Ways polarized U.S. can compromise in post-Roe v. Wade reality
Protesters march near downtown Phoenix after the Supreme Court overturned Roe v. Wade, Friday. Credit: AP/Ross D. Franklin
By Cathy YoungThe moment many Americans dreaded and many others fervently hoped for — the fall of Roe v. Wade, the Supreme Court decision establishing a constitutional right to abortion — is here. Everyone agrees that the high court’s decision in Dobbs v. Jackson to strike down the 50-year-old precedent by a 5-4 vote will transform American politics, culture and society in ways we cannot yet predict.
One can certainly criticize the ruling’s logic, as well as the political maneuvering that allowed conservatives to gain their majority on the high court. But the fact of Roe’s demise remains. In a country where most people have a moderate position on abortion, endorsing its legality in some but not all cases, can a compromise be found that reduces the damage to the body politic?
Yes, but it’s very unlikely in today’s political environment.
One thing Republican and conservative leaders could do to lower the temperature of the abortion wars is clearly state their commitment to federalism — which would preclude attempts to impose a nationwide abortion ban, either by congressional mandate or by another Supreme Court case. This would not only show consistency (since so many conservatives have stressed the fact that Roe took away the ability of states to legislate on abortion) but remove the prospect of an anti-abortion regime being imposed in states where the population is strongly pro-choice.
Conservatives could also endorse the position, stated by Justice Brett Kavanaugh in his concurrent opinion in Dobbs, that women’s ability to seek abortions in other states is protected by the constitutional right to interstate travel. And they can discourage local officials from embarking on crusades to curb the use of the abortion pill — efforts that would inevitably lead to truly un-American intrusions into private behavior.
Lastly, conservatives should take an unequivocal position in favor of abortion ban exceptions for rape and incest and for health emergencies. There are already reports of hospitals in states with strict abortion bans being reluctant to perform surgery for ectopic pregnancies. Pro-life politicians must take a strong stand on this problem.
Democrats and progressive activists could compromise as well. They could agree to accept a federalist solution as long as no attempts are made to enact a national ban, giving up on efforts to codify Roe nationwide. Private charity networks and assistance from pro-choice states can help defray the costs of travel for low-income women from states with abortion bans.
Democrats could also make peace with state abortion bans after 15 weeks of pregnancy, with exceptions for health emergencies — the kind of restrictions enacted in Mississippi, Florida, and most recently Virginia. Such bans are widely supported by pro-choice Americans. Late abortions with no medical necessity are a major driver of anti-abortion sentiment.
Lastly, Democrats and progressives could agree to tone down the catastrophist rhetoric — for instance, about thousands of deaths from back-alley abortions. This may have been the case in the 1930s, but in the year before the Roe decision, 39 women in the United States died from illegal abortions and 24 from legal ones.
Unfortunately, the reality is that neither side is likely to accept such compromise solutions — at least, not the politicians or the activists. The culture wars are much too profitable, both politically and financially, and so polarizing politics will continue — at least until more American voters start to reward moderation and compromise.
Opinions expressed by Cathy Young, a senior fellow at the Cato Institute, are her own.
Cathy Young is a writer for The Bulwark.
