Now Everybody Has a Club on Abortion. Wonderful.

Watching the abortion issue being shoved into the coming Virginia elections by ideologues on both sides, it is fair to ask the question:  Can the center hold?  Are the many people who are fairly comfortable with the state of the law these last few decades going to be sorry with an outcome in either direction?

The point has been well-made that the debate over the less-restrictive third-trimester abortion rules, proposed in a failed bill during the 2019 General Assembly session, involved very few cases.  As reported by the Richmond Times-Dispatch long ago, under the current law third-trimester abortions are not happening here.  The bill in question might have changed that, but not much. 

But after months of Republicans using the issue as a club on Democrats, now Republicans in other states have moved to the opposite terminus of the spectrum, passing bills that effectively prohibit abortion at six to eight weeks of pregnancy.  Democrats now have a club.

Unlike that Virginia bill, these new approaches would change quite a bit. 

According to data from the Centers for Disease Control, in 2015 about 23 percent of the more than 18,000 abortions in Virginia  were on women eight weeks or more pregnant. Set the cutoff at six weeks, the reported point when a fetal heartbeat might be detected, and almost half of the Virginia abortions in that year would have faced restriction under such a law.

With those and related near-abortion bans passing in several other places, and after all the political rhetoric about the third-trimester bill, it is fair game for the Democrats to force Virginia GOP candidates to take a position on them.

I looked for the data partly to confirm a recollection that this is another policy area where a racially disparate impact appears – with about 45 percent of Virginia abortions performed on African American women and their progeny. Will that cause the same concern as it does with arrest statistics?

Jeff Schapiro has his own take on this in this morning’s Richmond Times-Dispatch.  He sees danger only for Republicans, of course, but I think both parties are about to alienate the center.  His opinion will get the state-wide airing in the VPAP clips tomorrow, not mine.  So please keep reading.

The word extremist sets some teeth on edge, but we are seeing an argument set at the extreme ends of the debate – easy abortions with no state restriction right up to the point of birth, or no abortion at any point without absolute and indisputable medical necessity.  Neither is the current state of the law anywhere in the United States, and despite some excitement in anti-abortion circles, there is reason to believe recent Supreme Court nominees were telling the truth about their respect for precedent.

Few issues made me less comfortable back in the days when I was working on campaigns, but many on both sides want to forget something important:  Thirty to forty years ago, this issue easily crossed party lines.  There were Democrats who opposed abortion, or at least were open to reasonable regulations.  The sponsors of Virginia’s first parental consent law, which I covered extensively as a reporter, were Democrats (Ted Morrison, Dick Cranwell.)  The pro-life leader of the Senate was Democrat Joseph Gartlan, with help from fellow Democrat Chuck Colgan.

And as Republican caucus director I looked at the GOP legislators of the day and saw the group in three camps, which I called pro-life, pro-choice and pro-confusion.  It was my job to help legislators in all three camps hone their rhetoric, and fairly often a bit of obfuscation was the goal.

Now it’s more a party line issue, at least in Virginia.  I’m not sure that a pro-life Democrat or a Republican willing to defend existing law could ever survive a primary now, not without avoiding the issue.  There have been a couple of Democrats who disavowed this year’s third-trimester bill, and some Republicans opposed the 2012 bill on pre-abortion ultrasound testing.

Abortion is used in campaigns mainly as a magnet to turn out single-issue voters on both sides.  It is not much of wedge issue in these days when the party positions are solidified, and internal debate largely is over.

The 2019 bill, and Governor Ralph Northam’s willingness to jump in with both feet, gave Republicans one hell of a magnet.   I’m sure that Democrats are breathing a deep sigh of relief that Republicans in Missouri, Alabama and a few other states have jolted their magnet to life with a full charge.  The rest of us are now going to be bombarded with campaign messaging on both sides.

The state of the law in most states, 46 years after Roe vs. Wade, is one of those classic compromises leaving many (but not all) people unhappy.  It recognizes that a point comes when the unborn child is indisputably a child, a human being with rights.  And it has produced a system where very few abortions happen at a time when the child might survive outside the womb.   The vast majority occur in the first thirteen weeks, with most of the rest before twenty weeks.  Technology makes it very easy to detect pregnancy and any major problems with that pregnancy much earlier than before.

