This week the gang discusses what the world will be like in the aftermath of Ruth Bader Ginsburg’s passing, the future of the ACA and Roe v. Wade, the presidential campaign in the shadow of the upcoming confirmation battle, and the Emmy Awards in the time of Covid-19.
by D.J. McGuire
For millions of Republican voters, the first, last, and only reason for supporting the Republican Party of Donald Trump is the abortion issue. As someone who shares their desire to save pre-born children from untimely death, I humbly submit to them that in choosing to support Trump and his party, they are making a mistake – for it is Joe Biden, not Trump, who is more likely to enact policies that will save more children from dying before they are born.
The assumption driving pro-lifers to the Republican Party of Donald Trump is this: a re-elected Trump will lead to a dramatic reduction in abortion via the reversal of Casey v. Planned Parenthood (the successor to Roe v Wade). That assumption fails on two fronts. The first is the unlikelihood of a reversal at all. The second is the minimal effect a reversal would have even if it happens.
Those who look forward to Donald Trump’s third appointment to the Supreme Court should pay more attention to actions of Trump’s current appointees in June Medical Services L.L.C. v. Russo, the first major abortion case involving Justice Kavanaugh. While the state of Louisiana (personified in Health Secretary Stephen Russo) did not ask the Court to examine Casey while defending its restrictions on abortion providers, the Justices themselves could have forced the issue. Justice Clarence Thomas himself wrote as much in his dissent: “Because we can reconcile neither Roe nor its progeny with the text of our Constitution, those decisions should be overruled.”
No one joined him.
In fact, Justice Gorsuch went so far as to defend Casey in his dissent, while Justice Kavanaugh wouldn’t even state his view on whether Louisiana’s law should be enforced (“additional factfinding is necessary to properly evaluate Louisiana’s law”). I leave it to others to determine if the drama over Kavanaugh’s confirmation – along with the alienation of millions of women from the GOP – was worth the rousing call for “additional factfinding.” The more important point here is that the likelihood of Roe and Casey being reversed looks far lower in 2020 than it did in 2019 – with absolutely no assurance that Donald Trump’s additional selection(s) for the Court will have any more impact than his previous two.
The more crushing blow to the GOP argument comes from data and projections regarding the potential effect of a Roe reversal. An analyst published last July (in Contraception) found at most a reduction in abortions of just over 15 percent, and possibly as low as 10 percent. If we look at the CDC data on the ratio of abortions to live births from 1972 (the year before Roe was handed down) and 2016 (the latest year with data), we find a potential abortion reduction of less than 4 percent.
Compare this to the potential for abortion reduction if would-be parents’ economic concerns were addressed. Dr. Wm. Robert Johnston, a researcher at the Global Life Campaign, found that anywhere from 25-40 percent of abortions were economic reasons.
There are plenty of policies that could allay those concerns (paid parental leave, backdating child support to include pre-natal cost, compensating for disruptions to development in career or in education, etc.) while also facing far less political and constitutional resistance. Moreover, addressing the economic concerns of prospective parents could save two to ten times as many pre-born children as reversing Roe would.
Which major party nominee is more likely to support those policies? Who is more likely to be effective in getting these policies enacted? Who is more likely to leverage political support for these policies at the state and local level, where applicable?
Answer: Joe Biden.
The logical conclusion of this runs counter to our culture-war script, but it is inescapable: More pre-born children would be saved under a Biden Administration than under a second Trump term.
If this estimation of the future doesn’t convince, perhaps the data from the past will. Again, the CDC has been tracking abortion data for decades. Using the number of reported abortions, the ratio of abortion per 1,000 live births, and the rate of abortion per 1,000 women, we can compare Republican and Democratic Administrations going back to 1980. The differences between the two parties is staggering.
Reagan-Bush I (1992 versus 1980): abortions up 4.7 percent, ratio down 7.0 percent, rate down 8.0 percent.
Clinton (2000 versus 1992): abortions down 36.9 percent, ratio down 26.6 percent, rate down 30.4 percent.
Bush II (2008 versus 2000): abortions down 3.8 percent, ratio down 8.2 percent, rate down 2.5 percent.
Obama (2016 versus 2008): abortions down 24.5 percent, ratio down 17.3 percent, rate down 25.6 percent.
By my calculation, that means over 173,000 children were born in 2000 that wouldn’t have been in 1992, while in 2016, over 54,000 children that would have died in 2008 were born instead.
So, when analysis of the past combines with the likely development of the future, the theory that the GOP is better for pre-born children collapses. The events of the last 40 years make it abundantly clear. The politics tell us Republicans are more likely to oppose legal abortion. The data tell us Democrats are more likely to save more pre-born children. Thus, pro-lifers should look to the Democrats as their party and to Joe Biden as their presidential candidate.
