Below is my column in USA Today on the strikingly absolutist language being used by Democratic leaders in defining the right to abortion after the Supreme Court’s leaked draft opinion in Dobbs v. Jackson Women’s Health Organization. Yet, when pressed, these same politicians have been declining to address the implications of leaving the decision entirely to the woman at all stages of a pregnancy. Addressing the scope of this right is key to defining and supporting this right in constitutional law. Many Americans are open to protecting the right to choose, particularly in the first trimester. However, many politicians are pushing an unlimited view of the right that raises both constitutional and political questions — an approach that far exceeds what the current Roe case law supports. Conversely, Republicans are dealing with their own extreme responses to the pending decision in both the Senate and the states.
Here is the column:
New York City Mayor Eric Adams, like other Democrats, recently framed the right to abortion in absolutist terms.
Adams and others have argued that the decision to abort must be left entirely to the woman, without limitations. If adopted into law, that would mean a 9-month-old could be aborted at will.
It’s an extreme position, but it’s one echoed by other Democratic politicians such as Tim Ryan, who’s running for the U.S. Senate in Ohio.
A late-term abortion without medical justification is thankfully unlikely. However, embracing an absolute right to abortion is legally significant in how a politician interprets the Constitution. Under this approach, a woman could abort a full-term, “viable” baby shortly before going into labor. It would seem to support what President Joe Biden recently described as the right “to abort a child.”
Of course, women will make these highly personal decisions based on a myriad of issues, including consultation with physicians. However, in the end, if it is based solely on the decision of the woman, it is the definition of abortion on demand during the full course of a pregnancy.
If you do accept limitations, the question becomes what those limits should be and who gets to decide such questions.
Notably, after calling advocates for restricting abortions “extremists,” Adams was asked at an abortion rights rally if he believed that there should be any limitations on abortion. He answered: “No, I do not.” And he added: “I think women should have the right to choose their bodies. Men should not have that right to choose how a woman should treat their body.”
Yet, a majority of Americans support limits on abortion after 15 weeks. (The United States is one of only 12 among the world’s 198 countries that allow abortions for any reason after 20 weeks.)
Polls show that most Americans reject extreme or absolute positions on either side of the abortion issue. Polls also show that 65% of Americans would make most abortions illegal in the second trimester, and 80% would make most abortions illegal in the third trimester.
The effort to get politicians to address the limits of our rights is hardly new or unreasonable. It is the same question journalists often ask conservatives in demanding to know where they would draw the line on gun rights under the Second Amendment.
An absolutist position on abortion raises not just constitutional but political difficulties. Take Tim Ryan’s position. In Ohio, polls indicate that the public is split 48% to 47% between those who believe abortion should be entirely legal or largely illegal.
Ryan’s answer, therefore, alarmed political and media figures worried about his effort to secure the Senate seat for Democrats.
To paraphrase Hamlet, Ryan’s defenders seemed to “protest too much.” National Public Radio accused Republicans of misrepresenting Ryan’s remarks, made during an interview on Fox News’ Special Report. (For full disclosure, I am a Fox contributor).
However, Ryan answered a predictable, straightforward question on the issue without hesitation. He, like Adams, denounced “any limits on abortion.”
Special Report host Bret Baier followed up with a question about limits on abortion, and Ryan replied , “Look, you’ve got to leave it up to the woman…”
Baier responded, “So, no is the answer?”
Ryan then said, “You and I sitting here can’t account for all of the different scenarios that a woman, dealing with all the complexities of a pregnancy are going through. How can you and I figure that out?”
This was not an ambush interview and the questions should have been expected. It is one of the key issues in politics today. If we are going to articulate a right in either opinions or legislation, we need to “figure that out.”
Judges and politicians have spent decades debating such restrictions. The scope of the right goes to its constitutional foundations. Is this an area where the individual and government share interests? If so, how are those rival interests balanced?
While briefly acknowledging that Ryan may have messed up in his answer, NPR senior politics editor and correspondent Domenico Montanaro criticized efforts to seek clarity as really an attempt to “mislead” voters.
“Ryan could have been clearer about what restrictions he might specifically support, but he was largely reiterating Roe’s tenets about the health of the mother being paramount,” Montanaro said.
That is not true. Ryan stated that this is a matter that needs to be left entirely to the woman — a position expressly rejected in both the Roe and Casey decisions.
Montanaro further excused Ryan’s answer by saying that he did not appear “comfortable — with two men on television talking about the subject — laying out what those might be.”
Ryan is running for the U.S Senate, which is considering the codification of Roe. He did not appear uncomfortable in declaring what sounded like an absolute right to abortion. Moreover, we must decide this question collectively as a nation. It is not left to any particular gender to discuss or decide.
What was most interesting in the NPR story and other coverage is that, while crying foul when challenged over absolute statements on abortion, Democrats do not seem eager to bring clarity to their positions.
Fox News’ Peter Doocy, for example, recently pressed now former White House Press Secretary Jen Psaki on the president’s evolving views of abortion. Biden was once a staunch opponent of legalized abortion while in the Senate.
Doocy asked: “Does he support any limits on abortion right now?” Psaki would not answer the repeated question beyond saying that “the president has spoken — has talked about his position many times. He supports the right of a woman to make choices about her own body with her doctor.”
The White House routinely restates the position of the president on policy and legal issues. Why would it be reluctant to clearly answer this question on his current stance, particularly in light of the news from the court?
It would seem an easy task to say that the president does support limits on abortion but believes that the right should rest largely with the woman.
There was nothing wrong in a reporter asking if the president believes that the right to abortion extends “until the moment of birth.” That should not be difficult to answer if the president’s position is clear.
This is not a political game of “gotcha.” Whether you allow limits (and what those limits may be) goes to a person’s underlying view of the constitutional right. The refusal to discuss the outer edges of this right reduces the debate to mere soundbites.
If a politician truly believes that the matter should be left entirely to the woman throughout the course of her pregnancy, he or she is going far beyond anything that the Supreme Court has maintained in prior case law.
Politicians would like to continue to rally supporters with absolutist statements while refusing to address the implications of those statements. However, if we are going to resolve the debate of the right to abortion, we need to first understand what our leaders mean in declaring their support for the right of abortion.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JonathanTurley