Abortion: only a third way on Roe v Wade will prevent violence in America
It may sound like a distant glimpse of the obvious, but we cannot understand current events in the US without recognising that abortion is a complex question and that America is a deeply divided society. The latter point helps to explain one problem with the abortion debate: the refusal of partisans on either side to acknowledge that the other lot have cogent views, sincerely held.
To start with the anti-abortionists, it is hard to see how any serious Christian could avoid being deeply unhappy about abortion. If you believe that God is your creator and Christ your redeemer, with Mary, full of grace, the Mother of God, virtually the fourth member of the Trinity, as an exemplar to all women and indeed to all mankind – how could you possibly deny that a foetus is human? The most you would concede is abortion when necessary to save the mother’s life.
I know devout Catholics who are full of humanity and compassion, but who would insist that a fourteen-year-old, pregnant as a result of rape, should give birth to the child. “What if it were your own daughter?” I asked one. “Shoulders are made for crosses” he replied. How would he actually respond if that unspeakable possibility became a hideous reality? I hope that we will never have to find out.
But there are plenty of women, as thoughtful as any Christian, who believe that a woman should have sovereignty over her own body. Theology may offer her counsel. It is up to her whether to take it. As for the law, it has no business trying to order her to give birth. Although many women would make their case without resorting to stridency – even arguing with me – one point is implicit. It has mostly been men who have made the rules for women to obey.
In America, the question has caught fire because of Roe versus Wade, the Supreme Court ruling which gave women a constitutional right to an abortion. Liberals were delighted. The Court was pushing the US in a progressive direction, irrespective of what happened in Congress. Conservatives and Christians were appalled. They believed that Roe v Wade was a perversion of the rule of law. Any constitutional court can only function if there is a large measure of stare decisis. If it were constantly reversing its judgments, no one would know where they stood. In the case of Roe v Wade, that did not apply. The ruling has never acquired the status of settled law.
This brings the Constitution itself into controversy. There have been periods when the United States Constitution appeared to be the most successful Enlightenment project of all, which would guarantee that the new nation could rely on disinterested laws to help it overcome the ills of human nature. But human nature has a way of fighting back.
The spirit of the Constitution is captured in its adjunct, the Bill of Rights, which endowed great aspirations with immortal language. “All men are created equal” entitled to “life, liberty, and the pursuit of happiness” – and so gloriously on. But those sentiments were framed by slave-owners. They had no locus standi in the plantations.
Dr Johnson, who relished any opportunity to mock Whigs and their allies, wondered why we heard “the loudest yelps for liberty among the drivers of negroes.” But many of those who lived off slave labour did feel uncomfortable. George Washington himself had a bad conscience about slaves. Two generations later, Robert E Lee wrestled with his conscience before concluding that God would find a way to deal with slavery in His own time. A tragic figure, Lee would have been entitled to echo Hamlet: “The time is out of joint/O cursed spite that I was ever born to set it right.” But he was not entitled to pass the buck to the Almighty when it came to slavery. That was employing evasiveness to reinforce hypocrisy.
Yet in one sense, Lee was proved right, if by “God” we mean the God of battles. Slavery was abolished by war. The Constitution caught up much later. There was always a powerful argument that once black Americans had been emancipated they were entitled to equal rights and that segregation was therefore unconstitutional. But it took many decades to win that argument and the grapes of wrath have still not lost their potency for evil.
If anything, the culture wars seem to be getting worse in America. Race is at the core but if the leaked judgment on Roe v Wade turns out to be accurate, we can expect violence. Looting, mayhem and murder will result, from a dispute over the status of a foetus.
There is, of course, a middle-ground position, which could be occupied by anyone, irrespective of their view on abortion. It is possible to believe that women have a right to an abortion, and that Roe v Wade is shockingly bad law.
The Constitution dates from the late 18th century, when procuring an abortion was usually a capital crime. It is utter nonsense to claim that the founding fathers would have supported Roe v Wade. This does not mean that abortion need be banned. A lot has changed in 200 years. Before Roe v Wade, abortion was already legal in many states. Assuming that the judgment is struck down, this will continue to be the case. Though a cumbersome process, it would indeed be open to Congress to pass a constitutional amendment which would confirm Roe v Wade in all states. This is exceptionally unlikely to happen: the politics are all wrong. But using the Court to invent such a constitutional provision violates the relationship between the Courts and the legislature. As such, it also violates the Constitution.
That will not deter the incensed Roe/Waders, who will regard the change as a historic defeat. Those who love America know what is now needed. First, the disappearance of Donald Trump from the political scene. Second, the emergence of a healing president, who could reassure his or her – keep an eye on Nikki Hailey – fellow Americans that there is no reason why their nation should be divided against itself and that it is vital to reassert E Pluribus Unum.
We can but hope. As for abortion, there is a further compromise, suggested by the late Ben Wattenberg: “Abortion is murder, and I am in favour of it.”