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. To preserve any meaningful reproductive rights against such tactics, courts will have to become more, rather than less, vigilant.
Currently, legislatures are prohibited from passing laws (such as the spousal notification provision struck down in Casey) transparently designed to limit abortion access rather than serve some legitimate state interest. If Roe is overturned, courts will no longer be able to strike down such laws -- and it is precisely these kinds of regulations that must be the focus of any productive assessment of the consequences of overturning Roe. Moreover, contrary to the oft-heard but bogus claim that overturning Roe would return the issue to the states, it's also possible that Congress could enact federal versions of such measures, rendering universal the chilling effects of arbitrary abortion regulations.
It's also worth noting that the centrist pro-choice position is (to borrow O'Connor's famous phrase) on a collision course with itself. Saletan and Rosen extol the virtues of regulating late-term abortions as the centerpiece of an abortion compromise. But the most common and popular abortion regulations in fact make first-trimester abortions considerably harder to obtain, by compelling women to navigate an irrational regulatory obstacle course. (In Mississippi, second-trimester abortions among women relying on in-state providers increased more than 50 percent after the state enacted a waiting period requirement.) The contrarian anti-Roe position contains internal contradictions its adherents never resolve.
These pundits cite public opinion polls showing support for their pet compromise policy -- legal first-trimester abortions -- as evidence against worrying about Roe's disappearance. One baffling aspect of this debate is the extent to which people who should know better assume that legislative outcomes represent unmediated manifestations of popular opinion. In fact, American legislatures are majoritarian in neither theory nor practice (indeed, although public opinion about abortion in 1973 was essentially the same as it is today, abortion was illegal in 46 out of 50 states). And it is likely that several aspects of legislative politics will skew outcomes toward an anti-choice position. First, the de facto exemption from abortion laws that affluent women enjoy means that the women with the highest stake in the outcome of the debate have the least political clout. Second, anti-choice activists can take advantage of the paradox in public opinion, where majorities oppose the outright criminalization of first-trimester abortions but also favor regulations that collectively have the same impact as an outright ban. And third, because smaller, more rural states are more likely to have culturally conservative legislators, federalism will tend to make legislative outcomes more anti-choice than national opinion surveys would suggest.
The Political Impact of Overturning Roe
The claim that overturning Roe would not be a significant blow for reproductive freedom, therefore, is plainly wrong. But there is another element to the pro-choice, anti-Roe argument: Overturning it will be good for Democrats and progressives. For millions of pro-choice voters complacent in the knowledge of abortion's constitutional protection, so this argument goes, the overturning of Roe would suddenly make abortion a voting issue. Moreover, Roe's fall would, in Rosen's words, put pro-life legislators in an agonizing position, forcing them either to deliver uncompromising abortion bans to base voters or to incur their wrath through appeals to swing voters. Though this argument has a surface plausibility, balancing the relevant factors suggests against abandoning Roe for political reasons.
Arguments about the immense political benefits to be reaped if Roe is overturned tend to be premised on vastly overstating the effects of abortion on voting behavior. Voters cast ballots based on a complex matrix of issue positions and personality heuristics; the difference that any particular issue makes is often very small. The idiosyncrasies of American politics would, moreover, mitigate any post-Roe electoral bounce for Democrats. The states in which Roe's overturning would be the most clearly unpopular are also the states where the Democrats are already dominant. It's far from clear which state the Democrats lost in 2004 that they would win if Roe were overturned. The congressional situation is similar. The Senate's gross malapportionment overrepresents states where overturning Roe would do little damage to the GOP, and sophisticated computer gerrymandering along with the other advantages of incumbency in the House of Representatives make for very few contested seats no matter which issues are in play. In other words, overturning Roe might help the Democrats in generic national polls, but much less so in terms of taking back control of federal institutions.
Speculations about the political benefits of overturning Roe also assume it would be overturned in a forthright manner. This is, however, a highly questionable assumption. Much more likely is what we've already seen happen: a brick-by-brick dismantling that produces virtually the same policy effects without even the modest Democratic political benefits to be derived from the popular reaction to a single dramatic decision. The championing of allegedly reasonable regulations of abortion by centrist pro-choicers has handed a loaded weapon to opponents of abortion rights, who can regulate Roe to death while keeping the political backlash to a minimum.
Another commonly heard argument is that Roe has been bad both for choice and for the Democrats because judicial interventions into contested political issues produce a much greater backlash than legislative interventions. Wittes, for example, says that since its inception Roe has had a deep legitimacy problem, stemming from its weakness as a legal opinion and that legislative compromises tend to be durable, since they bring a sense of resolution to divisive issues by balancing competing interests; mustering a working majority to upset them can be far more difficult than rallying discontent against the edicts of unelected judges. Both sides of the abortion debate regularly make this argument, and its only flaws are that there's no compelling theory and no empirical evidence to support it.
