This article originally appeared in our July 2006 issue.
The confirmation of two conservative Supreme Court justices and the passage of a draconian abortion ban in South Dakota have again thrown the precarious state of reproductive rights in the United States into sharp relief. It's a serious moment -- which makes the continued preference for clever counter-intuition and abstract debates shared by many of the nation's prominent, avowedly pro-choice pundits all the more troubling.
It is difficult to know when a contrarian idea has been repeated so much as to become the new conventional wisdom. At least in prominent liberal media outlets, however, the argument that pro-choicers would be better off abandoning Roe v. Wade has probably crossed the line. In The Atlantic Monthly, Bejamin Wittes' 2005 article asserting that Roe v. Wade has been deeply unhealthy for abortion rightswas followed up by a similar (although more detailed and nuanced) article in the June Atlantic by Jeffrey Rosen, also a prominent Roe critic in The New York Times and The New Republic. Richard Cohen opined in the pages of The Washington Post (after sniffing that he no longer see[s] abortion as directly related to sexual freedom or feminism) that liberals should untether abortion rights from Roe.Slate's William Saletan took to the Post op-ed pages also to argue on behalf of moving beyond Roe and to dismiss the decision as obsolete.The argument usually contains an added political component -- that overturning Roe would prove a boon to Democrats by waking a majority pro-choice electorate from its apathetic slumber.
The claim that overturning Roe would be no big deal for reproductive freedom and a boon to progressive politics may be ossifying into strange center-left conventional wisdom, but it's still wrong. These arguments are almost certainly too optimistic about the legal framework likely to emerge if the decision is gutted or overturned. And, not surprisingly given the extent to which affluent men safely ensconced in liberal urban centers dominate the liberal pundit class, the arguments also greatly understate or ignore the stark class and geographic inequities in abortion access that would inevitably manifest themselves in a post-Roe world. All the while, they greatly overstate the alleged political benefits of turning abortion into 51 fierce battles at the state and federal level.
The Impact on Reproductive Rights
In its strongest form, the anti-Roe, pro-choice argument holds that ending constitutional protections for abortion would have little effect on access to it. Rosen, in his recent Atlantic article, suggests that access to abortion wouldn't necessarily become less widely available than it is now. The implication of the argument is that support for legal abortion has become sufficiently well-entrenched that it will (with the exception of a handful of regional outliers where abortion is already all but de facto banned) easily survive the overturning of Roe.
Stated this way, the argument is transparently incorrect. According to data compiled by the Center for Reproductive Rights, were Roe overturned, abortion would immediately become illegal in 13 states, and there would be significant risk of new abortion bans in 20 other states. Obviously, to go from abortion being legal in all 50 states to a situation where abortion is illegal in 15 to 30 states cannot be seen as anything but a significant blow for reproductive rights. The question is not whether overturning Roe would be bad for reproductive rights, but how bad it would be.
The somewhat weaker claim is that while overturning Roe would be suboptimal, the effects on abortion access would be very modest, and legislative outcomes would represent a stable compromise that pro-choicers should be able to live with. This argument is premised on a number of fundamental errors.
Although one can quibble about how optimistic to be, Roe's centrist critics are right that a significant number of abortions will continue to be performed even if the decision is overturned. Roe wasn't terribly important to affluent women, who, as scholars such as Mark Graber have demonstrated, either had the connections necessary to obtain abortions on the gray market or the resources to travel to states where abortion was formally legal. Affluent women in urban centers have access to safe abortions under any legal regime. But for poor women, especially those in rural areas, Roe matters a great deal.
Because it did not contain a guarantee of state funding, Roe has often been portrayed as conveying meaningful rights only to the middle class. But according to the most recent data compiled by the Allan Guttmacher Institute, in 2000 57 percent of women obtaining legal abortions lived at less than twice the federal poverty level -- showing that even the negative right declared in Roe significantly bolsters access for poor women. While it is difficult for poor women to get abortions in some states, this difficulty has sometimes been exaggerated, and the fact that regulations in the post-1992 era of Planned Parenthood of Southeastern Pennsylvania vs. Casey already significantly restrict abortion access in various places is a compelling argument against the further gutting of judicial protections, not in favor of it. While a few states (including, as Rosen emphasizes, South Dakota) currently have a relatively small number of abortion clinics, the difference between having three abortion clinics in a state and none is a distinction of actual significance. The erosion of abortion access that has taken place should not be used to bootstrap arguments that make much more erosion inevitable. Whether conservative states respond to the overturning of Roe by banning abortion outright or passing draconian regulations, the outcome would be the same: little effect on affluent women, but severe effects on poor women lacking the knowledge or resources to find doctors who can interpret the law in a favorable manner.
Abortion centrists generally see formally legal but highly regulated first-trimester abortion as an acceptable (and, in some cases, desirable) compromise. Rosen claims that when the dust settles, in five or 10 or 30 years, early-term abortions would be protected and late-term ones restricted. His prediction demonstrates the extent to which abortion centrists have uncritically accepted the rhetorical frames of the anti-choice lobby. Most abortion regulations, in fact, have nothing to do with the age of the fetus, and Roe and Casey permit late-term abortions to be regulated (with a health exemption) anyway. More typical abortion regulations include such impediments as waiting periods, parental consent and notification, and restrictions on abortion clinics. All of these regulations compound inequities inherent in any legal restrictions on abortion, and they have undesirable effects even if they don't result in women being thrown in jail.
It is regrettably true that under Casey's vague undue burden standard, such regulations have already begun to proliferate. But removing any legal restrictions on the ability of states to regulate abortion would make things worse, not better, and would allow creative anti-choice legislators to devise regulatory schemes that have the same effect in practice as abortion bans. Ohio, for example, passed a regulation requiring clinics to obtain a written transfer agreement from a surgical hospital in the case of an emergency; the state denied a waiver to a Dayton abortion clinic that couldn't obtain one and ordered it to close. Though the neutral justification for such a regulation is farcical, the 6th Circuit Court of Appeals remarkably claimed that the regulation did not constitute an undue burden.
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