The Guardian Doesn’t Understand America And Abortion

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This being something of a problem, for The Guardian has decided to give us an article about abortion in America.

Will 2020 be the year abortion is banned in the US?

That is at least a useful demonstration of Betteridge’s Law, for the answer is no.

It’s important to understand the basics here. And I’ll describe as basics, not with every possible nuance.

Roe v Wade is the case at issue. This did not make abortion legal in the US. It was legal, in circumstances and in places, before that case was decided. If it is overturned it will be legal in places and circumstances still.

What Roe v Wade did is say – in an appalling piece of legal reasoning, whatever the desirability or not of the outcome – is that in the penumbra of the Constitution there is a right to abortion up to some point. Thus States may not make rules limiting the access to that constitutional right.

In the absence of this case States will be able to – as they did before this case – makes varied rules which define access or not to abortion. As they did before some will have liberal access, others will have restrictive to none no doubt.

Whatever the Supreme Court decides will not make abortion illegal in the United States, because that’s not even what the case is about. Rather, is there a right to it? If not then it’s one of those things which are, given that it’s not part of the enumerated powers of the Federal Government in upholding the constitution or anything, up to the States to decide upon.

This week marks the 47th anniversary of the landmark US supreme court case Roe v Wade, which legalized abortion

No, it didn’t. Abortion was available in – for example – New York state before that decision.

It’s also possible to get very confused about American politics, as The Guardian is doing:

Until Roe, abortion was seen mostly as an issue for the Catholic church, and it was predominantly Democratic states that opposed access to abortion and contraceptives.

The South is culturally more conservative – also more religious, not quite the same thing but linked – than the rest of the country. And, as an overhang from the Civil War and Reconstruction (Republican carpetbaggers were a real thing) the South was Democratic up until around and about those mid-1970s. Solidly so, this is what Nixon’s “Southern Strategy” was all about, turning those cultural conservatives into Republicans. It worked too, for an electoral definition of “worked”.

Now, most Americans – nearly 80%, according to Gallup polling – support legal abortion in at least some circumstances.

Therefore, when the State legislatures craft legislation upon the matter, having been freed by the Supreme Court to do so if they overturn Roe v Wade, that’s the legislation people will get. Legal abortion in at least some circumstances.

As, you know, damn near every European legislature has done? As, in fact, was happening in the US before Roe:

In 1967, Colorado became the first state to decriminalize abortion in cases of rape, incest, or in which pregnancy would lead to permanent physical disability of the woman. Similar laws were passed in California, Oregon, and North Carolina. In 1970, Hawaii became the first state to legalize abortions on the request of the woman,[36] and New York repealed its 1830 law and allowed abortions up to the 24th week of pregnancy. Similar laws were soon passed in Alaska and Washington. In 1970, Washington held a referendum on legalizing early pregnancy abortions, becoming the first state to legalize abortion through a vote of the people.[37] A law in Washington, D.C., which allowed abortion to protect the life or health of the woman, was challenged in the Supreme Court in 1971 in United States v. Vuitch. The court upheld the law, deeming that “health” meant “psychological and physical well-being”, essentially allowing abortion in Washington, D. C. By the end of 1972, 13 states had a law similar to that of Colorado, while Mississippi allowed abortion in cases of rape or incest only and Alabama and Massachusetts allowed abortions only in cases where the woman’s physical health was endangered. In order to obtain abortions during this period, women would often travel from a state where abortion was illegal to states where it was legal. The legal position prior to Roe v. Wade was that abortion was illegal in 30 states and legal under certain circumstances in 20 states.

Repealing Roe wouldn’t make abortion illegal, it would make it a matter for State legislatures. Or, as is so often the case, The Guardian doesn’t know what it’s talking about.

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Spike
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Spike

2020 is not the year abortion in the US becomes illegal, nor even the year Roe is overturned, though the current Court may weaken it. Justice Thomas is the only one who frequently writes separate opinions to ask the Court to reconsider past decisions. The Chief Justice, concerned with the Court’s prestige, is notoriously unwilling to do so. And Tim is right, even nullifying Roe simply sends the decision back to the states where it belongs. Abortion might be illegal in Alabama but will be legal and taxpayer-funded in Massachusetts. There is nothing bad about this diversity except gadflies’ desire… Read more »

Bloke on M4
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Bloke on M4

I do think it’s more than just about how people feel about abortion and also the way that abortion was legalised. It wasn’t done by the representatives of the people, but the people appointed by the representatives of the people, and not even the current representatives.

Europe doesn’t really have a lot of arguments because politicians had to expend political capital, make the case, maybe even defend it in subsequent elections. You might not like it, but it is the will of the people.

Spike
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Spike

I don’t feel a groundswell on the street with the lack of basis for Roe. Americans disagree profoundly on whether the fetus should be a legal person and cannot reach a compromise on a decision to abort it. Most Republicans take the awful position that it is a person except when a politician wants to emote for a victim of rape or incest.

But the Founders hated “democracy” and planned for us to rule ourselves with multiple layers of indirection. Only ignorant Tom Steyer would propose for this to be settled by one of his “national referenda.”

Bloke on M4
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Bloke on M4

“Americans disagree profoundly on whether the fetus should be a legal person and cannot reach a compromise on a decision to abort it. Most Republicans take the awful position that it is a person except when a politician wants to emote for a victim of rape or incest.”

But America never worked that through, did it? The normal process of politics is making the argument for a policy, or perhaps modifying the substance of the policy to attract more people. You change minds, you find compromise. Europe did it, including many countries typically associated with Catholicism like Italy.

Spike
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Spike

Each state had worked through the policy when the Roe ruling came down – but not for all time. Few settled the ideological (personhood) question. Few on either side set their sights on changing opponents’ minds, merely on getting policy that satisfies them.

Evolving state laws on “feticide” are passed not mostly to imprison offenders (who always also assault the mother) but to set a precedent allowing people to argue that the state has decided on an ideology.

TD
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TD

For 47 years it’s been a burr under the blanket and likely to remain one unless removed. It would cease to be such a contentious issue if it were simply handled on a state by state basis.

Chester Draws
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Chester Draws

Now, most Americans – nearly 80%, according to Gallup polling – support legal abortion in at least some circumstances.

The “in at least some circumstances” is doing a lot of work there.

I don’t like the death penalty, in general, but I would advocate it “in at least some circumstances”.

At least a third of Americans are largely opposed to abortion for almost all cases. That includes a third of all women too, despite what the feminists would have us believe.

Bloke in North Dorset
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Bloke in North Dorset

Talking Politics had an interesting program on abortion in the USA which they called The Great Abortion Switcheroo because up to the early ’70s the Democrats had been against and Republicans for. Here’s the show notes from the Apple podcast: In the final episode of our American Histories series, Sarah Churchwell tells the incredible story of the politics of abortion during the 1970s. How did evangelicals go from supporting abortion to being its die-hard opponents, what did the switch have to do with the politics of race and what have been the lasting consequences for American democracy? Talking Points: A… Read more »

Quentin Vole
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Quentin Vole

this is what Nixon’s “Southern Strategy” was all about, turning those cultural conservatives into Republicans

And equally LBJ’s Civil Rights Act: “We have lost the South for a generation.” (apocryphally).