Abortion part XXXVII [Updated]

March 2nd, 11:58 pm: I've provided a bit of additional material at the bottom of the post.

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The mother of all divisive issues seems positioned to play an important role in the 2020 presidential campaign.

The issue of abortion has been making political waves recently.  To understand why that is so, it's helpful to review recent history, especially as it pertains to the Supreme Court and abortion.

Abortion as a political issue began to rise in importance when Supreme Court Justice Antonin Scalia died suddenly two years ago, in February 2016, during President Obama's administration.  Until Scalia's death, the court was precariously balanced, with four justices thought to be pro-life (one of whom was Scalia), four thought to be pro-choice, and Justice Anthony Kennedy in the position of "swing vote".  While Kennedy was nominated by a Republican president and was considered conservative in many ways, he favored the legal regime established by Roe v Wade, so on abortion, as long as the precarious balance held, the court was configured to maintain the status quo.

The story of the succession to Scalia's seat is pretty well-known: Democratic President Obama nominated Merrick Garland, who was widely expected to be pro-choice and so would have "flipped" one of the court seats from pro-life to pro-choice and therefore tipped the court's balance in a more pronounced pro-choice direction; Mitch McConnell and the Republican Senate refused to consider the Garland nomination; Republican Donald Trump unexpectedly was elected and the Republicans narrowly retained the Senate in the fall of 2016; and President Trump's subsequent nominee to Scalia's seat, Neil Gorsuch, was confirmed.

While the choosing of Scalia's successor generated an enormous amount of angst and fury, when the dust settled, the status quo was set to resume.  The court's precarious balance on abortion was maintained: it still consisted of four pro-life justices (assuming Gorsuch votes pro-life), four pro-choice justices, and Kennedy in the role of swing vote. 

But while Gorsuch's confirmation maintained the status quo, the politics and emotions that led to it were anything but ho-hum.  The angst and fury had their effects.  Pro-choice voters experienced a jolt of  hope on the occasion of Scalia's death and Garland's nomination, only to have those hopes bitterly dashed when Republicans blocked the the nomination and then paid no political price for it in the 2016 election; indeed, Trump's election probably is attributable at least in part to pro-life Evangelical and Catholic voters who made their choice on the basis of abortion politics.  The reactions were equal and opposite for pro-lifers; they were deeply worried at the prospect of President Obama swinging the court in a more decisively pro-choice direction, only to see victory snatched from the jaws of defeat when McConnell refused to consider the Garland nomination, Trump was elected and it became clear that there was a path to confirmation for a justice, Gorsuch, whom we all expect to be pro-life.

 So the two sides of the abortion issue already were awakened and emotionally fraught when the court's swing vote and guarantor of the status quo, Justice Kennedy, announced that he would retire in the summer of 2018.  President Trump was expected to nominate a pro-life justice to succeed him - which would upset the precarious balance and tip the court in a pro-life direction.  For pro-life activists and voters, this was the most promising prospect they had seen in decades, because the regime of court decisions that began with Roe v Wade has set the basic terms for abortion's legality in the United States.  To be sure, there are abortion-related issues that continue to generate controversy and political conflict at the federal, state and local levels, but all those measures can do is make incremental changes within the basic landscape that Roe staked out. To make a fundamental change to the legality of abortion in the US, Roe would need to be dismantled or superseded in whole or in part - and short of a Constitutional amendment, only the Supreme Court can do that.

There is no need to rehash the details of the drama of last summer when the president nominated Brett Kavanaugh to succeed Kennedy: the desperate search on behalf of pro-choice activists for something, anything that would disqualify Kavanaugh; the accusations of sexual assault which allegedly took place when he was a teenager; the confirmation delays; and the riveting Senate hearings.  What is important to note about those events is that, in my view, they were all about abortion.  That is not to discount the #MeToo passion that was aroused by the accusations against Judge Kavanaugh; much of that passion surely was genuine.  And to be sure, the court's decisions touch on many areas of contemporary life, and liberals could find many reasons to oppose Kavanaugh (just as conservatives could find many reasons to support him).  But the charges against Kavanaugh that were brought forward (or ginned up), again in my view, were done so primarily in order to prevent the court's abortion balance from tipping in a conservative direction.

The pro-life movement emerged victorious when Kavanaugh eventually was confirmed.  And now it's widely thought that the court has a pro-life majority.  That development sets the stage for what we are seeing now.

Which is: pro-choice activists, gravely worried about the prospect of a pro-life-leaning court nullifying or changing Roe v Wade jurisprudence in some way in the near future, have undertaken initiatives, mostly at the state level, to preserve abortion rights as much as possible.  This activism by pro-choice advocates is a new thing.  For many years, most of the abortion-related action at the state level has been initiated  by pro-life advocates seeking to limit the effects of Roe; such statewide measures as parental notification laws, and laws attempting to limit abortions to pre-viability time periods, are the work of pro-life advocates and their allies in state legislators and statehouses.

But the new Supreme Court balance has awakened pro-choice activists to try to update state laws to ensure that abortion is available in a post-Roe world.  Prior to Roe, the country's laws on abortion consisted of a patchwork of state laws, with provisions differing markedly from one state to another.  It's widely thought that, should the court enact some change to the Roe case law, those state laws, which have been dormant for decades, will suddenly spring back to life.

