There is no compromise on abortion | Opinion

This year, it is likely that Roe v. Wade and Planned Parenthood v. Casey, two Supreme Court decisions protecting abortion, will be eviscerated if not outright overturned. Once this happens, state legislators will have the power to determine if and when abortion will be legal.

In anticipation of the court’s abandonment of a federally protected right, conservative pundits and anti-abortion politicians — including Jon Shields, David Brooks, and Jonah Goldberg — are scrambling to support a “compromise” on abortion restrictions. This framing gives the false impression that a middle ground on abortion will resolve the dispute once and for all. That middle ground doesn’t exist.

As litigators who have worked on advancing reproductive rights for decades, we know that compromise sounds nice in theory, but in reality, it’s a fool’s errand. The best and only solution is to preserve what is already the law: Our courts must protect the ability of all people to decide whether and when to become parents.

Abortion has been a federally protected right for nearly five decades. In 1973, with a seven justice majority, the Supreme Court established an agreement on abortion that has served us well: A woman, in consultation with her doctor, has the right to an abortion up until viability of the fetus, usually around 24 weeks of pregnancy, and thereafter only when necessary to protect the woman’s life or health.

Most Americans and all major medical organizations still agree with Roe’s conclusion. According to a recent Washington Post-ABC News poll, 75% of Americans believe that women and their doctors should be the ones to make decisions about abortion.

Despite the overwhelming popularity of the status quo, some commentators are proposing new restrictions on abortions. Some suggest limiting legal abortion to the first trimester of pregnancy, when more than 92% of abortions are performed. Others support total bans that only include exceptions for when a patient’s life is endangered, when there is rape or incest, or severe fetal anomalies. During the oral argument in Dobbs v. Jackson Women’s Health Organization, Chief Justice John Roberts proposed calming the abortion debate by banning legal abortion after 15 weeks of pregnancy — enough time, he believes, for anyone to obtain an abortion.

These so-called compromises would limit abortion access to a far greater extent than current law and, most importantly, jeopardize women’s health and lives.

The reasons that over 860,000 American women choose abortion each year are far too varied to prescribe in advance. The decision to have an abortion involves a complex interplay of health, well-being, and socioeconomic factors. A 15-week ban sounds reasonable until a health problem like preeclampsia (dangerously high blood pressure) develops later in pregnancy, or if prenatal testing reveals a fetal anomaly during the second trimester.

Similarly, a 24-hour waiting period doesn’t seem so bad until it creates a much longer delay for an impoverished woman forced to miss work and travel hundreds of miles on two separate days. This has been happening in Pennsylvania for decades because patients must undergo state-mandated counseling designed to discourage having an abortion, and then wait at least a day before the procedure is provided.

Most people believe that their own reason for having an abortion is justified. The consequences of forced continuation of pregnancy are too awful to contemplate when it’s your own personal circumstances — or your daughter’s, your mother’s, or a close friend’s. It’s other people’s abortions that people have a hard time accepting.

The Supreme Court’s conservative wing, under the guise of being pro-democracy, now has suggested that state legislators, rather than the courts, are best able to represent We the People when creating abortion limitations.

Far too often, however, statewide abortion restrictions have been used to reward conservative single-issue voters. These laws have ignored medical standards, creating restrictions that fall most heavily on the groups that are least able to safeguard their rights in the political process: women of color, teens, and patients living in rural areas. Legislators have even bypassed traditional legal norms — for example, by empowering vigilantes in Texas to enforce that state’s abortion ban.

Legislators who want to find the elusive middle ground should focus on family-friendly policies and increased access to contraception without copays and prescriptions. We can all agree on the importance of programs that address the alarming rate of maternal and infant deaths among women of color and the need for increased governmental funding for child care and early childhood education.

These family-friendly policies provide plenty of common ground for advocates on both sides of the abortion issue to move toward without trampling fundamental rights or threatening health. But throwing out the only solution that has worked for generations — a constitutional protection for individual rights — under the false banner of compromise, makes no sense at all.

Julie F. Kay and Kathryn Kolbert are coauthors of “Controlling Women: What We Must Do Now to Save Reproductive Freedom.” A human rights attorney, Kay has argued for abortion rights internationally. Kolbert cofounded the Center for Reproductive Rights and, in 1992, argued Planned Parenthood v. Casey before the Supreme Court.