Abortion is back on the national agenda. Last week Virginia drew the spotlight for a bill to loosen restrictions on late-term abortions, eliminating a current requirement that such only be allowed if birth would “substantially and irremediably impair” the mother.
Democrat Virginia Gov. Ralph Northam (who is now facing pressure to retire for a racist college picture) then suggested the bill would allow for infanticide of an infant born alive. Pres. Trump is expected to use the Virginia bill in his State of the Union address to widen the wedge.
Idaho is also seeing some action on this issue. Three abortion bills have been filed. State senators Hartog and Lacey are jointly sponsoring a partial birth abortion ban that tracks federal law. Rep. Greg Chaney has filed two bills requiring detailed reporting of abortion complications.
Hyper-conservative representatives Heather Scott and John Green have announced they are introducing a measure (not yet filed) to make abortion a homicide and nullify federal law with respect to abortion. Both need to read Article I, Section 3 of the Idaho Constitution which specifies that Idaho is an inseparable part of the United States and that the U.S. Constitution is “supreme”. Abortion rights are currently part of 14th Amendment unless the Supreme Court says otherwise.
I have been able to identify 11 states with abortion bills on tap.
What is precipitating all of this activity in Idaho and elsewhere is the idea that the U.S. Court’s more conservative tilt with Brett Kavanaugh’s appointment and Ruth Bader Ginsburg’s possible retirement could resulting in the carving back of Roe v. Wade.
But, everyone on both the left and right are jumping too far, too fast.
Even if the Supreme Court tackles the issue it is likely to be over multiple years and in increments. Many justices, in particular John Roberts, believe in following precedence except in extraordinary circumstances. A radical, immediate shift is highly unlikely. Many court observers wonder if the final result over the next decade or so may look a lot like the situation before Roe was issued in 1973. Abortion then was a state issue with some states highly restrictive of abortion access and others not.
The American public is far more nuanced on the issue than the activists on either side.
Gallup last year found that 48% of Americans labeled themselves pro-choice while the exact same number were pro-life.
The more interesting question was the number who thought abortion should be illegal in all circumstances. That number was only 18%. Those who thought it should be legal in all cases only totaled 29%. A full 50% of American adults support legal abortion but in limited circumstances. Neither extreme is favored.
Where there is consensus is most Americans favor restricting abortion by time period with roughly 3/4ths favoring sharp restrictions after 20 weeks (of note the U.S. is one of only 7 countries that allow abortions after that point). The overall takeaway is that early abortions should be more available while later ones should be less.
The pro-choice side is pushing legislation to lock-in state policy preferences in fear of imminent (and unlikely) Supreme Court action. I believe that is the driving force behind the Virginia law discussed above and a rather extreme New York statute. As most Americans are fairly moderate on the issue such radical approaches can only serve to shift broader public opinion the other way.
Similarly, the Idaho Legislature should step lightly in this area. With the Supreme Court in flux it is unclear which kind of cases will be used to clarify the legal status of abortion. Extremist measures like the Scott/Green legislation would not survive any court scrutiny and could actually damage the pro-life cause.
The best approach for those seeking long-term change is to pursue modest measures designed to appeal to the middle who favor some restrictions but not too many. That requires discipline, not bomb throwing. That will be hard for fervent activists on both sides.