Abortion roils election waters

In the almost two years since the Supreme Court overturned decades of federal constitutional protections for abortion and returned almost all regulation to the states, the procedure has been banned in some states while access to it expanded in others. The tumultuous five-decade legal and political struggle over the government's involvement in the outcome of a woman's pregnancy continues unabated.

Voters are now empowered to decide the scope of this intensely personal family decision, just as the effort to decriminalize abortion was underway in states when Roe v. Wade was decided in 1973. For many, this unwanted opportunity was created by the 2022 ruling that caused women and their families much unneeded trauma. The outcome of the democratic process currently underway, however, eventually may bring about more of a national determination on the right to abortion access than Roe ever achieved. 

The court’s 6-3 decision in Dobbs vs. Jackson Women’s Health Organization upheld a Mississippi law banning most abortions after 15 weeks of pregnancy. More consequentially, in a 5-4 vote, the justices overturned the Roe and 1992 Casey v. Planned Parenthood decisions which had firmly established a constitutional right to an abortion up until fetal viability.

Reshaping the Supreme Court to overturn this constitutional protection had its roots in the White House campaigns of successive Republican presidents, starting with Ronald Reagan and ending with Donald Trump, who appointed three of the five justices who overturned Roe and Casey.

NO POST-DECISION PLAN

After accomplishing their goal, however, the winners did not have a plan to manage the fallout. Now there are fears the victory may be politically hollow. While taking credit for the great reversal, Trump is having difficulty finding a popular footing on the issue in his bid for a second term. He deflects most questions by saying it's now a state issue; his only definitive position to date is opposing a national ban. 

Polling consistently shows a majority of voters support access to abortion, particularly suburban women who could be the deciders in many swing states. So far, voters have said yes in all seven states where referendums protecting abortion access were on the ballot. A dozen more similar referendums are expected this fall, adding a new level of unpredictability to a tense election landscape.

Candidates for two U.S. Senate seats the GOP needs to flip to take the majority are backpedaling. Larry Hogan, the former governor of Maryland who had vetoed a bill to incorporate the right to abortion into the state's constitution, now says he is “pro-choice.” Kari Lake, the GOP Senate nominee in Arizona, is trying to distance herself from her past strong support for an 1864 law that outlawed abortion except to save the life of the mother and mandated prison terms for providers. Lake now says she supports exceptions for rape and incest and has deleted pro-life references from her campaign website. However, she is still vacillating on a precise position, a stark example of how important Arizona is to the outcome of the presidential race and Senate control.

The Supreme Court has two other abortion cases to decide by the end of June that could further roil the debate. In one, the court will decide whether a federal law requiring hospitals that take Medicare funds to provide “necessary stabilizing treatment” in their emergency rooms overrides an extreme Idaho abortion ban.

ABORTION PILLS CASE

The other case, which would have enormous national impact, involves challenges to a Food and Drug Administration rule formulated by the Biden administration that approves the use of pills to terminate a pregnancy within the first 10 weeks. Medically induced abortions, which do not require oversight by a physician, now account for more than 63% of all abortions, a dramatic increase in response to new state restrictions like travel bans and penalties for providers. During arguments, several justices who voted to overturn Roe seemed reluctant to wade any further into the thicket.

Both pending cases would turn the spotlight away from state rules to the federal government's role. Would a second Trump administration rescind FDA approval of the distribution of the drug, mifepristone? Trump recently said he has “strong views” on the FDA rule, but is not prepared to announce his position.

Would a Republican Congress allow hospitals receiving federal Medicare in states with stringent abortion bans to refuse to perform pregnancy terminations in emergency situations? Would a Democratic-controlled Congress seek to repeal a current ban on using federal funds for abortions? These are questions that need to be answered.

Once again, front and center, is what criteria a president would use to select new justices should any vacancies occur. For senators, on what basis would they confirm or reject those nominations? The dodgy answer that Roe is precedent won't work anymore.

Those who hold strong moral objections to abortion want to outlaw or severely restrict the procedure. But in our secular society, it seems the majority wants a balance between protecting fetal life and the right of a woman to protect her health and self-determine the course of her life. Two years after the Supreme Court told the nation, “You decide,” the question is being called for a vote.