Tom Ginsburg Looks Abroad to Change the Abortion Debate

America’s Abortion Debate Is Broken

The leaked U.S. Supreme Court opinion in the case of Dobbs v. Jackson Women’s Health Organization has Americans facing the prospect of a world without the abortion protections guaranteed in Roe v. Wade. This long-sought Republican victory will return regulation of a contested moral issue to the states. Might it also provide us with an opportunity to lower the temperature around the issue of abortion? After all, other countries have adopted compromise solutions that recognize the various interests at stake, without experiencing decades of extreme partisan warfare. We would do well to learn from them.

Abortion is a deeply adversarial issue because it involves a tradeoff between the interests of an unborn fetus and of a prospective mother. In the United States, political entrepreneurs have framed this as an either-or choice: either you insist on absolute protection of unborn life or you insist on absolute freedom from state interference on decisions to terminate a pregnancy. But these absolutist views are out of step with those of most Americans, who for the last fifty years have had relatively stable public ideas on the issue—supporting the availability of abortion in many, but not all, circumstances.

How did we get here? The world before Roe was worse for women seeking abortions, but also one in which abortion was not a central or partisan issue in American politics. Before that 1973 decision, a Gallup poll found that more Republicans than Democrats favored leaving the abortion decision to a woman and her doctor. There were passionate opponents of abortion, but they didn’t align neatly with one party or the other. No longer. Presidential elections are now heavily influenced by the power to appoint pro-life or pro-choice justices. Notably, in 2016, Senate Majority Leader Mitch McConnell blocked the nomination of Merrick Garland to the Supreme Court, making the presidential election that fall, in good part, a referendum on the Court. It is not much of a stretch to say that abortion politics helped to give us Donald Trump, along with the three new anti-Roe judges he was able to appoint.

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Abortion The judiciary