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.
But California’s high abortion rate probably wouldn’t change
much were Roe overturned. California is one of seven
states that have passed laws that, according to Guttmacher,
“prohibit any interference with a woman exercising her right to
obtain an abortion before viability or when necessary to protect
the life and health of the woman.”
In other words, these seven states — which together account for
one quarter of abortions nationally — have passed laws that codify
Roe.
The Center for Reproductive Rights estimates that 23 states
would protect abortion fully if Roe fell. According to the
Guttmacher statistics, these states accounted for 713,120 abortions
in 2008, or 59% of abortions nationally.
The upshot is that Roe means relatively little in terms
of the number of abortions because the vast majority of abortions
take place in states that would almost certainly keep the practice
legal if Roe fell, and relatively few abortions take place
in states that would ban the procedure.
But that doesn’t mean Roe isn’t important. I asked
experts on both sides of the debate whether Roe still
matters. Not surprisingly, they all responded emphatically that it
does.
Susan Cohen, director of Government Affairs with the Guttmacher
Institute, told me that because many states might “jump to
criminalize abortion” if Roe were overturned, Roe
“has never been more relevant or critical in maintaining basic
protections and rights for American women.”
Denise Burke of Americans United for Life, a pro-life legal
organization that creates model pro-life legislation for states,
told me that Roe’s reversal is important because, among
other things, Roe is “the paradigmatic case of judicial
usurpation of the legislative role.” She says that striking it down
would take away the federal courts’ power to decide abortion policy
and block laws passed by the people’s elected representatives.
Robert George, McCormick Professor of Jurisprudence at Princeton
University, wrote in an email that even a relatively small drop in
abortions after Roe would be “well worth doing” because
“each human life spared is on inestimable value.”
But George thinks pro-lifers shouldn’t be satisfied with merely
working to overturn Roe. He believes they should also work
for federal protection of unborn human life. He believes abortion
is not purely a state issue and that the 14th Amendment to the
Constitution expressly empowers Congress to enforce through
legislation the guarantees of due process and equal protection to
unborn human beings as persons.
George also mentioned the “enormous symbolic significance” of
Roe and the corresponding symbolic significance that its
reversal would have.
Michael New, an assistant professor at the University of
Michigan–Dearborn who studies abortion trends, conceded that
Roe’s reversal wouldn’t significantly change the legal
status of abortion in many states.
But because “the law is a powerful teacher,” he thinks
overturning Roe “would be an important first step for the
pro-life movement.… For the first time in nearly 40 years it would
result in a meaningful national debate about what sort of legal
protection unborn children deserve.”
Carol Tobias, president of National Right to Life, agreed.
“Roe is still relevant,” she said. Tobias referred to
Roe’s reversal as “a teaching tool,” because as long as
Roe remains, nine unelected justices are setting abortion
policy for the entire country.
Roe’s demise, in Tobias’s formulation, would be “a
beginning not an end.” If that’s true, it’s a beginning pro-lifers
have been waiting 39 years to commence.
