From Poland to Texas, from Chile via Indiana to Channel 4’s Dispatches, the issue of abortion seems to have recovered its political salience during the past year or so. People are talking about it in legislative assemblies and television studios. Sometimes they are marching in the streets again. But there has been a change in the way the debate is framed nowadays. The old “pro-choice” versus “pro-life” dichotomy has all but slipped from view as the issue has metastasised, giving rise to numerous secondary arguments. These can be as hotly contested as the fundamental principles at stake ever were.
Thus, in June, Texas saw its recently enacted abortion clinic regulations struck down by the US Supreme Court. What Texas had wanted to enforce were new rules requiring abortion providers to keep their premises safe and clean and to have arrangements in place for admitting patients to nearby hospitals in case a procedure went badly wrong.
The attempt to tighten up the rules had been prompted, at least in part, by the case of Kermit Gosnell, the Philadelphia-based abortionist who was sentenced to life imprisonment without possibility of parole in 2011 after being found guilty of multiple offences, including three counts of first degree murder, unlawfully performing late-term abortions and failing to maintain basic standards of hygiene and sanitation in his clinic.
Given how frequently the pro-abortion lobby has in the past cited the risk of infection posed by backstreet practitioners as a reason for permitting safe abortions within the law, you might think that Texas’s rule that clinics must be kept spick, span and sterile would have been uncontroversial.
Not a bit of it. Abortion rights activists claimed that the regulations posed an undue burden on clinics and that some would go out of business, thereby restricting access to abortion for local women. The Supreme Court agreed. Since the decision, Planned Parenthood has announced that it will now seek to strike down similar regulations in eight other jurisdictions, including Kermit Gosnell’s home state.
Also now heading towards the Supreme Court is an Indiana statute passed in March this year mandating the dignified disposal of foetal material. Once again the Gosnell case, along with allegations of a murky secondary trade in body parts from abortion clinics across America, had prompted legislators to act. And once again, you might think that dignified disposal could hardly be considered burdensome.
Under the new law, foetal remains would either have to be buried or cremated. But hardcore pro-abortion activists think that dignified disposal rules are tantamount to endowing the aborted foetus with some measure of humanity; and that is something they are absolutely determined to resist.
The “waste products of abortion”, they believe, are simply that, and should go in the dumpster with the rest of the garbage.
This kind of rigid, ideological opposition to even the slightest tightening of regulation is reminiscent of the National Rifle Association’s zero-tolerance approach to gun laws. Just as the NRA regards small, sensible restrictions as likely to be the thin end of a wedge that will one day knock down Second Amendment rights, so Planned Parenthood and other pro-choice groups appear to believe that any regulation of abortion providers is part of some long-term Republican plot to deny access to abortion services.
Oddly, this simultaneous hardening and narrowing of attitudes comes at a time when the American public appears to be moving in another direction. Since 2010, the number of abortions has been falling across the United States. And according to an Associated Press survey, some of the sharpest drops have been in states which have enacted no restrictions on clinics at all: eg Hawaii (down 30 per cent) and New Mexico (down 24 per cent).
Meanwhile, an honest look at what the polls tell us about public attitudes provides a complicated and sometimes puzzling set of results. For instance, one poll a few years ago found that both 75 per cent of millennials were pro-choice and 65 per cent were pro-life. In another survey, respondents were asked to pick either pro-choice or pro-life, but 18 per cent answered “both”. In a number of polls a majority of that same age cohort (born between the late 1970s and late 1990s) say abortion should be legal; yet at the same time a majority of roughly the same size judges abortion to be morally wrong.
The pattern that emerges is one in which the younger generation is noticeably less enthusiastic about abortion than the baby boomers, seeing it as a sometimes necessary evil rather than a positive social good or emancipatory benefit. They are libertarian on the question of legality, but can evince a moral scepticism and sometimes a distaste.
This is bad news for the veteran pro-choice brigade, for whom tolerance and legality were never going to be enough, and who were hoping by now to have eliminated any moral stigma attaching to abortion. Hillary Clinton is clearly of the same mind. She has, somewhat worryingly, declared that “deep-seated cultural codes, religious beliefs and structural biases have to be changed”. What does that mean? It means reproductive rights trump religious freedom.
Here in Britain, second order issues are currently to the fore also. Last week, Channel 4’s Dispatches sent the journalist Cathy Newman to report on “pro-life extremists”. One young woman from Generation Snowflake complained of being approached by a pro-life activist holding a vigil outside an abortion clinic who offered “help”. The grammar of the film suggested this was an outrage that had left the poor vulnerable woman traumatised. There was much secret filming of a sinister-sounding conference inside a Catholic church. But it turned out the whole event was already on YouTube anyway.
The film was clearly an exercise in softening us up for an imminent legislative proposal to ban pro-life vigils in the immediate vicinity of clinics by establishing buffer zones along lines long demanded by the British Pregnancy Advisory Service and other abortion providers.
No one explained how anyone could meaningfully exercise an informed choice if they were deemed too delicate to hear the other side of the argument. But that’s perhaps because “choice” isn’t the issue any more; if it ever really was.
Apart from buffer zones, the argument in Britain seems likely to coalesce around the question of the repeal of the 1861 act under which self-inflicted abortion remains unlawful. This was not repealed by the 1967 Abortion Act, which only legalised abortion under certain specified conditions.
Although the Victorian measure is hardly ever used, a campaign has now been launched by a powerful coalition, including the Fawcett Society, the Royal College of Midwives and Women’s Aid, to ditch the measure. Because it is now almost universally accepted that people who lived in the past were more stupid or more prejudiced (or both) than we are today, it seems certain to succeed.
Besides, the movement has its proto-martyr: a Durham woman who purchased pills online to induce a miscarriage and was jailed for two-and-a-half years in 2015. It was the threat of jailing women that brought the crowds out in Poland and led to the defeat of the citizens’ initiative against abortion. (Heavens! Even the Church reversed sharply out of it.) And according to his running mate, Mike Pence, a policy of not punishing women for breaking abortion laws is one thing, perhaps the only thing, that Donald Trump and Hillary Clinton agree upon.
But as the argument shifts from the hard rock of crime and punishment to the softer cultural loci of secondary issues, don’t expect it to be any less vehemently conducted.