The Nation's Pulse

Does Roe Still Matter?

Has the Supreme Court's most notorious decision become obsolete?

By 1.25.12

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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.

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About the Author

Daniel Allott is a writer in Washington, D.C.