The abortion divide has become unbridgeable

(RNS) — Abortion didn’t turn out to be the wedge issue Democrats hoped for on Election Day. 

Rather than driving pro-choice voters to the polls in sufficient numbers to defeat Donald Trump, the abortion rights referendums created a permission structure for them to cast their ballots for Trump in the belief that they were at the same time safeguarding access to abortion where they live. In every state where a pro-choice referendum was on the ballot, it outpolled Kamala Harris. (Putting it another way, religion statistics guru Ryan Burge found that in 95% of counties in referendum states, Trump ran ahead of the anti-abortion vote.)

Trump himself blunted the issue by running away from the pro-life cause he had formerly embraced. Gone was the bragging about how he had delivered on his promise to kill off Roe v. Wade, replaced with the false declaration that by becoming a state-by-state issue abortion was legally “where everyone always wanted it to be.” 

Not that abortion post-Roe is simply a state-by-state issue. The federal Emergency Medical Treatment and Labor Act, for example, has been interpreted by the Biden administration as requiring hospitals to provide an abortion when a pregnant person’s life or health is seriously threatened, regardless of state law. In June, the Supreme Court sent back to the lower courts a case challenging that interpretation — which itself could be reversed by the incoming Trump administration.

Central to the current phase of the struggle over abortion is the status and availability of abortion medication, which now accounts for nearly two-thirds of abortions in the U.S. While the Supreme Court last June rejected a challenge to the Food and Drug Administration’s approval of the abortion-inducing drug mifepristone on the grounds that the plaintiffs lacked standing to bring a case, there’s now a chance that Trump’s FDA will withdraw the approval.

Meanwhile, a slew of state and federal bills will attempt in various ways to restrict access to abortion medication, regardless of the increasing number of state constitutional pro-choice guarantees, regardless of the fact that nearly two-thirds of Americans think abortion should be legal in all or most circumstances. 

People at an election night watch party in Kansas City, Mo., react after an abortion rights amendment to the Missouri Constitution passed Nov. 5, 2024. (AP Photo/Charlie Riedel)

To what extent should the government be permitted to restrict a woman’s ability to terminate a pregnancy? Roe took the position — as have most of the pro-choice referendums — that the woman has an unfettered right to do so until the fetus becomes viable. Planned Parenthood v. Casey (1992) permitted pre-viability restrictions so long as they didn’t place “an undue burden” on the woman.

It’s fair to say that pro-choice advocates would prefer there be no restrictions. As Kamala Harris put it on her Facebook page, “Every woman should have the freedom to make decisions about her own body without interference from the government.”

On the other side, the anti-abortion stances that “life begins at conception” and “abortion is murder” have increasingly been advanced to suggest that the government must require women to carry to term under any and all circumstances. Consider the following preliminaries from an anti-abortion bill introduced last session in the Florida Legislature. Although the bill died in a subcommittee, it has been held up as model legislation by Students for Life Action.

WHEREAS, there is no distinction between natural unborn persons and natural born persons, and
WHEREAS, scientific advancements in human embryology have shown that a person exists from the moment of fertilization…, and
WHEREAS, denying personhood for any stage past fertilization is a denial of rights guaranteed in the State Constitution and the United States Constitution, and
WHEREAS, a person is vested with all the rights of personhood protected by the State Constitution and the United
States Constitution at the moment of fertilization…

Taking such pronouncements at their word does away with the possibility of abortion at any stage of pregnancy, to say nothing of exceptions for rape or incest and the health of the mother. It would likely also forbid abortion under the so-called doctrine of double effect, which Catholic theology uses to legitimate saving a pregnant woman’s life by, for example, performing a hysterectomy to remove her cancerous uterus with the (incidental) result that her fetus is destroyed. How would such an action not violate the fetus’s constitutional “rights of personhood,” as asserted in the Florida bill?

Those long-standing exceptions along with the general readiness to allow for abortions in the first weeks of pregnancy make it clear that, for most Americans, a pregnant woman has rights over her body that outweigh her fetus’s right to government protection. That the anti-abortion movement is becoming increasingly bold in saying otherwise has created an unbridgeable divide between itself and the public at large.