This op-ed is part of a new Harvard Law Record feature highlighting opposing views from members of the HLS community. Related views on this topic can be found below.
In a few weeks, an 8-justice Supreme Court is set to hear a case challenging “HB2”, a Texas law that could close more than three-quarters of the state’s abortion clinics. Pro-choice advocates have vehemently opposed the legislation from the start, citing the devastating impact the restrictions could have on women’s health. Pro-life advocates champion HB2 as a common sense protection of women’s safety.
Three of the bill’s provisions are specifically challenged in the upcoming Supreme Court case. First, HB2 requires that abortion-clinic doctors have access to a hospital within 30 miles of the clinic. Second, HB2 outlaws abortions after 20 weeks. Third, HB2 requires that abortion clinics meet the minimum health and safety standards adopted under Section 243.010 of the Health and Safety Code.
Essentially, HB2 demands higher standards of care from abortion clinics, and seeks to protect the unborn from a point where it is feasible that a fetus could feel pain, and reasonably survive. 20 weeks, admittedly, errs on the side of caution. Available evidence suggests fetal pain capacity may develop slightly later on, between 24-30 weeks. Still, the provisions of the bill don’t seem to be inconsistent with common principles of the political left. Even if the motivation behind HB2 was to restrict access to abortion, the text of the law itself simply sets minimum standards for women’s health care, and protects the rights of a marginalized group: the unborn. These goals seem to align with the common aims of the liberal left.
Abortion is one of the few issues where Democrats, not Republicans, seem to simply oppose legislation for sake of political face-saving, even when it may be consistent with their ideals. On abortion, Republicans are willing to concede power to the government to protect a marginalized group. Democrats, or at least a strong majority, emphasize deregulation. It is a perplexing exchange of values, seemingly motivated more by proverbial ‘lines in the sand’ than sound reason.
As I’ve come to realize from my conversations at the exceptionally left-leaning Harvard Law School, liberals too perceive the paradox. In fact, the more I inquire, the more I realize that deep down, stripping away the stigma linked to the terms pro-life and pro-choice, even the most staunch liberals are to an extent, in favor of defending life. Casting aside the antagonism perpetuated by decades of fierce debate, I know the majority of Americans agree that less abortions would be better.
What we disagree on is not whether or not we should end more lives, but what methods would best serve the common goal of reducing abortions. If advocates on both sides were willing to admit that, we would be better equipped to cut into the nation’s astounding 1.2 million annual abortions.
Laws nationwide, enacted by both Republicans and Democrats, further suggest that abortion is inconsistent with an American perspective on the value of life. 38 states have fetal homicide laws protecting the unborn. Some include a fetus in the definition of person for the purpose of criminal punishment. Others set lesser punishment than murder for killing a fetus, but still punish offenders for taking multiple lives. This extends beyond murders of pregnant women too; Colorado Democrats passed a law in 2013 punishing those who cause pregnant women to lose their child in domestic violence and vehicle accident cases.
Protecting the unborn is overwhelmingly consistent with American values and legislative history. Perhaps HB2 is too restrictive. Perhaps legislation restricting access to abortion isn’t the best answer. But let us at least recognize that one of the most contentious moral issues we face is one where significant commonality exists.
There are policies aligned with both political sides that would dramatically reduce the number of potential human lives lost each year. Switzerland boasts one of the world’s lowest abortion rates, despite fairly liberal abortion policy. The Swiss have achieved what many Americans desire without heated court battles, filibusters, and divisive legislation, but with education, healthcare, and economic growth. Many conservatives firmly oppose contraception and even sex education, though the two have proven on smaller scales to be among the most effective means for eradicating abortion. Perhaps the answer is as simple as ‘getting rid of abortion by getting rid of abortion’ – not through legislation, but by gradually reducing abortion rates to a level where complete eradication is actually plausible.
Democrats often cite the need for access to abortion in cases of rape and incest, and many Republicans are unwilling to budge, but those cases make up just 1% of all abortions. A question to ponder, then, is this: would you rather work to save over one million potential lives per year, or continue to perpetuate gridlock over approximately 12,000? Can we really be advocates for the value of life, yet value life less than the political cost of concessions regarding extreme cases?
Furthermore, adoption law and policy is in dire need of reform. International adoptions have steadily declined, now at the lowest level since 1982. Domestic adoption rates have failed to fill in the gap. The United States has done little to facilitate adoption, and in many unfortunate cases, including some of recent prominence, the emphasis on keeping children with their birth mother even in dangerous situations has had disastrous results.
Legislation is far from the only option to address America’s abortion problem, and even if politically possible, reducing access to abortion may be far less effective than other means. I don’t claim to have all the answers, but I do know we won’t find those answers by continuing to quarrel, enacting and repealing in a constant back-and-forth policy brawl.
As the nation’s highest court considers Whole Woman’s Health v. Hellerstedt, which with just eight justices may not be completely resolved, coverage will no doubt reignite fierce debate, and those on both sides of the issue will seek to stand firmly behind the dividing line. Yet there is much we agree upon, and much we can do, regardless of the Supreme Court’s decision. Whatever that decision may be, and whatever the succeeding narrative, it is time both the left and right acknowledge a shared interest in protecting one of the nation’s most marginalized groups. It is time we stop holding onto unrealistic extremes on both sides, and come together to seek agreeable solutions. It is time to do away with division, begin reasoned conversations, consider alternative solutions, and combine our collective power in defense of life.
Nic Mayne is the Deputy Opinion Editor of The Harvard Law Record. You can find him on Twitter @maynenic.
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