Lacee Bjork Anderson: On Abortion It’s the Center, Stupid

Protesters taking a stand on the abortion issue in front of the Red River clinic in downtown Fargo. Picture taken in 2010. David Samson / The Forum

This guest post was submitted by Lacee Bjork Anderson, an attorney and public affairs specialist.

“It’s the economy, stupid,” may be one of the most recognizable political clichés of our time since it was first coined by James Carville during Bill Clinton’s 1992 Presidential campaign. And indeed, a look back at the last three decades hints that the state of the economy—or perceived state–has been a significant factor in a candidate’s chances of winning. But in the current environment of highly polarized political attacks and a President that draws ire for his personality over his policy, is this still true? The economy, immigration, and border security will likely drive voters to the polls in 2020, but these may take the backseat to abortion, an explosive issue that has begun to take center stage. Recent abortion laws passed in Alabama, New York, and numerous other states, and Vice President Biden’s recent rejection of the Hyde Amendment, all indicate that abortion will be a dominant theme of the election.

The widening gap between Democrats and Republicans is reflected in legislation passed in Alabama and Georgia on one hand, and New York and Illinois on the other. So if 2020 proves to become the exception to the “it’s the economy stupid” axiom, what sort of impact will the abortion debate play in the vote, particularly in battleground states? And how can each side best position themselves to “make hay” on this divisive issue in regions that may require some form of moderation.

Before answering these questions, it’s important to take a step back and understand how we got here in the first place. The abortion debate is filled with erroneous assumptions and half truths about the nature of the Constitution and the application of case law, so let’s take a moment to clarify three pivotal cases that have formed the precedent:

A Fight for the Right…to Privacy

One of the most common misperceptions in the whole abortion debate is that there is a Constitutional right to an abortion. Not so. The “right” to have an abortion stems from a fundamental right to privacy under the 14th amendment (with an assist from the 9th amendment) that the Warren court articulated in Griswold v. Connecticut. In Griswold, Justice Douglas in his majority opinion reasoned that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees, that help give them life and substance.” He was essentially saying that the spirit of the 9th amendment (that “certain rights shall not be construed to deny or disparage other rights retained by the people”) when applied against the states by the 14th, create a fundamental and substantive right to privacy. (Griswold v. Connecticut, 381 U.S. 479 (1965)).

…if abortion takes center stage in 2020, we should expect that the more moderate, problem-solving and common sense approach will win the day.

Privacy under Roe v. Wade

This Griswold ruling set up the framework used in Roe v. Wade where the Court, in a 7-2 decision, determined a fundamental right to privacy included a woman’s choice to have an abortion. Before the ruling in 1973, whether or not a woman could have an abortion was up to individual states. And while Roe concluded that states couldn’t prevent women from getting an abortion, it also recognized that this must be balanced against the government’s interest in protecting a woman’s health and prenatal life. It therefore laid out the state’s ability to regulate abortion by trimesters. States could have no prohibitions in the first trimester, reasonable regulations in the second trimester, and could prohibit it entirely in the third trimester except for the life of the mother. It further ruled that any laws regulating or restricting abortion must meet a “strict scrutiny” standard of review, meaning there must be a “compelling government interest” for the law to be constitutional. (Roe v Wade, 410 U.S. 113 (1973)). The ruling affected the laws in 46 states at that time. The Court would later go on to say, however, that “Roe did not declare an unqualified ‘constitutional right to an abortion’ rather, the right protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy.” (Maher v. Roe, 432 U.S. 464, 473-474 (1977)).

Planned Parenthood v. Casey and the viability standard

The Roe ruling ignited a firestorm of debate and many legal scholars have challenged the analysis of the decision, arguing that connecting the Constitutional dots is tenuous at best. The ruling was challenged many times in the decades that followed, most notably in the 1993 landmark case of Planned Parenthood v. Casey, where the Court, with six new justices, re-examined its ruling in Roe.

In Casey, the Pennsylvania legislature had amended its abortion laws to require informed consent, a 24-hour waiting period, parental consent of a minor, and spousal notification. These provisions were challenged by several abortion clinics and physicians. The District Court, after a three-day bench trial, held that all the provisions were unconstitutional and entered a permanent injunction against Pennsylvania’s enforcement of them. The Court of Appeals for the Third Circuit affirmed in part and reversed in part, upholding all of the regulations except for the husband notification requirement (interestingly, then Circuit Judge Samuel Alito sat on that three-judge appellate panel and dissented from the court’s invalidation of the spousal notification requirement).

