The Legislative Process Is Not Fit for the Abortion Debate

In the wake of Republican gains in November 2010, anti-abortion bills were common and aggressive during the 2011 legislative sessions.¹ State general assemblies passed statutes that include provisions to (a) block abortions after twenty weeks of gestation, (b) require doctors to tell pregnant women that fetuses feel pain at or before twenty weeks of gestation, (c) prevent state or federal health care dollars from reaching clinics and physician groups that provide abortions as part of their services,² and (d) require doctors to describe the ultrasound images of the fetus and offer women the option to view the ultrasound and listen to the fetal heartbeat before an abortion.³

These statutes are troubling for a number of reasons. Many of their provisions violate constitutional principles enunciated by the Supreme Court in Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey.⁴ For example, the Court has held that states must leave the determination of fetal viability to the medical judgment of physicians rather than defining viability at a specific point in pregnancy (like twenty weeks of gestation).⁵ The Court also has insisted that when states mandate disclosures to patients, they may not prescribe information that is nontruthful or misleading.⁶ The statements about fetal pain misrepresent medical understanding.⁷ As for federal health care funding, states may choose how to allocate their own dollars, but their efforts to interfere with the implementation of federal spending decisions may run afoul of the supremacy clause principle that federal law takes priority over state law.⁸

The state statutes also reveal flaws in the argument that divisive moral issues like abortion should be resolved through the political process rather than by courts. Some people, including Supreme Court Justice Antonin Scalia, make this argument on the grounds that our democratic system is premised on majority rule and that elected representatives are more likely than unelected judges to reflect public sentiment.⁹ To be sure, majorities cannot override constitutional principles, but champions of the political process believe that the text of the Constitution provides little support for fundamental rights like abortion and that judges who find such rights are relying more on their own preferences than the intentions of the constitutional framers. Justice Ruth Bader Ginsburg and others have argued that deciding public policy through judicial fiat short-circuits a deliberative political process that can allow for a public consensus to evolve over time and through a laboratory of state experimentation in which different states try different approaches.¹⁰

But arguments in favor of the political process neglect the fact that many elected officials are not interested in finding common ground on divisive social issues like abortion. Indeed, candidates and public officials often prefer to exploit such controversies for electoral gain. By running on “wedge” issues, candidates can attract voters who ordinarily would identify with the opposition.¹¹ From the late 1960s to the mid-1980s, pro-life individuals were more likely to vote Democratic and pro-choice individuals more likely to vote Republican in presidential elections.¹² By adopting strong antiabortion positions, Republican candidates have been able to attract voters who previously aligned themselves with the Democratic Party.¹³

When a political party has found a potent wedge issue, it may conclude that it has more to gain on election day by perpetuating the conflict than by resolving the issue.¹⁴ As a result, policies that could reduce the demand for abortion may fail to gain support. Republicans often oppose funding for contraceptive education or products, and a bill to cut off funding for all of Planned Parenthood’s family planning and reproductive health services was passed in Indiana this year.¹⁵ If it survives legal challenge, the legislation may have profound implications for unwanted pregnancies. The law may block not only any state funding but also millions of dollars in annual federal funding. Even though Planned Parenthood in the state spends only six percent of its budget on abortions, and all of the abortion dollars come from private donors, the Indiana statute was justified as a way to prevent any indirect subsidies for abortion services...