A more concise point which occurred to me about the entire "Constitution issue" in stark and frequent debate over the last few weeks is the manner it is used as a talisman for "you can/can't do X" rather than an argument for why X is even a good idea in the first place. Many gun control advocates seem more concerned with the things they can do on the basis that they can maybe get them passed and then maybe upheld in court rulings than whether they're all that effective that we need to pass them either. Similar problems arise in abortion restrictions, or the surveillance state. This practice bothers me perhaps almost as much as people ignoring each other's interpretations of Constitutional law and pretending that they do not exist. Suppose for the sake of argument that certain varieties of gun control laws or various commonly overturned abortion restrictions are really that great of an idea, we should be able to construct cases for amending the Constitution to craft these restrictions upon the people and that whole "it can't be done" debate would be kind of moot, if it is really that great of an idea that is, it could be done anyway.
In some respects this is why the balanced budget amendment idea keeps annoying me. If someone's going to sell me on it, it would help if they explained a) why it's needed, what problem it solves and b) what mechanics they'd use to achieve it from our current disparity in deficits or the long-term deficit problem. Why is it such a good idea in the first place? What effectiveness upon these United States would it achieve or attain that we're currently unable to do? What loopholes would be permitted, if any? And so on. It's a brainless or thoughtless way of expressing concern about a problem without really intending to do anything about it. This arises constantly in politics or political debate that signaling concern is more important than the real world effects, anywhere from minimum wage laws to guns to foreign policy. It's incredibly frustrating to see laws passed without much concern for how they would be used, who they really help/target, and so on.
Abortion debates are little different in this respect.
What is different seems to be a deeply rooted question that is only mediated through metaphysics rather than law. When is a life a human being, a person endowed with unalienable rights? The law, through the inherent subjective sloppiness of metaphysics, usually results in an arbitrary divisor of scientific viability. With the prospect of survival of life as a separate object and person from the being which has nourished and carried its development to that point but this says little about the questions that swirl around in the atmosphere of the debate, or for that matter much about the value and purpose and intention of creating such life in the first place.
What we find is that there are still, despite our legal framework, obvious fictions about that framework that pass by into unexpected or unanticipated places in the haste to deal decisively with objections or supports for the procedure itself and its own basis. In other words, nobody actually wants to talk about abortion itself, nobody wants to talk about miscarriages and other pregnancy related tragedies and mishaps, nobody wants to talk about the difficulties of child raising, nobody wants to talk about women and the value of autonomy and privacy of a large percentage of the human population to the economy, the society. Or, perhaps most absent from the conversation, the women themselves. What instead happens is a lot of talking sideways at these subjects as though they are awkward and untenable conversations.
In this way, it is very much like the gun control debate wherein one side presents arguments for regulation that seem mostly based on fears (somewhat rational, but largely irrationally constructed) and the other presents defences against regulation that range dangerously toward fantastical belief in the interests of a mostly complacent fat and happy and aging populace to rise up against any supposed tyranny. But mostly this one in particular.
Much of the pro-life/anti-choice arguments come off, at least to very pro-choice people like me, as "attacks on women", fundamentally. They represent a number of arguments but most of them seem horribly flawed in their understanding of human behavior and the general society we now inhabit. I would say a more accurate assessment is they represent a war on sex, with female sexuality being a primary problem in how women are interpreted by society.
One major flaw is a belief that sex is for reproduction. For humans, it is not. Sex is about communication, intimacy, love, recreation, reproduction, social status, etc. It is not a simple act we undertake only to produce offspring. In fact, it wasn't even this limited to reproduction before we came up with methods to prevent or reduce the likelihood of pregnancy, which have in advanced societies rendered the question as even more of a side line. Human beings just have sex way too often and without any obvious signs of ovulation to be doing so in order to produce progeny effectively from sexual couplings. We can even have sex in positions and methods rendering it impossible to do so, or can self-stimulate, and so on down the line of ineffective sexual reproduction. The "pill", and the condom before it certainly changed the social appreciation of sex, and certainly reduced the probabilities of sexual consequences in a noticeable way. But for humans the process of "have sex=babies" has never been a straight line even before we could put up some walls in the way. This retrograde idea needs to be simply eliminated from the conversation because it poisons the attitudes toward birth control, women, sex, sexuality, and basically the human condition in general, because it is false. It becomes a problem in this debate because there are many people opposed to abortion on the notion that people who have sex must accept the consequences and risks.
Except that those risks can be mitigated, and for most of us, are very, very small. The risks, not the objects we use to copulate with.
