Two weeks ago, based on ideas presented at a conference at Princeton University, I sketched a possible compromise on abortion. In the deal, which I cobbled together from the presentations of pro-life ethicist David Gushee and pro-choice legal historian David Garrow, pro-choicers would accept restrictions on second-trimester abortions in exchange for pro-life support of contraception. Hardliners will never buy this proposal, but it's worth talking about to see who's interested and whether progress could be made toward the goals of each side—fewer abortions and better reproductive options—in a way that's acceptable to a majority of Americans.
Last week, Ross Douthat took up the idea and answered it this way:
I'd probably take the deal even without a guaranteed ban on second-trimester abortions, so long as Saletan could ensure that in exchange for more contraceptive funding under Title X (or whatever program he prefers), Americans would merely get the opportunity to vote on whether to restrict abortion before the third trimester. Ending Roe v. Wade, and returning abortion law to the sphere of democratic politics, would be worth almost any concession or compromise on other issues. (And his dig at the Catholic Church notwithstanding, I bet at least some Catholic bishops would agree.) But that's the rub, of course: For Saletan's compromise to become plausible, Roe would have to go.
That depends on what you mean by Roe. Roe and its companion case, Doe v. Bolton, can be understood as establishing at least two separable ideas: first, a fundamental right to abortion, and second, a trimester framework for determining the stages at which that right loses its primacy. In 1992, the Supreme Court separated these two elements, upholding the former as Roe's core while distinguishing the latter as negotiable.
Was this distinction a betrayal of Roe? There's good reason to say it wasn't. At Princeton, Garrow, one of Roe's staunchest defenders, explained that the negotiability of the time frame dates back to Roe's formulation.
It was not in any way a deeply considered decision of the United States Supreme Court in the late fall of 1972 to structure the trimester framework as the final decisions did. It could very well have come to pass that Roe and Doe would have drawn a bright gray line at the end of the first trimester and left it at that. The justices who put forward the trimester framework did not at all consider—because they didn't think it mattered—what the difference was between [drawing two lines]—end of first trimester, viability— … and the alternative choice of simply authorizing legal access to abortion up through the end of the first trimester.
This account of Roe's history is what led Garrow to offer to renegotiate the second trimester. At the same time, he declared Roe's central holding, the fundamental right to abortion, non-negotiable. His message, as I understand it, is that you can be resolutely pro-choice and still allow restrictions on second-trimester restrictions, even to the extent of revising that part of Roe.
And he isn't alone. Last week, in a conversation on Bloggingheads.tv, Frances Kissling, the former longtime president of Catholics for Choice (for whom she no longer speaks—she is now a visiting scholar at the University of Pennsylvania), said that in view of the "evolving potential of fetal life," she was willing to discuss rolling back the legal deadline for unrestricted abortion to 18, 16, or even 14 weeks. She stated her position this way: "As long as women have an adequate amount of time to make a decision, and there are provisions for unusual circumstances that occur after that time, I would be satisfied. … Women have an obligation to make this decision as soon as they possibly can." I've heard from other pro-choicers that 14 weeks is a more reasonable deadline than 12. But whether it's 12, 14, or 16, we're talking about a significant rollback from viability. And based on Garrow's analysis, Roe could be revised accordingly without having to "go." In short, the second-trimester offer is a live option.
So let's talk about what pro-choicers would get in exchange. Douthat offers more contraceptive funding. That would help, but it isn't what I'm asking for. I'm asking for something more difficult and truer to his beliefs. I'm asking him and other moral conservatives not to abandon their critique of contraception, but to reconsider its implications.