Look beyond Roe outrage

Pendulum swings too far in U.S., but abortion with few limits didn't reflect consensus — even in Canada

In a recent majority ruling, the U.S. Supreme Court has overturned Roe v. Wade, the controversial 1973 decision that substantiated abortion rights in America.  

In Dobbs v. Jackson Women’s Health Organization, the court heard arguments related to the constitutionality of a 2018 Mississippi state law that prohibited most abortions after 15 weeks. 

In its majority opinion, the court held that the constitution does not confer any right to abortion, effectively returning the issue back to the states and to legislatures across the country. Access, therefore, has not been banned on a federal level, but the decision will make obtaining legal abortion much more difficult for millions of Americans, particularly in extremist red states. 

Upon review of the ruling and upon review of the reaction to it, the mind tends to wander.  

Top of mind is how few understood and still fail to understand what Roe actually said. Few know, for instance, how far-reaching and broad that decision was. Don’t believe me? Watch any mainstream newscast on the issue this week. The ignorance is vivid and it’s real. 

Roe, in effect, placed few limits on abortion up to the point of birth. It identified a line of viability and a tiered trimester hierarchy that is, in earnest, extremely controversial, even among Democrats and liberals. 

In a recent Associated Press poll, 61 per cent of Americans agreed abortion should be legal in most or all cases in the first trimester. More importantly, 65 per cent said it should be illegal in the second trimester, and further, 80 per cent reported that it should be illegal in the third trimester. 

What about Canada? In general, Canadians tend to view abortion rights favorably, but even still, only 57 per cent believe abortion should be legal in the second trimester and seven in 10 are generally opposed to it in the last three months of the pregnancy. 

In Roe, the court provided no limitations on abortion in the first trimester, and limits in the second trimester could not be implemented by governments based on protecting fetal life. Whether activists want to admit it or not, this context matters.  

Beyond perhaps being out of step with how Americans really view the issue, Roe was a departure from common practice among many mainstream Western countries as well. In Germany, abortion is permitted under 14 weeks. Ireland, France? 14 weeks.  

The fact is that while a majority of Americans say they oppose overturning Roe, questions remain as to how many have read or understand its intricacies, or why, in all honesty, it’s so divisive. 

In Dobbs, the court may have settled a legal question for the time being, but this is hardly a settled societal question. And that’s what it is — a societal question, for each of us to ponder carefully, considering what’s at stake. 

The questions posed in Roe, as well as in the 1992 ruling Planned Parenthood v. Casey that upheld the central tenet of Roe, and now in Dobbs are not merely delusional religious issues or infatuations, either. The question as to where to draw the line on abortion, outside rape and incest, and other reasonable cases, including where a woman’s life is endangered, is a complex ethical question. If you think you hold the view that perfectly settles that nuanced and tricky question, and the inescapable edge cases therein, with respect, perhaps you need to read and think more. 

The voice of reason on this judicial decision and question is perhaps found in an unsurprising place — in the specifics. 

Chief Justice John Roberts, elevated to the high court in the mid-2000s by George W. Bush, has replaced Anthony Kennedy as the court’s swing vote. No swing vote for Roberts this time, however. Overpowered by the consequential Trump appointees, Roberts concurred with the judgment in the actual case before the court, but certainly not with the majority’s decision to overturn Roe.  

But Roberts’ concurring opinion is required reading for anyone claiming any interest in this topic, or an opinion, for that matter. For or against the ruling, one must face the lucid, logical, measured and reasoned argument he lays forth in a convincing and compelling way. 

In a time where political and ideological laziness reigns supreme, where it’s even celebrated and encouraged, Roberts’ argument is tantamount to receiving a cold glass of water in hell.  

Ultimately, he argues for a middle ground. Ultimately, he says that upholding the law in Mississippi would have done the trick. The majority could have ruled in favour of Mississippi and left it at that, said the beleaguered Roberts. Sure, people would have been incensed, still, but the underlying logic used to rule in Roe is simply rife with legal and perhaps even ethical issues and has been the bane of courts for decades.  

In lobbying for a compromise, Roberts in essence, argued that overturning both Roe and Casey was a step too far and simply too far gone. 

And it was. It was much too far gone and amounts to a devastating assault on stare decisis, or precedent, and on the fundamental principle of judicial restraint. For these reasons, the new precedent it sets is chilling for rights understood to exist in relation to same sex-marriage and other important issues. 

More than these things, though, the ruling is devastating to millions of women who will now need to jump through legal hoops and brave a patchwork and backward system simply to receive medical care they are entitled to. In states where even reasonable exceptions to prohibition laws aren't considered, things will be more dire and more unjust.

The court overstepped and overreached in this dramatic decision, let there be no doubt. But let us also hope that the response, both legally and politically, doesn’t make the same mistake. 

Dennis E. Curry is a resident physician and political commentor in Canada.

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*This article has been cross-published in The Chronicle Herald.