The make-up of the Court in Casey had many conservatives, including those in the Bush administration, rallying for Roe to be overturned. In a somewhat bitter and multifarious 5-4 decision, the Court upheld its essential ruling in Roe, but also affirmed all the provisions of the Pennsylvania law except spousal notification. For the first time, the justices imposed a new standard for determining the validity of laws restricting abortions. No longer imposing a “strict scrutiny,” the new standard asks whether a state abortion regulation has the purpose or effect of imposing an “undue burden,” which it defined as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Thus, the new threshold for regulating abortion became viability as opposed to trimesters. This was a fairly significant walk-back of Roe and gave states some additional flexibility. That said, the laws recently passed in places like Alabama have set out to challenge just how far this standard can be taken.

Recent legislation: The Gap Widens.

The past year may be the most consequential ever for the abortion discussion. The laws passed in Alabama last month are the most restrictive in history (they ban all abortions, at any time, except for the health of the mother. They also make it a felony for doctors to perform or attempt to perform abortions). Georgia and six other states passed “heart beat” bills, which essentially prohibit abortion once a heartbeat can be detected, and eleven other states passed some form of abortion control laws this past year.

In contrast, states like New York, Oregon, Vermont, Illinois and California passed laws protecting abortion as a “fundamental” right and making it legal throughout the entire pregnancy, even up to birth. A bill working its way through the California legislature goes so far as to require that every campus under the California University system provide abortions to students. On a national level, the “Born Alive Survivor” bill was blocked by Democrats in the U.S. Senate. The bill would have threatened prison time for doctors who don’t attempt to save the life of infants born alive after a failed abortion. The bill came after comments from Virginia Gov. Ralph Northam indicated that, under the proposed Virginia Repeal Act, a fetus born alive would not necessarily need to be resuscitated if it was against the mother’s wishes.

The divide couldn’t be greater. On the one hand, Alabama law essentially says you can’t ever have an abortion. New York law, on the other hand, essentially says you always can. It begs the question: What would Casey say on all this? One thing is certain, both sides seem to agree that viability of the fetus should no longer be the standard. If any of the new challenges reach the Supreme Court, will the now more conservative court move toward greater restrictions? Or will they reaffirm Casey’s precedent, essentially overturning most of the recent pro-life legislation.

Conclusion: The Political Implications

Regardless of what direction the Court may go in future cases, how much influence will the abortion debate have politically in 2020, particularly in swing states? The key battleground states of Arizona, Florida, Ohio, and Wisconsin all have fairly restrictive abortion laws, with three of them passing heartbeat bills this last session. On the other hand, in a 2016 Pew Research poll, nearly 69% of Americans said they oppose overturning Roe altogether. Even in Georgia, where one of the most restrictive bans was enacted, 70% are opposed to overturning Roe.
Historically, Democrats have won when abortion is a Presidential campaign issue (1992 and 2012). That said, they may not be able to claim this as their political silver bullet. Since 2012, the Democrat Party has moved considerably to the left on the issue, such that many feel they are out of touch with voters. If they want to gain any votes in battleground states, they will need to distance themselves from “birth abortions” and infanticide and find ways to relate to voters in those key states.

Likewise, Republicans have consistently lost on the issue because they tend to only focus on overturning Roe, which the Court is unlikely to do. Instead of pushing to overturn Roe, they must make a compelling case for reasonable restrictions. The flexibility in the Casey decision gives the Court plenty of room to maneuver (for example, a conservative Court could use the Casey standard to allow states to set tighter restrictions, reduce access, limit number of providers, etc.). To make this an issue they can win, they need to focus here while pointing out the left’s extreme views in New York and California. Now more than ever, both sides will need to move to the middle if they want to win votes on the issue.

Sadly, the piece that seems to be missing in the cloud of political rhetoric, is the emphasis on reducing the need for abortions in the first place. It would serve everyone well if the conversation shifted to education, access to birth control, parenting programs and assistance for women, not to mention the severe need for adoption reform. Unfortunately, those discussions don’t seem to play politically. Perhaps as country we will eventually realize that is the best way forward. Until then, if abortion takes center stage in 2020, we should expect that the more moderate, problem-solving and common sense approach will win the day.

In battleground states in particular, it’s the center, stupid!

Rob Port is the editor of SayAnythingBlog.com, a columnist for the Forum News Service, and host of the Plain Talk Podcast which you can subscribe to by clicking here.

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