The average ratio of pregnancies from sex is around 1% of all sexual acts result in a live birth in advanced societies. If we assume from falling fertility rates that availability and use of birth control reduced this by a factor of 3 or 4, we're still talking about a very small percentage of human sexual activity being used for reproduction. Even considering post-menopausal women having sex or exclude the infertile more broadly doesn't get us to a more significant percentage of our sexuality for this one purpose. We might argue then whether sex ought to be more focused about reproduction and that its other uses are a social distraction, but this creates the practical question (similar to homosexuality and marriage's legal rights and contracts), of what to do about the aged or infertile. To say nothing of that it isn't a natural state of human societies not to have sex for a variety of purposes and that those purposes are equally useful to a vibrant and functioning society as producing and raising offspring.
That doesn't mean that it might somehow become intolerable to suggest or encourage that human beings should form (mostly) monogamous couples or that human beings be aware of the probabilities of pregnancy, or other risks of sexual behavior, and seek to mitigate them as probable risks, but the idea that "sex is about reproduction" is simply false firstly and secondly says nothing valid about the moral status of a fertilized egg, or a developing human embryo or fetus. Rather, it says something about the behavior and moral status we wish to ascribe to the person carrying said egg, embryo, or fetus.
The basis of this line of argument arises in the format of "women can't get pregnant from rape". It is a series of inaccurate assumptions or beliefs about the nature of pregnancy biologically and the nature of human beings sexually; beliefs such as that miscarriages and other pregnancy related tragedies and mishaps are rarer than they actually are (pro tip: they are about as common than abortions) because they are socially stigmatized and too rarely discussed, and a false dichotomy examining healthy adult sexual behavior, even where it might be limited to strictly "biblical" reproductive sex (and thus, in my view, unhealthy, or at least boring adult sexual behavior) and not recognizing that it includes a huge percentage of actions that don't do anything reproductive and probably never will. As a result a foremost problem with much anti-abortion rhetoric is that it characterizes the women involved inaccurately as killers who think having sex is more important than life essentially rather than women who may already have families, women with health complications, fetuses with health complications (that may not come to term anyway, much less adulthood) and so on.
If the character of the person involved is already questionably defined, then we're not going to understand how to reduce a number of abortions through restrictions or bans, assuming that's a goal that many people share. Most people when asked might say they are pro-choice but would not have an abortion themselves or would not want a significant other to get one except under very particular circumstances. These circumstances are not ideal or commonly conceived but can happen frequently. What happens then is that states have used a variety of methods to decline access or place barriers upon access. Waiting periods, mandatory ultrasound viewings, sometimes invasive procedures, parental or guardian permission, and so on, that often do not pertain to most other health procedures in legal forms, and have little to no effect on reducing the number of people who actually get an abortion who want one. What they can do instead is decrease the availability of well-trained and reasonably safe clinicians who provide them or make it more challenging for the people who do actually really want one for some reason. But they don't actually stop the process either. It simply gets transferred downstream to people who have sketchier clinics, or limited skills, or to people who still have these skills but are in limited supply, requiring trips across several states while encountering these invasive restrictions.
This is a major problem with the entire "judicial activism" argument in the first place. In that the question wasn't "what regime prevented women from even wanting to get an abortion" via a legal restraint on their availability but rather "what regime made it safer for them to do so". It is not an easy decision for most people, even as there are often terse and logical reasons in favor of it, these are not always convincing on matters of doubt and uncertainty surrounding the metaphysics of human life, its origins, and so forth, for many, many people. I suspect one of the reasons the "fetal pain" constraints, or the requirements to carry to term by a hospital (even if the mother is otherwise legally dead), and so on are popular is that people are just not comfortable within these morality questions and would prefer to have simple answers, or failing that, excuses that look like simple answers. There are not simple answers. The best we can do is "an infant could possibly survive and continue to grow after this point detached from the mother physically". That's it. Pain doesn't work because pain is a subjective enterprise for adults anyway and doesn't appear to be a scientifically valid prospect before viability anyway through the development of the nervous system. Dead mothers with near-to-term development and penalties for drug use by prospective mothers likewise suggest that we'd rather put up an easy wall than try to answer these questions. We don't want to punish miscarriages, but legal structures are often attempted to put in place that would or could. The reason that goes on is that both miscarriages and abortions tend to happen around the same time. And again, most people don't know miscarriages are pretty damn common, and don't have to be tied to anything obvious as a cause like drug or alcohol use that we should be punishing people who do use mind-altering chemicals during a pregnancy and policing this with invasive state powers.
I find myself constantly baffled that many pro-life advocates not only believe Roe v Wade was improperly decided, which I suppose is a legal interpretation they are entitled to support even as that notion involves a host of other problems for their privacy and agency as individuals, but that they somehow believe overturning it would matter. When for most people, most women seeking abortions, it does not. Even jurisdictional guidance it provided it would matter only for some women as most states would presumably leave them as legally accessible in some fashion. My estimation for the politics given the indefensible nature of some laws that are passed or attempted to pass that do fail is that they would be screwed as they would have to defend all restrictions they wish to make now plus the more ultimate restriction of none at all. Little or nothing would happen legally to shift the politics and such groups would lose their political viability for advocacy just as "traditional marriage" advocates (whatever that's supposed to mean) have steadily lost ground to gay rights movements.
