Local Opinion: Supreme Court got it right on abortion

As a life-long Democrat, my curiosity was nevertheless piqued by the leaked draft of Dobbs v Jackson. I then read the decisions of Dobbs, Casey, and Roe and listened to the oral arguments. I concede that the Supreme Court got it right in giving up its power to legalize abortion.

Abortion is a difficult subject because, while life begins at conception, there are various ideas about when personhood begins, and many people are fiercely committed to their views.

There are compelling reasons for why abortion should be legal. The most universally recognized is to save the mother’s life and health. It is also the only good option for women of limited means, girls who have been robbed of their childhood by sexual abuse, and for the foster care system, which is at capacity. It is the constitutionality of an abortion right that I question.

Though not mentioned in the Bill of Rights, Roe argued that a right to abortion could be found in the liberty clause of the 14th Amendment. However, an honest reading of this amendment requires an understanding of its context. Bounded by amendments concerning abolition and black suffrage, it clearly referred to the rights of Black people to be free and to be treated fairly by the government. It’s true that the liberty clause has been interpreted more broadly since the time of abolition, but it has always been intended to protect a single group’s interest.

Abortion is in a different category. Roe and Casey’s decisions tried to balance two interests — the woman’s interest in aborting her pregnancy and the state’s interest in protecting potential life. Aside from this not being the role of the court, the problem was that there are different ways to balance these interests and the Court chose one that was arbitrary and inexplicable.

Roe and Casey set fetal viability as the time by which the woman needs to choose an abortion. Julie Rikelman, the woman representing the Jackson Women’s Clinic, said that, “viability just makes sense ... it’s a principled standard.” The Court then asked for the “secular, philosophical argument for why viability is the appropriate line.” She gave an articulate answer for why viability is an appropriate legal line but, in my view, she didn’t fully answer the Court’s question.

Like Rikelman, I had always thought fetal viability the logical time to prohibit abortion and I never questioned that belief. I reasoned that viability was the point at which a fetus was able to live outside of the womb and had acquired some independent characteristics. It never occurred to me that I was simply defining viability rather than explaining its relevance. It further complicates matters when you consider that viability is determined in large part by medical technology rather than by the actual features of the fetus.

Abortion is not a black-and-white issue. Given the complexities of it, I agree with the Dobbs Court that abortion access should be legislated, but I question my initial certainty that Congress should do it. It would simplify things for the law to be uniform and I understand the queasiness induced by the phrase, “leaving it to the states,” but what if the federal regulation were more restrictive than your own state’s law would have been? In that case, even if you could afford to travel to another state for an abortion, there would be nowhere to go.

We must stop expecting the Court to pick sides and insist that the legislators do their job. While a majority of Americans support the abortion right laid out in Roe, a significant number oppose it. Since Roe, abortion has always been a contentious issue and does not “stand decided.”

There is no reason for the Court to arbitrate. The legislative branch doesn’t need a constitutional amendment or court decision in order to create law.