Consider, first, the theoretical premises underpinning Wittes' argument. He makes a claim -- also famously made by Ruth Bader Ginsburg -- that Roe created a backlash because of its poor judicial craftsmanship. This is, to put it mildly, implausible. In general the public ignores legal reasoning and evaluates judicial opinions based on results; Roe in particular has always had a similar degree of public support as the legalization of first-trimester abortions. Wittes also has -- as do most proponents of the countermobilization hypothesis -- a romanticized vision of the legislative process and a reductionist conception of how judicial review operates. The modest abortion liberalization reforms enacted by a minority of state legislatures before 1973 are better described as logrolling among legal, medical, and legislative elites than as painstaking deliberative compromises. Judicial policy making, meanwhile, often involves balancing competing interests rather than absolutist rights claims -- Planned Parenthood v. Casey is a paradigmatic example of this. And there is no reason to believe that religious and ethical arguments about abortion are any less divisive than legal arguments.
But, ultimately, the proof of the pudding is in the eating. The pre-Roe period in state legislatures does not in any way comport with the romantic myths now being peddled by anti-Roe centrists. Far from being satisfied with legislative compromises, anti-choice activists were so well-mobilized in response to a few legislative reform laws that liberalization at the state level was essentially dead by the time Roe was handed down in January 1973. Debate in the state legislatures was divisive: In New York, Governor Nelson Rockefeller had to veto a 1972 re-criminalization bill that passed after a rancorous debate featuring an anti-choice legislator waving a fetus in a jar on the assembly floor. Neither women's groups nor anti-choice groups were happy with the common compromise legislation. The National Review wrote more about abortion in the three years before Roe than in the three years after. Meanwhile, the Canadian Supreme Court created the most liberal abortion regime of any Western democracy and yet, despite that judicial intervention, abortion is not a particularly salient issue in Canadian politics. The evidence is overwhelming that abortion is a divisive issue in the United States because it is divisive, not because of procedural objections to the methods by which policy has emerged.
Abortion centrists appear to take cultural conservatives at their word when the latter say they'd be mollified if only the courts stepped out of the debate. But cultural reactionaries employ anti-elitist rhetoric against any and all institutions they are hostile to, not just against activist judges. Consider the anti-gay constitutional amendment in Colorado struck down by the Supreme Court in Romer v. Evans, which was passed as a response to the protection of gay rights by democratically elected city councils. Affirmative action and the recent eminent domain decision in Kelo are also instructive examples: Conservatives are able to mine fury against courts that refuse to overturn the policies of democratically accountable officials. Arguments against judicial activism are equally applicable against elites and Congress and those bureaucrats down at the state capital. To believe this resentment would go away if only the courts gave up protecting abortion is to be stuck in a dream-like state in which politics functions as it does in bad sixth-grade civics textbooks.
A related argument is the claim that the use of litigation has made pro-choice groups lazy and complacent about reproductive freedom, and that returning abortion to the legislatures would mobilize pro-choice voters and toughen the movement. To the extent that this argument relies on claims about the demobilizing effect of litigation, the evidence is scant. Recent legal and political science scholarship has convincingly rebutted assumptions that litigation and other forms of political activism exist in a zero-sum struggle for resources; in fact, one often positively builds on the other. Nor is the argument persuasive in the specific case of abortion. Bill Clinton's veto of legislation banning partial-birth abortion -- legislation that was both very popular and likely to be struck down by the courts anyway -- was hardly a sign of a movement lacking in political clout. Abortion was one of the few issues that Clinton never crossed his base on, a fact that ill supports the notion that Roe has weakened the pro-choice movement.
Arguments about the political benefits of overturning Roe ultimately prove too much. By the same logic, one can argue that allowing Social Security to be privatized would create tensions in the conservative coalition and a backlash that might help Democrats politically. This is hardly good reason to hope that it happens. The fact that commentators making the political case for abandoning Roe never apply the same logic to other issues reflects a general tendency to take women's rights less seriously. That same unseriousness is revealed by the fact that pundits searching for issues on which Democrats can appeal to social conservatives are more likely to cite abortion than, say, church-and-state issues, where the liberal position is far more unpopular and compromises would have far less direct impact on people's lives. Ultimately, to call these contrarian arguments pro-choice is a non sequitur. They're only compelling if the value of protecting a woman's right to choose is accorded almost no weight.
Indeed, what is finally most intolerable about the new anti-Roe consensus is just this willingness to throw the rights of others under the bus while patting oneself on the back for making noble compromises. It is certainly easy for men living in blue state urban centers -- who know that no woman in their family or social circle will ever be denied a safe abortion -- to casually dismiss the importance of the rights of poor women in the two dozen states at high risk of banning or severely restricting access to abortion in a post-Roe world. The legislative compromises celebrated by the contrarians involve sacrificing the rights of those women and allowing legislators to severely restrict abortion without paying a significant political price. This is an outcome that should not be acceptable to any progressive. Core rights are not a field where expediency should trump principle, and a moment like this is no time for elite commentators -- if they really do support reproductive rights -- to waste ink on cute debating games.