Can the legislative process still work more or less as intended, with lawmakers balancing competing interests and arriving at a solution that the majority of the population can at least live with if not enthusiastically endorse? Or have we become so divided as a nation that neither side wants to concede anything to the other?
We might get a clue to the answer in the next few years as state legislatures grapple with the Supreme Court’s tossing of Roe v. Wade.
The biggest complaint against the landmark 1973 pro-abortion decision was that it preempted the robust debate that was beginning to take place on the issue in statehouses across the nation.
This view was especially prevalent among those on the right, who pointed out, correctly, that since the Constitution made no mention of abortion, the court was claiming for the federal government a decision that should have been left to the states.
But even strong abortion-rights advocates had their qualms.
In a 2013 interview, Justice Ruth Bader Ginsburg complained that Roe v. Wade short-circuited the development of a political groundswell that was building at the state and local level not only on the issue of abortion but on all phases of women’s rights. “Roe seemed to have stopped the momentum,” she said.
At the time Roe was decided, there was abortion on demand in four states, and it was illegal to one degree or another everywhere else. But the movement for what Ginsburg called “women’s rights” was starting to encourage discussion of the issue.
Each side today seems convinced that, had the legislative process continued, its view would have been the one ultimately endorsed.
We will never know. And we can’t pretend that the process will merely take up again from the point where it was stopped, without taking into account all that has happened in the last 50 years.
The issue has been polarized to the point where two incompatible extremes have dominated the debate. The left wants it to be nothing but a woman’s issue, no matter how far along the pregnancy is. The right wants it to be a fetal-life issue, no matter how early in the pregnancy.
But the American people are somewhere else.
In poll after poll, there is a strong majority for abortion to be allowed in the first trimester. A smaller majority, but still a majority, thinks they should not be allowed in the second trimester. Another strong majority thinks they should be forbidden in the third.
It is pointless to wonder what this means on a national scale. The US House and Senate are not going to cross their respective aisles and hammer out a federal abortion law that matches the national mood. Nowhere is our polarization set in stone more than in Congress.
So, we are left looking at the state-level debates.
In red state Indiana, the General Assembly has just become the first state post-Roe to enact a near-total abortion ban. That bucks the consensus of the Hoosier populace, which skews more pro-life than the rest of the nation but is still somewhere between the two extremes. Will enough voters react against that legislation to make a significant difference in the legislative makeup?
Meanwhile, in red state Kansas, voters sent a strong message in a statewide referendum by overturning an attempt to take abortion rights from the state constitution. Will that state’s legislators, in crafting new legislation, take into account that clear expression of voter sentiment?
And what about the flip side?
With Roe’s removal, the focus in the near future will be on pro-life legislatures and how voters react to their restrictions on abortion. But pro-choice legislatures in other states will also begin to flex their muscles, and the same voter-lawmaker dynamics will be in play there, too.
In Civics 101, the way it should work, at the state level if not the national, is that legislators and voters will interact enough to find some common ground. It will be messy, contentious, at times even ugly, but the end result will be something we can agree on, if grudgingly.
Leo Morris, columnist for Indiana Policy Review, is winner of the Hoosier Press Association’s award for best editorial writer. Morris, as opinion editor of the Fort Wayne News-Sentinel, was named a finalist in editorial writing by the Pulitzer Prize committee. Contact him at [email protected]. Send comments to [email protected].