We're ultimately punishing people for going through circumstances with the misfortune of not being ourselves, with the implication that all people should react to such events with the same exact feeling of joy and merriment and glory onto the universe/jesus/allah/buddha as the case may be. I think what this underscores is that it just isn't that easy for everyone to get pregnant, carry the egg through the stages of development to term, deliver the child, love and care for the child, supply for its basic needs and growth, raise the child, and observe and supervise their actions into adulthood as a moderately successful independent human being. Any one of those steps could be far more difficult for someone else that they'd feel a compelling need to make very different choices instead of the ones that we might prefer that they make. In order to override those choices, we should have to have a very good reason, and make that case to them as individuals. This is essentially all the court ruling said, is that there is a compelling reason at "viability" to make this case more broadly and to require a compelling and extreme basis for a procedure at that point, but not before that. Where we would remain free to choose, and also to coerce and influence (without resorting to violence).
Not everyone reacts to a miscarriage in the same way despite that being what must seem to be a devastating event for a woman to go through. Not everyone reacts to a pregnancy in the same way either. The spectrum between "well shit" and "sunbeams of joy on my every footstep" is real and has real consequences in how things are going to be handled, not just on the question of abortion but on questions of parenting or adoption too. The obligations, however desirable, of parenting are vast and should not be taken as lightly as to demand them for every pregnancy that occurs. Nor do we issue such demands for every child that is born of their parents that they be doting and caring and responsible adults. If we have the autonomy available to us on how to be a parent, we ought to have some respect for whether or when to become one. And if this is so, then seeing as a very large percentage of abortions occur for unplanned pregnancy, it might do to focus on ways to make pregnancy more often a planned effect. However best to achieve that; focuses on marriage to prepare people for collective child raising duties, focuses on proper and comprehensive sexual education to reduce unplanned pregnancy rates versus abstinence, which often has a damaging effect on teen pregnancy rates, or subsidies and otherwise expanded access to birth control, etc.
In so far as pro-life people believe the sole and fundamental argument is "its a human being", that's fine for their purposes. Maybe that's convincing enough for some people too. I'd even say that I admire that they make it even I don't think they have enough support to advance the claim. The biggest problem is that I don't think they make it consistently. Rape and incest exemptions to me smack of hypocritical political expediency rather than a logical argument flowing from this basis of an essential humanity, and bear weight directly on the logic that there are circumstantial elements. They apparently just have to be circumstances we approved of rather than more individually valid or autonomous reasons implying any moral agency. But I think this is all fine for what it is worth as a starting point. The problem is that we live in a world that ascribes this a very different legal basis, out of the necessity of pragmatic objections that policing abortions would intrude onto policing miscarriages, and out of the necessity that making these decisions in some other way invites more controversy (for now). Even for the many people that agree this is the metaphysical grounds, and that abortions are in some sense wrong, people may place them on gradients of "wrongness" that are less on par with murdering a child or another adult person than would be the case if they accepted this as a literal fact of humanity. They're complicated questions about personhood and even identity (and to be fair, even the bible's ancient text seems to have passed on this up even a month after birth, and had nothing direct to say about prenatal circumstances). That's why we don't talk about them, we talk around them or we just assume the answer, provide it for everyone somewhat blithely and condescendingly and move on. Pro-choice advocates don't get out of jail free by being correct that these are unresolved questions empirically or even innately subjective questions by nature of their metaphysical source anymore than pro-life advocates get any points by making up an answer and declaring it correct.
People probably should think much harder about what they are doing, both before they get pregnant or get someone else pregnant and then afterward on what they want to do about. These are not insubstantial societal goals. The question is how they should think about, or what do they focus upon harder. Far too much of the debate is divorced from the practical realities. So viability is at question around 24 weeks. Only 1% or so of abortions are performed after that, typically for medical reasons. Most people can say; that's not me. The "fetal pain" question has an answer sometimes made up at 20 weeks, sometimes made up earlier or later. At 20 weeks, it is only about a half a percent higher than 24. These are statistically tiny quantities of people that are impacted directly, so legal restrictions seem easier to design and support. Roughly speaking, only 10% of all abortions happen after the first trimester at all. And among these, we are still talking mostly about women close to the 13-15 week scenario where there may have been accessibility or affordability questions for the procedures pushing them outside the earlier window rather than some other source of delay.
