A New Way Forward On Abortion?

Andrew Sullivan —  Jan 22 2015 @ 3:59pm

Charles C. Camosy’s forthcoming Beyond the Abortion Wars tries to chart it. Calling the book “fascinating and compelling,” Jim A.C. Everett applauds it for cutting through the spin:

In this book, Camosy masterfully traverses the ‘battleground’ between the ‘pro-life’ and ‘pro-choice’ camps in order to show that this battleground is in fact no such thing. In fact, as Camosy notes, the majority of the American public actually agree on a middle-ground position on abortion. Despite what one might think from reading certain media outlets and Twitter wars, there is actually a large consensus in the public regarding abortion. This insight is deceptively powerful. By demonstrating the areas of agreement, Camosy is able to help guide us beyond the abortion wars to allow a way forward for a new generation.

Commenting on the House GOP’s Pain-Capable Unborn Child Protection Act, which would have prohibited abortions after 20 weeks (except in cases of rape or to save the mother’s life), Camosy points to one key factor in crafting legislation that appeals to this middle-ground – “that Roe has, in effect, already been overturned”: 

In a 2010 article she wrote in the William and Mary Journal of Women and the LawCaitlin W. Bormann says quite directly that the 1992 case Planned Parenthood v. Casey “established a new, less protective, constitutional standard for abortion restrictions.” Instead of defending privacy, Casey focused on making sure that abortion restrictions didn’t impose what it calls an “undue burden” on women. This standard, she says, “immediately enabled states to invade women’s privacy in new ways.”

Bormann says the Roberts court “has interpreted Casey expansively”, resulting in “erosions of the privacy boundaries” that were once protected by Roe. Indeed, she says that certain privacy rights to abortion were “eviscerated” by Casey, especially as interpreted by the all-important swing voter on the Court, Justice Anthony Kennedy.

Writing in the New Yorker, Jeffery Toobin agrees. Would Kennedy uphold a state law with a 20-week (or earlier) ban? Toobin points out that in Gonzales v. Carhart (2007) this swing justice upheld federal law against late-term abortions with a very different sensibility from his opinion in Casey. Kennedy wrote, “The State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.” What counted as an undue burden for him when he helped decide Casey in 1992, Toobin noted ominously, looked very different to Kennedy fifteen years later.