November 13, 2023
Abortion has been a divisive issue in the U.S. ever since the Supreme Court, in an act of legislating from the bench, somehow found in the Constitution a “right” to abortion.
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Even liberal Supreme Court Justice Ruth Bader Ginsburg criticized this decision:
Ginsburg, who died in 2020, criticized the 7-to-2 decision both before and after she joined the high court. She argued that it would have been better to take a more incremental approach to legalizing abortion, rather than the nationwide ruling in Roe that invalidated dozens of state antiabortion laws.
Instead, the Roe decision, 50 years ago, went against the Tenth Amendment as abortion was not mentioned in the Constitution:
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The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Last year, the U.S. Supreme Court set the record straight in the Dobbs ruling, returning the decision to the states via their people or elected representatives,
The Constitution does not confer a right to abortion; Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey are overruled; the authority to regulate abortion is returned to the people and their elected representatives.
Some states jumped at the opportunity. My state of Colorado has no limits on abortion, allowing it from conception until birth. Last week Ohio passed a more limited right to abortion via Constitutional amendment, with no restrictions up until fetal viability, around 22-24 weeks of pregnancy, or later if necessary “to protect the life or health of the mother.”
Not defined is “health” of the mother. Physical health? Mental health? Emotional health? These will be decided on a “case by case basis”, probably without much thought or scrutiny.
What did SCOTUS say in Roe v. Wade? Was it unlimited abortion or were there restrictions? Here is the Roe decision:
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In the first trimester of pregnancy, the state may not regulate the abortion decision; only the pregnant woman and her attending physician can make that decision. In the second trimester, the state may impose regulations on abortion that are reasonably related to maternal health. In the third trimester, once the fetus reaches the point of “viability,” a state may regulate abortions or prohibit them entirely, so long as the laws contain exceptions for cases when abortion is necessary to save the life or health of the mother.
After last week’s elections, the left is giddy and the establishment Republicans are worried, particularly over their party’s stance on abortion. They cite the Virginia legislature turning Democrat due to Governor Glenn Youngkin’s proposed 15-week limit on abortion with exceptions for rape, incest, or life of the mother.
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The defeated Virginia proposal is not much different than the Roe decision which Democrats wanted left in place. Virginia previously limited abortion to the first 26 weeks and the ballot proposal would have changed that to 15 weeks, basically the first trimester.
Democrats, as usual, dominated the messaging: “Liberals ran ads attacking ‘MAGA extremists’ who want to ban abortion. Never mind that Mr. Youngkin proposed a prohibition at 15 weeks with exceptions.” Democrats also outspent Republicans by at least two to one.
RNC Chair Ronna McDaniel also declined the Virginia GOP’s request for funds to match the DNC spending. Perhaps some additional spending would have overcome the few thousand vote loss. One wonders if the RNC elites are actually pro-abortion?
National Review, taking a pause from Trump bashing, insists that the Republicans must compromise on abortion, taking more of a Democrat position. They tout presidential candidate Nikki Haley’s push to find a “national consensus” on abortion, and that the GOP should not push for federal abortion ban.
Good luck finding a “national consensus.” The Democrats want no limits while the Republicans want sensible limits or no abortions at all. What’s the middle ground?
Virginia was voting on a “middle ground,” Roe-like limits. This wasn’t a federal ban, despite media gaslighting. A federal ban would never pass the current Congress and a Democrat president, so the concept is a nonstarter. It is also contradictory to the spirit of the Dobbs decision, which turned abortion over to each individual state.
The country is divided and it’s either a compromise or continuous battle that Republicans will in most cases lose based on the narrative. The left accuses Republicans of wanting to ban all abortions and jail any woman who had one. The media piles on and Republicans say nothing in response, leaving Democrats to define the issue.
How do voters feel about a compromise? A Scott Rasmussen poll found that 56 percent of voters want abortion permitted only during the first trimester.
A new Rasmussen Reports national survey finds that 52 percent of likely U.S. voters consider themselves pro-choice on the issue of abortion, while 42 percent say they are pro-life. 50 percent believe “abortion is morally wrong most of the time.”
With a 50-50 split, good luck forming a “national consensus.”
What about other progressive countries, particularly the “enlightened” European Union? Abortion on demand is permitted from 12 to 14 weeks for most countries. This is more restrictive than the failed Virginia proposal.
Specifically, Spain and Belgium restrict abortion after 14 weeks with Italy, Norway, and Switzerland at 12 weeks. Most permissive are Singapore and the Netherlands at 24 weeks.
Compare that to Oregon, New Jersey, New Mexico, Maine, and Colorado where elective abortion is permitted up until birth.
The libertarian view is to get government out of the abortion issue. My friend Laura Carno, in her book “Government Ruins Nearly Everything”, makes the case for “The false dilemma of morality versus compassion.” She suggests non-government alternatives including privately funded crisis centers and an emphasis on adoption, keeping government out of abortion, while exercising both morality and compassion.
Should government have no role in regulating abortions, letting women have the final say? Does that then equate abortion to cosmetic plastic surgery or gender mutilation surgery, regulated only for minors but readily available for adults?
Or is a total ban more appropriate? Illicit drugs are banned in America yet almost 100,000 people died of drug overdoses in 2022. Underage teenagers consume plenty of alcohol. Abortions would continue even if completely banned. Common sense and morality cannot be legislated.
Perhaps the best solution, for which I may be pilloried by readers, is for national level Republicans to not make abortion an issue as it is now a state issue based on the Dobbs decision. The federal government should have no business in abortion.
Instead, it is a state issue, to be decided by elected representatives or better yet the voters through a ballot referendum. States can restrict all or no abortions, or anything in between. With 50 states, most Americans can find a state in which to live, one which aligns with their values and beliefs. If they find abortion rules in their state intolerable, they are free to move to a different state.
Let the Democrats make the proposals at a state level and Republicans can simply say, “Let the people decide.” Maybe that’s a cop out but the current GOP approach, including national restrictions, without the GOP making their case, changing hearts, souls, and the culture, is doomed to fail.
If the Republicans continue to lose power at the national, state, and local level over their wishy-washy abortion stand, the rest of their agenda fails as well.
If abortion is the hill Republicans want to die on, they will lose and there goes any chance of fixing our myriad problems, including an open border, weaponized federal government, out of control spending, endless foreign wars, inflation, and other pressing concerns.
Abortion is ultimately a moral choice, which cannot be legislated in a free society. Fiddling over abortion while America burns on so many fronts is misplaced energy. Abortion is a sensitive issue on both sides and the Constitution provides a remedy for settling the issue, although to many an imperfect solution.
Republicans must make the case for life, changing hearts and minds. Democrats will simply use the issue as a club to beat hapless Republicans who have no sensible solution or proposals.
Republicans could not answer accusations that they wanted to push granny over a cliff or make her eat dog food over Medicare and Social Security reforms. Now they don’t respond to accusations that they want to jail or execute any woman who has an abortion. There is a reason Republicans are called “the stupid party.”
Until or unless Republicans figure out a coherent message, their time and energy would be best focused on other pressing issues. The last several election cycles have made this clear as taking the same approach over and over again expecting a different result is the definition of insanity.
Brian C. Joondeph, M.D., is a physician and writer. Follow me on Twitter @retinaldoctor, Substack Dr. Brian’s Substack, Truth Social @BrianJoondeph, and LinkedIn @Brian Joondeph.
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