In the noise surrounding Alabama’s recently signed abortion law, both its defenders and its critics have failed to notice there’s nothing very new about it. As the Brookings Institute reports, Alabama has had just such a law on the books since 1901, one that effectively outlaws abortion from the moment of conception, with no exceptions for rape or incest. Though unenforceable since 1973’s Roe v. Wade decision, it was never repealed. Were Roe to be overturned, it could go into effect immediately. So could the new law, which does not, as rumored, ban abortions in the case of ectopic pregnancies or when the mother’s life or health is at risk. Moreover, some experts believe a vaguely worded provision for mothers with a diagnosis of “serious mental illness” also leaves room for exceptions in cases of traumatic pregnancies—whether resulting from rape or incest or even from consensual intercourse.
All this may matter little to those at either extreme of the abortion debate. Prolife and pro-choice activists have both seized on Alabama’s law to energize their supporters. Opponents of abortion generally hail what they see as principled legislative action, animated by genuine prolife convictions, to force the Supreme Court to revisit and perhaps overturn Roe. Abortion-rights advocates decry what they see as the latest in a series of incremental attacks on the legal right to abortion, or even as a decisive blow against women’s rights in general. These reactions demonstrate the success of the measure as an exercise in performative politics. The Court already has a similar case on the way—regarding a Louisiana statute upheld by a lower court—and is also likely to take up at least one legal challenge of fetal-heartbeat laws long before considering Alabama’s law. It seems possible that Alabama lawmakers were not acting out of good faith but simply acting, intent on advertising their ideological purity to the like-minded.
For similar reasons, their counterparts on the progressive left are also prone to theatrics. Failure to sufficiently profess pro-choice bona fides means becoming a pariah in certain liberal circles and risking ostracism from the Democratic Party. But then, performance has been a large part of abortion politics from the moment Roe was decided. The winner-take-all dimension of the ruling made this inevitable, guaranteeing polarization, rewarding confrontation, and militating against consensus. Pro-choice Supreme Court Justice Ruth Bader Ginsburg herself has expressed misgivings over Roe for these reasons. Suppose, she said in 1992, the Court had not proceeded “to fashion a regime blanketing the subject [of abortion], a set of rules that displaced virtually every state law then in force.… A less encompassing Roe might have served to reduce rather than to fuel controversy.” It is not possible to know for sure whether an incremental approach, undertaken more in accordance with the give-and-take of democratic deliberation and judicial review, would have made for a less contentious politics. Yet it does not seem out of the question.
Should Roe fall—the conservative makeup of the current Court gives anti-abortion advocates what seems like reasonable hope—the matter of abortion as a legal question will return to the states. But it’s hard to see how this on its own will have a moderating effect. The issue will remain divisive as long as abortion’s most vocal advocates do not give sufficient credence to the genuine qualms that many people—not just Catholics—have about it. Meanwhile, some of the most zealous opponents of abortion still need to give greater consideration to the unique nature of pregnancy: that only one half of humanity can experience the development of another body within their own necessarily raises questions about a woman’s autonomy and agency that can’t be dismissed out of hand or theorized away. Some common ground needs to be staked out here. Perhaps it can be found in the simple idea that a commitment to life is about more than a commitment to birth. Where access to abortion is restricted, there must be policies for helping women and families through pregnancy and into child-rearing, such as guaranteed access to health care, including pre- and post-natal treatment and contraception; mechanisms for ensuring economic and environmental security; and aid for education and housing. Fighting for the dignity of the yet-to-be-born entails the obligation to improve the circumstances of those who are already born and don’t have the things that all of us need.