Assume for a moment that Justice Anthony Kennedy were to change his mind and vote to overturn Roe v. Wade – or that Judge Sotomayor, if confirmed, were to surprise the President and confound his supporters and vote with the four conservative justices on this subject – what would be the legal, social, and political consequences that would flow from that decision?
I have stated many times in this blog that I think that there are legitimate legal arguments both in support of and in opposition to the Court's decision in Roe. In support of Roe is that for centuries under the common law women had the right to terminate pregnancies before "quickening" because, it was thought, the fetus was not alive until it moved in the womb. Furthermore, the right to terminate a pregnancy is closely related to two other privacy rights which almost everybody would consider to be fundamental – the right to decide whether to have children (including the right to use contraception) and the right of bodily integrity (to do with our own bodies as we wish). The consequences of not according women the right to terminate a pregnancy, at least in its early stages, would be severe – it would mean forcing women to gestate and give birth to a child, which is one of the major events in a person's life and which, at least historically, entailed a substantial risk of death or disability. Finally, because only women would be directly affected by laws prohibiting abortions, there is an Equal Protection component to this problem – men voting for laws that primarily affect women. In opposition to Roe is the fact that neither the right to privacy in general nor the right to terminate a pregnancy in particular are expressly mentioned in the Constitution. There is no evidence that the framers of the original Constitution (1787), the Bill of Rights (1789), or the Fourteenth Amendment (1866) had this right in mind when they drafted these documents, nor that the people who ratified our fundamental law and the changes to it intended to grant women this right. To the contrary, the women's rights movement hardly existed when the Constitution was adopted and was only in its infancy at the time of the Fourteenth Amendment. In the early 19th century scientists learned that life is continuous from sperm and egg to fertilized egg to pre-embryo to embryo to fetus to birth, and in the 1850s the American medical profession came out against the practice of abortion. In response to these scientific developments the overwhelming majority of states enacted laws restricting or prohibiting abortions. The right to choose to terminate a pregnancy was not recognized by the Supreme Court until 1973, and a significant portion of the American population and membership of the Supreme Court has never agreed that Roe was properly decided. Finally, even in light of the substantial consequences that laws prohibiting abortion would have on women, many people believe that these consequences are subordinated by the moral obligation of the government to protect fetal life.
My question to you is, "What would happen if Roe v. Wade were overturned?" What laws would be adopted in the various states and by the federal government? What would happen to women and how would our society be affected? What would be the political ramifications of such an event?
I await your collective wisdom on these points, and on Friday I will respond to your comments.
{ 12 comments… read them below or add one }
it seems impossible that it would be overturned. Then everyone would just go abroad.
Professor Huhn –
Being staunchly against most abortions (unlike the ProLife movement or the Catholic teaching, I think that a very early term abortion – ie aborting a zygote or morning-after solutions are perfectly acceptable – I also think that aborting the severely handicapped fetus early term is understandable), I've often wondered the same thing – what would our country be like if abortion were illegal? I've concluded that the privileged who desire an abortion would go to Canada (or Mexico) and have a procedure over the border – leaving the poor, the drug abusers, and the non-privileged (the very people who are more likely to have special needs children and raise them in poverty or in less desireable neighborhoods) to have their children on the government nickel. ProLifers (who I admire, for the most part) tout adoption as the answer. The "haves" who want to adopt children are usually suburban caucasions and the "have-nots" are more often the women in poverty and 2/5th of them are minorities who would like to bring their pregnancy to full term but can't raise the child. It has been my feeling that the ProLife movement thinks of the caucasions who have and raise the healthy children they didn't plan for in mind during their protests – but is that the reality? As any other controversial issue, how you view this one depends on what lens you view it through. Abortion is a cruel procedure – cutting up and suctioning out a little baby with a heartbeat and a nervous system. How heartbreaking is it that, as of the year 2000, we do this to about 600,000 unborn children per year? It's disgusting and brings tears to my eyes. But what of the alternatives? Giving birth to a drug addicted or alcohol addicted child? Giving birth to a child with spinabifida or hydroencephalitis? Giving birth to an African American child who may never be adopted and possibly live in a loveless foster home his own life. Or, bring a child home to the projects for a life certain to be filled with gangs, drugs, violence? What if we have a law that says those who can't support their own children or have extensively abused drugs or alcohol, or are pregnant with disabled children, etc. etc. can get abortions but the rest of you need to suck it up and have your babies or go to Canada for your abortion? Sounds ridiculous! The closest thing to an answer is easy access to birth control and pregnancy tests for everyone. Prevent the pregnancies and terminate the unwanted ones early, before the zygote becomes a living, little being. It may not make the Catholics happy but it prevents the cruelest of all results.
