A Hard but Real Compromise Is Possible on Abortion

A Hard but Real Compromise Is Possible on Abortion 1

In yet another challenge to Roe v. Wade, the Supreme Court will hear oral arguments in December on whether Mississippi can restrict abortion access to the first 15 weeks of pregnancy. There are few greater constants in American life than legal challenges to Roe, which is remarkable in a country where so much else has changed.

Public attitudes on abortion have hardly changed since Roe was decided nearly 50 years ago. Close to half of survey respondents identify as “pro life” and half as “pro choice,” but whatever their identification, a majority of Americans are in favor of abortion being legal only in certain circumstances. Indeed, although most Americans say they support Roe, most also don’t seem to know a critical fact about it: It established a right to abortion until the point of viability — usually at 24 weeks — and granted broad authority to physicians to perform them after that point. Hence, a majority of Americans also supports restricting abortion to the first trimester, roughly the line drawn by Mississippi.

The persistence of Roe’s many foes is surprising if you see abortion as a culture-war issue, like L.G.B.T.Q. rights or sex education, where more Americans have embraced progressive views over time. If abortion was like these cultural issues, we would expect Americans to be far more in favor of abortion rights today than they were 50 years ago when rates of church attendance were higher and social attitudes were far more conservative, especially on issues related to gender and sex.

But that’s not what happened. Although the Roman Catholic Church was key to propagating anti-abortion views in the early years of the abortion conflict, steep declines in church attendance have done little to depress pro-life sentiment. Surveys also show that Americans embraced more egalitarian gender attitudes over time without letting go of their opposition to abortion. Consequently, citizens on both sides of the issue are now far less divided by their position on gender roles than they were in the 1970s.

Why have pro-life sentiment and activism survived this past half century of far-reaching social liberalization? Because the abortion conflict was never really a culture war. Instead, it’s a quarrel within what philosophers call the liberal tradition focused on individual rights, in this case, concerning the rights of women versus the rights of embryos.

Thus, the pro-life movement endures precisely for the same reason that the pro-choice movement does — both are nurtured by our common, rights-oriented culture. It is a rare fight in American history in which people on both sides think of themselves as human rights activists, called to expand the frontiers of freedom and equality.

This liberal civil war has been quietly moderated by common moral intuitions about abortion. These intuitions predispose us to feel more protective of a fetus as it begins to resemble a newborn (and these days those intuitions may be primed more often thanks to the prevalence of ultrasound imaging).

This is why Americans tend to make a clear distinction between abortions in the first trimester and those in the second and third. And, thus, Americans balance the clashing liberal claims they hear by giving considerable weight to pro-choice arguments early in pregnancy and more consideration to pro-life ones as the fetus develops.

Unnoticed are the supporters of abortion rights who sometimes engage in the same liberal balancing act behind the scenes. Though Roe and its companion decision Doe v. Bolton granted broad authority to physicians to perform abortions through all nine months of pregnancy, most doctors who perform abortions choose to restrict the scope of this expansive right.

While essentially all abortion providers outside Texas offer their services to women in the first 10 weeks of pregnancy, there is a sharp decline after that point. Roughly half of clinics don’t offer abortion by Week 15, the limit set by Mississippi. At Week 24, fewer than 10 percent of clinics do so. (The important exception is Texas, where providers were recently prevented from offering abortion after six weeks of pregnancy — though that law surely will not stand for long.)

Why have so many providers restricted abortion access in ways that are roughly consistent with the sensibilities of most Americans? And why have they continued to do so even in the face of decades of pressure from fellow pro-choicers to offer abortion on demand and without apology? Partly because providers share Americans’ moral intuitions. As a large body of research shows, providers usually dislike providing abortions at some point in the second trimester when the fetus becomes more recognizably human.

A good example is Dr. Susan Wicklund, a hero of the abortion-rights movement. In the face of death threats, she gained attention for going to work with a loaded revolver at the ready. Less noted was her decision to limit her practice to first-trimester abortions. Recalling her decision, Dr. Wicklund, who is now retired, wrote: ‘‘Seeing an arm pulled through the vaginal canal was shocking. One of the nurses in the room escorted me out when the color left my face.” She continued, “From that moment, I chose to limit my abortion practice to the first trimester: 14 weeks or less.”

In her willingness to face murderous abortion foes but not second- trimester abortions, Dr. Wicklund embodies our clashing impulses.

Anti-abortion groups have been less inclined to make such compromises, as Dr. Wicklund knows all too well. But that might change if Roe is scaled back to protect a narrower range of abortions and our legal regime shifts to a compromise like Dr. Wicklund’s — one that grants broad access to abortion in the first trimester but largely restricts it in the second and third. Despite the recent drama of the Texas abortion law, I suspect that in post-Roe America, the same moral intuitions that have long moderated abortion providers might eventually temper abortion opponents as well.

Since the pro-life movement coalesced, its most important mobilization tool has been images from second- and third-trimester abortions. They’ve emboldened countless activists, giving them the confidence that they are waging a war for basic human rights. Such images have been plentiful in the movement because Roe created legal space for a minority of specialists in late-term abortion, some of whom have been a thorn in the side of the pro-choice movement. Without such clinics and the images that leak out of them, it may be harder for pro-life leaders to sustain the moral passions of their movement — as well as the fiction that most aborted fetuses resemble newborns.

That conclusion is born out of experience. Movement leaders had an easy time rallying their base against “partial birth” abortion, but struggled to mobilize it against embryonic stem cell research. Like their pro-choice counterparts, pro-life activists simply can’t muster much feeling for embryos that are not recognizably human. And as any activist knows, it is emotions, not just principles, that make movements move.

​​​​Thus, if repeated challenges to Roe keep inching our legal regime closer toward compromise, even some activists on both sides of the abortion wars may be inclined to tolerate the new equilibrium.

That doesn’t mean we’ll reach an easy consensus if the Supreme Court allows legislators to restrict abortion to the first 15 weeks of pregnancy. Conflict over abortion will continue, especially in the near term as our highly partisan state legislatures wrangle over their new constitutional power.

Long after that dust settles, my colleagues in philosophy departments will be making powerful cases for absolute bans and unregulated access. And they’ll further accuse compromisers of philosophical incoherence. They’ll have a point. After all, it isn’t clear why the recognizability of the fetus is of any moral significance one way or another.

But there is also something utopian about their demands for justice. It is hard to imagine an America that will reject abortion outright, just as it is hard to imagine one that will ever become comfortable with late-term abortions. The European experience suggests as much: Most of its nations offer broad access to abortions before 12 weeks or so, and it gets harder to get one after that.

We are, after all, animals that have evolved to empathize with organisms that look like us and feel little regard for those that don’t — and as long as that’s true, our moral sense will exert a moderating influence on abortion politics and incline us to balance clashing liberal claims. And since pro-choice and pro-life philosophers respect the reasonableness of their intellectual foes, perhaps they, too, have rational grounds to accept a liberal compromise on abortion.

Jon A. Shields is a professor of government at Claremont McKenna College and has written widely on abortion politics and the American right.

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