The Republicans in Virginia have imposed medical facility requirements making the procedure itself more expensive and perhaps limiting access, but abortions are still happening regularly.  Likewise, the mandatory ultrasound has hardly stopped abortion in Virginia.  The GOP has won how many statewide elections since passing that?

But we’re going to get the full treatment between now and November.  Come January, when the next General Assembly majority has to act on the unwise promises made when winning, my suggestion is – don’t.  Either of you.

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26 responses to “Now Everybody Has a Club on Abortion. Wonderful.

  1. Very courageous blog post! In my view, you’ve covered it fairly.

    Will be interesting to see responses. I hold a view that I’ve held for most of my adult life 50+ years, (which I thought was “middle”, not “extreme” ) , there are some times when it’s necessary but not as a “convenience”, as you said, it’s easy to know early on if you are pregnant and waiting weeks/months to decide is unconscionable in my view – but I am not a woman also.

    I think there are “extremists” on the left – but they have typically been small in number and not that vocal – i.e. they have not tried to make it more legal, i.e. passing more liberal laws in the legislators, etc, they have more typically tried to preserve the status quo – which is not acceptable to those who are pursuing legislation to make it more restrictive.

    here’s a world perspective (from Wkipedia) :

    International status of abortion law. In some cases, this map may not accurately depict the content of this article.

    BLUE Legal on request

    GREEN Restricted to cases of maternal life, mental health, physical health, rape, fetal defects, and/or socioeconomic factors

    YELLOW Restricted to cases of maternal life, mental health, physical health, rape and/or fetal defects

    BROWN Restricted to cases of maternal life, mental health, physical health and/or rape

    ORANGE Restricted to cases of maternal life, mental health and/or physical health

    RED Restricted to cases of maternal life

    BLACK Illegal with no exceptions

    GREY No information[needs update]

    Here is a recent PEW Poll:

  2. A fine article indeed. But this is truly a state matter, not a federal one. Roe v. Wade needs to be over-turned because there is no place in the US Constitution for Roe to sit. Indeed Roe turns the Constitution over onto its head. It opens the floodgates to those who demand that the Constitution mandate what they personally want it to mandate at any given time in their particular lives. Roe does not affirm the Constitution. Roe erases the constitution. Like Obergefell, Row escapes the Constitutional orbit altogether, a figment untethered as ether. Give the problem back to the states where it belongs. There it is no longer a wrecking ball sailing amuck in the American Constitution.

  3. “they have not tried to make it more legal, i.e. passing more liberal laws in the legislators, etc, they have more typically tried to preserve the status quo…”

    That’s wrong now, Larry, dead wrong. Wrong in Virginia and wrong in other states, where third-trimester bills have passed.

    “Give the problem back to the states where it belongs.” Not factually wrong, like Larry, but a very dangerous thought, Reed. I don’t want the issue back before 50 legislatures for the next 50 years. The fact that Roe has stood for 46 years without a successful effort in Congress to either cement or overturn it means something.

    • I disagree. A Republic can be a messy thing, but its alternative is far worse. Convenience, and inconvenience, are not viable constitutional principles. I disagree that Roe has had a relatively peaceful stay in our world. I has unleashed a wholly illegal hornet’s nest within our system of governance. Put it back where it belongs.

    • well… it sure seems like a lot more states are restricting it these days.

  4. You two fight it out. I’m pulling for stalemate.

  5. Gosh Steve – No need to run off in a huff because someone takes a position at variance from yours. I am not fighting you or anybody.

    I’m simply stating a position long established, a cornerstone of our Republic, dating back to long before its founding constitution, and expressively affirmed by that Constitution in 1789, and long held since then until certain never elected judges decided to exceed its authority and their own roll as judges to make new law based solely on their own personal preferences and thereby conjure out of thin air their own personal legacy, instead of enforcing the law long established, cornerstones of our nation, its founding and its governance.

    Another way of looking at this, is that the problem lies in the competence or incompetence of the Virginia General Assembly. Let us fix it there. Instead of destroying the US Constitution.