This week’s MPU podcast looks at how millennials on TikTok turned Trump’s Tulsa rally into a low-turnout debacle, the new John Bolton book PR debacle for the administration, and how the Supreme Court continues to defy expectations with surprisingly fair-minded decisions.
“The More Perfect Union” podcast co-host Rebekah Kuschmider gives a talk on lessons she learned from her mother on women’s reproductive rights and reproductive justice at the Cedar Lane Unitarian Universalist Church in Bethesda, Maryland. (June 9, 2019)
On this MPU episode, Kevin, DJ, Greg, and Rebekah discuss the latest assault on Roe v. Wade, the Trump v. China trade war, and the primary campaign prospects of Joe Biden, Bernie Sanders and Elizabeth Warren.
This week’s MPU podcast looks at Paul Manafort’s “otherwise blameless life” prison sentence, the latest turns in the Democratic primary race, what’s behind Chelsea Manning’s refusal to testify against Julian Assange, and Rebekah puts forth a strong feminist view on a woman’s right to control her own body.
by D.J. McGuire
Updated since the retirement of Justice Kennedy.
Few issues in American politics are as divisive as abortion, largely because the two sides are driven by dramatically opposing points of view, namely…
The pre-born child is a human being deserving of rights, especially the right to live.
A woman’s right to personal autonomy must be respected.
For over forty-five years – ever since the Supreme Court determined the latter was important enough to prevent legislatures from acting only on the former – the arguments have centered on which is the more important “right” – and the argument has been winner-take-all. Any movement toward pre-born protection has been challenged as a step toward eliminate a woman’s right to choose – and indeed, just about every supporter of a “pro-life” position holds that said “right” is either a judicial or moral fabrication. I should know: I still consider myself pro-life, and I spent a quarter-century insisting that the “right to choose” was either fictional or less important than the right to life. My opponents in that long-running debate always held to the reverse. Indeed, it seemed that one could not hold both truths simultaneously (UPDATE: I would humbly submit that even in the event of a change in attitude from a post-Kennedy Supreme Court, the arguments will largely remain the same as the issue moves to the political realm). One had to trump the other, period .
I don’t hold to that false choice anymore. I realized in examining local property law (particularly easements and eminent domain), that governments and property owners don’t hold to this mutual exclusivity of views, and I don’t think we should on abortion either.
Why Pro-Life Efforts Usually Fail
From a national perspective, Americans have long been indecisive on abortion. Usually “pro-choice” holds a plurality view, but not the majority view; on occasion, “pro-life” takes the plurality, but not the majority. That said, as the status quo is largely in favor of “pro-choice,” it has been “pro-lifers” who have been pushing for changes – usually without success.
Looking beyond the constitutional issues, the political reality makes it difficult for pro-lifers. In economic terms, pro-life policies have diffuse and indirect benefits to Americans (or at least those who can speak for themselves), but the cost is concentrated among women of child-bearing age. That is not an equitable distribution of cost, and those on whom that burden falls have rightly been frustrated by it. For pro-life policies to win over Americans who currently disagree – or even those unsure of where their views land – the cost must be fairly distributed. The pro-life movement has never addressed this, and that has fueled their – our – political failure.
Why recognizing women’s rights is not a roadblock
Of course, most of my fellow pro-lifers would respond by noting the judicial branch’s assertion that a woman’s “right to privacy” includes abortion rights. They will insist that unless that is addressed, there is little that can be accomplished.
I no longer agree. This assertion is driven by the assumption that a constitutional right is absolute and can never be infringed. Any property owner near a road, or powerlines, will tell you otherwise. Local governments place easements on land for power and utilities repeatedly; local and state governments similarly take property for road construction. Yet no one insists that the Fifth and Fourteenth Amendments make property rights inviolable. Moreover, no government in America assumes they can simply take or use private property without compensation. Even the Kelo decision – which in my view mistakenly gave government the authority to use eminent domain to give land to a private entity – did not allow governments to avoid compensating affected property owners.
Acknowledging Infringement of Rights and How to Compensate for Them
Property rights were one of the first causes for which the Revolution was fought, and they were a large part of what drove the Framers of 1787 to replace the Articles of Confederation with the Constitution. Yet they are repeatedly infringed for the greater good – so long as property owners are compensated for the infringement.
There is clearly no property as personal as one’s own person. Yet millions of American women know that pro-lifers would infringe upon their rights with no compensation. That many of those women are themselves pro-life doesn’t make this mistake any less egregious politically. Pro-lifers should instead acknowledge not just that they are proposing an infringement on women’s rights – but also that women should be compensated for that infringement.
