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Latest abortion fight renews 50 years of legal wrangling


Political parties even more divided on issue

Nearly five decades after the U.S. Supreme Court ruling on Roe v. Wade, opponents and supporters of abortion rights continue a strident battle over the issue in court, at the ballot box and in state legislatures.

Several states have introduced or passed new restrictions on abortion with an eye toward giving the Supreme Court new rationale to overturn the landmark—and divisive—1973 decision.

Supporters of Roe specifically want the high court to review a Mississippi law that aims to make most abortions after 15 weeks of pregnancy illegal. They also want to strike down the Texas “heartbeat bill’ that bans abortions after six weeks into pregnancy…far before most women know they’re pregnant.

Texas ‘heartbeat’ law

As is custom, the Pew Research Center this summer conducted its latest poll on the topic and found that around six in 10 adults (59 percent) say that abortion should be legal in all or most cases. Thirty-nine percent say it should be illegal in all or most cases.

The partisan gap is as wide as it has ever been. Democrats and “democrat-lean” independents are much more likely than Republicans or “republican-lean” independents to say that abortion should be legal in all or most cases today (80 percent vs. 35 percent). This 45-percentage point gap is up from the 33-point gap in 2016 when 72 percent of democrats and 39 percent of republicans supported legal abortion in all or most cases.

Opinions vary widely

Depending on what religion you practice, opinions about abortion vary widely. About three-quarters of White evangelical Protestants (77 percent) say it should be illegal in all or most cases. Twenty-one percent of these persons say it should be legal in most instances. By comparison, a 63-percent majority of White Protestants who are not evangelical say abortion should be legal in all or most cases.

Regardless of what the political party stance is on abortion, voters don’t always agree with the dominant position or with the party they identify with or lean toward. About one-third of Republicans or GOP “leaners” said they did not agree with their party on abortion (35 percent). Among democrats and those who may lean toward that party, 29 percent did not agree with their party on abortion, including 7 percent who said they agreed with the GOP and 22 percent who said they didn’t agree with either party.

Democrats are far more likely than Republicans to see Roe v. Wade stand. Republicans, according to the poll, are somewhat evenly divided with 50 percent saying they would not want to see Roe v. Wade completely overturned, and 48 percent saying they would.

Supreme Court will rule soon

The Supreme Court will take up the case on Dec. 1 in what may be the Pro Life movement’s best opportunity to overturn Roe v. Wade. CNN took a poll last summer revealing that most people had no interest in dismantling Roe. Only a scant 20 to 30 percent believed the statute should be overturned. Almost half, the survey found, would like the Supreme Court to make it easier to obtain an abortion. Thirty-five percent said the high court should make it harder to do so.

The Texas bill has drawn sharp criticism from Pro-Choice advocates because it effectively “deputizes” citizens to turn in abortion providers—and those who in any way assists a woman in seeking an abortion—for a bounty of $10,000. A handful of other states are gathering their resources to craft bills similar to those passed in Texas and in Mississippi.

Democrats and the ‘right to choose’

Like famous sports rivals, Democrats and Republicans—and their devoted “fans”—have dug in their heels over the issue. Between 1980 and 2020, the distance between the two parties has increased greatly. The Democratic Party believes firmly in a woman’s right to decide whether or not to abort a pregnancy. Democrats strongly oppose any efforts or legislation that might undermine this right, stating in its 2016 national platform: “abortion is an intensely personal decision between a woman, her family, her doctor, and her clergy; there is no place for politicians or government to get in the way.”

Democrats support programs such as Planned Parenthood that assists women in need of birth control options at reduced cost and feel comfortable in asking questions about a pregnancy. The party has further stated: “our goal is to make abortion more rare, not more dangerous. We support contraceptive research, family planning, comprehensive family life education, and policies that support healthy childbearing.”

Democrats also support providing financial aid to women who cannot financially support carrying a baby to term. They believe that every pregnant woman should be supported by “providing affordable health care and ensuring the availability of and access to programs that help women during pregnancy and after the birth of the child, including caring adoptions programs.”