  6. Looking in Wikipedia to define bluer shades of purple, and I have chosen the shade Pomp and Power Purple to describe current Virginia. Not sure where this post can go from there.

    I realize abortion is an important issue, and not to change the subject, but the states are really starting to polarize on many issues. Aside from abortion, a number of red states have passed laws in 2018/2019 to penalize gasoline hybrid vehicles (which do not plug-in) with extra fees (which is unfair). Yesterday Ca. CARB chief Mary Nichols said her state will ban gasoline vechiles if the Trump admin moderates the super strict Obama CAFE MPG regulations.

  7. From a purely legal perspective, Blackmun’s Roe v Wade decision is a piece of crap. The analysis is flawed from top to bottom. He made a conclusion and tried to support it with made-up jurisprudence.

    But it’s settled law for decades and should not be overturned. It’s been refined (so to speak) in Planned Parenthood v. Casey where the Court concluded that “the state can regulate abortions at any point from fetal viability (when a fetus is able to live outside of the mother’s womb) and beyond. Before viability at 23-24 weeks or earlier, regulations are allowed as long as that regulation does not pose an undue burden on the woman.” Taken from a summary of the decision.

    This too is settled law. I don’t know what constitutes an “undue” burden. But some judges see that as a wide-scale limitation/prohibition on state regulations of later-term abortions. Other judges don’t. Clarification on that point would be useful.

    Some of the recent legislation would likely be tossed as unconstitutional but extreme positions such as those held by Tran and Northam that the state should impose no regulations even to the point of killing a new-born infant simply ignores the state’s constitutionally approved power and interest in protecting late-term pregnancies and newly born infants. Both Tran and Northam are extreme to the point of Dr. Mengele’s beliefs.

    Keep the status quo but clarify what constitutes an “undue” burden.

    • Given the mess we’re in, I see merit in limited Federalist Approach, while retaining over riding principle. Likely John Eastman expressed it best:

      “Roe v. Wade, 410 U.S. 113 (1973), closed the door on the genuine political dialogue that was occurring in this country in the late 1960s and early 1970s, and Casey nailed the door shut.

      Kennedy’s opinion in Gonzales v. Carhart has, finally, reopened the door a crack, recognizing that an issue such as this simply cannot be decided without the input of the people, through the political process and their representatives in the halls of legislatures throughout the land.

      Let the dialogue begin.” End quote.

      That is what we are going about doing here with the states full throat, full throttle, input that at long last is driven by the long thwarted and abused will of the unheard parts of American people now being heard by their various states at long last.

      These voices are long, long, overdue being represented. Here states now are playing important rolls in representing them.

  8. Excellent point, TBill – But is this not what the founders intended? And did they not expressly provide remedies for certain interference by the states with Federal business such as interstate commerce?

    Right now, best I can tell, only the US Constitution stands between us and lawless chaos, a relentless tyranny of the majority, followed by coerced order imposed by a modern day brutal version of a King.

    • I don’t know where we are headed Reed. I simply observe the failure to move to a common middle. Maybe spearate but equal and people move to a state where you agree with the politics?

      • Your point was well taken. So was Steve’s as to today’s reality.

        But:

        The Supreme Court never should have taken the position of Roe v. Wade. But it did, getting us in today’s mess. And, as TMT pointed out, once in and for so long, it’s very hard to get out with grace much less acceptable results. (Same thing with affirmative action, an abomination in my view, that insults black lives simply because they come with black skin.)

        But now what to do?

        In its odd way, Gov. Northam’s abomination on partial birth abortion was helpful because it exposed for all to see the brutality and inhumanity of one extreme. Now an extreme on the other side are doing the same (my opinion given where we are now in this society). So this too is useful state action leading to “Let the dialogue begin,” and facilitating it.

        Why?

        Because people, citizens, need to have their full say, their critically important part in these decisions that impact them, and their lives and their values so importantly and intimately. Roe stole this basic right from these people.

