photo by Steve Rhodes
For both parties, possibly the single greatest animating force in the fight over who will fill the newly vacated seat on the Supreme Court is Roe v. Wade.
Will a future court eviscerate or repeal the decision? Or will it reinforce Roe against ongoing chiseling by anti-abortion state legislatures? While we cannot know from our current vantage point, it is worth considering what a post-Roe world might look like if a future court did decide to narrow or overrule it.
There are two basic approaches a court could take to do so. First, the court could find that although a woman does not possess a constitutional right to abortion access, there is nothing preventing the states from permitting abortions under whatever conditions their legislatures deem appropriate. This was, more or less, the state of the law prior to Roe v. Wade.
There would be a difference, however. When the Supreme Court considered the 1973 case, abortion was outlawed altogether in 30 states, and in most others the practice was legal only under certain circumstances, such as when the mother’s health was in jeopardy or if the pregnancy was the result of a rape. There were, however, signs of change just prior to the case, such as New York’s decision in 1970 to adopt one of the most liberal abortion laws in the country, with no residency requirement attached. Hawaii, Alaska and Washington state had also made abortion legal to their own residents prior to Roe v. Wade.
Nearly half a century later, it is clear that if the subject of abortion were thrown back to the states, we would see a wide range of outcomes. Some states would maintain relatively liberal abortion laws, while others would likely institute a total ban. Based on the various laws designed to limit access, such as mandatory waiting periods, counseling or ultrasounds, it is safe to assume that state laws are likely to fall along a wide spectrum of legality if the Supreme Court steps back.
The second approach a Supreme Court could take would be to decide that the 14th Amendment’s equal protection guarantee applies from the moment of conception, and that any laws permitting abortion would therefore be a violation of these rights. This reasoning could conceivably extend to pharmaceutical abortifacients. It might even extend, in an extreme case, to morning-after pills like Plan B, though I am sure there would be much debate over whether such substances were actually abortifacients or were more accurately understood as contraceptives (as, in fact, there already is, though the stakes are lower for now).
Whether Roe v. Wade was overturned by the first approach or the second, however, the practical outcome would be very much the same. Women of means, and very young women whose families have both the means and willingness to support their choices, will always have the option to have an abortion. That might mean obtaining a pill on the black market. Or it might involve travel to a distant state, or even another country, where safe, medically supervised clinical abortions will remain readily available.
These women of means will include the wives, daughters and granddaughters of many of the politicians who argue most vehemently against abortion. And, of course, it would often include politicians who oppose abortion but may themselves experience unwanted pregnancy. While these particular women may choose not to pursue such a course, they and other affluent women will always have the choice in the modern world. A change in law could make it less convenient and more expensive, but it can never eliminate the option altogether.
So what we are really talking about is taking away the option of an abortion for women who already have the fewest choices available to them. Given their circumstances, some of these women will inevitably choose more dangerous approaches to terminating their pregnancies. This is the nightmare scenario Roe supporters often invoke and was, in fact, the way of life for many people in this country prior to 1973.
When confronted with the reality of that world, and the disparity with which it affects women in different economic circumstances, my guess is that eventually the political pendulum would swing again, as it was doing in the years preceding Roe. But in the meantime, many women without the resources necessary to circumvent the law may face the choice of carrying an unwanted pregnancy to term or risking their own health, as well as potential legal consequences, in order to end it.
People have strong, sincerely held views on both sides of the abortion issue. But we ought not to fool ourselves into thinking that anything the Supreme Court - or Congress, or a state legislature - can do will eliminate the practice. Some women will always have the choice to terminate a pregnancy. We are only arguing about which women will retain that option.