By Eric Segall
Last week the Supreme Court announced it would hear a challenge to Mississippi's ban on abortions after fifteen weeks of pregnancy. There was no circuit split, the law clearly violates binding Supreme Court caselaw, and even the ultra conservative fifth circuit struck down the ban. As many folks have observed, the Court almost certainly didn't take this case just to affirm the decision below.
My guess is the Court will use the case to start to unravel all or most constitutional protections for a woman's decision to terminate her pregnancy. This post is not about whether the right to choose should be constitutionally protected but about the dire consequences for women who will be forced to carry fetuses to term against their will and how badly America compares to the rest of the free world when it comes to providing assistance to women and their families once a baby is born. One thing is certain: other than focusing on the preservation of the fetus, the pro-life movement as a general matter is anything but pro-life.
In a recent book, Professor Jamal Greene compared the abortion wars in the United States and Germany (I review the entire book here). Among many interesting aspects of his discussion, he pointed out that the safety net for women in Germany who carry their fetuses to term either out of choice or legal compulsion is much larger than ours. For example, women have a guaranteed job to come back to after caring for a newborn for up to three years, and there are extensive tax credits for extended child care, among many other benefits. This economic assistance does not undo the pain women must feel when forced by law to carry a fetus to term but it certainly eases some of the hardship, which in turn likely brings for some women more comfort than women in the United States will feel when required by state governments to give birth against their will.
The United States of America is the only industrialized country in the world with no national family paid leave policy (as discussed below there are a few states with such policies). Perhaps this lack of financial support partly explains why one in four working mothers in America return to work within 10 days of giving birth. According to one account, ten weeks of paid leave after birth would reduce infant mortality by ten percent. That's pro-life, and there's no excuse for the United States not providing these important economic benefits.
Here are a few examples of how other countries handle maternity issues. The following countries give at least one year of paid leave: Austria, Norway, Estonia, Bulgaria, Hungry, Japan, Slovakia, Latvia, and Slovenia. The following countries provide at least 40 weeks of paid maternity leave: Sweden, Germany, Finland, Luxemburg, Poland, Czech Republic, and Croatia. Numerous other countries give from 10-40 weeks of paid maternity leave. In most of the United States, there is no government-required paid maternity leave policy. None. That absence reflects this country's indifference to the life and health of the fetus and its family once it leaves the womb.
The United States also lags behind much of the developed world when it comes to child care and heath care policies for children. According to one study, as of 2018, there were almost 4 million children here who are have no health insurance, and our costs for health care generally are higher than any other developed country. Similarly, the Organization for Economic Cooperation and Development ranked America as having the third highest cost of health care specifically for children out of 41 other developed countries.
Most industrialized nations offer much better and more affordable child care than the United States. To take one example, here is a description of how France handles child care:
The government provides inexpensive municipal daycare, tax breaks for families employing in-home childcare workers and universal free preschool beginning at age three. Crèches (government-run daycare centers) are open from 7:30 a.m. to 7 or 8 p.m. and the sliding scale hourly rate cost is based on income level. Because the centers are government-run, they must follow high government standards: At least 50% of crèche workers are required to have a specialized diploma in early childcare and education, and a pediatrician and a child psychologist are on staff or on call at each center.
There is little here comparable to those services. In fact, the cost of child care in America is almost one-third of an average couple's income.
Another way to view how poorly we take care of our children is to look at what policies UNICEF suggests countries adopt and see how far away we are from having such programs:
Provide statutory, nationwide paid parental leave of at least six months for parents. Enable all children to access high-quality, age-appropriate, affordable and accessible childcare centers irrespective of family circumstances. Ensure there is no gap between the end of parental leave and the start of affordable childcare so that children can continue their development without interruption. Ensure that mothers can breastfeed both before and after they return to work by providing lengthy-enough paid parental leave, guaranteed breaks at work and safe and appropriate locations to breastfeed and pump. Collect more and better data on all aspects of family-friendly policies so that programs and policies can be monitored.
Why America is so lacking in adopting these kinds of policies nationally is a complicated question but it seems likely that the many people (and legislatures) in red states who oppose abortion also have little use for taxpayer-funded child care and paid family leave policies. As of February 2021, nine states and the District of Columbia had enacted paid family leave programs. California, Massachusetts, New Jersey, New York, Rhode Island, Washington State, and DC have put these laws into effect. The other three states, Colorado, Connecticut, and Oregon have enacted such policies, but their programs have not yet been implemented.
Based on the 2020 Presidential election, all of the states with paid family leave policies, or planning to implement such policies, are blue states. These are the same states that are likely to keep abortion legal (at least in the first trimester) no matter what the Court does to abortion rights. As of this writing, no state that voted red in 2020 has a paid family leave policy, and those are the states most likely to make all abortions illegal if the Supreme Court allows them to do so. In other words, where women are most likely to lose the right to choose are states that do the least when it comes to protecting the health and care of children and families. The combination of forcing unwilling women to carry pregnancies to term with financial indifference to the health and care of those babies once they are born is hardly a pro-life political agenda.
As a legislative matter, my view is that women should have the right to terminate their pregnancies up to viability even as I respect the views of millions that abortion is immoral. But if and when this issue is returned to the states, the least this country should do is provide minimal required assistance to struggling families. That this assistance is least likely to happen in those states that are least likely to allow women to control their reproductive freedoms is a testament to how anti-life the "pro-life" movement has become.