Apr 01, 2007 - 04:04:37 CDT
In the unending abortion debate, there are two positions I find hard to respect. One is the view that all abortion is an abomination, and therefore government should enact something like a 100 percent ban on the procedure. The other is that abortion is virtually an absolute right and that anyone who questions its open availability is some kind of Neanderthal. Those are the strident ends of the abortion spectrum, and they make it nearly impossible for the majority of us to reason intelligently about the gray zone where the real decisions have to occur.The overwhelming majority of Americans fall into the middle somewhere: troubled and uncertain; unhappy that abortions occur, but not quite sure what to do about it; convinced that women should have very substantial autonomy over what takes place within the sovereignty of their bodies, but certain that there must be some limits about how and when a pregnancy can be terminated. Most Americans agree that government is a very poor instrument for sorting out intensely personal moral questions of this sort.
In other words, the vast majority of Americans agree with former President Clinton in believing (with some revulsion) that abortion should be "legal, safe and rare."
As the North Dakota legislative session enters its final weeks, the Senate will decide whether to join the House in passing anticipatory legislation to make it a Class C felony to perform an abortion of any sort at any time during a pregnancy, "except to save the life of the mother." I say "anticipatory," because the law would be trip-wired into effect the minute the Supreme Court overturns Roe v. Wade.
Please understand, this column is not about whether abortion is morally repugnant or morally justifiable. Decent and honorable people can disagree about this question, and there is no way I want to wade into that debate at this juncture. What I do wish to argue is that the proposed law currently under discussion by the North Dakota Legislature is a very bad idea.
Here's why.
First, we should leave well enough alone. North Dakota already has a sensible and workable abortion "settlement." Abortion is legal here, but relatively cumbersome to obtain. Though it is spatially the 19th largest state, North Dakota has only one abortion clinic, in Fargo, which in this context may be regarded as located in "Greater Minnesota." Fewer than 1,000 abortions occur annually at the Red River Women's Clinic. Nobody wishes there were more. Everyone wishes there were fewer. But our numbers do not suggest a national epidemic of carelessness or indifference to the moral gravity of termination.
Even today, in a small-population state, walking into an abortion clinic is something no woman ever wishes to do, and it is hard to believe that any woman, any couple, ever makes that decision casually.
Second, the national pro-life lobby is fighting a losing battle against three revolutionary forces: mobility, chemistry and the liberation of women from biological determinism. Let me explain. There is now so much mobility in America that Dakotans travel farther, more frequently, more inexpensively and for more reasons than ever before. Anyone who wants an abortion is going to go somewhere to get one. If we ban abortions here, we will only be discriminating against poor people. If we ban them everywhere, we will create millions of felons without actually doing much to eliminate the (underground) availability of abortion. The historian Garry Wills has argued that the lives of women have changed more in the last 30 years than the last 3,000. Like it or not, the cat is out of the bag. American women overwhelmingly want to control their reproductive destiny and, whether we like it or not, a large majority of them want abortion to be one option.
If the Supreme Court overturns Roe v. Wade (unlikely), abortion will not immediately become illegal throughout the land. Each state legislature will have to write its own abortion law. We all know that there is virtually no chance that Massachusetts, Wisconsin, Minnesota, California, Washington, New Jersey, etc. will outlaw abortions. As long as Minnesota permits abortion, no North Dakota Legislature can prevent its citizens from terminating a pregnancy. We simply move the action next door. This cannot be regarded as a moral victory.
Since the introduction of vacuum aspiration techniques (ca. 1930), abortion has become steadily safer decade by decade, until now it is a relatively routine outpatient procedure. The science of the "morning-after pill" (ECP) and other chemical abortion methods is still in its infancy, but we can expect these drugs to get better and better for early-term pregnancies. Protesters can gather outside an abortion clinic to use intimidation and humiliation as tools to further their political agenda, but it will be increasingly hard to "locate" abortion in a more sophisticated pharmaceutical world. The simple truth is that, as medical technologies continue to proliferate during the "information-technology-revolution," termination (as well as contraceptive) options are going to multiply beyond the capacity of the law (or busybodies) to keep up.
I don't know about you, but I barely trust the Legislature to revise our property tax code or decide what the state fruit should be. I certainly don't trust 141 politicians (82 percent of whom are men) to wrestle with the mysteries of creation on behalf of the 640,000 rest of us.
Third, nobody likes to talk about this, because it seems wrong to discuss moral and economic issues in the same breath, but a ban on abortion would be an economic and a public relations disaster for North Dakota. We all recognize that, after years of deep economic anxiety and a state history of isolation and provincialism, North Dakota is being rapidly assimilated into the national and even international arena. The current North Dakota economic boom and our increased attractiveness as a location for industry and research would be profoundly set back by this sort of Appalachia-ization of our otherwise well-deserved Midwestern reputation for good sense. Just as the era of prosperity and good feeling is beginning to leave its mark on North Dakota, why invite the rest of the nation to turn away from us with pity and contempt?
An abortion ban would hurt tourism (now doing very well, and growing). It would require business, hospital, university and industrial recruiters to explain "what the heck is going on in North Dakota?" to a skeptical and even hostile national community. Few people from elsewhere would move to North Dakota because they preferred to live in an abortion-free state. Many of our own young people would be more likely to outmigrate in the wake of such meddlesome and paternalistic legislation.
Finally, if there were no other reason to oppose the proposed North Dakota abortion ban, it would be important to oppose it on procedural grounds. Passing a bill in anticipation of a Supreme Court decision that might or might not occur, in a form that we cannot possibly anticipate at this moment, is not just an exercise in futility, but it muddies the jurisprudential process, unfairly ties the hands of future legislative sessions, and exposes North Dakota to ridicule and opprobrium without actually doing the slightest thing to solve the problem of abortion in America. It is really just moral posturing, and easy moral posturing at that, because some future legislative session will have to void this bad and demagogic law and then do the actual hard work of fashioning a North Dakota abortion law that faces the world as it is, not as a minority of moral absolutists wish it to be.
Virtually all constitutional experts agree that the Supreme Court is unlikely to overturn Roe v. Wade. Instead, the Roberts court will probably chip away at the edges of Roe v. Wade, but leave the basic right intact. The current Legislature seems to think that our anticipatory law will fit whatever the Court decides like the other half of a cantaloupe. The truth is that we'll eventually have to fashion an exceedingly intricate jigsaw piece of state legislation if we expect it to pass constitutional muster and at the same time dovetail with the nuances of whatever the Supreme Court decides.
If the Legislature passes this wrong-headed legislation, I hope Gov. John Hoeven will have the courage to veto it.
(Clay Jenkinson is the Theodore Roosevelt scholar-in-residence at Dickinson State University. He lives in Bismarck. Contact Jenkinson at Jeffysage@;aol.com.)
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