Writing for a bimonthly magazine can be frustrating. As I wrote my first draft, the U.S. presidential campaign was still raging; conservative judge Amy Coney Barrett was nominated to the Supreme Court; and COVID-19 infection rates fluctuated while schools, colleges, and universities opened to varying degrees and as northerners began spending more time indoors. By the time you read these words:
- The most momentous election in American history will have been decided (I hope). Or who knows, a new Civil War might have broken out.
- Barrett’s nomination will most likely have succeeded. Or failed.
- And COVID-19 will have done whatever it was going to do, perhaps necessitating harsh new bouts of lockdown. Or not.
In the face of all this, I’m supposed to prognosticate. When you’re a magazine editor, that’s your job, dammit.
Oh, and I almost forgot. As I was writing my second draft, President Trump was airlifted to Walter Reed Military Medical Center for treatment of COVID-19. At around the same time, several Republican senators whose votes will probably be necessary to confirm Judge Barrett also tested positive.
I can’t predict how the election will turn out or whether the High Court will get a conservative supermajority or what’s next on the virus front. What I can predict with at least modest confidence is that no matter who becomes president or who’s on the court, Roe v. Wade’s days as a linchpin of abortion rights are numbered.
I say that with regret. When the religious Right made Buffalo, New York, the sole focus of its national campaign to blockade abortion clinics in the spring of 1992, I stood on the clinic defense lines (as did most of my colleagues at Free Inquiry). I knew Barnett Slepian, the Buffalo abortion doctor who was murdered in his home by a “pro-life” assassin in 1998. My then–life partner, now my wife, worked as an abortion counselor beside Slepian in hundreds of abortion procedures. My car sometimes sports a bumper sticker reading not just pro-choice, pro-abortion. My dedication to the ideal of “abortion on demand without apology” never wavered. Still, I’ve joined what is probably a solid majority of observers of this field who’ve concluded that Roe has become largely irrelevant. What happened?
Decades of activism by religious conservatives subjected Roe to the death of a thousand cuts: a parental-approval statute here, a law that doctors can’t perform abortions unless they have privileges at a local hospital there, a requirement for clinics to be designed to the same specifications as hospitals a few towns over. Ninety percent of U.S. counties now have no abortion provider. If the Supreme Court overturns Roe—or should I say when?—more than twenty states already have laws on the books that ban or severely limit abortion, ready to take effect the moment Roe’s demise renders them constitutional.1
Whatever else the future holds, one thing seems clear to me. However deplorably, abortion will be legal in a few states and illegal in many others. Women of the middle and upper classes will have to travel long distances to obtain procedures if they live far from any clinic. Poor women in remote areas may be unable to access legal abortion at all. And the battles over this hideously unequal situation will be fought in state legislatures rather than in the courts.
