A New Way Forward on Abortion

Some forty years after Roe v. Wade, pro-lifers continue to find creative ways to engage ordinary Americans in conversations about abortion. At the policy level, though, pro-lifers seem stalled.

This is partly because an unfriendly administration controls the White House. But after successful efforts at the national level to ban partial-birth abortion and the killing of babies that survive abortion, and with a bevy of state laws restricting abortion access, pro-lifers seem to be groping for the next major campaign. I propose a constitutional amendment that would allow, but not require, states to ban abortion in the second trimester.

For any pro-life amendment to the Constitution to succeed, it has to appeal to a supermajority of Americans, including many pro-choice ones. The very radicalism of Roe itself may render just such a pro-life amendment possible. Giving states the power to ban second-trimester abortions will not please defenders of abortion on demand, but it may appeal to most pro-choice citizens.

First, it allows the citizens of liberal states to select pro-choice laws that are more consistent with their values. One of Roe’s unfortunate consequences is that it not only disenfranchised pro-life citizens; it also silenced the voices of most pro-choice citizens. Millions of citizens who supported abortion in the first trimester, but not later, were told that their policy preferences violate the Constitution.

It is sometimes forgotten that Roe did not simply overturn restrictive state laws in places like Texas and South Carolina. It also overturned California and New York’s liberalized laws for being insufficiently pro-choice. If the proposed amendment succeeds, some states will disallow abortion in the second trimester while others will continue to permit it. Others may select some intermediate limit, such as fifteen or eighteen weeks. But in every case, abortion would be available in the first trimester.

No doubt pro-choice activists will insist that such an abortion regime would nonetheless prove intolerably restrictive. Proponents of the law should simply point out that this amendment would still leave American abortion laws more pro-choice than the vast majority of western democracies, including Austria, Belgium, Denmark, Finland, France, Germany, Greece, Italy, Norway, Portugal, and Spain. Pro-choice activists would need to explain why the more restrictive pro-choice laws in these European nations are so intolerable.

Second, some of the amendment’s most important benefits to pro-choice citizens may not be evident until after it passes. By allowing a measure of policy experimentation in the states, this amendment may yield important insights into how best to reduce unplanned pregnancies.

In his book Sex and Consequences: Abortion, Public Policy, and the Economics of Fertility, economist Philip Levine has argued persuasively that moderately restrictive abortion laws actually reduce unplanned pregnancies. Apparently when abortion laws are more restrictive, citizens reduce their sexual risk-taking, which in turn decreases the number of unplanned pregnancies.

If Levine’s analysis is vindicated by state experimentation, then moderate abortion restrictions would even appeal to Planned Parenthood employees. In fact, after initial resistance, pro-choice activists might quietly warm to an American abortion regime that approaches the European standard.

Thus, by any reasonable standard, this is a moderate constitutional amendment. It is both more considerate of the values of most pro-choice citizens than the current regime under Roe, and it may even pave the way for more successful family planning.

Nonetheless, I am of course proposing an amendment that should appeal even more to pro-life citizens. The amendment would allow states to prevent the destruction involved in the most heart-wrenching abortions. Every day, many fewer fetuses will be torn apart one arm or leg at a time.

Perhaps the amendment won’t have a substantial effect on the number of annual abortions. It is hard to say. State bans of second-trimester abortions may simply encourage people to seek an abortion earlier, as studies show that simple delay is the most common reason Americans procure second-trimester abortions. Yet, if Levine is correct, second-trimester abortion bans might still reduce the abortion rate by reducing demand.

Even if the amendment proves to be yet another constitutional dead end for the pro-life movement, it may serve an important educative function. Some forty years after Roe, few Americans understand what Roe decided. Surveys suggest that most Americans believe the decision was rather modest in scope, which perhaps explains why a majority of them say it should not be overturned. The media have not helped matters, since they usually describe Roe as a decision that merely “legalized abortion”—sometimes even claiming it only legalized abortion in the first trimester.

Thus, the campaign for this proposed constitutional amendment would place the radicalism of Roe clearly before the public and elites. The campaign against partial-birth abortion did so as well, which is one of the reasons it was so successful.

Yet all too often the media still refer to the ban on partial-birth abortion as a ban on late-term abortion, once again giving the false impression that America’s abortion laws are moderate. Perhaps the most significant failure of the pro-life movement after Roe has been the persistent public ignorance of the decision’s scope. This amendment might help remedy that failure.

And, finally, by expanding pro-lifers’ say over their state abortion laws, it will once again confer a greater sense of the law’s legitimacy. As even a pro-choice thinker such as Benjamin Wittes was honest enough to admit in the pages of the Atlantic Monthly, “the liberal commitment to Roe has been deeply unhealthy—for American democracy, for liberalism,” partly because “a pro-lifer who complains that she never got her democratic say before abortion was legalized nationwide has a powerful grievance.” And as violence on the pro-life fringe should remind us, such grievances can be powerful indeed.

This amendment, or something like it, is also important since pro-lifers need to develop fresh constitutional alternatives to overturning Roe. Today the pro-life movement is hardly any closer to overturning Roe than the day it was decided. In fact, in some ways the movement is even further from such a victory since Roe has already been revisited and upheld.

Currently, there are only two justices on record supporting Roe’s repeal—the number of dissenters in 1973. Justice Alito may vote against Roe if given the chance, but can we be sure that Justice Roberts will join him? Meanwhile, President Obama is likely to reshape the Court once again by further entrenching its pro-choice majority. It has gotten so bad that Michael Stokes Paulsen asks us to look with hope to 2053.

Given the failure of the pro-life movement to make any progress toward Roe’s reversal for some forty years, it might be worth considering other constitutional strategies.

Of course, if this suggestion seems worth pursuing, many important details would have to be ironed out, including how to address Doe v. Bolton. The general framework I’m proposing could be amended as well. Rather than allow states to ban abortion in the second trimester, one might select a developmental marker instead. As Hadley Arkes has thoughtfully suggested to me, an alternative constitutional amendment could allow states to ban abortion after a fetal heartbeat can be detected. Another possible developmental marker might be the eighth week, when every fetal organ is in place.

If an earlier ban is pursued, however, more concessions to pro-choicers may be necessary if the constitutional amendment has any hope of passing. To please pro-choicers our amendment might affirm a limited right to abortion in the Constitution, say during the first eight to ten weeks of pregnancy. Pro-choice citizens can then stop worrying about Roe’s reversal, and everyone will applaud a Supreme Court confirmation process without abortion litmus tests.

To be sure, such a concession would come at a heavy price for pro-lifers, since the actual text of the Constitution would affirm a limited right to abortion. Yet another constitutional amendment also would be necessary to limit abortion further. But these concessions would have to be weighed against the untold number of human lives that might be saved.

As should be evident, my intention is not to defend a particular constitutional strategy. Rather, I simply want to encourage reflection and deliberation on a new one.