Most Americans don’t realize that the United States has some of the most permissive abortion laws in the world.
Of more than 200 nations, the U.S. is one of the few where unlimited abortion on demand at any point during pregnancy is allowed. Among a few of our advanced peers, France limits abortion on demand or in case of rape to 14 weeks; Germany and Switzerland to 12 weeks; England to 24 weeks; and Sweden to 18 weeks.
The reason these countries all have such limits is that their laws were derived through legislation or referendum and thus generally reflect the political consensus in those nations.
Gallup has been polling Americans on abortion since 1974, and the majority view has always been that abortion should be legal only under some circumstances, varying from 61 percent support in 1998 to 48 percent in 2021. Only around 30 percent of those polled by Gallup over that time have said that abortion should be legal under any circumstance, and less than 20 percent say it should be illegal for any reason.
So, American opinion on abortion roughly aligns with opinions in other nations; namely, that abortion should be legal but limited.
Why then, does the United States have an abortion regime much more permissive than the public consensus? Because our abortion law was not determined through legislation or referendum. It was imposed by the Supreme Court through the (in)famous Roe v. Wade decision in 1973.
In our American constitutional system designed for a self-governing people, the courts settle disputes but do not impose sweeping new social policies. But Roe did so. The result has been that, for almost 50 years, every election, and every Supreme Court nomination, has been poisoned by Roe.
Even former Justice Ruth Bader Ginsburg said that, while she supported the right to abortion, the Roe decision should not have displaced all state laws.
That’s why Roe should go. Not because abortion should be illegal under any circumstance, but because a self-governing people chooses their own laws through representative democracy, not through imposition by the judicial branch.
Now that I’ve bolstered my conservative, pro-life bona fides by arguing that Roe should go, it may surprise you that I think Texas’ new “heartbeat law” should go, too.
Why? First, because the end doesn’t justify the means. While I support reducing the number of abortions to the degree possible, that goal doesn’t justify creating a bounty system whereby someone completely uninvolved in an abortion has an incentive to sue in order to obtain a financial reward. That’s called a “private right of action,” and conservatives have consistently opposed them because they pervert standing in the justice system and are a boon to trial lawyers. Tort reform, dontcha know?
But the most important reason the Texas heartbeat bill should go is that it also doesn’t reflect the consensus of the public in Texas.
“What?” You might object. “It was passed by the Legislature! Isn’t that self-government?”
Well, yes. But again, because of Roe, politicians in red states have been able to pass fan-service abortion restrictions without risking political backlash because everyone assumed the Supreme Court would overrule them.
But if the Supreme Court overturns or substantially limits Roe in a pending Mississippi case, suddenly these freebie votes to restrict abortion are going to come with a cost.
The Republican Party’s embrace of Donald Trump cost it dearly with suburban, educated women. But that is only a preview of what will happen if red states ban abortion post-Roe.
Here’s my prediction: If the Supreme Court overturns Roe, a half-dozen red states will ban or nearly ban abortion. But over the next several elections, Republicans there will pay a political penalty because they will have overreached the public consensus even in their red states, where eventually abortion laws will more or less reflect the general consensus: legal but limited.
In other words, nothing will accelerate the purpling of Texas faster than Republicans overreaching on abortion.