Of course, Roe’s weaknesses were no secret. As early as 1989 I wrote:
Roe v. Wade settled the abortion battles of the 1960s and 1970s in an unstable and ultimately undesirable way: by [judicial] fiat. By enforcing a pre-emptive victory for those in favor of abortion rights, it brought the grass-roots debate about the subject to a premature end. The important questions, such as “When does a fetus become a human person?” were never really thrashed out. So we arrive at today’s situation, where abortion rights exist only by court order because advocates never got the chance to build a broad-based constituency for them.2
But don’t take my word for it. Here’s the late, much-lamented lioness of the High Court, Ruth Bader Ginsburg, in a 1992 lecture: Roe “halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue.”3
It’s often forgotten how friendly the legal and cultural climates were toward abortion rights in the early 1970s (Roe was decided in 1973). I summarized it thusly thirty-one years ago:
When we look back at the years before Roe, it is clear that a movement to build a true national consensus favorable to abortion on demand was gaining momentum. Sixteen states had already liberalized their abortion statutes in the years prior to Roe. Many adapted the ALI Model Penal Code, which in turn drew on New York State’s pioneering reform legislation. Between 1967 and 1970, the American Medical Association (AMA) reversed itself on abortion: In 1967, the AMA’s Committee on Human Reproduction had advocated adoption of a strict anti-abortion policy. Yet by 1970 the climate had changed to the point where the entire AMA adopted abortion guidelines that were strongly pro-choice. The vigor and depth of pro-abortion advocacy in the pre-Roe years can be seen in the lively debate that went on in the philosophical literature—and also in the largely successful initiatives of Planned Parenthood, NOW, and other organizations to liberalize abortion laws state by state, building consensus as they went.4
In hindsight, it seems clear that had Roe not been handed down, a great many states would have established by legislation abortion policies more liberal than those derived from Roe. This was the 1970s, when humanist bioethicist Joseph Fletcher could write, “The truly ethical question is not whether we can justify abortion, but whether we can justify compulsory pregnancy.”5 But that was then. Now, after decades of religious-Right activism carried out in the shadows of Roe, that choice between moral options of roughly equivalent weight has given way to a lopsided faceoff between conservatives’ insistence that abortion is murder and liberals’ far gauzier assertion of the “right to choose.” This profoundly disadvantaged abortion-rights advocates. As I noted in a 1996 commentary:
Conservatives argue … that the purposeful taking of human life is never licit. If we accept this contention, the debate is over. Licitness trumps choice every time. … [I]f abortion opponents succeed in convincing most Americans that abortion is murder, ‘pro-choice’ advocates will be unable to prevent abortion’s exclusion from the range of options among which American women may legitimately choose.6
In other words, Roe’s failure was all but foreordained. No small measure of blame lies with moderate pro-choice leaders in the last few decades of the twentieth century. They calculated that it was easier to rally Americans under the convenient banners of “privacy” and “choice” rather than to finish educating the public about why abortion was morally okay. William Saletan (now of Slate) set out the whole wretched narrative in his epochal book Bearing Right: How Conservatives Won the Abortion War.7 I reviewed it in FI’s April/May 2004 issue.8
Yet I can’t escape the suspicion that none of this had to happen. Yes, abortion opponents took advantage of the contradictions inherent in Roe to out-organize and out-advocate us—again, that’s what Saletan’s book is about. They succeeded so manifestly that “[y]ou could be forgiven if … you thought that the religious community in the U.S. was pretty uniformly anti-abortion.” Religion watchdog journalist Frederick Clarkson was writing specifically about the 2020 Democratic and Republican conventions, but I think his words capture a truth about how the whole country sees itself.9 But that self-image is untrue. For one thing, the Pew Research Center reports that “61 percent of Americans say abortion should be legal in all or most cases” with only 38 percent opposed—a ratio that’s held fairly steady since 1995.10 As for religious Americans specifically, Clarkson shows that there’s a “vast prochoice religious community in the United States.” It includes the U.S. Episcopal and Presbyterian churches, the Evangelical Lutheran Church in America, and the United Church of Christ, all of which are officially pro-choice. It includes the 56 percent of lay Catholics who tell Pew (no matter what their hierarchy says) that abortion should remain legal. And, Clarkson adds, it includes “most of organized Judaism.”
It is simply “a false narrative,” Clarkson concludes, “that people of faith oppose … abortion rights.” In an impressive research paper, Clarkson suggests that the pro-choice religious community could become “the Future of Reproductive Rights, Access, and Justice.”11
This is an enticing prospect, but it would require abortion defenders on the religious Left to work much harder on getting organized than they have to date.
