1/22/2004

A Post-Roe v. Wade America: What Happens If It's Overturned?

By Casey Mattox

Thirty-one years ago the U.S. Supreme Court issued its decision in Roe v. Wade, holding that a woman has a constitutionally protected right to abort her unborn child. Many thought that the Roe decision would end the controversy over abortion. A writer for the New York Times wrote just after the decision was announced, "The court's seven to two ruling could bring an end to the emotional and divisive public argument over what always should have been an intensely private and personal matter." Of course, the abortion debate did not end with Roe. Instead, Roe has become the focal point of an increasingly impassioned exchange over a number of lingering issues surrounding abortion. Pro-life groups continually lobby for the appointment of Supreme Court justices who would overrule the decision, while pro-abortion groups warn of dire consequences if Roe is abandoned. While Roe is perhaps the most well recognized Supreme Court decision, there appears to be little understanding of what overturning it would mean.

In order to overturn Roe v. Wade, five of the nine Supreme Court Justices would have to vote to do so. Currently, at least three, and perhaps four, Supreme Court justices would likely vote to overturn the decision. Justice Antonin Scalia has most clearly staked his position, writing that Roe "must be overruled." At least one of the justices who firmly support Roe, Justice John Paul Stevens, is considered a candidate to leave the Court in the near future. Justices Ruth Bader Ginsburg, a firm Roe supporter, and Sandra Day O'Connor, often a swing vote in abortion cases, could also leave the Court within the next six years, allowing President Bush to appoint their replacements should he win reelection. While it is difficult to predict the future votes of justices, much less how future nominees to the Court might vote, it is possible that President Bush will have the chance to place on the Court the fifth vote necessary to overrule Roe v. Wade. But what would that mean for America?

Imprecise statements by the media, as well as by activists on both sides, create the impression that overturning Roe would mean that abortion would instantly become illegal. For example, during the 2000 presidential election, the executive director of the National Abortion Rights Action League (NARAL) declared that both George Bush and John McCain would appoint justices who would "overturn Roe v. Wade and make abortion illegal." And in a debate during the 2000 Senate race, Hilary Clinton broadly claimed that overturning Roe v. Wade would "end . . . a woman's right to choose." Other pro-abortion groups frequently claim that "legal abortion" hangs on the continued vitality of Roe v. Wade. They warn that without Roe women will be forced to undergo dangerous and illegal "back alley abortions." These statements are rarely challenged. Indeed the media often echoes them. A recent Gallup poll even asked respondents if they favored overturning Roe, "making abortion illegal in all states."

Pro-life groups often do little better, however, placing so much emphasis on overturning Roe that the fifth vote on the Supreme Court seems like the Holy Grail, the endgame of the pro-life movement. Popular discourse, perhaps understandably, interprets these statements to mean that overturning Roe would automatically make abortion illegal nationwide and in all circumstances. Thus, the public is left with the impression that Roe v. Wade is the only barrier between "abortion rights" and nationally criminalized abortion.

In reality, Roe v. Wade is less about abortion rights than about who decides them. Roe created a federal constitutional right to an abortion. If Roe were overturned, this constitutional right would be eliminated, but abortion would not automatically become illegal. Rather, for the first time since 1973, the question would be left to the people to decide through their elected state officials. The debate over whether, when and in what circumstances abortions are legal would shift from Washington, D.C., to the fifty state capitals. The abortion debate would become much like the school voucher debate. For example, despite last year's U.S. Supreme Court decision that vouchers do not violate the Constitution, vouchers are not the law of the land. Instead the decision gave back to the people, through their elected representatives, the authority to decide whether and in what circumstances school vouchers will be funded. Some states have chosen to enact school voucher programs; most have maintained the status quo.

If, as abortion advocates contend, Americans overwhelmingly favor legal abortion, we should expect no change in the status of abortion in most states. Undoubtedly, under pressure from abortion advocates, many state legislatures would not change their abortion laws that currently permit abortion in most cases with only minor restrictions. Even in most Bible-belt states, where opposition to abortion is strongest, it is unlikely that state legislatures would prohibit all abortions. Moreover, the state courts would remain free to determine whether their state constitutions provide women a right to choose abortion. Many could be expected to do so, meaning that some state legislatures would perhaps be unable to restrict or regulate abortion more than is currently allowed. Thus, like the Roe decision itself, overturning Roe would not be the end, but merely a new beginning in the abortion debate.

Because popular support is highly valued, an accurate understanding of the meaning of overruling Roe v. Wade is critical. Politicians today are increasingly poll-driven, and both pro-life and pro-abortion groups regularly use poll numbers to demonstrate that they, not the opposition, are "mainstream" on abortion. In turn the media floods us with poll results about our alleged opinions on abortion, the Roe decision, and our views on potential court appointments that might affect Roe. For example, roughly three-quarters of those polled during the 2000 election stated that a candidate's position on abortion was somewhat or very important in determining how they would vote. But how valuable are these polls if the respondents don't understand what overturning Roe would mean? One can logically presume that support for Roe would decline if the public understood that abandoning Roe would not constitutionally criminalize all abortions, but merely allow the citizens of individual states to craft abortion laws that reflect their positions on the matter.

Finally, abortion opponents must understand that overturning Roe, while an important step, would not end the fight to protect unborn children. That day, should it come, would merely alter the abortion battlefield. Thus, while pro-life advocates must continue the legal fight to overturn Roe, it could be a pyrrhic victory if they do not work equally hard to change public opinion on abortion.

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