Abortion is tragic in the strict sense of the term. It's an act that pits fundamentally irreconcilable absolute rights against each other — the pregnant woman's right to determine what happens to her own body without state interference against the right to life of the fetus she carries inside her womb. Anyone who adopts an absolute position on the issue, denying the moral weight of the case for the opposite view, does so through an act of willful, ideologically motivated simplification.
In a country where laws reflected this tragic reality, abortion would be safe and legally available early on in pregnancy, while freely available birth control and generous support for pregnant women would contribute to making it as rare as possible. Restrictions on abortion would increase as the fetus approaches viability, with the termination of a pregnancy after viability allowed only in the rarest and most wrenching of cases — when the mother's life is at significant risk and/or doctors learn that the baby will suffer from severe, life-threatening health problems.
Such an arrangement would build on the widespread moral intuition that the fetus is a matter of relative moral indifference early in pregnancy but develops into a being possessing full dignity and rights by the time of birth. For many people, this intuition makes a first-trimester abortion minimally unsettling but one during the third trimester morally monstrous, with second-trimester abortions somewhere in between.
That the United States is moving away from policies that reflect these intuitions is a tragedy, too, though this time in the less precise, colloquial sense of word: It is a terrible misfortune. Our abortion crackup is a synecdoche for the political dysfunction that afflicts our politics as a whole, with activists on the extremes controlling the agenda on both sides and the reasonably conflicted majority in the middle increasingly silenced, its voice barely penetrating the debate in state houses and courtrooms.
The center of gravity in public opinion on abortion very much reflects the moral messiness of reality. According to Gallup's long-running tracking poll on the subject, just 18 percent of the country wants the procedure banned in all cases, and just 29 percent want it legal in all cases. That's 47 percent in favor of purity on one side or the other. That leaves a bare majority — 50 percent — supporting a compromise view that keeps abortion "legal under some circumstances." It's also worth noting that, despite what many pro-choice activists like to imply about a male-driven crusade to transform the country into the misogynistic tyranny from The Handmaid's Tale, the Pew Research Center has shown that men and women hold quite similar views on abortion — with 60 percent of women and 57 percent of men in favor of keeping it legal in all or most cases, and 36 percent of women and 37 percent of men preferring in all or most cases to ban it. (The discrepancy between the two polls is mainly a function of Pew's decision to lump together those on the extremes and in the center — "all or most" — on each question.)
Instead of public policy reflecting the rightly conflicted majority view — as it tends to do, for example, in much of Europe — we have a misshapen, increasingly grotesque situation in which only the extremes prevail.
In Republican-controlled states, most in the South and Midwest, legislatures are passing draconian laws severely restricting abortion and sometimes banning it outright, with few, if any, exceptions for the life and health of the mother. They're doing so in the expectation that a federal court will block the laws, setting up an appeal to an increasingly conservative Supreme Court, where pro-life activists hope a majority of the justices will opt to overturn or gut Roe v. Wade (1973) and Casey v. Planned Parenthood (1992), the cases that established and reaffirmed a constitutional right to abortion.
Meanwhile, facing a pro-life movement emboldened by the Trump administration's efforts to advance its cause, other states (including Virginia, New York, Vermont, and Rhode Island) have passed or are working to pass laws that bolster or expand abortion rights. Those efforts, including others in Nevada and New Mexico, are being cheered on by a pro-choice movement that increasingly deploys arguments and rhetoric that deny the self-evident humanity and moral worth of the child in utero.
Even if the Supreme Court fails to fulfill the most fervent hopes of the pro-life movement by fully and explicitly overturning Roe and Casey, it is quite likely to permit greater state restrictions on abortion than we've seen since the 1970s. The result will be a country governed by two very different legal regimes. In one America, it will be increasingly difficult, and in some cases impossible, to procure an abortion, with a woman seeking to terminate her pregnancy, no less than the abortion provider, facing potential arrest, prosecution, conviction, and jail time. In the other America, a woman will be free to abort her pregnancy up to and perhaps beyond fetal viability with a minimum of legal oversight.
In one America, the laws will recognize and protect the rights of the fetus alone. In the other, it will recognize and protect only the rights of the pregnant woman.
As the nation learned in the 1860s, intractable divisions on matters of life, death, and personal freedom can be civically poisonous and ultimately incompatible with a minimum of national cohesion and peace.
But, at least on abortion, the U.S. faces a different kind of tension and conflict today. Each extreme looks likely to get its way in certain states and regions. But what about the views of the silenced American majority that would prefer the law to recognize and protect, or at least strive to balance, however imperfectly, the rights of both the pregnant woman and unborn child? Not abortion banned outright — and also not abortion on demand, without restriction — but something between the extremes, something genuinely humane, acknowledging the tragic conflict and trade-offs? That moderate position may soon become a relic of a bygone age, like bipartisan compromises in Congress and media outlets that speak to all Americans instead of narrow factions.
The convictions and preferences of tens of millions of conflicted women and men is likely to have little influence over the shape of abortion law in the coming years. In America, government is increasingly conducted as a clash among mobilized activists pursuing incompatible vision of moral purity. And in no area of policy is that truer than it is on abortion.