There can – and will – be arguments about how that compensation should be measured, but in my opinion, the easement/eminent domain examples should be followed. In these cases, governments are supposed to examine the loss of income and value to the landowner. and compensate accordingly. If I may be flippant for sound bite purposes, what works for farmland should work for fallopian tubes.
So what would be included in compensation for a women whose rights have been infringed by pre-born legal protection? I have four categories in mind.
Child-rearing cost: This is the most obvious, and in theory, it’s covered by child support for single parents. Whether or not the current child-support regimes are sufficient is not something I wish to argue here. Moreover, the government itself needs to recognize that even married or cohabitating couples will face these costs – which pre-born protection would make unavoidable (and thus, in my view, worthy of compensation).
Pre-natal cost: There was a time where I thought this could be solved by simply moving the start date of child support to a point before birth (be it conception, fetal viability, or whatever point a legislature decides life begins). As one might infer from the last paragraph, I’m more open to direct government compensation in this area too.
Lost wages: In most areas of employment, late pregnancy and early childhood mean time away from work for the mother. At present, paid family leave is largely seen as a policy to help families. However, it can be more than that – -namely, a recognition of the opportunity cost of bearing and raising a child. This is especially true if said cost is effectively mandated by pre-born protection.
ADDED in UPDATE: Cost and lost income due to health impacts: Thanks to fellow MPUer Rebekah Kushmider for setting me straight on this. Pregnancy takes its toll on a women’s health – physical and mental; that toll must also be addressed and redressed.
Lost income due to career impact: This is the opportunity cost usually discussed the least, and yet it could be the greatest cost. Given the current cultural norms, the decision to bear and raise a child can have serious impact on a women’s career path (and her earnings). If pre-born protection becomes law, this cost is actually the closest to the loss of income and value a property owner suffers from an easement or from eminent domain. Any compensation plan that doesn’t take this into account does not properly compensate women for the injury to their rights.
Of course, this policy would have a cost to the government implementing it, but said cost involves what I would consider a vital function of government: redressing injuries to rights. Moreover, unlike previous pro-life policies without compensation, this policy acknowledges and respects a woman’s personal property rights. Finally, this policy would make visible the externalities inherent in our current cultural norms regarding child rearing – or, if I may again be flippant, it’s places a price tag on the patriarchy. Governments that wish to protect pre-born life and avoid the expenditure can then focus on reducing (or, I hope, eliminating) the patriarchal norms that have made child bearing and child rearing potential career and financial hazards.
As I am not a lawyer, I am unsure as to whether or not this will be enough to allow pre-born protection to pass current constitutional muster (although I am optimistic). I am certain, however, that future courts would be more respectful of a policy that acknowledges women’s rights as something to be compensated, rather than something to be overruled. Thus, even in the post-Roe world (or post-Casey world, if one prefers), this could come down to a minor judicial change or clarification. Again, however, I am no lawyer, so don’t take my word for it.
I would expect that some would read this and ask if all of this can be done without protecting pre-born children in law. Personally, I am certainly willing to try. In the end, this is about changing the incentives that still lead to hundreds of thousands of pre-born children dying in America every year. Even changing the law itself is about changing incentives (as nearly all pro-lifers would legally punish only the performer of an abortion, rather than the women themselves). Whether or not the compensation effort without a change in the law is incentive enough remains to be seen, but I’m willing to see it if a change in the law remains politically impossible.
As the title of this post makes clear, I am trying to find a solution where none has seemed at hand for decades. I am doing this because I still want these children saved, but I also recognize that neither of the two fundamental tenets cited in the post’s beginning will trump the other in 21st Century America – nor should they. Moreover, a society that is serious about saving these children will not be – and must not be – shortsighted enough to let nearly half of their population experience no cost for the effort.
Women have the right to control their own bodies, no less than a landowner or a homeowner has a right to their property (UPDATE: I don’t believe the aforementioned needs a court case to be valid). Those of us who wish to infringe on that right must recognize that proper and full compensation for said infringement is necessary. Otherwise, Americans will continue to talk past each other, while hundreds of thousands of children die because those who insist life is precious in words will act as if life is cheap.
D.J. McGuire – a self-described “progressive conservative” – has been part of the More Perfect Union Podcast since 2015.
Episode 69 of The More Perfect Union podcast covers the meeting of the electoral college electors, North Carolina’s soap opera of partisan politics, Ohio’s attempt to reframe the national abortion debate, and what horror movies this year’s election reminds us of.
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