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The Abortion Wars Have Become a Fight Over Science The Abortion Wars Have Become a Fight Over Science
(about 5 hours later)
It was perhaps, at first glance, an unusual feature of the 2019 March for Life that it downplayed what many have come to think of as the central claim of the anti-abortion movement: that the unborn have a constitutional right to life.It was perhaps, at first glance, an unusual feature of the 2019 March for Life that it downplayed what many have come to think of as the central claim of the anti-abortion movement: that the unborn have a constitutional right to life.
Instead, march organizers focused on proclaiming that science was on their side. They circulated material on “when human life begins,” whether abortions are ever medically necessary and when fetal life becomes viable. They praised legal restrictions based on what science supposedly says about fetal pain.Instead, march organizers focused on proclaiming that science was on their side. They circulated material on “when human life begins,” whether abortions are ever medically necessary and when fetal life becomes viable. They praised legal restrictions based on what science supposedly says about fetal pain.
In return, abortion-rights advocates, citing studies from the American College of Obstetricians and Gynecologists and the University of California, San Francisco, fired back that the March for Life peddles “junk science” and that its positions “fly in the face of evidence.”In return, abortion-rights advocates, citing studies from the American College of Obstetricians and Gynecologists and the University of California, San Francisco, fired back that the March for Life peddles “junk science” and that its positions “fly in the face of evidence.”
This year’s skirmish wasn’t actually unusual, however. Rather, it was revealing of a larger shift in the terms of the abortion debate. Over the past few decades, the abortion wars have become as much a fight about science and medicine as they are about the law and the Constitution.This year’s skirmish wasn’t actually unusual, however. Rather, it was revealing of a larger shift in the terms of the abortion debate. Over the past few decades, the abortion wars have become as much a fight about science and medicine as they are about the law and the Constitution.
It wasn’t always this way. Before Roe v. Wade, those on both sides of the issue typically framed their arguments in constitutional terms, anticipating a showdown in the courts. And in the immediate aftermath of the decision, 46 years ago today, most still viewed abortion as a constitutional fight. Abortion foes pushed for an amendment banning the procedure and restoring what they saw as a fundamental right to life; abortion-rights supporters felt secure in the court’s conclusion that the 14th Amendment’s right to privacy encompassed a right to choose.It wasn’t always this way. Before Roe v. Wade, those on both sides of the issue typically framed their arguments in constitutional terms, anticipating a showdown in the courts. And in the immediate aftermath of the decision, 46 years ago today, most still viewed abortion as a constitutional fight. Abortion foes pushed for an amendment banning the procedure and restoring what they saw as a fundamental right to life; abortion-rights supporters felt secure in the court’s conclusion that the 14th Amendment’s right to privacy encompassed a right to choose.
The introduction of scientific claims to the debate came slowly at first. In the 1970s, anti-abortion activists wanted a way to keep abortion rates down while the campaign for constitutional change raged on. So they turned to contested science to argue for laws proscribing how and when doctors performed abortions. Some insisted that fetal viability came earlier than the 24-to-28-week time frame set in Roe. Others claimed that abortion caused “severe emotional disturbances,” “sterility and miscarriage, and prematurity in subsequent pregnancies.” In the decade that followed Roe, dozens of laws restricting abortion were passed each year. The introduction of scientific claims to the debate came slowly at first. In the 1970s, anti-abortion activists wanted a way to keep abortion rates down while the campaign for constitutional change raged on. So they turned to contested science to argue for laws dictating how and when doctors performed abortions. Some insisted that fetal viability came earlier than the 24-to-28-week time frame set in Roe. Others claimed that abortion caused “severe emotional disturbances,” “sterility and miscarriage, and prematurity in subsequent pregnancies.” In the decade that followed Roe, dozens of laws restricting abortion were passed each year.
By the 1980s, abortion foes had conceded that a constitutional amendment would not pass in the foreseeable future. Even with allies controlling Congress and the White House, there simply weren’t enough votes for an amendment banning all abortions outright, and absolutists saw any other form of constitutional change as cowardly and counterproductive.By the 1980s, abortion foes had conceded that a constitutional amendment would not pass in the foreseeable future. Even with allies controlling Congress and the White House, there simply weren’t enough votes for an amendment banning all abortions outright, and absolutists saw any other form of constitutional change as cowardly and counterproductive.
And so anti-abortion groups decided that their best bet would be passing yet more restrictions on when, where and how doctors performed abortions and persuading the court to uphold them. With that, arguments over what science had to say about the procedure took on even more importance. The 1980s saw the advent of arguments that stressed fetal pain — an issue on which there is very little consensus — and a continuing push to redefine fetal viability.And so anti-abortion groups decided that their best bet would be passing yet more restrictions on when, where and how doctors performed abortions and persuading the court to uphold them. With that, arguments over what science had to say about the procedure took on even more importance. The 1980s saw the advent of arguments that stressed fetal pain — an issue on which there is very little consensus — and a continuing push to redefine fetal viability.