        So now only the Supremes’ can handle the explosives that they themselves have so unwisely set afire so many years ago, a fire that has rightfully raged ever since in the view of many and for good reason. (here I disagree perhaps with Steve who I think understates the issue, thus slides over it.)

        In my view, the more state independent action reflecting their citizen’s will the better. This helps to reverse the Federal Governments massively growing power that was put on steroids most recently by Obama’s pen and telephone, his wildly out of control executive orders, that trashed the Constitution, its separation of powers, its protection of minority rights. All presidents do this to varying degrees, so states need maintain with rigor the rights the constitution left them as representatives of ultimate power, the American people.

  9. Suffice to say – the issue is highly divisive – and apparently no middle ground – it’s either “murder” or not… anything that allows even “some” is considered “murder” to many who feel strongly about it. (at least that’s what I seem to hear at times).

    I’ve never felt that way. But I abhor the concept and absolutely opposed it in the 3rd trimester for anything other than the life of the mother which is consistent with the last poll in Virginia:

    ” While Virginians are relatively split over the strictness of abortion laws in the commonwealth in general, 6 in 10 Virginia adults support legal third-trimester abortions if the mother’s health is endangered. This includes large majorities of Democrats, Virginians younger than 40, and just over a third of Republicans. (Washington Post-Schar School poll.)

    This is one of the anchors to several issues that so totally divide us that we can’t seem to find middle ground and our elections confirm it.

    I do not think a majority will support bans on abortion – and that a majority does support fairly unrestricted first trimester and 3rd trimester but only for the life of the mother, rape and incest.

    I don’t see big voting shifts in this – despite the increase in public discourse and legislation.

    In Virginia – it’s pretty clear the pro-life folks are not going to vote for Dems and GOP is obviously making it a wedge issue and will make it a litmus test for candidates for office but again, I don’t think they’re gonna win over new votes.

    I’m not sure the abortion issue is a winning strategy for the GOP in Virginia… we’ll see…

    I’m not really in favor of the States having 50 different laws on this but if that’s the preferred direction – so be it. I see it actually causing some higher level educated people to leave the states where the ban is…. myself.

    • At-yi-yi. I stay away from the abortion issue like the plague. I see the arguments on both sides. Like what I suspect is the view of a majority of Americans, I think we’re in about the right place. Once the foetus becomes capable of life outside the womb (even if medical intervention is needed), then I think abortion should be illegal (unless the mother’s life is in danger). Before that point, the mother should have the right to choose.

  10. Steve gives a good political analysis here but the one problem with the comments and this is hardly the first time is that everyone is an aging, well off white male. There is not one female voice here on an issue that obviously impacts more women than men. Do you guys care what women think? They carry the baby for nine months are are mainly responsible for early care. What gives you the right to tell women whether or not they can have an abortion and if so, what the restrictions are?

    • The issue is not male and female. The issue is the Constitution and its interpretation by the Supreme Court. SCOTUS’s essential bottom line is that, until the fetus is viable outside the womb with or without medical assistance, states cannot prevent abortion or impose unduly burdensome regulations. Once the fetus becomes viable, the state’s interest in protecting the fetus allows the state to regulate and generally prohibit abortions unless the regulation or prohibition effectively puts the woman’s health at risk.

      Either we have a constitutional government or we don’t. Like the court’s holdings or not, they are the frigging law of the land. And once exceptions can be made for abortion such that only women have a voice, we are on a very slippery slope to more and more exceptions, a lawless government and another bloody civil war.

      I’ve grossly simplified my comments but the issue for everyone, including Alabama, Louisiana, Missouri, New York and Virginia, is the applicable constitutional law.

    • “What gives you the right to tell women whether or not they can have an abortion and if so, what the restrictions are?”

      The same right that allows citizens who are not murderers the right to insist government investigate homicide, apprehend killers, prosecute them and sentence them to lengthy prison terms.

      You can believe that life starts at conception, birth or somewhere in-between. Whatever point you pick … killing an embroyo / mass of cells / fetus / baby / human being after that point is murder. And everybody has a stake in getting society to prevent murder.

  11. “Do you guys care what women think?”

    Ask women what they think about their babies, born and unborn.

