Kyle Wingfield: Is there a middle ground in the abortion debate?

Published 12:00 am Tuesday, June 28, 2022

If the raw tension in our politics concerns you, the Supreme Court’s abortion ruling was not the salve you were hoping for. Or was it?

As you surely have heard by now, a six-member majority of the court overturned both Roe v. Wade and Planned Parenthood v. Casey, landmark rulings that established and then upheld a constitutional right to have an abortion. As I wrote this column Friday, the day the ruling was released, it was not yet clear if anyone would make good on the many threats of violence in the event of such a decision.

Certainly in the short term, the ruling in Dobbs v. Jackson Women’s Health Organization does not appear likely to ease political tensions. Besides those threats of violence, we can expect politicians on all stripes to use it to rev up their voter bases. We’ve seen it before.

But someday — sooner than later, one hopes — politicians will have to change tactics. The court is practically provoking them to do so.

While Bill Clinton’s “safe, legal and rare” approach to abortion held sway at one time, absolutist positions on both sides of the issue have taken precedence in more recent years. Old compromises such as the Hyde amendment (preventing taxpayer dollars from being spent on domestic abortions) and the Mexico City policy (doing the same with American tax dollars spent overseas) were abandoned by many pro-choice advocates. Likewise, exceptions to abortion bans in the case of rape, incest or danger to the life of the mother were increasingly removed by pro-life supporters.

It seemed we were destined to wage a battle between full legal recognition for personhood on one hand, and full-term abortion-on-demand on the other. This happened not despite the inability of lawmakers to enact far-reaching changes, but because of it. Let me explain.

Until last week, abortion restrictions were something of a theoretical exercise because Roe was the law of the land. Might some lawmakers have courted their voter base with tough anti-abortion rhetoric because they thought nothing would really come of it?

Similarly, those defending abortion rights knew they had Roe as a safety net. Even if they pushed too far toward making abortion laws more permissive, it was highly unlikely their opponents could pass a constitutional amendment to ban the procedure outright. and the court would never overturn its precedent, right?

Setting aside the substance of the issue for a moment — and I realize how emotionally difficult that is for many people, on both sides of the debate — we can see how returning it to the legislative arena just might lower tensions, eventually. After Dobbs, all 50 states may resume restricting abortion. Some will revert to pre-Roe statutes. Some will implement laws that were passed in the event Roe was eventually overturned.

All, I would wager, are likely to grapple with the issue anew very soon.

When they do, lawmakers will be challenged like never before to be persuasive. Unless they simply want to keep the issue alive (which can’t be ruled out) they will need to propose durable legislative solutions.

Might those durable solutions be absolutist? Perhaps. But it seems more likely that settling the issue for any substantial length of time will require some give and take, and wind up somewhere between the extremes. That’s been missing from our politics more broadly. Restored in the case of one issue, maybe that reliance on persuasion over ideological purity will catch on for others.

Speaking again beyond the emotionally charged substance of this issue, the legislative process helps legitimize the eventual outcome in a way a court ruling on a divisive issue often does not.

That sense of legitimacy is what Roe took from us — and what Dobbs may restore to us — however the various states end up deciding to treat the issue.

Ultimately, this is the fundamental job of our Supreme Court: to interpret the Constitution so that lawmakers can operate within its framework. Here’s hoping that getting back to the proper process will help make our politics better, not worse.