Di Leo: Abortion and the Will of the People

By John F. Di Leo - 

Abortion has been at the forefront of American politics for 50 years, ever since the Supreme Court chose to nationalize the issue in Roe v. Wade, declaring that the federal government, as constructed by the Constitution, did indeed have a role to play in the question. 

The Court, as expressed by Associate Justice Harry Blackmun, determined that state laws against abortion may conflict with an expectant mother’s Constitutional “right to privacy” – a concept not actually found anywhere in the Constitution, but created for Griswold v. Connecticut in 1965. Under Roe v. Wade, the federal government can therefore split a pregnancy into three arbitrary timeframes – trimesters – in each of which, the states have various limited latitude to restrict the procedure. 

In 1992, after twenty years of ridicule, the Court finally admitted to the illogic of the arbitrary trimester distinctions in their decision on Planned Parenthood v. Casey. Here, they largely replaced the trimester concept with the idea that fetal viability should be the key point at which states and the federal government trade primary authority. And now, in 2022, with the leak of Justice Samuel Alito’s 98-page draft opinion on Dobbs v. Jackson Women’s Health Organization, it looks likely that our nation’s abortion laws will be changing again. 

 Abortion has appeared in America’s law books now for 200 years (Connecticut’s 1821 law against abortion is believed to have been the first such restriction)… and it has been a huge political issue for at least the fifty years since Roe v Wade nationalized it, so there probably isn’t much new to say about it. 

Perhaps a few brief reminders, however, might be helpful… 

Fetal Viability

There has always been an undercurrent of thought that a logical time to change the rules on abortion is the moment of fetal viability. The theory can be studied from both directions – the point of view of the person who wants to empower the expectant mother to terminate her pregnancy, and the point of view of the baby who just wants to live.  

Both pro-abortion and pro-life advocates have attempted to use this argument to their advantage. “The baby can’t live on his or her own, so naturally it should be up to the mother.” Or… “The baby can’t live on his or her own, so naturally we need government to look out for the child’s interests, especially if their own parents can’t be counted on to look out for them.”  

There are two key problems with this line of reasoning.  

• Government’s obligations should really not be based on how much the affected parties “need” government. It’s no more or less legal to mug a weightlifter than a little old lady; it’s no more or less legal to embezzle from a conglomerate than from a family restaurant. Either the act is objectively deemed a crime or it isn’t. So, if killing a child is, well, killing a child, then it shouldn’t matter whether he or she is four months along, six months along, or nine months along at the time of the attack. 
• The concept of fetal viability – the ability of the child to survive outside the womb – is ultimately flawed because this date is a moving target. A century ago, children would usually die if born a couple months premature, at, say, 28 weeks. But as medical science has improved, that number has improved along with it, by about a week every ten years since Roe was published. It has turned out, in fact, that fetal viability is a measurement of medical science and technology, not a fixed moment in the development of a child. Should children of identical age be viewed differently under the eyes of the law, just because one lives near a modern hospital and another does not? 

For these reasons, so-called fetal viability has become a less and less convincing determinant, over the years since abortion became a political issue. All sides really have to admit that there simply is no magic moment at which a pre-born child is noticeably “changed”…  

As soon as the child is implanted and begins to develop, the DNA is distinct. The die is cast on whether the child is a boy or a girl, a blonde or brunette or redhead. There are fingerprints by nine weeks, brainwaves by 42 days, a heartbeat by 18 days.  

To look at it another way… if a mountain climber is dangling off a cliff by a rope, is he less deserving of legal protection because he’s dependent on that rope than if he were hiking on a trail without such support?  

The Will of the People

(abortion polling trends since Roe, graphic by Gallup)

Fifty years ago, when Roe v Wade shocked the country, the American public was divided on the issue of abortion. Like many of the contentious political issues of the day, polling always indicated a considerable mix across the country: about half thought that abortion should be legal under certain limited circumstances, about a quarter thought that it should be legal and largely unrestricted but still be considered undesirable and discouraged, and about a quarter thought it should be illegal in all circumstances. 

Fifty years later, the polling remains essentially unchanged from this. 

So, for that reason, different states take different approaches, reflecting the opinions of their citizens. While Roe v. Wade has restricted the laws that each state could pass, even under the Roe regime, states could enact certain restrictions, and many have, protecting at least as many children as they could without federal opposition. 

