Judge Samuel Alito was incontrovertibly right about one thing in his leaked, draft ruling on Roe v. Wade: ‘Abortion presents a profound moral issue on which Americans hold sharply conflicting views.’
Well yes. So we’ve seen with the reaction to the leak – which really is unprecedented. We are reminded that the original Roe v. Wade decision itself was leaked in 1973, but that was just a few hours before publication. A leak at this stage, of a draft opinion which could yet be revised, can only have had one intention: to bring intense pressure to bear on the Supreme Court members who supported the draft to reverse their decision.
The reaction from Hillary Clinton, Elizabeth Warren and Planned Parenthood et al in the US has been predictable. And no prizes for guessing what Vice President Kamala Harris will be saying when she addresses an Emily’s List gathering tonight.
The British reaction to date has been predictable too: outrage, compounded by incomprehension that such a ruling could actually be possible even with the complexities of the US constitution. There is no nuance, no suggestion that there might actually be a debate to be had about abortion, any conception that there might be more to the question than the reflex formula of ‘women’s reproductive choice’, or a more expansive view than the slogans carried by young and attractive demonstrators – ‘Keep your Bans off my Body’ is a current favourite – faithfully reproduced in the pictures. The other pro-choicer slogan, ‘Abortion is healthcare’ is pretty much the premise on which British political discourse is based.
To take a tiny example, the BBC’s coverage of the issue online begins: ‘Millions of women across the US could soon lose their legal right to abortion…’ while the caption illustrating the piece showed, it said, ‘pro-choice and anti-abortion demonstrators.’
So, the gist is that this is an attack on women, the language is to do with the loss of rights, the caption uses the language of one side – ‘pro-choice’ – and not the language of the other, ‘pro-life’.
It’s quite possible to envisage a neutral headline which records the leaking of an opinion which could overturn Roe v. Wade without implicit bias. On the most recent broadcast of the World at One, presented by the admirable Sarah Montague, the legal expert interviewed was Fiona de Londras, the Irish professor of global legal studies at Birmingham, whose views were predictably hostile. No, she explained, the judgment did not have any implications for the UK. ‘It’s out of line with most of the rest of the world,’ she explained. ‘It’s out of line with clinical best practice.’ Which is less a legal view than a moral one.
Because in Britain what is striking is that abortion is not a matter of debate, not really. The only question is whether access is sufficiently rapid, whether there are impediments in the way of abortion. There was a blip of a discussion recently about whether the lifting of restrictions on taking abortifacients at home during Covid should be maintained, whether anti-abortion demonstrators should be kept away from clinics in Northern Ireland (they are now) where abortion was foisted on a supposedly autonomous province by a Tory Secretary of State, Brandon Lewis; whether the law should continue to discriminate against disabled foetuses (Lord Shinkwin didn’t get far with his bill arguing against that). But debate about the nature of abortion, about what it entails? Nope.
Judge Alito’s draft reflected that ‘abortion is fundamentally different’ from other subjects, ‘as both Roe and Casey acknowledged, because it destroys what those decisions called “fetal life” and what the law now before us [the Mississippi law banning abortion at or after 15 weeks] describes as an “unborn human being”.’
It is quite impossible to imagine Britain debating on those terms and for the argument to include the concept of pre-natal human rights as well as women’s reproductive rights. It doesn’t happen because it would be perceived as an error of taste in the first place or as a barely concealed threat to current abortion laws.
But that omerta about abortion, the inability to raise the fundamental question of whether abortion is homicide because it involves the destruction of a human being – without even going on to ask whether, even if it is, it should be legal to avoid worse outcomes – is dishonest.
The merit of the abortion controversy in the US, which is unlikely to end even when the Supreme Court gives its final judgment in June, is that there are two sides who argue about the rights of pre-natal human beings and about the rights of women. Here, that argument doesn’t happen at all.