Now that Donald Trump has been elected, the attacks on abortion rights will accelerate. Without resorting to a national ban on abortion, Trump can use executive authority to take a series of decisive actions that can repeal federal regulations that still provide some protections for abortion rights.

Trump has claimed responsibility for creating the Supreme Court that overturned Roe v. Wade. Still, he tries to hide behind what sounds like respect for democracy. He says he supports “returning abortion to the states.” And he claims, “This is what everyone wants.” This is misleading.

The abortion issue is complex, and the new state laws since the Dobbs v. Jackson decision have limited abortion significantly — sometimes even eliminating exceptions for rape and incest and sometimes even criminalizing abortion. If we focus for a moment on the assertion that the Supreme Court returned abortion to the states, we discover a problem: abortion regulation already rested with the states as a result of Roe.

This is important. Overturning Roe did much more than “return abortion to the states.” Trying to convince people that the overturning of Roe is a win for democracy is just not true.

What Dobbs did that was new, and the reason it was such a devastating decision is that it held that there was no fundamental right to an abortion. No right at all. It rejected the ruling in Roe that defined a woman’s right to abortion as contained in the Constitution’s well-established right to privacy.

Roe was a poorly written decision, but it already gave the states substantial power to regulate abortion. The trimester system established in Roe was designed to balance two critical interests: the right of the state to protect unborn life and a woman’s right to privacy in making decisions about abortion. The trimester system created a “sliding scale” standard, using the viability of the fetus as a guidepost for its ruling. A woman’s right to privacy is stronger at the very beginning of her pregnancy, and the state’s authority is stronger toward the end of a woman’s pregnancy. It is a matter of balance.

In the first trimester of pregnancy, Roe says that the abortion decision is entirely up to a woman and her doctor. The state may not intrude. In the second trimester, the state could pass legislation to make reasonable regulations. This allowed different states to make other decisions about what those reasonable regulations might be. And states did just that.

During the third trimester, the states could, under Roe, prohibit abortion. States were not required to prohibit abortion in the third trimester, but they had the authority to do so. States had significant authority and flexibility under Roe.

In other words, Roe was a balanced decision. It didn’t give abortion advocates everything they wanted, and it didn’t give abortion opponents everything they wanted. The Supreme Court could have used Dobbs to modify Roe and allow for some additional restrictions on abortion without altogether rejecting the idea that there is a fundamental right to abortion, but it decided not to take that path. It chose to render an extreme decision.

We need balance again in our law and in our country, but eliminating the idea that there is a right to abortion makes it impossible to achieve any balance.

Once the Dobbs decision declared that the right to privacy did not include the abortion decision, states got much more than what the nuanced, balanced decision in Roe gave them. Suddenly, states could do whatever they wanted to do with no limitations. If there are enough legislators in a state who want to ban abortion after conception or after only six weeks (before many women even know they are pregnant), then they can now do it. If they want to jail women who get abortions or doctors who perform abortions, they can.

The Dobbs decision has left the country with no substantive guiding principles to limit state action. For an issue as fundamental as abortion is to the country, this is not a good place to be.

Whatever the flaws of Roe v. Wade, it represented a noble attempt to balance radically opposing views of an explosive social issue. We need to find a path to return balance to the country. Giving unfettered power to raw majorities in the states will not help us.

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ABOUT THE WRITER

Solomon D. Stevens is the author of “Religion, Politics, and the Law” (co-authored with Peter Schotten) and “Challenges to Peace in the Middle East.” He wrote this for InsideSources.com.

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