Pundits and politicians write and speak regularly about the polarization of Americans and their inability to compromise. There are indeed many issues that are amenable to compromise. Policies pertaining to immigration, asylum, border control, environment, climate control, entitlements, taxes, defense spending and infrastructure are examples where compromise is not only desirable, but essential if meaningful legislative progress is to be made.
Some issues, however, defy compromise and abortion might be the best example. As this is written, the U.S. Supreme Court is considering oral arguments in Dobbs v. Jackson Women’s Health Organization regarding a Mississippi law banning abortion after 15 weeks of gestation. The case is particularly significant in that 15 weeks is well before the fetus is viable or able to live outside the uterus which has been the limit prescribed in other state legislative attempts to limit abortions. The law still provides a 15-week window, albeit a shorter one, for a pregnant woman to make a decision.
The much-anticipated case, of course, will afford an opportunity for the Court to revisit Roe v. Wade which many, including Constitutional law scholars, believe was wrongly-decided. The Constitution is silent on the matter of abortion which means to them that the Court has no business ruling on the legality of abortion which should be a legislative matter left to the individual states to decide.
On the other hand, Roe v. Wade has been in effect since 1973 and the Court has usually been reluctant to overturn longstanding precedent consistent with the Stare Decisis legal doctrine meaning, roughly, to stand by things already decided. Usually, that is, but not always. The Court has overturned some of its earlier decisions, notably on matters pertaining to slavery. If the justices believe that a case was wrongly decided to begin with, then the remedy should be to correct that decision, not try to work around it by some sort of compromise or by nibbling away at the flawed decision incrementally until nothing is left of it.
It’s important to note that in Webster v. Reproductive Health Services the Court upheld a Missouri law acknowledging that human life begins at conception. It asserts the state’s interests in protecting the life of the unborn at every stage of gestation from conception to birth. It grants the unborn rights beyond just the right to be born such as rights in criminal cases and cases involving matters of inheritance. Seriously injuring an unborn child can result in felony charges.
Since the Court has ruled that the unborn child is a human being, a person from the moment of conception, then Roe v. Wade would indeed appear to have been wrongly decided because it failed to protect the rights of the unborn human being and would appear to be in violation of Section 1 of the 14th Amendment which states in part that “no state shall deprive any person of life, liberty or property without due process of law.”
Finding Mississippi’s law constitutional would reduce the number of abortions yet still preserve a window for allowing it so the law would not address the rights of those human beings who were aborted during that 15-week window and would leave the wrongly-decided Roe v. Wade decision in place, assuring continued challenges from the states. This would amount to kicking the can down the road.
The Catholic Church and some others oppose abortion at any stage and for any reason including rape, incest or fetal deformity. The Catholic Church, moreover, teaches that contraception by any artificial means is sinful although surveys consistently show that that this teaching is largely ignored by an overwhelming majority of Catholics. In fact, one recent survey showed that a majority of respondents who identify as Catholics believe abortion should be legal under some circumstances.
Catholics serving in elected office, like other elected officials, take an oath to support and defend the Constitution and to faithfully comply with and enforce the laws of the land. However, they are enjoined by their religious leaders to not support legislative efforts to liberalize or legalize abortion and some American bishops have denied the sacrament of Holy Eucharist to those that do. The pope appears to have left that decision to the individual bishops who are not unanimous regarding their policy in this matter. The pope did warn that a decision to deny the sacrament would be politically divisive.
The Court can decide to overturn Roe v. Wade which would by no means end abortion but rather leave the matter to the individual states. Some, including California and New York, already have legislation in place which would continue to legalize abortion should Roe v. Wade be overturned. Or the Court could take an incremental approach by simply approving the Mississippi law which would be a compromise of sorts but would not end the matter or the divisions. Human lives, however few, cannot be bargained away as the price of compromise. Some might regard this as a suitable compromise, but not those who sincerely believe that the willful taking of any innocent life at any stage is simply wrong.