I don't think much would happen. Most states would adopt policies close to what exist now though there might be a couple outliers on both ends of the spectrum. Some girls would have to cross state lines–big deal.
And I'd guess that taking abortion out of the political mix on the national level would be a good thing.
This country is overwhelmingly pro-choice. According to the Pew Research Center. In 1987 41% of the country favored making it more difficult for a woman to get an abortion and 51% opposed – a ten point margin. A February 2004 Pew poll found just 36% support more abortion restrictions and 58% oppose more restrictions – a 22 point margin.
Overturning Roe v. Wade would be the end of the Republican party if it were Kennedy voting to overturn and Sotomayor upholding the law.
If you believe those numbers above then you see even bigger losses for the Republicans in Congress and the loss of state houses that are now under Republican leadership.
If Sotomayor were to vote in favor of overturning Roe vs. Wade Obama would have a political nightmare on his hands.
In "Abortion under State Consititutions: A State-by-State Analysis" by Paul Bejamin Linton he finds only 12 states that would be likely to recognize a woman's right to an abortion if Roe went down, while pro-choice groups generally believe there are 20.
So we are looking at least about a third of the U.S. population would see access to legal abortions disappear, possible more. I would guess that Larry's big deal might really be that. Prof. Huhn, wouldn't those women be committing a crime by crossing state lines to have an abortion in a state where it is legal?
Then the issue of criminality arises. What is the punishment for women who have illegal abortions? Do we also jail the people performing the procedure? Below I link to an interesting video where someone went to an abortion demonstration and asked the participants what penalty should women face who have abortions. Nobody could answer the question and many had not even thought of that. It's amazing.
See http://www.youtube.com/watch?v=Uk6t_tdOkwo
We also have to look at what happened in Portugal (a 94% Catholic country) with abortions becoming illegal in 1984. Abortion was legalized in Portugal in 2007. I'm not sure most people are going to be comfortable throwing women in jail for three to ten years for having abortions. I know that the women featured in the above video won't like that when it happens. The people in Portugal certainly didn't like that reality.
Because of those very factors I still believe not much would change and most states would keep things fairly close to where they are now, jimmy james.
Interesting premise.
I think it was Dr. Peter Venkman who said "Dogs and cats living together, mass hysteria!"
I would like to think things would go back to where they were before Roe v. Wade. But I fear that the genie is too far out of the bottle. The sexual revolution has come light years in the last 35 years.
One of the problems with using the courts to change public policy is that it can be such a dramatic turnaround that there will not be time for society to grow accustomed to the change. So people will not necessarily react well. I make the assumption that the Supreme Court ruling would make the procedure illegal in all 50 states. (So much would come down to the actual ruling, is it given to the states to decide or just struck down?)
I think there would be an attempt to amend the constitution. The attempt would not be successful. The poll numbers that I have heard do not necessarily agree with Mr James' numbers above. In May, 46% described themselves as pro-life and 43% as pro-choice. But in any case it would be impossible to pass 3/4 of the states. Especially considering the number of so called red states.
In the end I think it would lead to states seceding from the union. I suspect it would go better than the last time. I think we lack the political courage to hold the union together by force.
Of course, I hope that I am wrong.
I don't trust poll figures in regard to the abortion question at all. Given a choice of two, most people pick one or the other. Does that mean everyone who picks 'pro-choice' would vote to outlaw abortion or feels strongly enough to make a confident call in regard to the rights of others? I don't think so.
