Much reaction, naturally, is hysterical.
But it’s a grave matter, and highly sensitive. So the facts should be paramount.
The decision does not outlaw abortion. It decides that the US constitution does not include a constitutional right to abortion. The situation will become, legally, the same as it is in Australia, with state governments able to make laws concerning pregnancy termination.
The court wrote in its majority judgment: “Abortion presents a profound moral question. The constitution does not prohibit the citizens of each state from regulating or prohibiting abortion. Roe and Casey arrogated that right. We now overrule these decisions and return that authority to the people and their elected representatives.”
The court has thus made a profoundly pro-democracy decision. The debate is likely to be polarised and uncivil. That’s a tragedy. But it’s right that in a matter of such moral gravity, legislatures, with democratic authority, rather than judges, should make the decisions.
America’s ability to conduct any debate in civil terms is unclear these days. That Americans care passionately about such an important issue is, however, to their credit. The Mississippi law the Supreme Court upheld by overturning Roe allows the state to restrict abortions, with exceptions, after 15 weeks of pregnancy. In 39 of 42 European jurisdictions, restrictions, with exceptions, apply earlier than 15 weeks.
Some US states will be more restrictive, a few very much more restrictive. It’s clear the Supreme Court would strike down laws that criminalised people travelling interstate to access terminations. If state abortion laws generally are onerous and unpopular the governments that enact them will de defeated at elections and the laws changed. That’s democracy.
Public opinion is often presented as binary – pro-choice or pro-life, pro-abortion or anti- abortion. Almost everyone’s opinion is much more nuanced and qualified than that. At one end, the orthodox Christian view is that from the moment of fertilisation a human life is present and should be protected. At the opposite end is the view that abortion is such a fundamental right it should be available up until birth. That’s effectively the legal regime in New York.
Most people would be extremely uneasy with either end of that continuum. The Supreme Court decision will require states to have difficult debates and work out where on the continuum they want to sit. That’s a good thing. If the law should end up a little different in Wyoming from California, that’s perfectly democratic and legitimate.
Peter Singer is a very useful philosopher because he thinks ideas through to their logical conclusion. He is a utilitarian philosopher and has argued that babies born severely handicapped who are not wanted by their parents should die because their life has little utility. He once compared his position with the liberal position on abortion. If a baby has full human rights one day after it’s born, how come it has no human rights one day before it’s born?
Some time ago friends of mine, Olivia and James, received the news that their pregnancy would almost certainly produce a baby with Down syndrome. They decided to proceed with the pregnancy. I emailed Olivia to offer some general support and tell her how much I respected and admired her and James’s decision.
Olivia emailed me back at length with what I found to be a surprising and disturbing tale of the pro-abortion pressure she was subjected to by the health system once her diagnosis was made.
With her permission, I include a few excerpts from a long, calm but heartfelt account. She wrote: “Unfortunately, there is still mostly a lot of negativity provided with a diagnosis of Down syndrome.”
After tests, a genetic counsellor met Olivia: “She told us the baby was likely to have other health problems show up too. She presented us with a long list of statistical medical conditions that are more common in people with DS.
“Imagine if every parent was presented with a list of statistical possibilities of everything that might ever go wrong with your child – would anyone have children? She gave us a one in three chance of stillbirth and said if the baby did survive birth there was a good chance she wouldn’t live very long and would likely need immediate surgery.”
This counsellor, along with almost everyone Olivia dealt with, spoke warmly of termination. Olivia sought other medical advice and found the prospects of the child she was carrying were a bit better, the range of possible outcomes diverse.
She further wrote: “The thing that most upset me during the process was every medical professional we spoke with told us we really needed to consider the needs of our first child – that we would have less time for him if we had a baby with special needs.
“I still feel angry and saddened by this because it implies (1) I don’t care about my son and am being selfish for wanting to continue the pregnancy; (2) that the new baby is not as valuable as my first child because they have DS; and (3) that my son is incapable of learning compassion and acceptance of a sibling who is differently abled.”
Olivia wrote much else along similar lines. Hillary and Bill Clinton both once argued that abortion should be “safe, legal and rare”. Instead, it has become a kind of positive ideology. We may have destigmatised abortion but we have wrongly stigmatised many of the alternatives, such as adoption. Many of the most loving families I know involve adoption.
The ethical concern about pregnancy termination has nothing to do with sexual morality, still less gender inequality. It is a genuine concern that human life should be protected as far as possible.
Most public opinion is actually much more alive to these complexities, gradations, shades of grey, nuance and difference than the polarised debate would allow. Even worse is the de facto taboo on even discussing such subjects in many Australian contexts. Love the mother, love the child is not a bad slogan for the pro-life movement.
The US Supreme Court decision suggests a renewed opportunity for democratic politics to do its job and reflect that diversity and wisdom.
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The US Supreme Court was right to overturn the Roe v Wade ruling of 1973 (and a later case known as Casey) which, implausibly, had found an implicit right to abortion hiding in the US constitution. It was right legally, which for a court is all that should matter. But it also speaks well of the US that, with a million abortions a year, it takes the issue seriously.