Why does this issue refuse to fade from our politics? One reason concerns Roe itself, which was (as Justice Byron White put it in his dissent) “an exercise in raw judicial power.” Blackmun’s ruling does not hold up well on rereading. His system of trimesters and viability was (and is) arbitrary and medically rootless, a fig leaf covering an almost limitless abortion right. Blackmun’s weak argument largely substituted for the democratic process in 50 states. Fiat replaced deliberation and democratic legitimacy. This was a recipe for resentment and reaction.
But judicial fiat can’t be a sufficient explanation. The Obergefell decision legalizing same-sex marriage in every state was also sweeping. It has produced almost no political reaction. The contrast to Roe could hardly be starker. And the explanation is rather simple: All the great civil rights movements have been movements of inclusion. The first modern civil rights campaign — militating for the end of the British slave trade — set the pattern with its slogan: “Am I not a man and a brother?” Susan B. Anthony asked: “Are women persons?” In the most rapidly successful civil rights movement of our time, gays and lesbians came out to show their communities that LGBT people were their friends and family members. All these efforts expanded the circle of social welcome and protection.
The abortion rights movement, in contrast, is a movement of autonomy. Its primary appeal is to individual choice, not social inclusion. And the choice it elevates seems (to some people) in tension with the principle of inclusion. A fetus is genetically distinct from the mother, is biologically human and has the inherent capacity to develop into a child. This makes it different from a hangnail or a tumor. At what point does this developing human life deserve our sympathy and protection? When neurological activity develops? When the fetus can feel pain? When a child is born? When an infant can think and reason? All these “achievements” are, in fact, scientifically and ethically arbitrary. They don’t mark the start of a new life, just the development of an existing life.
It is the antiabortion movement that appeals to inclusion. It argues for a more expansive definition of the human community. It opposes ending or exploiting one human life for the benefit of another. There are heart-rending stories that prevent the simplistic application of this approach. But most of the antiabortion men and women I know have the genuine and selfless motivation of trying to save innocent lives.