Pennsylvania Supreme Court takes aim at politics of cruelty

by Francis Wilkinson

The Pennsylvania Supreme Court delivered a victory to abortion-rights advocates in directing a lower court to consider a challenge to the state’s 1982 prohibition on Medicaid funding for abortions in cases other than rape and incest. The 3-2 decision was widely viewed as an invitation to declare the ban a violation of the state’s Equal Rights Amendment.

The ruling followed news that Texas, one of 14 Republican-led states where abortion is effectively banned, leads the nation in pregnancies resulting from rape. In a comment that still seems too stupid to be real, Texas Gov. Greg Abbott in 2021 dismissed concerns about women who might be forced to bring a rapist’s fetus to term by saying that the state would “eliminate rapists from the streets of Texas.” After more than 26,000 pregnancies resulted from rape, it appears that the rape-be-gone genie failed to grant the governor’s wish.

Abbott’s magical thinking, however, is not a strictly Texas affair. Reducing moral complexity to insipid political slogans is simply where the decades-long crusade against abortion has ended up. Rape is ugly and violent, and forcing victims to give birth against their will is appalling and unpopular. How to balance that reality with confident assertions that life is full-fledged and fully human at conception? Pretend the rape away.

Even before Republicans on the U.S. Supreme Court handed the anti-abortion movement its long-delayed victory, overturning Roe v Wade in 2022, antiabortion extremists in Texas and elsewhere were busy doing what extremists do — recasting the world as an uncomplicated realm where clear determinations of right and wrong are the exclusive purview of those very same extremists. Discussing the nation’s polarized abortion debate in his concurring opinion, Pennsylvania Supreme Court Justice David Wecht wrote: “At some basic level, the debate is irreducible, the competing perspectives irreconcilable.”

Yet that Manichean divide is precisely what Roe v. Wade had sought to work around, paper over, subvert, finesse. Under Roe, abortion was mostly legal, but not entirely. Its moral framework was similarly fluid and ill-defined, creating room for women to assess their own beliefs, weigh their own circumstances, reach their own moral and medical conclusions and direct their own futures.

The shiftiness of Roe, the ruling’s hazy lines about fetal viability and maternal health, enraged generations of abortion opponents. But Roe captured the broad, muddled middle of American attitudes on abortion and reflected that ambiguity back to the nation. Since 1975, Gallup polling on abortion has shown super-majorities of Americans support legal abortion in either “certain circumstances” or “any circumstances.” If “certain circumstances” are poorly defined, well, that’s pretty much the point. Circumstances vary, and they can appear very different as they get very near, and very personal. A 2023 Pew Research Center survey found that even 40% of Republicans say abortion should be legal in “all or most cases.”

U.S. Supreme Court Justice Samuel Alito blew Roe to smithereens with his opinion in Dobbs v. Jackson, drawing on the Republican court’s ardor for carefully curated “history and tradition.” What did wealthy White men think about abortion in a time and place when the lives of wealthy white men were elevated, by law and custom, above all others? Just asking the question promises implicit harm to the descendants of lesser beings. Alito’s Dobbs opinion was an act of vandalism, trashing the soft consensus on abortion and pushing tens of millions of women into antiabortion regimes where ambiguity was replaced by cruelty.

Cruelty, however, comes at a cost of credibility. Leaving migrant children to drown in the Rio Grande is depraved, and the market for depravity, while shockingly large, is still too small to command popular respect. Brutalizing pregnant women — or girls — does not produce better results. In Ireland, a nation where legal abortion seemed inconceivable before it suddenly, somehow, became inevitable, the tide began to turn in the 1990s with the very public cases of a 14-year-old, and later a 13-year-old, each of whom had been raped and wanted an abortion. Ireland’s nearly comprehensive abortion ban, which led to confiscated babies and single mothers locked away in institutions, was increasingly perceived as an agent of abuse, not justice.

Similar trauma is gathering force in the aftermath of Roe’s demise. Kate Cox is a Dallas woman who was prohibited from terminating her nonviable pregnancy despite multiple trips to the emergency room. She eventually obtained an abortion out of state. Cox has been invited to attend President Joe Biden’s State of the Union address in March.

Republicans wrote the horror stories of Cox and other women. Now, it seems, they will be forced, in political ads, campaign stops and even the State of the Union address, to listen to them echo across the land. Antiabortion absolutes lead to untenable politics. Republicans will thus find themselves either retreating toward the mushy middle that Roe once occupied, or hardening public opinion against themselves as they cling to a politics of cruelty. It took decades for conservatives to take down Roe’s constitutional right to abortion. Roe will have its revenge in a fraction of the time.

Francis Wilkinson is a Bloomberg Opinion columnist covering U.S. politics and policy. Previously, he was executive editor for the Week and a writer for Rolling Stone.