Whatever else anyone might think about former president Bill Clinton, he was right about at least two things. One was the importance of welfare reform. The second was the view he expressed in 1992 that abortion should be “safe, legal and rare.” In a speech to a women’s group the same year, he added that being pro-choice didn’t necessarily mean being pro-abortion.
These were sentiments worthy of a centrist president, although more recently he has spoiled that image by declaring, with typical twitter hyperbole, that the Supreme Court’s decision in Dobbs v Jackson Women’s Health Organization has “put our democracy at risk.” On the contrary, Dobbs has returned abortion to the democratic process by again making it subject to the will of voters in the individual states.
Those who profess to be shocked by the court’s finding that there is no constitutional foundation for the right to abortion might also find it surprising that the six members who formed the Dobbs majority were not the first justices to reach this conclusion.
Justice Byron White in his Roe v. Wade dissent, joined by Justice Rehnquist, said, “I find nothing in the language or the history of the constitution to support the court’s decision. He added, “The court apparently values the convenience of the pregnant mother more than the continued existence of the life or potential life that she carries. I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the states.” He thought that Roe was “an exercise in raw judicial power.” Dobbs is a detailed extension of Justice White’s dissent 50 years earlier.
Ever the incrementalist in his efforts to protect the court from charges of radical change, current Chief Justice John Roberts suggested in his Dobbs concurrence that the court would have done better to approve Mississippi’s ban on abortion after 15 weeks of pregnancy and still maintain the right to abortion, established in 1973 by Roe v. Wade. That amounts to an invitation to tighten restrictions within Roe’s framework. The suggestion is tempting, but it would also invite continued disagreement and endless litigation about how much restriction is permissible. The other five justices in the majority recognized this likely outcome and sought to deter it by handing the matter back to the states where it was for the most part before Roe in 1973 and where it belongs.
Abortion has long been the most contentious issue in American law and culture because it is so entwined with feelings about morality, religion, the sanctity of life, the rights and well-being of women, and the role of courts in adjudicating differences in passionate opinions. This is an extra-legal issue that has no right or wrong answer with which everyone can agree, and it can only be resolved by compromise with details worked out in the democratic process within each state. Dobbs is an unsatisfactory compromise for many, but it is better than the artificial, arbitrary, one-size-fits-all construct of Roe.
Abortion has been legal and safe for a long time, but many believe not rare enough. Dobbs may improve this part of the Clinton principle if the result is more emphasis on pregnancy prevention and less on abortion. The risk is that anti-abortionists will let the pendulum swing too far. Abortion has been taking place for about as long as women have been pregnant, and has taken place when it was illegal and much less safe than it is today.
Denying women any choice or options in the event of inevitable mistakes and surprises and penalizing them when they attempt to use options that are available, as some states appear prepared to do in the zeal of victory, would have medical and social consequences that most Americans would be unwilling to tolerate.
Outrage, accusations and exaggerated claims aren’t helpful in this debate. Sometimes success is knowing that it is time for necessary compromise.
— Special to the Press Herald
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