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Disdain for democracy

Democrats don’t want to move to the middle ground on abortion

16 July 2022

9:00 AM

16 July 2022

9:00 AM

Over the course of half a century Roe v Wade became sacralised. To question it was heresy meriting instant excommunication. Hence the shock the Supreme Court has overturned it, even though many experts had always questioned its legal soundness. Justice Byron White, dissenting in the original decision, called it ‘an exercise of raw judicial power’. Moreover, the pro-choice movement had increasingly drifted away from the mainstream centre, successfully pushing for abortions on demand into the third trimester, when babies can live outside their mothers’ wombs. New York’s 2019 Reproductive Health Act allegedly permits babies born alive after a failed abortion to be left to die. Activists for unrestricted abortion rights gradually lost both the moral high ground and the political middle ground. Hence the dismay at the overturning of Roe. Even though the matter has been returned to the states’ political process, activists know that will be a hard sell. Contrary to the high-decibel noise, the essence of the complaint is that judges should have retained the anti-democratic power of SCOTUS to prioritise its judgment over that of voters – Les Deplorables – and lawmakers.

In 2019, CDC statistics show, 629,898 legal abortions were carried out in America. With 195 abortions per 1,000 live births, on average, every sixth baby is being aborted. Women in their twenties account for 57 per cent of abortions. This is the real crisis that needs addressing. Yet, 93 per cent of abortions are in the first trimester and under 1 per cent after 21 weeks. Polls indicate majority support for access to abortions but with restrictions. Other than for those demanding extreme positions, this suggests it should be possible to create support in most states for ‘safe, legal and rare’ abortion regimes.

Abortion laws raise challenging moral questions. It’s not for judges to make up the bioethics of trimesters, viability, and the dividing line between foetus and human life. Rather, it is for people through their elected representatives to find the appropriate balance between the competing interests of women, the unborn child, and society’s moral compass. Legislatures legislate to make law; the judiciary applies law. Using the judiciary to resolve highly political contestation can increase social conflict. Only the democratic process can facilitate compromise and adjustment based on a rigorous assessment of the full range of policy considerations and carefully crafted exemptions and protections.

SCOTUS did not outlaw abortion or make a finding on the merits of abortion, only on whether the US Constitution confers a nationwide right to abortion. Answering in the negative, it returns the matter to the political arena of democratic contestation on a state-by-state basis. As has become distressingly commonplace, the extremists hog the bullhorns while the broad middle with nuanced views on this morally fraught issue retreats into self-silencing solitude. Some believe life begins at conception and all abortion is the slaughter of innocents. Others, that any woman has the right to choose abortion to the very edge of birth. Most believe that abortion should be available under some circumstances but vary on the nature of the restrictions.

The hysterical claptrap let loose on the world since the Dobbs v Jackson decision, ignores the legal nature of the decision, the simple statement that courts should stay out of this and leave it to the democratic process to resolve. Instead, the complexity of the issue is reduced to soundbites and bumper sticker slogans. ‘F— you, Supreme Court!’ was the thoughtful response, middle finger raised, from singer Janelle Monáe. The response from several shrieking Democrats – who attacked Trump for threatening US democracy – has also been performative, refusing to engage with the substance of the decision, despite their legal qualifications, and instead exploiting it to delegitimise the Court. President Biden, forgetting his earlier criticisms of Roe, says the decision will set the US on an ‘extreme and dangerous path’ and ‘the health and life of women across this nation are now at risk’. Vice President Kamala Harris, former attorney general of California, missed yet another opportunity to demonstrate gravitas: ‘Millions of women in America will go to bed tonight without access to the healthcare and reproductive care that they had this morning’. Just what is ‘reproductive’ about abortion, pray? Senator Elizabeth Warren, once a Harvard law professor (in part owing to her sex and then-claim to American Indian ethnic ancestry), thundered that the ‘Supreme Court doesn’t get the last word. In a democracy, we get the last word’. Ma’am, that’s the essence of Dobbs.

The backdrop to Dobbs is five significant changes since 1973 when single mothers were stigmatised, contraception wasn’t easily available, women faced a multitude of social and workplace discriminations, marital rape was legal, date rape rarely recognised, and any rape hard to prosecute. Scientific advances allow premature babies to survive from around 25 weeks. Ultrasound photos and videoclips show newly created life and tiny hearts beating inside the womb. This has changed the equation for women and families. Insisting a foetus is just a clump of cells until after birth flies in the face of lived reality. There is no longer any stigma to pregnancy among unmarried women. Contraception is widely available and affordable. Women’s roles and status have improved significantly. There’s full female participation in the political process, and a majority of voters are women, as the Dobbs decision notes.

The Democrats are bent on milking the ratbag group of 6 January rioters as an insurrection and an attempted coup d’état for maximum political mileage. But they won’t condemn the ‘doxxing’ of Supreme Court justices, publishing their details online, picketing their homes and inciting incendiary action against them. Justice Brett Kavanaugh was the target of an attempted assassination at his home and more recently he left a DC restaurant by the back door to avoid protestors gathered outside. Alexandria Ocasio-Cortez had the bad grace to mock him for that. Twitter has permitted a torrent of racist abuse and threats against Justice Clarence Thomas. With impressive lack of self-awareness, Hillary Clinton described Thomas as ‘a person of grievance as long as I’ve known him – resentment, grievance, anger’.

Legions of abortion rights supporters watched silently as women’s rights were progressively trampled by biological males identifying as women and invading women-only safe spaces. They enthusiastically endorsed mask and vaccine mandates in direct violation of ‘My Body My Choice’. ‘Abortion on the ballot’ will be a vote winner for Democrats only if the Republicans run away from this fight. As Scott Morrison was warned often and discovered to his cost, voters rarely reward political cowardice.

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