The Supreme Court is now set to hear an abortion case originating from Mississippi — a case that both sides of the abortion debate point to as a threat to the continued existence of the rule of law imposed by the court’s 1973 landmark decision in Roe v. Wade.
In the relative calm before that storm, can we find room for conversation, even respectful disagreement, stripped bare of bullhorns, protest signs and unreasoned hatred for our neighbors who happen to disagree with us?
Both of America’s major political parties have deliberately politicized abortion for decades, often staking out cartoonishly simplistic positions on a decidedly complex question. In so doing, they have sacrificed good-faith discourse on the altar of heated, superficial rhetoric. This scorched-earth political strategy has unquestionably proved fruitful for both parties at the ballot box, but it also has fueled the corrosive polarization that now infects our political process to its very core. We are left with plenty of invective, but little room for the common ground or the common good.
“Both of America’s major political parties have deliberately politicized abortion for decades.”
Poll numbers tell the sad, but predictable, story. Recent Gallup polling shows that, over the last quarter of a century, the percentage of Republicans who self-identify as “pro-life” has risen from 51% in 1996 to 68% in 2020. Conversely, the number of Democrats who self-identify as “pro-choice” has increased from 58% to 72% over that same period. In short, views on abortion largely have become a marker of partisan political identity, with neither party’s tent seemingly large enough to welcome differing opinions on the subject, or even to tolerate nuanced discussions of the issue.
The impact of this polarization is particularly acute given the percentage of American voters whose ballots are determined solely by the abortion question. Separate Gallup polling shows that, as of 1992, 13% of American voters were committed to vote only for a candidate who shared his or her personal view on abortion. By 2020, the number of “single-issue voters” had doubled, with 24% of all voters (and a full 30% of voters who self-identified as “pro-life”) declaring that they would only vote for a candidate who shared their stance on abortion.
My history of voting against abortion
These numbers are not abstract for me. They are deeply personal.
As a born-and-bred evangelical Christian who first became eligible to vote in the early 1980s, I cannot remember a time when my politics were not steeped in the language of the abortion debate. The “pro-life” rhetoric of the Moral Majority deeply resonated with me — so much so that, even years after I first found myself deeply disagreeing with almost every other public policy position staked out by the GOP, I still felt tied to that party by the question of abortion. Simply put, if you are firmly convinced that each of the more than 600,000 abortions performed in the United States annually represents the killing of an innocent child of God, made by God in God’s own image, being a “single-issue voter” seems like a very reasonable stance.
“I cannot remember a time when my politics were not steeped in the language of the abortion debate.”
My dismay over the steadily decreasing, but still alarmingly high, abortion rate in America remains unabated. I believe as strongly today as ever that a nation in which almost 200 abortions are performed for every 1,000 live births is a nation that does not cherish human life as truly sacred in all of its forms and stages. It does not surprise me that such a nation would continually favor unfettered access to guns over the lives of its own children, or that it would feed those same children into the gaping maw of constant wars just as soon as they are big and strong enough to hold guns themselves.
I am dismayed, but not shocked, that such a nation allows its poor to starve homeless in its streets so that it can slash the taxes of its wealthiest citizens. I remain convinced that, in each of these cases, the blood of those destroyed by our sinful indifference cries out in anguish to God from the American soil on which it has been spilled.
Being ‘pro-life’ but no longer Republican
Other things have changed for me, though. As a result, my decidedly “pro-life” views on the abortion question no longer tie me to a Republican Party whose views on almost every other subject — from war, to poverty relief, to health care, to gun control, to the death penalty, to climate change — can only be described as “pro-death.”
“My decidedly ‘pro-life’ views on the abortion question no longer tie me to a Republican Party whose views on almost every other subject … can only be described as ‘pro-death.’”
First, as a lawyer, and particularly as a lawyer who regularly deals with complicated questions of constitutional law, I have become much better informed as to the extent to which legislative or judicial restrictions on abortion offer only thorny paths of uncertain efficacy, not bright-line solutions.
While the contours of the right remain murky and shifting, there can be no real debate that Americans enjoy a constitutional right of bodily integrity and privacy. Thus, for example, if I were the only possible bone marrow donor match for a critically ill patient who likely would die absent a donation, I think almost all of us would agree that I would then have an ethical or even a moral obligation to submit to the surgery.
