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Guest Post from Stan Scott, 2019 Democratic Candidate for Virginia State Senate: Abortion: What is to be Done?

I’ve written in the past about existential issues – policy questions that settle the political debate for many Americans. Some focus on Second Amendment rights, others on taxes or religion. Abortion – reproductive health care – is one of the big ones.  

Most activists frame the abortion discussion in terms of rights. The pro-life side privileges the right to life for the fetus. Others fight for a woman’s right to reproductive choice.  Advocacy coalitions on both sides privilege the freedom of the individuals they wish to protect.

Rights often conflict in a democracy, and the adjudication of these conflicts forms the core of politics. Madison expected factions to argue and fight and try to convince others they’re in the right and should form policy. Today we’re so polarized that these existential issues divide us in ways Madison didn’t expect. So even when one side or the other wins power and acts to implement policy, the other side rejects its legitimacy. Abortion is, after all, murder if you accept the personhood of a fetus. If you don’t, the pregnant woman’s health and personal freedom take precedence. She is, after all, the only human being involved. 

Settling the abortion debate then depends in part on settling the question of when life begins. But even if one side won the argument, and its opponents accepted the legitimacy of the policy they seek to implement, this victory probably does not lead to optimal policy outcomes

This is because the competing freedom claims of fetuses and pregnant women cannot be resolved without an answer to the question of when human life begins.  If you think a zygote is a person with rights, then abortion is by definition murder, and both the women who get them and the doctors performing them should be prosecuted.  If not, you naturally wish to privilege the freedom of the only person involved: the pregnant woman.  Unfortunately, there is no satisfactory answer to this question, since science and religion can’t agree.

The problem with abortion is that even resolving this dispute would not lead to a policy that reduces the number of abortions. A pro-choice win certainly wouldn’t have this effect if it means “abortion on demand.” But a “pro-life” victory in this debate and the resulting expansion of restrictions on abortion and interference in the relationship between doctors and patients only establishes the legal and medical regime for getting them.  Women who want them – even anti-choice women – will get them.  The question is how and where.  In other words, prohibition would simply create a new black market and a new criminal class–it would not eliminate abortion.

A far better solution depends on mitigating the circumstances that increase the incidence of unwanted pregnancy.  This requires a robust regime of broad health education that begins at a young age and includes discussions of the moral, physical, and emotional consequences of sexual activity in its various contexts with a focus on the real-world problems young people face (e.g., bullying and peer pressure).  Such discussions must include mitigation techniques such as abstinence and birth control, and the pros and cons of each.  Conservatives worry that this might lead to increased sexual activity, but replacing “don’t worry about what it is, just don’t do it” with comprehensive sex education might increase reliance on abstinence. What we need is comprehensive education for young people in a values-based framework. We should avoid shaming sexual activity while connecting the desires and internal conflicts sexuality drives in all young people with broader mental and physical health. Parents and grandparents and educators should give kids this support and teach them to make good decisions. Most will.

This is a sticky dispute, with probably irreconcilable differences between the two sides.  It’s a religious question for many, after all, and personal religious views on this deserve respect. 

Framing the reproductive choice discussion in terms of freedom might lead to changes in current policy.  But none of the policies likely to result therefrom–completely legal abortion, abortion prohibition, or limiting reproductive choice at the margin will have the maximum possible harm reduction effect. It won’t reduce abortion. Education will.

This is a guest post by Stan Scott, a Progressive who ran for the State Senate in the 4th District last year, as part of our new Lincoln-Douglas II Debates. Stan blogs at Foggy Bottom Line, and this post and my version are cross-posted there.

About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

One Response to “Guest Post from Stan Scott, 2019 Democratic Candidate for Virginia State Senate: Abortion: What is to be Done?”

  1. Sandy Sanders
    Twitter:
    says:

    This is a well-written persuasive article. I also read Stan’s comment on this. There is a powerful argument to be made that liberty interests require fairly free access to abortion rights. I appreciate the debate and I hope our readers, do too.

    Stan says I applied a faith-based criteria for the origin of life in the womb. I actually attempted to say that even if you take the last example (when a embryo cannot be turn into a twin) it is before almost all abortions. And I do not plan to embrace some sort of “personhood” bill or constitutional amendment. I think that has too many unintended consequences. (I want to STRONGLY state that adult use of birth control is not the business of the government.) So my intent was scientific not religious. It is amazing what happens in the womb NO MATTER WHAT YOU BELIEVE ABOUT GOD.

    But Stan raises a troubling issue: Someone’s faith position will be the law of the land UNLESS abortion rights are protected. But faith positions will be taken up in most legislation – murder, theft, destruction of property but they are incidental to some other societal good.

    I also am impressed with the libertarian interpretation of Roe v. Wade. I de believe the Constitution and Declaration ought to be interpreted in the light most favorable to liberty. But there is that pesky potential human life that even Roe concedes can be protected in the third trimester and viability is critical to that determination. Let’s give the authors of Roe some credit: There was an attempt to balance competing rights and interests.

    I think the answer is still the procedural due process not substantive due process and to overrule Roe altogether BUT if the SCOTUS wants to say there are core rights that cannot be infringed by any state with something like the Sanders formulation and reasonable regulation of clinics and non-harassing access to the women by attempts to persuade them not to go through with it. The ultrasound bill is too far – but say a 24 hour waiting period is okay by me. Serious regulations to ensure clean and safe facilities and protection for actually born babies are appropriate.

    Freeing US politics from Roe (or most of the Roe decision) will force elected legislators to seek a consensus that most voters will live with. That is generally better than courts deciding these issues. And it will protect unborn lives.

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Tom White Says:

Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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