This article is the second part of my “Refuting Anti-Abortion Talking Points” article–you can read the first part at the following link: https://theprogressivecynic.com/2015/07/20/refuting-anti-abortion-talking-points-part-1/

• “Abortion is needlessly cruel because adoption is a much better option.”

First and foremost, a pregnancy is a massive disruption in the life of a woman and can have significant health consequences. Because of this, abortion serves to not only preventing the birth of an unwanted child, but also to prevent a woman from having her entire life upended by 9 months of pregnancy.

…and these are just the non-severe consequences of a healthy pregnancy.

Women who get pregnant can be forced to leave their jobs, despite already having children and not being able to afford taking that time off. In the absence of strong maternity leave mandates in the USA, it is simple a non-starter to argue that abortion can simply be replaced with adoptions.

Additionally, a not-insignificant number of abortions involve minors or are a product of either rape or incest, and forcing such a woman/girl to carry a child in that kind of situation is just morally wrong. Doing so would compound their trauma, if not endanger their life (ex. if the pregnant girl is 12 and not physically capable of safely giving birth), and even many anti-abortion activists are willing to accept loopholes in these cases.

Even if we just consider adult women who were not raped in regard to this argument, it fails by virtue of simple math:

According to the CDC, there were just over 730,000 legal abortions performed in 2011 (the most recent year with published data).

According to the Congressional Coalition on Adoption Institute, just under 400,000 children are in foster care, 100,000 of whom are ready to be adopted. One third of these children will be in the system for over three years before they can be adopted, particularly if they are older, have health/mental problems, or are racial minorities.

If we create a thought experiment where every pregnant woman who considers abortion decided to use adoption services instead, this would add over 700,000 children to the foster care system immediately, just in the first year. Over years, this would increase dramatically, as there is no way for social services to pursue adoptions for all of these children and a backlog would be created.

Put simply, the costs of such a system are tremendous and it would be impossible to get adequate funding for it. Ironically, many of the very same activists who decry abortion would be the ones restricting funding for these children out of a concern for the budgets. A vast majority of these children would live in squalor, with few prospects at success in life and a much higher than average likelihood of suffering abuse. Such a system is inhumane and economically unsustainable given current realities, making this suggestion by the pro-life community nonsensical, at best.

The totality of these three arguments—the disruption caused by pregnancies, the moral concerns with forcing a rape victim to carry her rapist’s child, and the infeasibility of securing adoptions for all unwanted children—is that there is no justification for claiming that abortion can just be replaced with more adoption.

• “Abortion is unconstitutional and only legal today is because of liberal ‘activist judges’ who have corrupted the law.”

According to our system of government (at least, since judicial review was established in Marbury v. Madison), the Supreme Court has the power to review the law and determine whether or not it is constitutional. This means that their decisions are binding, regardless of what anybody else thinks about their opinions.

Personally, I intensely disagree with the Supreme Court on a lot of issues—most of all the idea that money equals speech in politics—but that doesn’t change the fact that the SCOTUS’s word is literally law. If they decide that money equals speech under the 1^st Amendment, then that is the legal precedent that must followed unless a future SCOTUS sets a new precedent.

This is relevant because a series of SCOTUS decisions starting in the 1970s have consistently held that abortion is a right (with a few restrictions). It simply doesn’t matter what anybody THINKS about the constitutionality of abortion unless they are on the SCOTUS.

The NYTimes headline on the day Roe v. Wade was decided.

Roe v. Wade determined that states may not ban abortions and that the procedure is constitutionally protected until viability under the right to privacy. In the time since Roe, this right was clarified by several other cases, shaping the current regulatory regime. For example, Planned Parenthood v. Danforth determined that abortions were the right of a woman and that she doesn’t need the permission of her husband to access one, while Hodgson v. Minnesota determined that minors must either not have to get parental permission to get abortions or must be given access to judicial remedies to override parental objections. Conversely, some restrictions on abortion have been confirmed as constitutional, like the Hyde amendment bans on public funds to supply abortions at question in Harris v. McRae.

Under the law today, it is a demonstrable fact that abortion is not only constitutional, but protected. If you don’t like this, you have every right to petition the government to amend the Constitution and change the law. However, until you do this, you simply cannot make the argument that it is unconstitutional.

As to the second half of the anti-abortion argument that these decisions are simply examples of liberal judicial activism, this is just sour grapes. Roe v. Wade was decided by a bipartisan 7-2 vote in the Burger court (Warren Burger was a conservative who was appointed by Richard Nixon) and I have no doubt that, if it had gone the other way, all of these anti-abortion activists would be trumpeting the finality and authority of the court.

Accusations of “liberal judicial activism” are common within the right wing after major advances in civil rights. They said it when the SCOTUS banned segregation, after it expanded privacy rights to cover sexual activities (Lawrence v. Texas), and when it forced southern states to stop denying racial minorities the vote. For the most part, it is a placeholder argument for conservatives who cannot argue on the merits and who are bitter that that are no longer allowed to discriminate against a racial, religious, or gender group.

This article will be continued in part #3 on Thursday. Please read, share, and come back to read the next installment.