While accusing opponents of peddling sham science, abortion-rights supporters insisted that the legality of the procedure should turn on its benefits for women seeking a more equal role in society. In 1992, in Planned Parenthood v. Casey, the court agreed, declining an invitation to overturn Roe partly because “the ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives.”While accusing opponents of peddling sham science, abortion-rights supporters insisted that the legality of the procedure should turn on its benefits for women seeking a more equal role in society. In 1992, in Planned Parenthood v. Casey, the court agreed, declining an invitation to overturn Roe partly because “the ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives.”
But Casey inadvertently fueled a further rush toward science and medicine as the grounds on which the fight over abortion would be staged. Anti-abortion groups took away from Casey that they might successfully undercut abortion rights if they could show that the procedure harmed women. Starting in the 1990s, abortion foes increasingly stressed arguments that abortion caused breast cancer and damaged women’s psyches. In seeking to ban a specific procedure they labeled “partial-birth abortion,” anti-abortion leaders contended that the procedure was medically unnecessary for the women involved.But Casey inadvertently fueled a further rush toward science and medicine as the grounds on which the fight over abortion would be staged. Anti-abortion groups took away from Casey that they might successfully undercut abortion rights if they could show that the procedure harmed women. Starting in the 1990s, abortion foes increasingly stressed arguments that abortion caused breast cancer and damaged women’s psyches. In seeking to ban a specific procedure they labeled “partial-birth abortion,” anti-abortion leaders contended that the procedure was medically unnecessary for the women involved.
Abortion-rights supporters have tried time and again to debunk these ideas, pointing to the conclusions drawn by nonpartisan, well-established groups like the National Cancer Institute, the American Cancer Society and the American Psychological Association. But support from elite scientific organizations has only intensified the conflict. Abortion foes have founded expert groups of their own and insist that the medical establishment puts political correctness ahead of the truth.Abortion-rights supporters have tried time and again to debunk these ideas, pointing to the conclusions drawn by nonpartisan, well-established groups like the National Cancer Institute, the American Cancer Society and the American Psychological Association. But support from elite scientific organizations has only intensified the conflict. Abortion foes have founded expert groups of their own and insist that the medical establishment puts political correctness ahead of the truth.
More recent Supreme Court decisions have only reinforced the importance of science as contested ground. In 2007, in Gonzales v. Carhart, the court reasoned that lawmakers had more latitude to restrict abortion when experts disagreed about a scientific question, such as the need for a specific abortion procedure. Nine years later, in Whole Woman’s Health v. Hellerstedt, the court held that judges had to measure both the benefits and the burdens of an abortion law, jump-starting efforts on both sides to gather scientific evidence.More recent Supreme Court decisions have only reinforced the importance of science as contested ground. In 2007, in Gonzales v. Carhart, the court reasoned that lawmakers had more latitude to restrict abortion when experts disagreed about a scientific question, such as the need for a specific abortion procedure. Nine years later, in Whole Woman’s Health v. Hellerstedt, the court held that judges had to measure both the benefits and the burdens of an abortion law, jump-starting efforts on both sides to gather scientific evidence.
Today, with the fate of Roe uncertain, a focus on science and medical claims has pushed the two sides of the abortion conflict farther apart. Neither movement has changed its views about the Constitution. But now, abortion-rights and anti-abortion activists disagree on the basic facts about abortion — and who has the scientific authority to determine them.Today, with the fate of Roe uncertain, a focus on science and medical claims has pushed the two sides of the abortion conflict farther apart. Neither movement has changed its views about the Constitution. But now, abortion-rights and anti-abortion activists disagree on the basic facts about abortion — and who has the scientific authority to determine them.
The role of science in the abortion debate also suggests that overturning Roe — or even removing abortion from constitutional law — will do nothing to de-escalate the conflict. For decades, commentators across the ideological spectrum have argued that the Supreme Court polarized the debate by constitutionalizing abortion. By extension, some have speculated that the breach between the two sides could heal if each state could weigh policy arguments and scientific evidence. But in many instances, the debate has already centered on policy and science, and the divide between those on either side is as bad as it has ever been. Science will not solve the abortion wars, and neither will reversing Roe. The role of science in the abortion debate also suggests that overturning Roe — or even removing abortion from constitutional law — will do nothing to de-escalate the conflict. For decades, commentators across the ideological spectrum have argued that the Supreme Court Supreme Court polarized the conflict by treating abortion as a constitutional right rather than a negotiable policy issue. By extension, some have speculated that the breach between the two sides could heal if each state could weigh policy arguments and scientific evidence. But in many instances, the debate has already centered on policy and science, and the divide between those on either side is as bad as it has ever been. Science will not solve the abortion wars, and neither will reversing Roe.
Jeanne Mancini of March for Life recently wrote that “the abortion debate isn’t settled, but the underlying science certainly is.” Whatever either side may wish, that could not be farther from the truth.Jeanne Mancini of March for Life recently wrote that “the abortion debate isn’t settled, but the underlying science certainly is.” Whatever either side may wish, that could not be farther from the truth.
Mary Ziegler is a law professor at Florida State University. Her latest book is “Beyond Abortion: Roe v. Wade and the Fight for Privacy.” Mary Ziegler, a law professor at Florida State University, is the author of, most recently, s “Beyond Abortion: Roe v. Wade and the Fight for Privacy.”