Republicans and the ‘right to life’

Republican views on abortion are rooted firmly in the belief that an unborn child—like any American citizen—has an individual right to life that should not be infringed upon by others. The party adamantly believes that the rights guaranteed to all Americans in the Fourteenth Amendment apply to unborn children as well.

The Republican national platform—since 1984—has contained four main elements which have been fought for in every presidential election since. They are that an unborn child has (1) a “fundamental individual right to life which cannot be infringed,” (2) the endorsement of a “human life constitutional amendment” which would ban abortion, (3) a call for judges who “respect human life” by supporting such an amendment, and (4) new laws to state that the fetus is a “person” under the Fourteenth Amendment. The current GOP platform contains few exceptions for rape, incest, birth defect, or risks to the mother’s health. Some registered Republicans believe in exceptions for these cases; others hold a very firm pro-life stance.

Abstinence vs. birth control

The Republican Party opposes using public revenues to promote or carry out abortions. The party opposes any health care options that include the coverage for an abortion. The party supports an increase in educational funding to be used to teach abstinence in schools, to not only prevent unwanted pregnancies but to prevent the spread of sexually transmitted diseases and infections. In relation to this, Republicans are opposed to school-based clinics to provide abortion counseling and contraception. Members generally believe that this money would be better spent on abstinence education. The Republican Party firmly supports efforts to improve the foster care system, as well as efforts to increase funding to family services.

The Biden Administration has made it clear it wants to block the Texas abortion law. A federal judge in September did block it for 48 hours before a conservative federal appeals court ruled that the state could continue to enforce the law, which critics say was deliberately written to be difficult to challenge through the federal court system.

Justice Department opposes Texas law

In October, the Justice Department asked the Supreme Court to lift the order imposed by the Fifth Court of Appeals in New Orleans which subsequently ruled that the ban could stay in place during litigation. The federal government says that the Texas law defies the Supreme Court’s key decision on abortion rights “by banning abortion long before viability, indeed, before many women even realize they are pregnant.”

The Texas “heartbeat law” more or less establishes a fetus as a viable human being, therefore any attempt to extinguish that life could be akin to a woman hiring a “hitman” to kill someone. But it’s not exactly that simple. Though not a popular position, it is becoming more evident that if abortion is murder, then those who solicit abortions should be prosecuted.

Why isn’t a woman charged with a crime?

Why does U.S. common law dismiss the charge and prosecution of an expectant mother who sought to kill her unborn child? If a charge were brought, what would it be? Legal scholars generally agree on consideration of at least two answers. The first is the charge of manslaughter. Pregnancy (or early pregnancy) is an incredibly stressful time for a woman. A woman could be agitated enough to march to an abortion clinic immediately after discovering her EPT result and demand an abortion. If she were charged, the result could be the “provocative” event necessary for her to claim a “heat-of-passion” defense. Or, the woman could be suffering from the emotional burden of pregnancy-related depression, thereby placing her in an altered state of sanity than she otherwise would not be experiencing.

A second, but arguably a more controversial charge that might be brought against an abortion patient, would be murder if the aforementioned “hit man” scenario implicates the woman in the act. If the law gives a fetus “personhood” and an abortion is performed on it, the aborting actor is guilty of murder according to the law. Between manslaughter and solicitation of murder, the middle ground falls somewhere between a significant fine and a prison sentence.

Woman is the ‘victim’ not the ‘perpetrator’

There have been only two cases in which a woman was charged in any state with participating in her own abortion: From Pennsylvania in 1911, and from Texas in 1922. The Pennsylvania case went a step further in ruling that, in the absence of clear statutory authority, “the woman who commits an abortion on herself is regarded as the victim than the perpetrator of the crime.”

The Texas case largely referred to an 1880 court decision there that affirmed that the woman was the “victim,” not rhetorically but in the law: “The rule that she does not stand legally in the situation of an accomplice, but should rather be regarded as the victim than the perpetrator of the crime, is one which commends itself to our sense of justice and right, and there is certainly nothing in our law of accomplices which should be held to contravene it.”

There is no documented case since 1922 in which a woman has been charged in an abortion in the United States. For the majority of the 20th Century and beyond, women are never charged with murder, only seldom were named co-conspirators, and still more rarely were regarded as accomplices in aborting a baby.