no exception for victims of rape or incest.

But should the mother always be trusted to make the best decision for herself and the fetus she carries, or should the fetus – or unborn child, to use the preferred language of anti-abortionists – be protected against a potential mother whose interests are not aligned with its own?  This is what leads to the debate about when the fetus becomes a person.  Of course, the most extreme pro-life view is that the fetus is a person at conception.  However, women are not even aware they are pregnant until several weeks after conception.  Pro-choice women may also argue that a fetus cannot survive outside of a mother’s womb before it is about 24 weeks or so.

Such debates have been going on for a long time and there is no indication that there will ever be an agreement on them.  Recently, Fr James Martin, a Catholic priest who is expected to be pro-life, listed in a tweet the following items to be considered by both sides:

  • All life is sacred.
  • What is within the womb is either potential life or life itself.
  • An egg fertilized an hour ago is different than a nine-month old child about to be born.
  • Women have a right to privacy and self-autonomy.
  • Women have consciences.

Based on the conversations he heard on NPR after the leak of Alito’s draft opinion, he feels that items 1 and 2 above are not being discussed.  I think Fr James Martin is a true pro-lifer rather than a mere anti-abortionist, and his five-item list seems reasonable.  But it has also been pointed out that a person may be mindful of all five items and still be pro-choice: a woman, rather than the government, should make the decision.

Lately, I have seen some thoughtful opinions that attempt to reduce the animosity between the two sides of the abortion issue.  John McWhorter explains, in an opinion published in the New York Times, that he remains pro-choice but learned not to demonize pro-lifers and recognize that many of them make arguments worth listening to.  He ends his article with the following statement:

“I deeply wish that we were not on the verge of Roe being overturned — a decision that, if it came to pass, would be opposed by a majority of Americans and would disrupt or even ruin lives. It would represent further and grievous evidence of our broken political system, with the Electoral College a keystone anachronism, having put Trump into a position to recast the Supreme Court according to priorities unshared by most of the population. However, I cannot see opposition to abortion, in itself, as either naïve or evil. As much as I wish it were not, it is a position one can hold as a knowledgeable and moral individual.”

On the other side of the issue, Sam Sawyer expresses his support for overturning Roe v. Wade, but warns pro-lifers about the questionable activities that have led to serious distrust, among their adversaries, of their motives and methods.  He lists the following items as serious reasons for the distrust:

  • Establishing a Supreme Court majority to overturn Roe depended on dishonest violation of many institutional norms and is part of a pattern of minoritarian governance.
  • Commitment to President Trump has telegraphed a disdain for democratic norms and lack of concern for women’s dignity.
  • The pro-life movement’s commitment to overturning Roe v. Wadehas enabled the conservative legal movement to pursue a much broader agenda, including attacks on civil rights.
  • Laws against abortion designed to get around the protections in place under Roe have been disingenuously explained or seemingly vindictive.
  • Laws limiting abortion sometimes threaten medically necessary care, such as for ectopic pregnancies or miscarriages.
  • The pro-life movement’s political allies have gutted social safety net programs that would make it easier for women to carry pregnancies to term, with the pro-life movement offering no effective counter-pressure.

Readers are referred to Sawyer’s paper for details about the above concerns which I agree with.  I stand on the pro-choice side, and I have previously expressed my discomfort with the approach taken by the religious right on the abortion issue.  However, in the absence of such profound distrust between the two sides, perhaps a middle ground might be possible, even though I am not convinced that the best way to reach it is to first deny women their right to choose.  I agree with Adam Russell Taylor who writes that he wants, as a Christian, to reduce abortions rather than overturn Roe.  Taylor describes Alito’s leaked draft as “deeply flawed and alarming.”  He writes:

“As a Christian, I believe we must protect the rights of women and pregnant people to make their own reproductive health decisions, a right that has been protected since 1973 by the Supreme Court as a fundamental liberty under the 14th Amendment. As a Christian, I also want to ensure there are fewer unwanted pregnancies by ensuring everyone has access to holistic health care and the economic support to care for their children. I wish these two sentences weren’t so controversial, but they are.

To many on the Right, my support for women’s rights sounds like I’m dismissing concerns about the rights of an unborn child. To many on the Left, acknowledging that I want to decrease the number of abortions sounds like a slippery slope argument that will result in the erosion of the right to choose and will further stigmatize those who elect to have an abortion. But like many Americans, my views on abortion are complex, comprising a both/and perspective that’s been increasingly unable to find a home in our polarized politics.

Last week’s leaked draft — and the probable reversal of Roe v. Wade it foreshadows — makes it imperative that those of us who hold a both/and view become more vocal: We must oppose extreme measures that would eliminate the right of women and pregnant people to choose whether they bear children while we also advocate vigorously for policies and programs that would dramatically reduce the need for unwanted pregnancies that lead people to seek abortions in the first place. These policies include: ensuring everyone has affordable access to quality health care and contraception; reducing and eliminating gender-based discrimination and violence; and expanding economic support to women, parents, and families — including the pro-family policies stalled in Congress that would alleviate many of the economic stresses that prompt people to seek abortions.”

Taylor also points out that “People who want to ban abortion must reconcile with the reality that many countries with the most restrictive abortion laws also have the highest rates of abortion.”  This is in agreement with the reality that abortion rates tend to be lower, in the United States, under Democratic administrations than they are under Republican administrations.

From a Christian perspective, I continue to be amazed by the disregard of New Testament teaching displayed by those who insist on relying on human laws to enforce morality.  One big difference between the Old Testament and the New Testament is that the former relied on the Law, while the latter wants to change human hearts.  Christians are expected to do the right thing because they love God and love their neighbor.  Therefore, Christians who want to return to a reliance on human laws either implicitly admit that the Gospel has failed or did not understand the Gospel in the first place.

Abortions occurred before Roe and will continue if Roe is overturned.  As my friend Dr Cyriaque Sukam reminded me after the first release of this post, the poor, primarily in Republican states, will be the most affected by the overturning of Roe.  Currently, poor women are the ones most affected by the Supreme Court decision on Hobby Lobby which allows closely held for-profit corporations to deny insurance coverage for birth control methods that are in violation of the corporations’ religious beliefs.  Middle-income and rich people will always have access to medical abortion and contraceptives whether they are legal or not.

What was the impact of Christianity on abortion rates before and under Roe?  As I have pointed out before, that issue was raised long ago by Mario Cuomo, the former governor of New York, a Catholic, when he said:

“The hard truth is that abortion isn’t a failure of government. No agency or department of government forces women to have abortions, but abortion goes on. Catholics, the statistics show, support the right to abortion in equal proportion to the rest of the population. Despite the teaching in our homes and schools and pulpits, despite the sermons and pleadings of parents and priests and prelates, despite all the effort at defining our opposition to the sin of abortion, collectively we Catholics apparently believe — and perhaps act — little differently from those who don’t share our commitment. Are we asking government to make criminal what we believe to be sinful because we ourselves can’t stop committing the sin?”

If the percentage of Catholic women having abortions is the same as the percentage of American women having abortions, then Catholicism has failed to make a difference.  If Catholicism must turn to the government to regulate morality, then who needs Catholicism?  If Christianity must turn to the government to regulate morality, then who needs Christianity?