Opinion | A Grand Compromise on Abortion

A decade ago, there was talk of a “grand bargain” in Washington to resolve sharp differences on taxes and government spending. But Democrats and Republicans could not agree, and the effort collapsed. Now, in the wake of the Supreme Court’s momentous decision to overturn Roe v. Wade, it’s time for Congress to consider a grand compromise on the issue of abortion.

It won’t be easy. If lawmakers couldn’t reach a deal on economic matters, how can we expect them to resolve deep-seated claims about reproductive liberty and human life? And there are good political reasons for both Democrats and Republicans to keep fighting. Rather than compromise, each side may hope that electoral success in the midterms and in 2024 will allow them to ignore the other party and resolve the abortion issue as they please soon enough — with, say, either a national abortion ban under GOP rule or Roe reinstated with legislation if Democrats prevail.

But a one-sided solution would not be a lasting solution. Without something close to a consensus, abortion laws would always be ripe for reversal if the next election went the other way. A compromise would permit both parties to lock in some of their policy and political goals. At the same time, it would stave off a further breakdown of our divided society.

A national abortion compromise, to be effective, would require bold congressional action. It would recognize a right to abortion, nationwide, but it also would impose new and significant restrictions on this right, also applicable in every state.

As things stand now, the emerging national landscape is disturbing: a patchwork of wildly disparate abortion policies. Some states are moving to ban all or most abortions. Others are poised to become abortion sanctuaries, welcoming and supporting people seeking abortions from other states.

This, our current reality, will lead to conflict and litigation between states. Corporations will be pushed to take sides, adding to the politicization of commerce. Partisan polarization will be exacerbated, and the risk of abortion-related violence will grow. Our precarious social fabric will be torn apart, further imperiling our already weakened sense of commonality and nationhood.

To avoid these consequences, lawmakers will have to meet in the middle. They will have to give up the more categorical positions that might prevail in “pro-life” or “pro-choice” states. Even so, and equally important, they will be able to advance their positions to a significant degree — on a nationwide basis, and therefore even in states that fall on the opposite side of the political divide.

To be potentially viable, a national compromise would include four elements. First, it would permit abortion during a specified period of gestation, without restriction, during the few first months of pregnancy. Second, it would prohibit abortion later in pregnancy. Third, even after this point in pregnancy, there would be exceptions to the abortion prohibition. And fourth, the congressional compromise would be national in scope, with federal law controlling the issue of abortion and preempting state law to the contrary.

The fourth element, federal preemption, bears emphasis. It means that the congressional compromise would displace and nullify state abortion policies. There would be the same right to abortion in red and blue states alike, subject to the same limitations.

Congress clearly has the constitutional power to effect such a compromise. Under well-settled judicial doctrine, Congress’ power to regulate interstate commerce permits it to regulate medical services, including abortion services. And Congress can expressly preempt — that is, replace and supersede — inconsistent state laws, whether more or less restrictive than Congress’ own.

Achieving a national compromise would require political courage and intense negotiation.

As a starting point for determining a newly drawn line between permitted and prohibited abortions, Congress might consider 15 weeks, a period approved by the Supreme Court in last week’s decision and defended by Chief Justice John Roberts in his separate concurrence. Or it might consider 20 weeks, as proposed by Sen. Lindsey Graham and other Republicans who have urged a federal abortion prohibition. (As it stands, the Graham proposal does not include the critical fourth element of a viable compromise: a preemption provision declaring that the federal law would replace and supersede state law, including more restrictive approaches.)

In crafting exceptions to a federal abortion prohibition, Congress could draw in part upon its experience with the Hyde Amendment, a budgetary provision that varies from year to year but that generally forbids federal funding for abortions. Congress always has included an exception for abortions that are necessary to save the person's life, and it sometimes has included other exceptions as well — for pregnancies endangering the person's health (even if not their life) and for pregnancies resulting from rape or incest. Needless to say, the stakes are heightened in the context of a prohibition not merely on funding but on abortion access. But Congress is capable of hammering out a compromise — and crafting the language of exceptions — if it has the will to do so.

During his time on the Supreme Court, Justice Antonin Scalia argued for a state-by-state approach to abortion, contending that it was far more difficult to find agreement at the national level. Scalia was right about the difficulty but wrong in his conclusion.

Yes, federalism plays an important role in our democracy, and yes, a congressional resolution of this issue will be exceedingly difficult. But the right to abortion — and its limits — are properly seen as American questions, too fundamental to be resolved by a patchwork quilt of divergent state approaches.

Congress might not achieve a grand abortion compromise. But it should try.