The key challenge with the issue, however, has always been in the way that the aforementioned “will of the people” has been interpreted. When people told their state legislatures they wanted abortion to be legal but discouraged, the Left always took that as a license to encourage it. So, the incredibly small minority that truly likes abortion – the abortion providers like Planned Parenthood, the eugenicists like Margaret Sanger and Lawrence Lader – managed to get their way, despite holding such a minority position. 

Why? Because there really is no way to “legalize but discourage” a thing like this. Either it’s legal or it isn’t… and once it’s legal, a business will grow up around it to develop demand… and that’s exactly what happened. 

In studying the polling over the past fifty years, in fact, it’s rather amazing how little the needle has moved on this issue, even as the American population has changed dramatically in size and demographics.  

Public opinion remains similar, but the stated goals of the Left have moved wildly over the years: 

First, the abortion lobby said they wanted abortion to be “safe, legal and rare.” 

Then, through the talking points of their politicians and pop culture advocates, they gradually moved the goalposts. To be tolerated to an extent, but not approved. Then to be tolerated completely, but not approved. Then to be approved but not encouraged. Then to be encouraged, but certainly not funded by the taxpayer. 

And now the abortion advocates have reached the ultimate conclusion: insisting that abortion be both encouraged and taxpayer-funded. 

No wonder, then, that the people have grown more vocal in their opposition to the status quo. 

The people have changed little on these matters, over the years. Even those who accept the idea of abortion as an unappealing option sure don’t think it’s anything to champion, but there are politicians, pop culture icons, and other such narcissists who somehow manage to try to make it sound like a positive, appealing choice. 

More and more, we see actors and activists, professors and politicians, proudly shout out to the cameras how many abortions they’ve had, and how proud they are of them.  

And normal people – even the ones who have always told pollsters they agree that it should be “safe, legal and rare” – are horrified at the sight. 

Every time such a speech makes the nightly news, it weakens the abortion lobby’s case that much more. Thank Heaven. 

The Concept of Federalism

(The Debate for the United States Constitution, by Junius Brutus Stearns)

Eventually, if the leaked reports are true and Roe v. Wade is finally overturned this year, it will not be the earthshaking shock to the system that the Left portrays. 

There are countless thousands of moral and legal questions on which the federal lawbooks are silent, not because they don’t know what’s right or wrong, but simply because these are not national issues. 

It’s illegal to go 20 mph over the speed limit in your residential neighborhood; it’s illegal to steal your neighbor’s lawnmower, your teacher’s cellphone, or your alderman’s bicycle. But none of these are federal laws; they are local ordinances or state laws. 

It’s not just about the little things either; we leave most crimes, big and small alike, to the states. Robbery, rape, murder… these are state crimes, handled by the local police and prosecuted through the state court system. Until 1973, abortion was in that class. This doesn’t mean it’s unimportant; it just means that our system believes it’s a crime best defined and managed at the state level. 

We enjoy a wonderful blessing in these United States of America: a constitutionally limited government.  There are things we want the federal government in Washington to decide and manage for us; everything else is none of their business, The rest is left to the states, counties, towns, and the people themselves. 

Abortion had been such an issue, until January 22, 1973. With the revocation of Roe v Wade, it will be again. 

This isn’t to say life will be easier, or politics will be cleaner, with Roe v. Wade off the federal lawbook. Both sides have been preparing for this day for fifty years. And if people really want it to be federalized, they can try writing a Constitutional amendment – in either direction – to federalize it legitimately. 

The dirty little secret, rarely admitted by any but the most principled conservatives, is that Roe v. Wade never made any sense at all. We all knew from the beginning that it was bad law, founded in imaginary “emanations and penumbras” rather than on any legal text. So, it was always in the cards that, someday, an honest Court would have to overturn it. 

Our Founding Fathers never intended for the federal Congress, Executive, or Judiciary to meddle in every aspect of our daily lives. They believed that most government – both most representatives and most decisions – should be close to home. 

If and when Roe is overturned, our state governments will finally be fully empowered to attempt to codify the genuine will of the people in our state codes.  

They could hardly do a worse job of it than the federal government has.