Almost 50 years ago, the U.S. Supreme Court started the longest-running argument in American politics since our 90-year argument over the institution of slavery. As we’ve vigorously argued abortion rights, we’ve taken to regularly calling our fellow Americans fascists, murderers, sexists and a whole bunch of other nasty things, and that was just around the dinner table. Beyond that, sometimes things got really ugly.
In 1973, the argument over abortion was long overdue, since until the early 1970s abortion was illegal almost everywhere in America thanks to laws written by a bunch of men who never had to make the call about what to do about an unexpected pregnancy.
The ascendance of women’s rights around the world made the issue of women being able to make their own reproductive choices an inevitable battleground.
Roe v. Wade changed the law overnight, but it also turned up the heat on the debate. The arguing never went away, and for many Americans it became the most important issue in determining how we voted. More than a few presidential elections were likely decided by the candidates’ positions on abortion rights, since that was the only vote that might influence abortion law.
The end of Roe v. Wade changes things.
On June 24, 2022, we awoke to a nation where abortion laws will be decided by state governments. This means reproductive choices available to women will not be determined by an unelected bunch of Supremes but by local laws that we the people control though elections.
Of course, this doesn’t really end the fight over abortion. The rights to an abortion we had come to take for granted are no longer sacrosanct. States, including Colorado, are in control of their destiny, and as such, have decisions to make about women’s abortion rights within their borders.
In anticipation of the Supreme Court’s announcement, in April Colorado’s government wisely put in place the Reproductive Health Equity Act, guaranteeing abortion rights in the sate. The law now on the books presents a very laissez-faire approach to abortion that can be fairly described as, “Let the woman make whatever decision she damn well pleases during her entire pregnancy.”
This legislation was the right thing to do for at least two reasons.
First, it was the unwritten law we were living under before it was put into the lawbooks.
Second, several recent attempts at limiting abortion rights through legislation and constitutional amendment all failed. Our state government put into law what it appeared we the people in Colorado had told them to.
Wouldn’t it be nice to imagine that — at least in Colorado — we have finally laid this contentious issue to rest? Nice, maybe; but delusional, surely.
The downside of Colorado’s abortion law as written today is that it is an extreme position that will leave many Coloradans unhappy. As we’ve seen, this issue generates passion, and our current law will no doubt find some significant opposition seeking change.
If you’re an advocate of abortion rights, what should scare you most is that all it would take to conjure new unpleasantly restrictive Colorado abortion laws is a change in the Legislature and governorship. Colorado’s blue-state status today is no promise for tomorrow.
America’s 50-year history of abortion politics informs us that setting abortion laws through purely partisan legislatures guarantees that every election ‘til kingdom come is going to include a heavy infusion of pro- and anti-abortion shouting and screaming. Since a single election can change abortion law, we can look forward to more election ads with pictures of fetuses and bloody coat hangers. Ugh.
However, there is a way out of this eternal hell of abortion fights and uncertainty with respect to future women’s rights. Colorado makes it easy, but not too easy, to amend the state constitution. Once an abortion law is embedded into our constitution with a 55% vote, it becomes much harder to change.
More importantly, getting 55% of Coloradans to support a set of defined abortion rights would represent a consensus. I wouldn’t want to guess what that consensus might look like, and I wouldn’t be surprised if the law we have on the books today can garner 55% of Coloradans’ votes.
But I wouldn’t expect it, either. More likely, getting a constitutional amendment that will receive 55% of voters’ support will take some genuine civic debate to build a better common understanding of the issues on the road to a compromise that works at the ballot box.
In my view, where we end up is less important than finding a consensus that Colorado voters can finally accept. Abortion is an issue that needed to be argued.
But please, it’s getting to be time for the arguments to end.