  12. Peter, that’s another reason I’ve always been uncomfortable venturing here, and I do note the GOP in those states is often having women sponsor and advocate for those bills, and one of the governors who signed on is a woman. We have several women who regularly comment on BR (not as many as the guys) and they are sure welcome to weigh in. Of course I care what they think. But this is an issue for all of us. A pretty basic tenet of liberal (little-L) democracy is you judge a society by how it treats the weak and powerless, and I do believe that includes the late-term unborn. Who speaks for them? This is thorny stuff, admittedly.

  13. I disagree this is a Constitutional issue only. That still doesn’t answer my question. What do women think? It impacts them much more. Where are their voices on BR Blog?

    • Peter, if we don’t follow the Constitution on a controversial matter such as abortion, what mechanism sets the rules? A public opinion poll by GMU and the Post?

      Had I been Harry Blackman’s constitutional law professor, I’d have given him an F in the course based on his poorly reasoned opinion in Row v. Wade. But I think it’s the governing law and, as I’ve written before, should not be overturned.

      If we abandon the Constitution, what the hell do we have? Time for everyone to arm themselves and get ready for Civil War II!

    • I assume women, like men, have varying opinions. The governor of Alabama, who signed that bill into law is a woman named Kate Ivey. I guess we know where she stands.

  14. This argument is beyond politics and the Constitution. DNA tests show that conception produces a new human being; therefore, abortion kills a human being. Will those favoring abortion please identify the circumstances that justify killing a human being? When I was a child, a woman would sacrifice her own life for the sake of the child, whether the child was born or yet to be born. What has happened since then?

  15. I respect your position, Fred. You’re right.

  16. Fred –

    Of course, abortion is only one thread in the cultural and moral cesspool we have built and swim in daily, and argue so cynically and ignorantly about. Here is another sick aspect that wide, deep, and putrid cesspool, the hook-up culture sometimes camouflaged under the moniker “casual dating.” As Noelle Mering writes in her article Is Sexual Autonomy Worth the Cost to Human Lives:

    … The lived reality of many women in today’s dating swamp is that they are reduced to a tool for men’s masturbation. The “remedy” of just using the man as well feels less like empowerment and more like an infernal competition to see who can be worse.

    It makes perfect sense that no one wants to introduce a baby into such a dismal dating scene. A baby requires all sorts of responsibility, sacrifice, devotion, and permanence. That is to say, a baby requires real love, a love that the modern dating scene might try to mimic but cannot embody.

    The promise of the sexual revolution was that sex can be meaningless. Indeed, it has to be meaningless to preserve our autonomy. If it has intrinsic meaning, independent of whatever we desire it to mean, then that might signify that we have duties that affect our autonomy.

    This revolution has thrown human relationships into chaos from the inside out, most tragically the relationship between parent and child. A baby is a glaring, obtrusive, manifestation of meaning interjected into our autonomy.

    To maintain the illusion of sexual autonomy requires us to be at war with, not only the science of basic human embryology, but also our very selves: our bodies, minds, and emotions. This is casual, so why do I feel intimately bonded to him? This is casual, so why do I feel used? This is casual, so why is a baby coming?

    A funny thing happens when we contort our thinking in a way that denies basic reality: people sometimes accidentally reason their way backward into the truth. …. Alyssa Milano, in response to recent laws limiting the availability of abortion, (called for women to go on a sex strike). Another feminist tweet that went viral called for men to be responsible for both the women they have sex with and the children who might follow: “If abortion is illegal then men abandoning their child should also be illegal. If this was a permanent decision for me then it is for you as a father also.”

    Both (women) implicitly concede that because of the nature of sexual intimacy, and without the backstop of abortion, we all might have to realize our duties toward one another and our responsibilities to those to come.

    With the camouflage of abortion under threat, the lie of the sexually autonomous lifestyle and the deep injustice it has imposed on men, women, and children is exposed and threatened. We can somewhat cover up the emotional and psychological toll of casual sex, but we can’t quite cover up a baby unless we get rid of it.”

    This is extract. For full article go to:

    https://thefederalist.com/2019/05/20/sexual-autonomy-worth-cost-human-lives/

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