The Twilight of Legal Abortion

The swearing-in of Samuel Alito as the newest Supreme Court justice was a somber day for abortion-rights advocates, some of whom spoke very eloquently about what is likely the end of the era of legal abortion. Here was Catholics for a Free Choice President Frances Kissling, as reported in Salon:

"In a way," she mused, "Roe was a socially transformative decision made in a country that was not socially transformed. In terms of social values, in terms of attitudes towards women, it was a profound anomaly. And it's not surviving. Whether it gets overturned or continues on the road to restriction, the concept of women as moral agents in relation to their own bodies is being rejected year by year by year.

"It was so far ahead of its time," she continued. "It was a visionary decision. The failure, the sad part of it, was that we weren't ready for it. The sad, sad, sad thing is society is less ready for it than it was 30 years ago, but that's not the fault of Roe." Roe, and the larger philosophy behind it -- that women are capable of moral agency -- Kissling said, "was never really realized. But maybe what one can say is that in history, 100 years from now, or 200 years from now, when Roe is looked at, it will be looked at as one of the most-forward-thinking, principled decisions for women. Whether it survives or not, it existed. And it will be looked at as an important moment."

Those are serious, heartfelt words which bear careful thinking about. Kissling is probably right that Roe really did raise the cultural consciousness of "a woman's body" in a way which had never been done before, and gave women unprecedented power (executive, veto-power) over their own bodies even when that autonomy collided with that of other, even less visible bodies. However, that wasn't entirely a good thing. The pornography boom of the 1970's also heightened the awareness of women's bodies, and demeaned them for the sake of the same principle of autonomy. As I have written before, I don't believe that criminalization is a just or reasonable solution to the problem of abortion, especially when it is coupled, as it surely will be, with an insanely contradictory push to limit access to birth control. It is the anti-birth control fanatics who are the real danger, and they are also the ones who will be emboldened by future anti-abortion rulings.

So Kissling is right that something is changing, and something is being lost. An important era in history really is coming to a close. An experiment in women's rights is being concluded. It's hard to say if Roe was ahead of its time or if it was fatally flawed. Perhaps no one should be given as much power over their own bodies as Roe attempted to give pregnant women. Nevertheless there is little doubt in my mind that the confirmation of Samuel Alito is a bad thing for women, and that the consequences will be dire.

Perhaps what is really being lost with the passing of Roe is the possibility of a just and lasting solution to the abortion problem, one which would have balanced the right of women to determine the course of their own pregnancy with the objective reality of the fetus as a developing person. That solution was taking shape during the Clinton years, with the goal of making abortion "safe, legal, and rare." Like Roe, it's quickly becoming a thing of the past.