Editorial: Prohibition didn't work, neither will an abortion ban

June 1, 2006

The Supreme Court established a trimester-based paradigm to balance a woman's reproductive rights against the state's obligation to protect its unborn citizens. Were today's rhetoric taken to the extreme in a post-Roe world, we could see boycotts of a state's products, services, and tourism.

The latest legislative volley occurred in April, with approval by South Dakota lawmakers of a comprehensive ban on all abortions, except those to save the life of the mother, and then only after reasonable medical efforts are made to restore maternal health and continue the pregnancy. The punishment for violating the statute: 5 years in prison. Many legal experts say the South Dakota legislation is patently unconstitutional, but it's meant as a direct challenge to the Supreme Court's 30-year-old protection of abortion rights. It's also an opportunity for our country to reflect on the legal status of abortion in the United States and the social, cultural, and political fissures that are likely to widen unless cooler heads prevail-on both sides of the issue.

At its nexus, abortion poses a fundamental ethical and human rights conundrum: the conflict between society's beneficent obligation to protect its children and the right of every woman to have her reproductive autonomy respected. At one end of the spectrum are those who earnestly believe that all life is sacred, life begins at conception, and all abortions are unjustifiable on moral grounds. At the other end are those who believe that abortion access should be unrestricted right up to birth to ensure women's reproductive autonomy. But I believe that few Americans hold such extreme views. Most pro-life advocates would permit abortion to save a mother's life, and many would also support it in cases of rape or incest. Most pro-choice advocates would be unwilling to support abortion on demand in the third trimester. And many are uncomfortable with termination for any cause after fetal viability is reached, since labor induction and cesarean delivery are reasonable options when the life or health of the mother is threatened by continuation of pregnancy after 24 weeks.

Faced with this conundrum, the Supreme Court established a trimester-based paradigm to balance a woman's reproductive rights against the state's obligation to protect its unborn citizens. In brief, the Court contended that in the first trimester, a woman and her physician were free to terminate a pregnancy without regulation by the state. The earliest point at which the state could exert its rights was the beginning of the second trimester, but only to preserve and protect maternal health (such as by licensing abortion facilities). It was at the point of viability-which in 1973 was the beginning of the third trimester-that the state's interest in protecting a potential life could be exerted even to the point of proscribing abortion. Even in the third trimester, however, the Court held that an exception had to be made to allow abortion to protect a woman's life and health.