One of the most contentious issues in politics today remains the subject of abortion. The debate creates intense emotions on both sides. The debate runs the gamut from the pro-life belief that abortions should be banned under all circumstances to the pro-choice extreme of abortion on demand as a matter of constitutional right with little or no restrictions approaching infanticide. Of course, these are the extremes as there are stops along that continuum from outright abortion bans to abortion on demand. The pro-life argument is based upon the argument that life begins at the moment of conception and therefore requires state protection. The pro-choice side views “life” as starting at some point later than conception and that before that ambiguous, shifting time occurs, the “thing” in the uterus is nothing more than an organized blob of cells. Both extremes have philosophical inconsistencies unless they are arguing in the extreme. For example, once the pro-life side starts allowing carve-out exceptions like pregnancies due to rape or incest or even if the mother’s life is in danger, the “life at conception” argument weakens because the life created as a result of rape or incest is somehow more worthy of summary death than other instances. The “life of the mother” argument makes one choose between two equally viable lives. The pro-choice argument begins to lose weight when they begin to acknowledge human life features at any point before actual birth. It must be argued, however, that the pro-life arguments have been more consistent over the years since Roe v. Wade while the pro-choice arguments have been more ad hoc and less philosophically consistent since 1972.

In actuality, most conservatives likely believe that abortion should be disallowed except in the case of rape, incest, or when the mother’s life is in danger. Conversely, most liberals adhere to an antiquated system where the longer the gestational period, the greater the state can regulate abortions- the remnants of the trimester approach espoused in Roe. The problem with that view, however, is that advances in medical technology obscure the stark lines of demarcation. In particular, neonatal advances in the care of premature births have greatly enhanced the survival rates of such births.

There is one fact regarding abortion and that is that this Supreme Court has not been presented with a case in the past two terms. Although that could change given challenges to any number of laws recently passed or proposed, it would appear no case is particularly ripe for Court consideration in the near future. Instead, most of the battles over abortion are now at the state level, not in the courts…yet. Before looking at some of these proposals, it is important to look at the evolution of Roe v. Wade over the years to determine whether any of these laws or proposals will withstand Supreme Court scrutiny.

As originally written, Roe established the trimester approach to regulating abortion. This was likely some compromise between the liberal and conservative wings of the Court in 1972. They left the opinion to Harry Blackmun ostensibly because he was counsel to the Mayo Clinic at one time and supposedly was better equipped to write a decision regarding “medical issues.” Eventually over the years, because of the inherent flaws in the trimester approach, it was abandoned and, again because of compromise, Sandra Day O’Connor’s “undue burden” standard now stands. This view recognizes a “right to abortion” that must be balanced against equally important state concerns. However, those concerns cannot result in legislation that creates an “undue burden” on a woman’s right to have an abortion. Most of the litigation since has been probing the boundaries of what is or is not “undue.” For example, parental notification for abortions for minors is considered an “undue burden,” but it loses that moniker if there is a judicial bypass to that notification. And this is what happens when any court, least of the all the Supreme Court, decides to play Solomon instead of standing on firm constitutional ground and principles. The result is confusion and a hodgepodge of laws.

Virtually every state has some form of abortion legislation percolating in their state legislatures. Currently, the states that do not are California, Delaware, Kansas, Louisiana, Maryland, Mississippi, Nevada, New Mexico, North Carolina and Vermont. These laws fall into three broad categories regarding permissibility using the undue burden standard. I am basing this upon the assumption that the Roberts Court does not have the votes or the stomach to overturn Roe outright. These categories are (1) not permissible, (2) probably permissible, and (3) definitely permissible.

In all likelihood, outright bans on abortion such as those proposals in Florida and Texas (HB 415 and HB 2659, respectively) would be struck down. These proposals are designed to directly attack Roe and would likely not even be taken by the Supreme Court letting lower court decisions that strike down these laws stand. Iowa, North Dakota, Oklahoma and Rhode Island have pending bills that would define life as beginning at the point of conception. As a result, abortion could then prosecuted under criminal law as a homicide. In fact, several states have proposed fetal homicide laws, although most of them specifically exclude licensed abortion providers. These take the form of granting immunity for third parties that intercede to save the life of a “person.” It is difficult to see how the Court would uphold these laws as they could potentially intrude into privacy rights which underpin abortion laws.

“Definition of life” laws are troublesome in that the best philosophical, legal and medical minds have failed to reach a definitive conclusion and to ask nine people in robes to come to such conclusions is beyond their abilities. Considering the fact that Mississippi- not exactly a bastion of liberalism- rejected this type of law recently, the chances of electoral success is not great. However, SJR-43 out of Oklahoma may actually reach the Court, but for other reasons. There, the state supreme court has blocked a ballot referendum on the question since it would, if enacted, essentially outlaw abortion and would thus violate constitutional standards according to their analysis. Its proponents argue that a blanket block on the question violates their First Amendment right to petition the government for grievances.

Under the possibly permitted category is, first, laws that require ultrasounds prior to having an abortion. Obviously, the purpose is not only for health reasons but gentle persuasion away from abortion. And there is nothing wrong with a state from siding with fetal life over abortion provided they don’t outright deny the abortion. These laws like enhancing informed consent. Arizona, Louisiana and Mississippi already have such laws and the rates of abortion have not dropped dramatically. Some proposals range from the very invasive transvaginal ultrasound requirement (Virginia) to the “look away” option (Texas).

