Every American citizen should know this, but, alas, not every citizen does: The Supreme Court of the United States never says, in constitutional cases, that states (or a state) should do x, all things considered. What the Court says is either “States may do x (if they so choose)” or “States may not do x (even if they want to).” The former is equivalent to “Any state may do x.” The latter is equivalent to “No state may do x.”
In Roe v. Wade, the 1973 abortion case that polarized the nation for half a century, the Court did both of these things. It said that, during the first trimester of a pregnancy, no state may punish abortion. It also said that, during the third trimester of a pregnancy, any state may punish abortion (with one exception: where the pregnant woman’s life or health is endangered).
During the time in which Roe was in effect (from 1973 to 2022), several states, including Colorado, New Jersey, and Oregon, allowed abortion until birth, even when the pregnant woman’s life or health was not endangered. This was bound to infuriate people (both in and out of those states) who believe that, morally speaking, abortion is murder. These states could, and arguably should (all things considered), have prohibited abortion in the third trimester, but they did not.
Now that Roe has been overruled (by Dobbs v. Jackson Women’s Health Organization), some states will (almost certainly) prohibit abortion from the moment of conception. This is bound to infuriate people (both in and out of those states) who disbelieve that abortion is murder and who believe that women have a moral right (and should have a legal right) to end their pregnancies. These states can, and arguably should (all things considered), allow abortion in the first trimester, but (in all likelihood) they will not.
What do I mean when I say that, prior to Roe’s overruling, states that allowed abortion until birth “should (all things considered) have prohibited abortion in the third trimester”? I mean that they should have respected those of their citizens who sincerely believe that abortion is (morally speaking) murder. These states could have allowed abortion only through the end of the second trimester, or perhaps through some other arbitrary point (such as 15 or 20 weeks).
What do I mean when I say that, after Roe’s overruling, states that prohibit abortion from the moment of conception “should (all things considered) allow abortion in the first trimester”? I mean that they should respect those of their citizens who sincerely believe that women have a moral right (and should have a legal right) to end their pregnancies. These states can allow abortion through the end of the first trimester, or perhaps through some other arbitrary point (such as six or 10 weeks).
Yes, I am suggesting that there is room for compromise at the state level. Roe has often been criticized—even by people who celebrate its holding—for being legislation rather than adjudication. That it is objectionable as adjudication, however, does not mean (or imply) that it is objectionable as legislation. A given state could adopt Roe’s trimester framework as its law. Its motive in doing so might be to show respect for individuals on both sides of the abortion debate. An additional reason for doing this is that many women in society (and not just women) have come to rely on Roe’s trimester framework in making their reproductive decisions.
There is a larger lesson here. Politics, it is often said, is the art of compromise. In a compromise, each side gets something, but not everything, that it wants. When one side views the other side as getting everything that it wants on an important matter, such as abortion, it reacts (understandably) with emotions ranging from frustration to anger to fury. We have seen some of these emotions since the day, three weeks ago, when Roe was overruled. We also saw them on the day Roe was handed down, nearly 50 years ago.
Destructive emotions such as anger and fury can and should be tamped down, and wise legislators will seek to do so. Why not legislate Roe’s trimester framework at the state level? Perhaps, 50 years from now, American citizens will look back on this time as one of compromise and healing. I am not suggesting that people’s moral views will or should be changed as a result of such a compromise. I am suggesting that people with divergent and strongly held moral views will be able to live together respectfully and peacefully, in what philosophers call a modus vivendi.