Roe at 35

Thirty-five years ago this Tuesday, the U.S. Supreme Court handed down a decision that produced this provocative paradox:  a moderately pro-life nation with the most anti-life abortion law in the West.

Few court decisions have had as broad an impact on American life as Roe vs. Wade, which subsequent courts have interpreted as having discovered a constitutional right to abortion for any reason and at any time during pregnancy.  Since Roe, at least 50 million abortions (equal to the combined populations of 25 states) have been performed, and its demographic repercussions continue to shape voting patterns and are a driving force behind America’s fast-approaching entitlements crisis.

No other court decision looms as conspicuously over the 2008 presidential campaign.  And for good reason.  Consider that when George W. Bush took office on January 20, 2001, three of the Supreme Court’s nine justices were 69 years old or older.  On inauguration day 2009, six justices, including all five of the court’s left-leaning members, will be age 69 or older. Most legal scholars believe the court is just one vote shy of overturning Roe, and many believe the next president may make as many as three appointments to the court. 

All these numbers help explain why presidential candidates are compelled to pledge allegiance to the type of judges — either “pro-Roe” or “anti-Roe” — they would nominate to the court.   

Yet, despite the prominent role Roe continues to play in American life, the public remains shockingly uninformed about what Roe means and what would happen if it were overturned.  To many Americans, Roe is simply a synonym for abortion rights, and that if one supports even a limited right to abortion, one must also support Roe.  A recent poll by the Real Women’s Voices coalition found that while 65 percent of Americans said they are familiar with Roe, only 29 percent could select an accurate description of the ruling. 

Last May, the Judicial Confirmation Network and the Ethics and Public Policy Center commissioned a national survey of registered voters that attempted to measure precisely what the public knows about Roe.  When respondents were asked a generic question about whether or not they wanted Roe overturned, a majority (55 percent) said “no,” and only 34 percent supported overturning Roe.  But when respondents were told what Roe means — that it prohibits states from limiting abortion during the first six months of pregnancy, and that if Roe were overturned, states could pass laws that would permit abortion — the share that opposed reversing Roe dropped seven points, to 48 percent.  Meanwhile, the portion that supported overturning Roe jumped nine points, to 43 percent.  Overall, that’s a 16 point swing. 

Notably, the survey actually understates how extreme Roe is.  Surveyors didn’t explain that the “health” exception to late term prohibitions is so expansive that abortion is effectively available for any reason through all nine months of pregnancy, a rule polls show the vast majority of Americans oppose.   

An equally damaging myth about Roe is that if it were overturned, abortion would be outlawed.  Period.  Abortion advocates promote this myth in order to convince voters of the imperativeness of electing pro-Roe candidates. 

Even some pro-lifers seem to have accepted this notion when they state that their ultimate goal is the reversal of Roe v. Wade. “If we can just get one more pro-life justice on the Supreme Court,” they insist, “then Roe will be overturned and abortion will be a thing of the past.”

The truth, however, is that Roe’s reversal would not end the abortion wars.   Rather, it would mark the beginning of a battle to which the last 35 years has been prelude.  The day after Roe’s reversal, abortion policy would revert back to the states, which, as author Jeffrey Rosen has written: “would ignite one of the most explosive political battles since the civil rights movement, if not the Civil War.”

In the aftermath of Roe’s demise, some states would ban or severely restrict abortion.  A bigger group of more populous states, mostly along the coasts, would most likely pass laws guaranteeing the same access to abortion they have now.  In the end, as Gerald Rosenberg, a University of Chicago professor who studies state abortion laws, recently said, “My guess is that no more than a dozen states could sustain a total abortion ban, and these are principally states where few abortions are performed today.”

So, what would a post-Roe America look like? According to Nancy Northup of the Center for Reproductive Rights: “I can imagine a fifty-front war going on for the next thirty years.”

Of course, pro-lifers do not believe that the protection of innocent human life should ultimately be left to the states.  We fought a civil war over the conviction that some issues are too fundamental to be decided state by state. Just as slavery was an assault on human dignity, the slaughter of millions of unborn children is an assault on a natural human right that exists prior to, and regardless of, the whims of a majority. 

America’s fundamental commitment to the right to life is made clear in both the second paragraph of the Declaration of Independence (We hold these truths…) and the 14th Amendment to the U.S. Constitution (no state shall, “deprive any person of life, liberty, or property, without due process of law”).

Does this mean overturning Roe v. Wade should not remain a top priority for pro-lifers?  Absolutely not.  Overturning Roe is crucial because it would allow a real discussion about abortion to take place, and that’s a discussion pro-lifers can win.  But in order for that discussion to begin, pro-lifers must first dispel the myths about Roe.