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The Myths of Roe, Pt. 1

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I have an epic Vox piece debunking the various myths about Roe v. Wade by opponents of legal abortion and nominally pro-choice contrarians alike. One of the most irritating of these is the “durrrr, but abortion is more heavily regulated in France, durrrr” routine:

Roe “has made it all but impossible to regulate abortion, except in the narrowest circumstances,” according to the anti-abortion National Review editor Rich Lowry. This echoes a theme of the pro-choice, anti-Roe pundits: Wittes claimed that Court had “removed the abortion question from the legislative realm.”

But this is simply false. It’s true that Roe itself forbade most regulation of abortion prior to fetal viability, which it defined as occurring after the second “trimester.” But as modified by the Supreme Court in the 1992 case Planned Parenthood v. Casey — which discarded the trimester framework — states can regulate pre-viability abortions as long as they do not constitute an “undue burden” on a woman’s right to choose.

And the Supreme Court has applied that test very loosely. Even as states have passed more and more restrictions on abortion — including “Targeted Regulation of Abortion Providers (TRAP) laws that have forced perfectly safe abortion clinics to close – the Court struck down only one regulation under Casey between 1992 and 2016, and that decision was quickly overruled when George W. Bush’s nominees joined the Court. (The Court upheld a federal ban on so-called “partial-birth abortion” after striking down a nearly identical state statute less than a decade earlier.)

[…]

According to McArdle, the US has “one of the world’s most permissive abortion laws.” This point, related to the previous one, uses the somewhat more stringent term limits in most European countries as a “gotcha” against liberals. “France, like many European countries, takes a stricter line on abortion than does the United States,” writes Kevin Williamson, of National Review (and, ever-so-briefly, the Atlantic).

Ross Douthat has similarly argued that the French system, which permits abortion for any reason within 12 weeks of conception, afterward requiring certification by two doctors that the continuation of a pregnancy would be threatening to a woman’s life or health, represents a plausible “middle ground” in the American abortion debate.

The comparison is misleading at best because it abstracts a single regulatory aspect from a complex healthcare system and applies it to radically different political and geographic context. Making abortion law comparable in the US and France would require not merely changing the term limit but repealing the Hyde Amendment — which bans Medicaid funds from being used for abortions. (In France, in contrast, the state pays 80 to 100 percent of the cost of an abortion.) It would also mean subsidizing a bunch of rural public health clinics that offer women a full array of reproductive services, including abortion, and a repeal of most of the state laws that restrict the termination of a pregnancy.

Needless to say, this isn’t the deal American anti-abortion activists are offering. In fact, many American women would have much greater access to abortion if they lived under the French framework.

This is related to a larger bait-and-switch, the focus on second trimester abortions to minimize the stakes of the debate and detract attention from the vast preponderance of regulations that apply at every stage of the pregnancy:

The two points above have emanations that form a penumbra that casts a shadow over the scope of the abortion debate in the United States. The arguments made by McArdle, Williamson, Lowry, and Douthat all imply that the primary subject of debate ought to be the point of the pregnancy at which abortion is banned outright.

The arguments that second trimester abortions should be banned, but pre-viability abortions shouldn’t, are not, in my view, persuasive. But more to the point, focusing on bans based on the age of the fetus obscures the obvious fact that the vast majority of abortion regulations — mandatory waiting periods, parental involvement and informed consent requirements, TRAP laws — apply at every stage of the pregnancy. (More than 90 percent of abortions occur in the first trimester, yet the restrictions apply to them as well.)

Opponents of Roe prefer to focus on second- and third-trimester abortions, the latter of which are vanishingly rare. According to the Centers for Disease Control and Prevention, only 1.3 percent of abortions occur after the 21st week.

If the goal of the anti-abortion movement is to stop second-term-or-later abortions, why do anti-abortion groups and their legislative allies also favor establishing a bewildering obstacle course of arbitrary regulations that affect abortions from the moment of conception onward.

The focus on term limits is a diversionary tactic intended to conceal a pincer movement carefully designed to strangle a woman’s right to choose. On the one hand, the number of weeks a woman has to obtain an abortion gets smaller and smaller; on the other hand, the hurdles for women seeking an abortion in a timely matter grow higher and higher.

This is particularly important because permitting onerous regulations targeted at abortion clinics is one way the Supreme Court can empower states to make abortion inaccessible without immediately and explicitly overruling Roe.

And, of course, that’s the point — the more quietly Roe is effectively overruled the better for people who want most women not to have access to safe abortions.

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