It is an issue that has gone out of control with vocal minorities guiding debate via slippery slope arguments. Most people probably abhor abortion but simply wish the debate would go away and private choices would remain private.
I meant "pro-life" rather than "pro-choice" in the first paragraph.
RE:"Finally, even in light of the substantial consequences that laws prohibiting abortion would have on women, many people believe that these consequences are subordinated by the moral obligation of the government to protect fetal life."
Moral…schmoral…the duty of the federal government is to enact and enforce legislation that supports the rules of law as allowed by the Constitution. If the government chooses to define the parameters of morality, it crosses the line of establishment of religion by imposing its beliefs on the general population, and women in particular. The status of Roe v. Wade must remain unchanged until such a time when/if there is an incontestable legal definition of the state of being a 'person'. That definition is universal enough that it cannot be left up to the states to decide. It would be discriminatory to women in general if only some states defined 'person' in such a way that it either permitted or denied the right to choose to terminate a pregnancy by the residential zip code of the pregnant woman.
In response to Dave's question, and Professor Huhn feel free to comment, it is my understanding that were the Supreme Court to hold that there was no fundamental right to an abortion under the Constitution, it would then be up to each state to determine whether or not abortion should be banned, because once there is no fundamental right in the Constitution the state or federal government may pass any law so long has it has a rational basis for doing so. Just because the right is not found in the Constitution does not mean a state cannot grant that right. As Professor Huhn notes, there are compelling reasons on both sides of the debate and I would think that at least some states would allow abortions (particularly those smart enough to realize the potential economic windfall of being one of a handful of states to allow the procedure).
On a different note, the aspect I would find most fascinating about a potential overtun of Roe being would be the federal governments response. Prof. Huhn please correct me if I am wrong, but it is my understanding that through the spending clause the government can encourage, but not coerce, states to take certain actions (think speed limits and drinking age). If Roe was overturned, the federal governmant could conceivably control whether states permit abortions or not through its exercise of the spending power. This could make the availability of abortions virtually entwined with the party that resides in power in DC (think Obama and Clinton allowing v. Bush not). If possible, the issue of abortion would become even more politicized. National elections could very well turn on the issue, even more so than today. Such a result would affect not just women but doctors, nurses clinics and others whose employment is tied to providing abortions (to go far from the most perceptible think the janitor who cleans the clinic). These individuals would have to confront each day and live their lives knowing that everything they are currently doing could be completely changed every election.
Jon,
So much comes down to what the court says when they overturn Roe.
My assumption in the exercise is that the court decides that there can be no liberty and pursuit of happiness unless you have a protection of life.
Perhaps we need to ask Prof. Huhn to give us a mock majority opinion and then we could better respond to it.
Been here, done that argument, so I wont re-hash the legal consequences. My position should be known from past discussions.
I'm not a student of politics. Corruption and kissing-up to or cowtoeing to the masses just doesn't interest me.
However I would like to tickle the social aspect a bit. Who avails themselves of an abortion? Do we really know? I doubt there are any statistics. I'd wager that those in social services could give an earful about its use by the poor or drug addicts. If only it were used by those who neither have the means or the inclination to parent. Are we seeing that many fewer "unwanted," unabused or neglected children? My guess is abortion is more likely to be used by those who would find a baby an inconvenience at some particular time of their life (education, career, social embarrassment) and who could afford a "get-away" vacation with a minor medical procedure thrown in on the side.
So, I think the "burden on the poor" arguement is a red hearing.
Also in the social arena, is the moral aspect. This does intrigue me. It's at the core of SCOTUS's trip into the "twilight zone" with their "condom in the drugstore" decision. Without Roe, imagine the soul searching, the campaign ads, the threats, the clergy's damning of souls, the bribery, the hypocracy (oops have I crossed out of the moral arena and into political?) everytime the issue came up for a vote either by a legislature or the populace.
Let's leave Roe alone. Neither our leaders nor the people have the intellect or the wisdom to make such heady judgments. That's why we have SCOTUS. Long live SCOTUS (said with only half "tongue in cheek.")