The raging debate around abortion rights in the United States has recently been reignited when Texas passed a law banning all abortions past the detection of a fetal heartbeat, usually at a six-week mark. The issue gained further traction after the Supreme Court failed to block the legislation, sparking fears among reproductive rights activists that similar actions by other states could piecemeal dismantle the framework of reproductive rights across the country.

Pew survey data from 2021 shows that while most Americans (59%) believe that abortion should be legal in all or most cases, a sizeable minority (39%) still believe that it should not. More troubling, these trends have remained more or less stable over the last quarter of a century. In 1995, 60% of Americans supported the legalization of abortion while 38% didn’t; in 2009, only 47% supported its legalization while 44% did not.

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Compare these statistics with data on same-sex marriage. In 2002, 35% favored legalizing same-sex marriage, while 57% opposed it. Support has risen steadily over the years, with the tables now completely flipped, with 61% for and 31% against legalization. Why, then, has a controversial issue like legalizing same-sex marriage garnered so much public support, even among some conservatives, while abortion remains a source of profound division?

A Point of Division

Columnist Katha Pollitt argues that although both issues are highly polarizing, their underlying values are fundamentally different. Unlike abortion, same-sex marriage strengthens an age-old conservative institution — matrimony. Thus, even though the institution of marriage is rooted in patriarchy, queer-erasure, racial inequality and exclusivism, most same-sex marriage proponents don’t advocate for its annihilation. Rather, they call for it to be more inclusive, welcoming and non-discriminatory.

The right of access to safe abortion, on the other hand, calls for a much more radical reclaiming of a woman’s bodily autonomy at the expense of the unborn child. Herein lies another crucial difference between the two issues. While opposition to same-sex marriage primarily stems from religious conservatives and moral crusaders, one could still argue that legalizing marriage for sexual minorities would in no way trample upon heterosexual people’s right to marry. This argument was explicitly laid out in Obergefell v. Hodges.

The question of abortion rights, however, implies that any substantive extension of reproductive rights for women would effectively entail a concomitant curtailment of the rights of unborn children. This is an issue that irks not just conservatives and moralists, but many women as well. Norma McCorvey, the plaintiff in Roe v. Wade, is a prominent example of this.

While articulating his dissent in Obergefell v. Hodges, Supreme Court Justice Clarence Thomas argued that legalizing same-sex marriage was at odds with the US Constitution not only because of the way traditional marriage was strictly understood but because it was, in his opinion, not the court’s duty to reconstitute the meaning of marriage for a certain group of people who were never deprived of their liberty in the juridical sense.

More significantly, the court stated that although the First Amendment allowed people of faith to expressly oppose same-sex marriage if they so wished, faith alone could not be used to deny equal rights to same-sex couples.

The political and legal debates around abortion are far more complex. Not only is abortion condemned by a majority of white evangelical Protestants (77%) and by a sizeable group of Catholics (43%), most of them also uphold the extra-judicial rights of the unborn by cleverly deploying science to refute pro-choice arguments.

The Rights of the Unborn

In “Defending Life: A Moral and Legal Case against Abortion Choice,” Francis J. Beckwith, professor of philosophy and jurisprudence at Baylor University, argues that the fetus must be considered a “full-fledged member of the human community,” meaning it was entitled to the same constitutional protections as any other living being.

Beckwith’s arguments are not theological. Rather, they are grounded in legal theory and philosophy. In a scathing critique of Roe v. Wade, he posits this critique: “What is it, then, about that vaginal passageway that changes the child’s nature in such a significant fashion that it may be killed without justification before exit but only with justification post-exit?” Indeed, this question continues to haunt pro-choice advocates.

Some of Beckwith’s postulates were countervailed by Dean Stretton, who argued that the unborn fetus could not be accorded the same rights as the living. However, popular opinion on this issue remains split, with influential young conservatives like Meghan McCain and Candace Owens aggressively galvanizing support among women for the pro-life movement, effectively challenging the notion that it is primarily men who are trying to control women’s bodies.

