It has been forty years since the Supreme Court decided Roe v. Wade. Last year, about this time, I reflected on “The Unbearable Wrongness of Roe.” Now, after another year of a million-and-a-half lives lost to abortion, it is fitting to reflect on those past forty years and to think creatively, and perhaps prophetically, about the next forty. What different roads might have been taken before? And what might that say about paths to be taken now, for the future, if those of us who may be alive in another forty years are to hope to see the promised land of protection of human life?
In thinking about this, I have returned to a short article I wrote a few years back for the inaugural issue of the University of St. Thomas Journal of Law and Public Policy, in which I proposed an idea whose time now surely has come: a purely prospective abolition of abortion by constitutional amendment, to take effect forty years into the future.
Here is the essence of my thought experiment, which was partly inspired by my scholarly interest in historical issues of slavery and the Constitution (which of course often run parallel to today’s issues of abortion and the Constitution). In 1820, America settled on a “solution” to the heated issue of spreading slavery to the territories: the famous Missouri Compromise. Forty years later, the compromise had solved nothing, and the nation descended into the maelstrom of secession and civil war.
Had politicians in 1820 been able to see what the next forty years would bring, might they have produced a better, more forward-looking compromise? What if the Missouri Compromise, instead of admitting one free state and one slave state into the Union, and drawing a latitude line to constrain the expansion of slavery into (existing) new territories and new states, had drawn a timeline, instead? Might the conflict over slavery have been better addressed in 1820 by thinking about what the world should look like forty years later? What if Congress in 1820 had fashioned a compromise that tolerated slavery everywhere, for the time being, but also proposed a constitutional amendment prospectively abolishing slavery everywhere in the Union as of 1860?
With the benefit of hindsight, we can see that America might have been spared much strife, much bloodshed, and probably much slavery. If our nation’s political leaders had known, or had the foresight to imagine, what lay ahead and possessed the political courage and will necessary to the situation, they might have thought to abolish slavery as of some date in the seemingly distant future and to give the nation time enough to prepare and adapt. After all, slavery at the time was thought even by its defenders to be an evil, but an unavoidable one. Why not commit to a national policy of working, over the long haul, to render the evil unnecessary and something that eventually could be eliminated? Such political foresight, and patience, might have made 1861 a year of unity and celebration rather than the start of a long and bloody civil war.
In fact, one can make the same speculation about the framing of the Constitution. Rather than adopt the notorious three-fifths compromise; rather than adopt a fugitive slave clause; rather than commit not to abolish the international slave trade until 1808, wouldn’t the nation have been better off if the framers at Philadelphia in 1787 had managed prospectively to abolish slavery as of 1827, forty years into the future? To be sure, it might have been impossible to abolish slavery straightaway in 1787. But a compromise abolishing slavery on a date certain in a seemingly far-off time might have been possible. If so, wouldn’t this have been better than what in fact happened?
My proposition is that we should seriously consider today, with respect to the evil of abortion, the road not taken earlier in our nation’s history with respect to the evil of slavery. Abortion is regarded by many, probably the overwhelming majority, as an evil. But it is also regarded by many as an unavoidable or even a necessary evil that our society is not yet prepared to abolish and cannot abolish without severe disruptions to the fabric of society. Like slavery in the late 1700s and early 1800s, abortion in America is regarded as wrong, but also as something that should be tolerated.
Might it then be possible to reach broad agreement that, at some date in the future, more than a generation from now, abortion should be abolished, or somehow rendered unnecessary? Might it be possible to reach consensus that our children’s children should not abort their children? That by 2053 we should have solved the abortion issue, in a way that it seemingly cannot be resolved definitively today? That within forty years we can reach a state of biotechnology, and a condition of public morality, that permits us to be both pro-life—eager to protect the lives of embryonic and fetal human beings from violent destruction—and to protect the asserted “autonomy” rights of women to reproductive “choice”?
I must confess that I am of two minds about my own idea. I offer it half as thought experiment and half as serious proposal, for I am personally torn by the same competing considerations that divided the anti-slavery movement in the eighteenth and nineteenth centuries. I am pro-life. I have written, and argued, that the deliberate destruction of millions upon millions of living human embryos and fetuses—very young, innocent human children—for reasons of choice or convenience, is a monstrous human evil on a par with the Holocaust, and that the decisions of the Supreme Court creating and reaffirming this as a constitutional right are the most atrocious decisions the Court has ever rendered. It grieves me greatly to know that I live in a society that commits mass murder of its own children. To compromise with such horrible evil is a terrible thing.
But what if the alternative is more mass murder, a longer period of darkness, and no prospect of change for generations? The pro-life cause has been working, without success, on constitutional amendment proposals for forty years. The prospects of a constitutional amendment banning abortion are perhaps poorer now than they ever have been. A national ban is not even on the table in serious discussions of pro-life proposals. It is simply unattainable, at present. Politically, and legally, the pro-life movement has its back to the wall, fighting furiously for the right not to be compelled to sponsor use of abortifacient drugs as part of nationally mandated healthcare coverage.