As noted in the oft-cited case of McFall v. Shrimp however, I would have no legal obligation to allow the use of my body in such a way as to save another’s life, and no court could compel me to do so.
Rather, in the colorful language of the McFall court, for the state to compel such conduct on my part would be, legally speaking, the “revolting” equivalent of allowing the government “to sink its teeth into the jugular vein or neck of one of its members and suck from it sustenance for another member.”
Balancing constitutional interests
Of course, like almost all constitutional rights, our right of bodily integrity and privacy is a qualified one, and we may be forced to suffer at least a relatively minor incursion against that right if called for by substantial and legitimate public interests on the part of the state. Thus, for example and of particular note in today’s COVID 19-impacted world, the Supreme Court held as early as 1905 in Jacobsen v. Massachusetts that an American citizen can be forcibly required to submit to a vaccination over their own personal objections, religious or otherwise, where their vaccination is shown to be vital to combat a national epidemic.
“That right must somehow be balanced against the pregnant woman’s own fundamental constitutional right of bodily integrity and privacy.”
Particularly in the abortion context, even for persons like me who believe that an unborn child has a right to life and that the state has a legitimate interest in protecting that right, that right must somehow be balanced against the pregnant woman’s own fundamental constitutional right of bodily integrity and privacy.
That tension between important and often competing rights rests at the heart of Roe v. Wade, with Justice Blackmun prefacing the court’s opinion in that case by noting that — while personal views on abortion tend to involve “deep and seemingly absolute convictions” resting in part on an individual’s religious training and moral values as well as, in some cases, his or her “exposure to the raw edges of human existence” — the court was called to decide the matter before it “by constitutional measurement.”
An imperfect but good-faith solution
Especially viewed through that lens, the oft-criticized outcome of Roe v. Wade — and its authorization to states to restrict or even prohibit abortions, but only in the final trimester of pregnancy — begins to look like an imperfect but good-faith attempt to balance and preserve the competing constitutional interests of pregnant women, unborn children and society as a whole.
While many heap scorn on the court’s decision essentially to tie the unborn child’s constitutional right to life to a hypothetical point of viability (rather than to either conception or birth), they do so while forgetting that the question of when life begins has presented a challenge to the church as well as the courts for centuries, with not even the Catholic Church officially declaring that human life begins at the moment of conception until 1869. Centuries of Christian thinkers (including Thomas Aquinas) believed that “ensoulment” did not occur until some intermediate stage of fetal development (as late as 80 days after conception) so that the death of an unborn child prior to that point in time did not constitute a homicide.
Of course, even if the social conservative Holy Grail of reversing Roe v. Wade were soon to be grasped compliments of today’s significantly right-leaning Supreme Court, the result would not be a nationwide ban on abortion. Instead, the question of when, if ever, an abortion would be allowed would be thrown to each individual state.
Abortion tourism
The patchwork quilt of laws that would result is reflected in the fact that six states (Arkansas, Kentucky, Louisiana, Mississippi, North Dakota, and South Dakota) have preemptively adopted “trigger” laws that would immediately ban most or all abortions upon any reversal of Roe v. Wade, while seven other states (California, Connecticut, Hawaii, Maine, Maryland, Nevada and Washington) have adopted similar measures that would operate to ensure state-wide abortion rights in the event that Roe v. Wade were to be overturned.
Such disparity in state laws would necessarily increase the already present-day fact of “abortion tourism,” with persons located in states banning abortion traveling to another state with different laws to obtain an abortion. Of course, “abortion tourism” is an option only open to those wealthy enough to afford it, essentially leaving legal limits on abortion only applicable to the poor.
“Even if Roe v. Wade were overruled today, the bottom-line impact that decision would ultimately have on abortion rates in America is far from clear.”
In short, even if Roe v. Wade were overruled today, the bottom-line impact that decision would ultimately have on abortion rates in America is far from clear.
Such thought, over time, led me personally to the conclusion that, for persons truly appalled by America’s abortion rate and committed to lowering that rate as much as possible, legislative or judicial pronouncements restricting abortions are not the panacea claimed by the far right.