Another possibly permissible method to show a state’s aversion to abortion is to restrict public funding for the procedures. This can range from the cessation of funding for Planned Parenthood to regulation of the insurance industry within the state’s borders. Also, the Hyde Amendment serves the same basic purpose at the federal level, so there is no reason states cannot enact similar policies, unless the federal government attaches strings to federal funds. Despite the Hyde Amendment, federal dollars do reach abortion providers regardless. Of course, the argument among the pro-choice people is that this will deny abortion to the lower income people. But, why should my tax money or your tax money support a practice that we have a deep moral objection to? More importantly, why don’t the liberals and pro-choice put their money where their mouths are and support Planned Parenthood and the poor’s access to abortion rather than demand that taxpayer money does so?

Due to recent advances in medical technology, the consensus threshold for feeling pain is now 20 weeks of gestation. Several states- ten in all- are considering banning abortions after 20 weeks. The House recently failed to get the necessary number of votes to pass a similar law in DC. And something struck me as perversely weird. In a recent interview, Justice Scalia, in a discussion of the death penalty, stated that he was not pro-death penalty per se. He outlined how infllicting the punishment has evolved over the years and he stated that he would have trouble if the means was gruesome and inflicted a lot of pain. What struck me is that the Constitution under this theory protects a convicted murderer from the infliction of pain more than it protects an innocent 20-week-old human life. If the ability to feel pain is what determines human life, then these laws would naturally have to stand. But, again, because we do not have that absolute definition, it makes the question much harder which is why I included it in the possibly permissible category. If enough states make that determination after considered debate or if the medical consensus makes it such, then the laws should stand.

New York and New Hampshire are considering parental notification laws. The latter abandoned the practice a few years back and wants to reinstitute it. In fact, 19% of all abortions are performed on girls between the ages of 15 and 19. As noted earlier, provided there is a judicial bypass, these laws present no problems. A second set of laws address the clinics where abortions are performed. There is no argument that the states can regulate the conditions under which abortions are performed. Its ironic that the pro-choice crowd argues that if Roe is overturned, then women will be forced into unsanitary back alley abortions. Yet, when the state moves to ensure the most sanitary conditions possible through licensing requirements of abortion providers, they argue that this is a back door attempt to restrict a woman’s right to an abortion. However, 93% of abortion clinics are free-standing entities, not hospitals, and regulating them is no different than regulating a dental office. In fact, its ironic that we don’t hear the pro-choice people talking about regulations in place to clean one’s teeth, but we do about proposed regulations for a more invasive surgical procedure like abortion. Three states- Hawaii, Massachusetts and Michigan- are considering banning the hideous practice of partial-birth abortion and that should be a no-brainer.

Likewise, laws that require waiting periods or the provision of information that outline the risks and dangers of abortion and/or the other available options like adoption should ideally present no problems. Again, they are akin to consumer protection laws or informed consent and they in no way interfere with the individual, personal and private decision as to whether have an abortion or not. The only problem with waiting periods would be their length. Obviously, something on the order of a week may present problems, but one of 24-72 hours should not. In fact, 72 hours is the outer limit in any proposed laws. As concerns Planned Parenthood, I found it interesting that they provided 635 abortions for every adoption referral.

The final set of permissible laws fall under the “conscientious objecter” category. This involves state recognition to entities that object to abortion as a matter of conscience or religious belief and doctrine. As the recent debate over the HHS contraception requirements prove, once the government starts dictating secular morality upon religions, it creates some serious constitutional questions. Already, a suit has been filed by an evangelical college in Illinois objecting to the HHS guidelines on Free Exercise grounds. And this debate involves contraception, not necessarily abortion. Recently, the Supreme Court ruled that the federal government, through the EEOC, cannot interfere in the internal affairs of religion in handling alleged cases of workplace discrimination. The vote was 9-0 which underscores the firm belief that government must stay out of religious affairs and doctrine. And what can be more doctrinaire than a church’s stated support for the sanctity of life? The fact is that there will always be abortionists available to those seeking an abortion. Considering that there are 1.21 million abortions performed annually at an average cost of $451, that translates into a $545 million annual business. Forcing religious-affiliated facilities to perform abortions or even contraceptive services would seem to run afoul of the Free Exercise Clause.

The bottom line in all this discussion is that 87% of abortions in America are performed for what could be described as “selfish” reasons- the pregnancy interferes with one’s lifestyle, they cannot afford a child, or there is a problem in the relationship that produced that pregnancy. Given the general availability and efficacy of contraception today, it is astonishing that 1.21 million abortions are performed annually. But when one considers that abortion is, at a minimum, a half billion dollar industry, it is no surprise. Incidentally, abortions in response to rape or incest account for 1% of all abortions and medically necessary abortions- generally the more expensive ones- account for 12% of abortions. These represent the carve-outs mentioned at the beginning.

More importantly, the pro-life contingent have been more original and adaptive in their thinking. When not moving for an outright ban or Roe v. Wade being overturned, they have learned to live within its parameters and on the playing field the courts have laid out. Conversely, the pro-choice people have been less original in defense of their view and are essentially trapped into one of two conclusions- either they believe in abortion on demand closely approaching infanticide with a callous disregard for human life, or they are the ones living in the past and dealing with the reality of 1972, not 2012. The best political position is to be pro-life while being “respectful” of a bad Supreme Court decision that, realistically, is not going away any time soon, and continue to fight the good fight by enacting those probably and definitely permissible laws. At last count, there were 70 such laws being contemplated at the state level. That- not the courts- is the where the real battle will be won and where it should have remained all along. To paraphrase what Ronald Reagan once observed, it is the living who are the biggest proponents of abortion. Someone needs to speak for the unborn.