The prospects of overruling Roe v. Wade through the courts are no better. That strategy, too, has been pursued for forty years. It came close to succeeding in the late 1980s and early 1990s, but Planned Parenthood v. Casey, the most consciously evil Supreme Court decision of all time, probably sealed the existence of a constitutional right to abortion on demand for the rest of our lifetimes, absent a constitutional amendment. Pro-life legal advocates nibble away at the margins, and even then not with great success: Informed consent laws, waiting periods, ultrasound mandates, and the like appear to be the best we can do. But none of these measures legally prevents any abortion, committed for any reason.
Even when the Supreme Court upheld a federal partial-birth abortion ban in Gonzales v. Carhart in 2007, it was on the not-very-comforting ground that it is permissible to prohibit the killing of a partially delivered, intact, living human fetus because it is always possible—and a constitutional right—to obtain an abortion by way of systematic dismemberment and killing of the same human fetus prior to completing delivery. Moreover, even if Roe and Casey were somehow miraculously overruled, abortion probably would remain legal in many states. The political climate simply does not exist to prohibit abortions now.
But it is possible to imagine a consensus being forged now to prohibit abortions at some date in the future. If supporters of the right to life fail to embrace a strategy of prospective abolition, it is worth asking what the world might look like forty years from now. What might the nation’s policy and practice be with respect to abortion in the year 2053, if we do not agree now to place legal abortion on a course toward ultimate extinction by that date?
Of course, achieving even such a modest result by constitutional amendment would be very difficult. But think about it: Could pro-abortion forces truly sustain, in the arena of public opinion, the proposition that we should have abortion forever? An amendment prospectively banning abortion powerfully tests the position of less extreme abortion-rights defenders that abortion is a necessary evil, a wrenching personal choice that nonetheless must be available. To those whose stated views may be deeply misguided but if sincere are not beyond the reach of persuasion, the pro-life movement can put the hard question: Can we commit, together, to eliminating this “necessary evil” within two generations?
The most difficult barrier to consensus is the unwillingness of so many who have defended abortion, had an abortion, or acquiesced in abortion, to admit that abortion is an “evil” of any sort. The moral and cognitive dissonance is too much to bear. Folks will go to almost any length to avoid thinking of their own conduct or views as involving a grave moral wrong. (Similarly, slavery’s defenders moved from arguing that maintaining slavery was a regrettable but necessary evil to the fire-eating view of slavery as a positive good, morally justified on its own terms.) Widespread agreement to ban abortion may require the pro-life movement to soften its rhetoric more than many are willing to do, and even that may not soften the hearts of many abortion defenders.
At the same time, though, public opinion polls consistently show that most Americans oppose most abortions—including many who identify themselves as “pro-choice.” There is a vast, untapped middle ground of not-perfectly-coherent views that consider abortion simultaneously as morally wrong but a moral wrong that people must be free to choose under at least some circumstances. People holding such views are potential allies in an effort that envisions a future where the evil of abortion is prohibited, and no longer regarded as a necessary evil. Such persons should be encouraged to support prospective abolition of abortion, or else be exposed as favoring it, without limits, forever.
If Americans could agree to a constitutional amendment abolishing legal abortion as of 2053, I predict that abortion would be over well before that date. Having chosen the goal, there might well come to exist a momentum for accelerating progress toward it, especially as technological and social advances make achieving it increasingly painless for all sides. An amendment can readily be drafted that would not foreclose earlier legislative bans on some or all abortions, if Roe is overruled or limited. There would thus be no need to fear that an amendment would have the unintended effect of entrenching the constitutional right to abortion for forty more years, absent truly terrible draftsmanship.
The pro-life movement would be in a no-worse-off position for adopting such a constitutional amendment than it is in now. It would not accomplish, all at once, what pro-lifers want to achieve right now. But it would provide the hope that, perhaps in some of our lifetimes, we will see every human being welcomed in his or her most fundamental right—the right to live.
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The Public Discourse symposium on Roe at 40 features the following six articles; back each day for the new essay:
Ryan T. Anderson, “On the Fortieth Anniversary of Roe v. Wade: A Public Discourse Symposium”
Elise Italiano, “Forty Years Later: It’s Time for a New Feminism”
Michael New, “Abortion Promises Unfulfilled”
Daniel K. Williams, “The Real Reason to Criticize Roe”
Gerard V. Bradley, “The Paradox of Persons Forty Years After Roe”
Michael Stokes Paulsen, “Abortion and the Constitution in Another Forty Years: A Right to Life for 2053”
Michael Stokes Paulsen is University Chair and Professor of Law at the University of St. Thomas, in Minneapolis, and co-director of its Pro-Life Advocacy Center (PLACE).
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