Has the Supreme Court’s most notorious decision become obsolete?
Earlier this week, abortion and pro-life advocates observed the 39th anniversary of the Supreme Court’s Roe v. Wade decision, which, along with its companion case, Doe v. Bolton, recognized abortion to be a constitutionally protected right while giving states some leeway in restricting its availability.
Roe dominates America’s abortion debate. If you had asked any of the scores of thousands of pro-lifers who poured into Washington, D.C., on Monday for the annual March for Life to name their most urgent priority, most would have said overturning Roe.
Abortion advocates, meanwhile, talk about Roe as if it were the only thing standing between women and a new era of back alley abortions. As NARAL Pro-Choice America states on its website, “We believe that women should have the option to choose abortion. Today they can, thanks to the Supreme Court’s Roe v. Wade decision in 1973.”
But Roe may matter less than many people realize — or perhaps matter for different reasons that commonly thought. Many people mistakenly believe that legal abortion hinges on Roe — that without Roe abortion would be illegal everywhere in America. But that’s not true. If Roe goes, abortion law would revert to the states to decide.
Others mistakenly believe that the number of abortions would drop precipitously if Roe goes. That likely would not happen. Consider how abortion is treated in two states: South Dakota and California.
Relatively few abortions take place in South Dakota because South Dakotans are generally pro-life and elect pro-life lawmakers who have passed a number of restrictions on abortion. They include parental notification laws, bans on public funding of abortion and a requirement that women seeking abortion be given pro-life counseling.
In 2011, South Dakota passed the nation’s longest abortion waiting period law, three days. That means women seeking surgical abortions in that state must wait three days between their initial visit to an abortion facility and the abortion.
This is an important restriction because there are only two abortion facilities in South Dakota, and less than a quarter of South Dakota women live in counties with an abortion facility, according to the Guttmacher Institute. So for many women, obtaining an abortion means making two lengthy trips to the abortion center.
Given the legal environment in South Dakota, it’s not surprising that only six percent of South Dakota women who became pregnant in 2008 aborted — three times lower than the national abortion rate of 19%. That’s just 850 abortions in 2008, representing less than 0.1% of abortions nationally.
But the number of abortions performed in South Dakota likely wouldn’t change much if Roe were overturned. In 2006, South Dakota passed a “trigger law” that would automatically ban most abortions if Roe is overturned. But, given that twice in the past few years South Dakota voters have voted down ballot measures to ban abortion outright, the trigger law would likely be repealed if Roe goes.
This means that post-Roe South Dakota would probably look much like it does today. Abortion would be restricted and relatively few women would obtain them. But a blanket abortion ban would be unlikely.
The same could happen in the twenty or so other states that have trigger laws or pre-Roe abortion bans that remain on the books. Many of these laws would be repealed or altered after Roe’s demise to reflect voters’ opposition to total bans and legislators’ unwillingness to defy public opinion.
Gerald Rosenberg, a professor at the University of Chicago who studies the effect of Roe on abortion rates, said recently, “My guess is that no more than a dozen states could sustain a total abortion ban, and these are principally states where virtually no legal abortions are performed today.”
Now consider California, where there are no major restrictions to abortion and only 1% of women live in counties without an abortion facility.
Abortion is available virtually on demand in California, and, in 2008, nearly one quarter of the 900,000 California women who got pregnant aborted. That’s 214,109 abortions, or nearly one-fifth of all abortions nationally.
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