Americans Largely Agree on Abortion. An 'Abortion Window' Would Make That Consensus Law | Opinion

Albert Eisenberg , millennial political consultant based in Philadelphia and Charleston, SC
On 2/26/23 at 8:00 AM EST

Abortion access is the most scorching of hot button issues in a country percolating with them. The 1973 Roe v. Wade decision by the U.S. Supreme Court preventing the states from restricting abortion access did not settle the issue, but merely put a decades-long hold on it, and when it was overturned last year, it caused a furor among progressives, and prompted a flurry of legislative activity in both red and blue states.

Yet while the debate on abortion is deeply polarizing, Americans themselves have a large amount of agreement on the topic. Most Americans want compromise in federal and state policy, and even those who identify as Pro-Life or Pro-Choice largely do so with some caveats.

As the polling analyst Nate Silver summarized in FiveThirtyEight last spring, a strong majority (60 percent) think abortion access should be "generally available" in the first trimester, while that number drops to 28 percent in the second trimester. Since 2010, Gallup has never found more than one fifth of respondents saying that abortion should be "generally available" in the third trimester, the de facto "100 percent Pro-Choice" position, while those saying abortion should be "illegal in all cases" has never exceeded 22 percent.

With one fifth of respondents at each end of the abortion divide, the remaining 60 percent of Americans find ourselves somewhere in the middle, relatively in agreement. This represents a huge opportunity for federal legislation on the matter.

How could the federal government capitalize on that consensus? With an abortion window, before which abortion access must be allowed, and after which it must not be. This option would present a middle path for our country, while still allowing individual states to set their own rules.

A federal abortion window would include a floor: No state could ban abortions before a certain number of weeks—for example, six weeks, the date of the "Heartbeat Bills" passed by states like Georgia and West Virginia. And it would include a ceiling: No state could allow abortions into the fourth or fifth month of pregnancy, as New Jersey and Oregon currently do.

A total abortion ban, such as that in Missouri, where a pre-Roe "trigger law" includes exceptions only in the case of medical necessity, would be too restrictive. On the other hand, allowing unfettered abortion access until labor, the stance of a growing number of blue states, would fall beyond the window. (Those states currently find themselves in the company of China rather than the super-majority of Western countries.)

An abortion window would serve as a Goldilocks approach, allowing individual states to regulate access to abortion within a period of time in a woman's pregnancy, while providing necessary limits at the extremes.

It's a reasonable solution, and one that reflects where most Americans find themselves.

Of course, it would need bipartisan support to pass, which might be difficult. The issue of abortion access continues to animate both the Right and Left, leading many legislators to a "no compromises" approach on either side that makes passing consensus policies nearly impossible, even those supported by a majority of Americans.

It's time for them to wake up and remember that they are elected to serve, not to fight.

The abortion window would be a huge win for people who want women to be guaranteed some level of access to abortion in red states but don't subscribe to the idea of abortion on demand in the third trimester. But both Pro-Life and Pro-Choice sides could claim a necessary, though conditional, win in the parts of the country where they are now unable to advance their own agendas.

The entire country, too, would fall within international norms on abortion access.

Who would lose? The loudest voices in the country: Those that proclaim themselves "100 percent" Pro-Life or Pro-Choice, allowing no compromise even though they will never win with such a stance. The losers would include powerful advocacy groups, partisan media, and established non-compromisers in Congress who constantly fundraise and sling mud on the issue. In short: the extreme fringes that have more interest in raising the temperature than producing outcomes that most Americans would support.