And what about the secular community, from atheists and secular humanists to the merely unchurched? Secular Americans overwhelmingly (though not unanimously) favor abortion rights, and our numbers are still swelling. Daniel Cox and Amelia Thomson-DeVeaux of the FiveThirtyEight report that “religiously unaffiliated voters accounted for one-quarter of the electorate in 2016, and 30 percent in 2018.”12 It sounds like there’s a wealth of pro-abortion–rights energy in the secular community that Democratic Party strategists—and any number of single-issue abortion-rights activists—could tap. But Democrats, at least, continue “mostly ignoring a massive group of voters who are becoming an increasingly crucial part of their base”: us.13
In the past, party strategists thought the nonreligious were too difficult to reach (that herding-cats problem again) and feared that open outreach to seculars might offend more religious party members. But with the polarizations of the Trump era and the continued growth of the so-called Nones, seculars are just “too ripe a target for politicians to ignore,” Notre Dame political science professor David Campbell told Cox and Thomson-DeVeaux. “I think in future elections we’re going to see more of an effort to reach a secular voting bloc.” Along the same line, cause organizations that are pro-abortion rights (not just pro-choice) would be well advised to reach out to seculars more intensely.
This cuts both ways, of course: secular organizations from the Center for Inquiry to the Secular Coalition for America would do well to raise their voices and show greater support for the abortion-rights cause.
With this, the tragic nuance of the coming post-Roe world stands exposed. Over several decades, the religious Right devoted toil and treasure to confect a Potemkin narrative of an anti-abortion majority, while the abortion-rights movement—to the extent that there was a movement frankly defending abortion rights, as opposed to “choice”—failed to mobilize potentially impressive levels of support among mainstream-to-liberal religionists and among the nonreligious.
If abortion-rights advocates had mobilized these groups—or, let’s be fair, if we seculars and those on the religious Left had buckled down and done more to inject ourselves into the abortion debate—the situation we face today might not be so dire.
References
1 Law professor Joan C. Williams summed up the sad situation in “The Case for Accepting Defeat on Roe,” an October 4, 2020, New York Times opinion piece.
2 Tom Flynn, “The Future of Abortion.” FI, Fall 1989.
3 Quoted in Williams, op. cit.
4 Flynn, op. cit.
5 Joseph Fletcher, Humanhood: Essays in Biomedical Ethics (Buffalo, N.Y.: Prometheus Books, 1979).
6 Tom Flynn, “Defend Abortion, Not Just Choice.” FI, Summer 1996.
7 William Saletan, Bearing Right: How Conservatives Won the Abortion War (Berkeley: University of California Press, 2003).
8 Available online to subscribers at /2004/04/bearing-right-how-conservatives-won-the-abortion-war/.
9 Clarkson’s not wrong about the conventions. Of course the GOP gathering was an anti-abortion prayer fest. But even the Democratic convention closed with a prayer by a liberal Jesuit priest that listed “the unborn child in the womb” among “those most in need.” With friends like these … Frederick Clarkson, “Is the Prochoice Religious Community a Sleeping Giant?” Religion Dispatches, September 29, 2020. Online at https://religiondispatches.org/is-the-prochoice-religious-community-a-sleeping-giant/; accessed October 5, 2020.
10 Pew Research Center, “Public Opinion on Abortion: Views on Abortion, 1995–2019.” Online at https://www.pewforum.org/fact-sheet/public-opinion-on-abortion/; accessed October 5, 2020.
11 Frederick Clarkson, “The Prochoice Religious Community May Be the Future of Reproductive Rights, Access, and Justice.” Political Research Associates, September 28, 2020. Online at https://politicalresearch.org/2020/09/28/prochoice-religious-community-may-be-future-reproductive-rights-access-and-justice; accessed October 5, 2020.
12 Daniel Cox and Amelia Thomson-DeVeaux, “More and More Americans Aren’t Religious. Why Are Democrats Ignoring These Voters?” The FiveThirtyEight, September 17, 2020. Online at https://fivethirtyeight.com/features/more-and-more-americans-arent-religious-why-are-democrats-ignoring-these-voters/; accessed October 5, 2020.
13 In this context labels such as “nonreligious,” “Nones,” and “seculars” encompass everyone from avowed atheists to those who decline to state a denominational affiliation on surveys.