Policies that actually reduce the abortion rate
Ultimately, however, the difficulties associated with implementing legislative or judicial restrictions on abortion were not the primary reason I abandoned the belief that my opposition to abortion justified my continued Republican votes. Instead, that change primarily sprang from my discovery of the seemingly counter-intuitive but indisputable fact that, while abortion rates have continued to decline since 1980, the percentage of decline has consistently been greater under “pro-choice” Democrats than it has under “pro-life” Republicans.
More specifically, official CDC statistics show that the abortion rate under Presidents Reagan and George H.W. Bush remained between 23 and 24 per 1,000 women yet dropped to 16.2 per 1,000 women under President Clinton. The decline in abortion rates then largely plateaued under President George W. Bush, falling only to 15 per 1,000 women during his eight years in office. During President Obama’s term, the rate plummeted to 11.6 per 1,000, the lowest recorded abortion rate in America since two years before Roe v. Wade was decided.
“It is absolutely true that the surest means available to reducing abortion rates in the United States is to decrease the rate of unwanted pregnancies.”
One clear reason for this seeming contradiction is the Democratic Party’s long-term commitment to making contraception freely available, especially in communities wracked by persistent poverty. Reflecting the impact of such efforts, a study spearheaded by Jeffrey Peipert of Washington University found that providing free access to birth control to a group of women in the St. Louis area led to abortion rates over the course of the three-year study ranging from 4.4 to 7.0 per 1,000 (compared to a national average at that time of 19.6 per 1,000) — effectively slashing abortion rates by one-half to two-thirds.
In a related vein, birth rates for teenaged mothers plummeted to 6.3 per 1,000, in stark contrast to the national average of 34.3 per 1,000.
In short, it is absolutely true that the surest means available to reducing abortion rates in the United States is to decrease the rate of unwanted pregnancies (with the Brookings Institution determining that unwanted/unintended pregnancies accounted for 90% of all abortions). Democratic policies on affordable health care, including low or no-cost contraception, tend to do exactly that.
Public policy that backfires
Conversely, a study by a pair of professors at the Stanford University School of Medicine that was published in The Lancet in June 2019 documents that the United States’ so-called “Mexico City Policy” — a policy prohibiting not just the use of American funds by foreign NGOs to perform abortions but, rather, cutting off all American funding to foreign NGOs that perform any abortions as part of their overall work, which has been consistently enforced by Republican presidents and rescinded by Democratic presidents for decades — caused a 13.5% drop in the use of modern contraceptives in certain sub-Saharan African nations, resulting in a staggering 40% increase in the abortion rates in those same nations.
Similarly, Guttmacher Institute research published in 2015 estimates that defunding Planned Parenthood, a rallying cry for GOP candidates nationwide, would increase abortion rates in the United States by approximately 15%, given the resulting loss of access to contraception within poor communities.
“Those same policies tend to actually increase the number of unborn children aborted in the United States and abroad.”
Simply put, while the GOP’s abortion-related policies play to the sensibilities of its conservative base and allow for the use of some tailor-made “family values” sound bites, those same policies tend to actually increase the number of unborn children aborted in the United States and abroad.
I still stand with the unborn
Today, I am a “pro-life” Democrat, not because I no longer view abortion as an essential or determinative question but, rather, because I do. It is a political decision driven by my belief that almost all Americans — whether self-identifying as “pro-choice” or as “pro-life” — should be able to find common ground when it comes to measures which, without imposing any further restriction on a woman’s right to choose to maintain or terminate a pregnancy, have the ultimate impact of preventing tens of thousands of unnecessary abortions.
Until such common ground is reached, I intend to stand with the unborn and to cast my votes for them by backing candidates and policies that have been shown to actually decrease abortions, not just demonize them.
Chris Conley
Chris Conley is an attorney and graduate of the University of Georgia and of the Emory University School of Law. He and his wife, Mary, live in Athens, Ga., where both are members and deacons at First Baptist Church. They have one son, Aaron, who also is an attorney, and a miniature schnauzer, Oso, whose career path remains uncertain.
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