The Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision did not outlaw abortion. The decision asserted that there does not exist a constitutional right to abortion and sent the issue back to the states to resolve with a limited role for the federal government (as was the case prior to 1973).
The Founding Fathers who met in Philadelphia to give life to a venerable Republic had great vision. Having chafed under monarchy, they shared a profound concern that a powerful central government could become increasingly intrusive and knew that power tends to corrupt. As an antidote, the Constitution they created clearly states that any power not specifically allocated to the federal government remains with the states.
The problem, and it is not a new one, is that political partisans on each side tend to forget their civics when a political issue of great moment arises for which there is no consensus. On the issue of abortion, which is literally life and death, the country is deeply divided. For many Americans, it is tantamount to murder. Even more Americans believe it is a matter of personal freedom.
Compromise between those two sides is not easy to find. It requires some to concede that it might not be murder, and others to concede that there can be limitations on personal freedom. There cannot be “half murder.” So, the two sides fight it out.
The outlines of a political compromise are not difficult to sketch out, although they seem morally unsatisfying. Does an abortion before 15 weeks not take a life? Does that mean one day before 15 weeks does not take a life? That one day after 15 weeks, it does take a life? Think about what took place in those first 15 weeks. Sperm and an egg come together and create an organism that grows into a human life form in 3 1/2 months. Does not abortion during those 15 weeks, like abortion after 15 weeks, end a potential life?
The polls show that most Americans are abortion moderates, not binary “pro-life” or “pro-choice” absolutists. In one scientific survey after another, it is clear that relatively few people believe abortion should always or never be legal. Nevertheless, and understandably, the abortion issue is viewed quite differently in different states. Abortion, in spite of those polls, is now banned or severely restricted at all stages of pregnancy in 15 states. Both sides should applaud the Supreme Court decision. It is clearly more “small-d” democratic than the rule of law that preceded Dobbs.
The abortion issue remains high-pitched. Emotional. Divisive. Counterproductive. It has enhanced disrespect for government. The Democratic Party sees the abortion issue as an opportunity to gain votes. The Democrats’ message is that Republican candidates want to diminish your freedoms, that the Supreme Court decision is flawed, that the abortion issue should remain with the federal government.
This is at a time when the rule of law is under a multifaceted attack. The rule of law is precious. It is vulnerable. It exists more because of compliance than enforcement. For compliance to be effective, to be as universal as possible requires respect for government. Unfortunately, respect for government today is, at least since it has been measured, at an all-time low.
Unfortunately, the heated debate over abortion has contributed to that alienation for half a century, and it’s only getting more partisan. Those who care about other issues other than reproductive rights can do something about it. Candidates for federal office, regardless of their political party, could state clearly what an overwhelming majority of Americans know to be true: that the moral dimensions of abortion are complex, and passionate people of good will are on both sides of the issue. Then they can state, as Nikki Haley has done, their own position on the issue, followed by a realistic assessment of the political realities. That means acknowledging that one law, in one jurisdiction, is not the answer.
Democrats, particularly those who claim to fear that our democracy is hanging by a thread, do their cause no favor by pretending that they have never heard of the doctrine of federalism. Democrats do damage to the country and their own cause when they demonize Republican political candidates with dishonest attack ads over this issue. Or when they claim they want to enshrine all the elements of Roe v. Wade into federal law while deceiving voters about the elements of that jagged jurisprudence they know are unpopular, such as parental consent.
For their part, Republicans campaigned for five decades to return this issue to the states. When legislative action and statewide referendums don’t go their way – and they haven’t been – it’s hypocritical to start pushing for a federal ban. And unpopular.
That this issue is now in the hands of the state could eventually help tone down the abortion issue. It should help all voters recognize the issue is complex, that one law does not fit all, that we are fortunate to have a constitutional government. That the issue properly rests with the states.
No matter what one believes with regard to abortion, one should also be concerned with preserving the rule of law, with preserving the greatest country in the history of humankind.
Thomas W. Smith is chairman of OpenTheBooks.com. This article was originally published by RealClearPolitics and made available via RealClearWire.
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