Indeed, to frame the abortion debate solely through the lens of women’s rights may not be completely correct given that 37% of American women continue to oppose abortion. A more appropriate framing, perhaps, could be to challenge the extra-judicial status of the unborn child and to argue against extending constitutional protections to embryos and fetuses.

Indeed, if judicial conservatives like Clarence Thomas truly see themselves as textualists, then surely even they would appreciate the fact that the intended meaning of the Constitution was never to extend protections to those who even its framers didn’t recognize as “people.”

Science and the Pro-Life Movement

For decades, sexual minorities in the United States and around the world were vilified by the scientific community for embodying an “unnatural” and “abnormal” sexual identity. In 1973, homosexuality was finally delisted as a mental illness by the American Psychiatric Association after years of advocacy. Today, almost all globally recognized and respected psychiatric bodies have followed suit.

Meanwhile, the genetic origins of homosexuality are being studied. While there exists little to no scientific consensus about whether sexual orientation is biologically determined or socially constructed, public support for homosexual people has doubled in the past three decades, more so than for any other group over the same period in the United States. This is reflected in the increasing support for same-sex marriage over the years.

With abortion rights, however, not only is public opinion more divided, but there is ongoing discourse within the realms of science, religion and philosophy about what constitutes human consciousness and “being”— a key question at the heart of the abortion debate. While delivering the majority opinion in Roe v. Wade, Justice Harry Blackmun took the stand that even though a right to privacy was not explicitly enshrined in the US Constitution at the time, the appellant (Roe) was entitled to it while seeking an abortion. However, such a right could not be absolute and had to be curtailed by the state to protect potential life.

Furthermore, the court refrained from answering the question of when and where life began. Instead, the court saw itself as rightfully positioned to interfere with a woman’s pregnancy only at the point of viability, when the fetus would be able to survive outside the womb. This point was determined to be after the first trimester. In other words, even though the majority opinion upheld a woman’s right to abortion, the court also carefully balanced its decision to protect potential life.

In a later Supreme Court decision in Planned Parenthood v. Casey, Roe v. Wade was upheld in a bitter 5-4 decision (as opposed to 7-2 in Roe), but new legislative standards were introduced to safeguard potential life. This decision also overruled Roe’s rigid trimester system, giving individual states the power to restrain a woman’s right to abortion even in the first trimester, subject to a number of restrictions.

Both pro-life and pro-choice activists were disappointed by the Casey ruling because it was seen as an unholy compromise by both sides. On the one hand, Casey reaffirmed Roe, but, on the other, it wiped away the blanket first trimester abortion protection. The court also observed that because of scientific and medical advancements, the point of viability could no longer be biologically fixed at the first trimester.

Overturning Roe

The conservative supermajority on the US Supreme Court is set to hear Dobbs v. Jackson Women’s Health Organization, which directly challenges Roe v. Wade, later this year. Given the lack of ethical, moral, spiritual and scientific consensus on what constitutes conscious existence, it is plausible that the court may either overturn its landmark ruling or water it down by expanding the constitutional protections of the unborn and reassessing the constitutional meaning of potential life and viability. 

Abortion rights activists are right to worry — the Supreme Court has overturned its own judgments in the past. Moreover, in her confirmation hearing, Judge Amy Coney Barrett underscored that she did not view Roe v. Wade as a super-precedent, meaning that if she and her conservative-leaning colleagues on the court deemed it appropriate, they could collectively overturn Roe v. Wade in the Dobbs case.

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According to the Center for Reproductive Rights, all jurisdictions in North America and Western Europe have at present decriminalized abortion in some form. In an unexpected twist, Mexico’s supreme court struck down a restrictive abortion law in the northern state of Coahuila just a few days after the neighboring US state of Texas passed its near-total abortion ban. The Department of Justice has sued the state of Texas over the new legislation, but the measure is forcing migrants in Texas to consider returning to Mexico to access safe abortion.

As the US Supreme Court reconvenes to hear the ongoing Dobbs case, it will be interesting to observe how this new bench defines personhood. Remember, the judges in Roe v. Wade defined a person strictly in the postnatal sense. If personhood is indeed extended to include the unborn, then women in America could face anything from a near-total to complete abortion ban similar to the kind currently in force in Texas.

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.