We're talking about abstractions instead of some thousands of actual women per year when talking in this way. I think this diminishes the problems they have, the problems they experience, and the availability of their options as they see fit to exercise them. But it is also necessary to point out that the vast majority of people involved, to say nothing of the general public when asked, apparently see that this is modestly acceptable and appropriate as a decision to make at one point, but decreasingly so as it progresses in time and that they will have varying reasons for why this is so. It is not simple as saying "at conception", or some other nonsensical metaphysics answer for most people, just as it is unsatisfying to say "at 24 weeks" to others. I am something of an extremist that would say "at live birth", whenever that occurs, but I also don't have a womb over which to exercise the decision making. Men seem to be a little more pro-choice after all. But I also recognize my position is at an extreme. It is not a popular convention to hold to and not a popularly practiced ideal. This applies also to its opposite. A restriction of behavior which is commonly performed and not supported by popular will is liable to be a defunct legal fiction rather than an effective and well-enforced law. I could and would not make or advance a claim that a preferred legal structure might impose abortions on families with too many children or for certain kinds of people by the same notions of impossibilities and the impracticality of control of human behavior versus what people want to do in actual behavior. I suppose people could claim this is more serious a moral violation than traffic laws or narcotics use, and certainly it is rarer per capita than either of those, but it isn't demonstrated that it is in fact more seriously destructive to destroy potential human lives versus actual living and breathing human beings' destructive capacity. It should seem at least vaguely plausible that most women could just as easily produce children at other times in their lives instead of being compelled to produce them at any time we as outsiders require they should and this argument seems to be acceptable enough to most.
A much larger societal effect question surrounds issues like Plan B contraception or (incorrectly called this in most cases) abortifacient drugs. It is unclear to me personally and also scientifically why these are a bigger concern and more controversial publicly than abortions generally, even in the first or early second trimester that, aside from the most ardent pro-life advocates, the general public seems fairly blaise about. It is bizarre that birth control generally is treated as some kind of controlled substance, with constraints to access and a social disdain for many of the more effective forms. IUDs have a troubled US history, but they're quite safe now for example. Hardly anybody uses them in this country and they're often targeted by anti-abortion restrictions to be further restricted alongside. Condoms are locked up in some stores or some parts of the country but not in others. Suggesting the problem isn't theft prevention but rather passing a sentence of moral approbation for the devices and their associated uses by otherwise responsible teenagers and adults. These are highly effective objects at reducing rates of pregnancy used properly, which ought to be an object of considerable interest in reducing things like teen pregnancy rates (which have very high abortion rates), or the rates of abortion in poorer or minority communities, also higher than the general public. But the public seems afraid that somehow admitting this is akin to admitting that sex is okay generally and that sex is probably something their children will do. I suppose this is akin to children admitting their parents and grandparents still have sex too and "oh boy" isn't that uncomfortable to consider. But the fact remains, teenagers will do it anyway despite our efforts, schemes, and plans to prevent it. Some effort should be made to accommodate the problems rather than punish people for these actions. Some states still attempt to punish sexual conduct by minors with extreme penalties (eg, receiving a blowjob as a teenager from another teenager of similar age can land people in jail or as a registered sex offender), even as these laws have been struck down for adults. We're still having an ongoing discourse about what to do with these same children sexting with their phones and spreading photos and video of an explicit nature. Treating this as child pornography and its distribution seems no more appropriate than parents and other elders ignoring it entirely from a moral standpoint, but still the idea that it is by itself worthy of criminal sanction at all seems ludicrously popular.
I suspect it would help if we had a broader and more open conversation about what it means to be sexually active, rather than running around pretending everyone who wants to have sex, particularly women, are just horny or slutty. I do not see that conversation starting anytime soon. Indeed, I see people still running as fast as possible in the other direction.
That leaves us with the unenviable task of trying to explain that large quantities of abortions occur both globally and in this country for reasons that most people find acceptable enough not to object strenuously to, even if they remain uncomfortable with them, and under circumstances that most people are not prepared to object to. And that large quantities of these that do occur could be prevented under circumstances that large percentages of the population already have access to and undertake as precautions and sensible restrictions on their own behavior (proper use of birth control, use of non-reproductive sexual habits in the absence of available birth control, etc). That is not an easy and quick solution to a difficult and controversial problem of course. I tend not to see many easy ways out. Banning the whole thing, or crafting very particular exemptions, isn't politically popular, creates new risks and dangers, and isn't likely to be very effective anyway as a result and naturally so long as there are pro-life advocates, and the issue remains more divisive than gay marriage or marijuana use, it's unlikely to shift significantly that ardent pro-life voters and their more sensible concerns could be, or even should be, ignored. Unfortunately the atmosphere of debate is often clouded by a lot of insensible ranting that has little to do with the problem or becomes counterproductive to this as a central policy goal of reducing the number of abortions to a much lower quantity than is presently done. If in fact those other sources of ire, such as human sexuality or birth control, or female autonomy generally, are more pressing concerns, it does not speak much to the supposed value of human lives that they should be getting in the way.