These new pro-choice initiatives first came to the general public's attention in late January - January 22nd, to be exact, the anniversary of the Roe v Wade decision - when New York governor Andrew Cuomo signed the Reproductive Health Act.  This law allows a woman to get an abortion if she has been pregnant 24 weeks or less; also if the pregnancy is more than 24 weeks along if a certified health professional states that it's necessary to preserve the life or health of the mother; or if the baby in the womb seems to be non-viable.  New York's previous law permitting abortion (which was passed prior to the Roe v Wade decision - Roe supersedes those state laws that already existed at the time of the decision) permitted abortions post-24 weeks if the mother's life was in danger, but said nothing about what was permitted if the mother's health was at risk.  Governor Cuomo took a victory lap by lighting the One World Trade Center pink.  Vermont, Virginia and other states (including my state, Illinois) also are considering legislation that would be similar to New York's.  Vermont's, which is still making its way through the approval process, would declare abortion a "fundamental right".

Meanwhile, at the federal level, the Senate recently considered the Born-Alive Abortion Survivors Protection Act, sponsored by Ben Sasse (R-NE).  The bill would provide that, should an abortion be botched such that the child continues to live outside the womb, the doctor would “exercise the same degree of professional skill, care, and diligence to preserve the life and health of the child” as they would for “any other child born alive at the same gestational age.”  The bill, which had been languishing in committee since 2017, had been written to prevent incidents such as those committed by the infamous abortion doctor Kermit Gosnell, who was convicted of killing several infants already born.  The bill garnered new interest recently in the wake of controversial comments by Virginia governor Ralph Northam, who also recently has been in the news for alleged blackface shenanigans during his college days that are unrelated to this topic.  Governor Northam, who is a physician, seemed to imply in some spoken comments that the Virginia bill mentioned above might permit parents and doctors to elect to allow an infant born alive to die.  (I may write a separate post examining Northam's comments in light of Catholic morality - personally, I believe his comments are less indefensible than the pro-life activist community has interpreted them.)

In order to come to a floor vote, the Senate bill had to clear a procedural hurdle called cloture.  It achieved a majority vote (including three Democratic senators) but fell short of the 60 votes needed.  The Senate cloture debate featured a parade of pro-choice senators mischaracterizing provisions of the bill in a way that can only be described as disgraceful: one standard talking point claimed (falsely) that the bill would restrict women's access to abortion.  To be sure, dishonest rhetoric is par for the course when it comes to abortion.

Michael Wear, who worked in the Obama Administration, has written in The Atlantic one of the better and more balanced articles I've seen on these recent abortion-issue developments.  Here is his take on the Senate Democrats in the recent cloture vote:

By focusing on abortion rights, Democrats ended up arguing a lot about what was not explicitly in the bill, while neglecting to make clear to the American people that they do, in fact, oppose infanticide and believe babies born alive after a botched abortion deserve medical care consistent with similarly situated babies who are born under any other circumstance. Not one Democrat uttered the phrase born alive during the floor debate. Not one Democrat referred to the 2002 act or expressed support for it during the floor debate. If Democrats truly believe the bill is a disingenuous attempt in a long game to end access to abortion, they could at least have been clear while voting against it that they endorse its sponsors’ stated intent. They could have also proposed, or tried to propose, amendments to the legislation, as the writer Charles Camosy has suggested. 

Wear, whose article is entitled "The Abortion Debate Needs Moral Lament", then offers a lament of his own, noting that politics seems to be making things more divisive these days:

After decades of earnest attempts to find some common ground on this most tender and personal issue—think of Senators Ted Kennedy and Sam Brownback’s work on a Down Syndrome registry, bipartisan support for the Hyde Amendment, and President Obama’s first-term appeal for efforts to reduce the number of women seeking abortions—that impulse has been virtually eradicated among elected officials. Our politicians spend so much time with people who agree with them, using talking points cleared by or provided by entrenched advocacy groups and pursuing electoral strategies more reliant on base turnout than persuasion, that it has become difficult to tell if they have simply forgotten how to speak with people who hold a different viewpoint or if they simply do not care. So many of these controversies would be avoided if politicians were more familiar with different perspectives on abortion, and the arguments and sensitivities that undergird them.

Wear makes a number of other astute observations about where we are, politically and as a people, and then engages in some political prognostication:

Abortion will play a significant role in the 2020 presidential campaign as it has in most of our presidential elections since Roe v. Wade. Observers miss its significance when they look only to where it ranks in surveys of voters’ top priorities. Abortion is one of those issues that influences voters’ assessment of what kind of person a candidate is and what kind of president he or she will be. If a candidate promises to unite the country, but uses the issue of abortion to divide, voters pay attention to that. Voters also pay attention if candidates say they’ll listen to all Americans, but their rhetoric on abortion reflects that they don’t understand why anyone would disagree with their position. Trump will continue to use the issue of abortion as a way to neutralize criticism that he is immoral, and that will have a powerful effect on a significant number of pro-life Americans if Trump is the only candidate who speaks to them.

Update March 2nd 11:58 pm: as one illustration that these abortion-issue developments will play a significant role in the 2020 race, Alexandra DeSanctis in National Review reports that Elizabeth Warren was heckled by pro-life attendees of an Iowa event:

During an event in Iowa, meanwhile, Warren was heckled by an attendee who asked why she voted against the born-alive bill. 

“What we say to each other is if it’s your grandma or it’s you or it’s your niece’s baby, we’re all going to pitch in a few nickels, so we can be there for each other. That is the best of who we are,” Warren said in her speech, according to Daily Caller coverage 

“What about the babies that survive abortion? How come they can’t have health care?” an attendee interrupted. 

“Infanticide is illegal everywhere in America,” Warren replied, and repeated the line again after the audience member continued pressing her on it.