Abortion in the U.S.
The future battle over women's access to abortion;
The impact if Roe v. Wade is overturned;
State bills to criminalize abortion;
Division in the pro-life movement.
Factors that might preserve Roe v. Wade:
Syndicated columnist Robert Landauer suggests that Roe v. Wade is "in no
immediate danger of repeal." He basis his opinion on the writings of David
Garrow, a legal historian from Emory University.
- Garrow believes that Roe v. Wade is in "a tiny category of decisions"
with such huge impact that its reversal would fundamentally damage the Supreme
- Garrow suggests that some groups active in the abortion field are behaving
- He suggests that pro-choice groups are suggesting that Roe v. Wade is in
immediate danger in order to maintain their membership, financial support,
and their own relevancy.
- Pro-life groups have concentrated on prohibiting women's access to late
term abortions. Although they are theologically opposed to abortions at all
stages of gestation, some of the public are concluding that pro-life groups
find early abortions more acceptable.
- Both pro-life and pro-choice groups are portraying the situation as
worse than it really is.
- The President is not interested in appointing pro-life justices who
would be inclined to overturn Roe because of the damage that would do to the
Republican party. A recent Associated Press poll showed that most American
adults want justices who would uphold Roe. Nominating an anti-Roe jurist
would be a massive political gift to the Democrats. 1,2
The impact on abortion access if Roe v. Wade is reversed:
Nancy Northup, president of the Center for Reproductive Rights
commented in a news conference in 2004-OCT that: "The building blocks are already in place to recriminalize
She suggests that:
- Eighteen states have laws still on the books that pre-date Roe v. Wade
and which totally or partially ban abortion access. In Alabama and some
other states, a reversal at the Supreme Court level would allow existing state
laws to be immediately enforced. In some states, courts have issued
injunctions have blocked enforcement of these laws. Those injunctions could
be quickly appealed so that the laws would become enforceable once again.
- Other states, like Ohio, have a legislature and governor who strongly
oppose abortion access. They would probably pass laws quickly which would severely
restrict abortion access.
- Thirty states might ban abortion within twelve months of Roe v. Wade
- High risk states for a quick ban are: Alabama, Arkansas, Colorado,
Delaware, Kentucky, Louisiana, Michigan, Mississippi, Missouri,
Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, Rhode Island,
South Carolina, South Dakota, Texas, Utah, Virginia and Wisconsin.
- Medium risk states are: Arizona, Georgia, Idaho, Illinois, Indiana,
Iowa, Kansas, New Hampshire and Pennsylvania.
- Twenty states are at low risk, either because they have passed laws
guaranteeing abortion access, or because their legislatures are more
- Low risk states are: Alaska, California, Connecticut, Florida,
Hawaii, Maine, Maryland, Massachusetts, Minnesota, Montana, Nevada, New
Jersey, New Mexico, New York, Oregon, Tennessee, Vermont, Washington,
West Virginia and Wyoming. 3
- More than 70 million women of childbearing age
would be affected by state legislation to restrict abortion.
Tony Perkins, president of the Family Research Council, a Fundamentalist
Christian organization, suggests that that 30 or more states would quickly pass
legislation to restrict abortion if Roe v. Wade were overturned. He said:
"The court is out of step with the rest of America. I have no doubt that you
would see a majority of the states take action to protect unborn children and
their mothers." 3
A year or two after the reversal of Roe v. Wade,
there would probably be a patchwork pattern of states -- some criminalizing
abortion and some keeping it legal and accessible. States like: Hawaii; a strip
of states which border Canada, from New England to Minnesota, plus
Illinois; and three contiguous west coast states: Washington, Oregon, and
California might retain abortion access. Most of the rest -- the entire south
and mid-west of the U.S. would probably re-criminalize abortion.
The impact on women of the overturning of Roe
There would be a number of impacts on a woman
seeking an abortion if Roe v. Wade were overturned:
- If she happened to be one of the 70 million
women living in a state where most abortions were re-criminalized, she would have
the additional cost and difficulty of traveling to an out-of-state abortion
clinic where abortions were still available. She would have to take an
inter-state flight or endure a long drive, make arrangements for
accommodation, etc. This would probably add a few hundred dollars to the
total costs associated with the procedure -- much more if she were
accompanied by a friend or family member.
- She would be placed at increased risk to her
health, because she would probably be unable to obtain quick medical
attention in the unlikely event that a complication materialized on her
- In the very unlikely scenario that the U.S.
Supreme Court criminalized abortion across the entire country, women would
have to travel to Canada, Europe, or some other country for an abortion.
Could abortion be criminalized across the entire
During 2005, Chief Justice Rehnquist consistently voted with the Supreme
Court's most conservative members: Justices Scalia and Thomas. Justice Sandra
Day O'Connor frequently provided a swing vote. By early 2006, Chief Justice
Rhenquist had died, Justice O'Connor had retired, and Chief Justice Roberts and
Justice Alito had been confirmed to the Supreme Court. The net change was the
replacement of a swing vote by a strict constructionist,
conservative vote. On ethical, moral, and religious matters we expect that Chief
Justice Roberts, and Justices Alito, Scalia and Thomas to vote as a four person
block. That means that all five remaining justices would have to
agree in order to render a non-conservative ruling.
With the new court structure, Roe v. Wade might be overturned in a way that
simply restores the abortion situation to the pre-1973 condition, where abortion
was controlled by the individual states. In some areas of the country, women
would be freely able to obtain an abortion; in others, they and particularly
their doctors would risk imprisonment.
It might be possible for the the U.S. Supreme Court could go further by
issuing a ruling defining full human personhood as
beginning at conception. That is, a pre-embryo, embryo, and fetus would all be
the same set of human rights as do newborns, infants, children and adults. These
would include the right to not be deprived of life. Such a move could criminalize all
elective abortions throughout the U.S. by making murder statutes applicable to
the products of conception at all stages from pre-embryo to advanced fetuses to
about-to-be born fetuses. Most observers consider the likelihood of
this happening to be remote.
Various state bill criminalizing abortion:
A South Dakota bill, HB1215, might provide the path by which the Supreme Court
could overturn Roe v. Wade. Two versions of the bill passed the House and Senate
in 2006-FEB with strong majorities. 4 The governor is expected to receive the bill
by 2006-MAR-03. More details. A similar state bill has
been filed in Missouri; one has
passed the Mississippi house. Legislation is also being introduced and/or
drawn up in Alabama, Georgia, Indiana, Kentucky, Ohio, Rhode Island, South
Carolina and Tennessee. 8
Nancy Keenan, president of NARAL Pro-Choice America, said: "What we are
seeing is that these states are emboldened by the climate in this country. They
see a pro-life president, a pro-life Congress and Senate, and a president who
nominated two members to the Supreme Court who he said would be in the mold of
[Justices] Scalia and Thomas." 8
Eve Gartner, senior staff attorney for Planned Parenthood, said in a
statement following the South Dakota ban. "Across the country, state
politicians are creating a gauntlet of anti-choice laws and regulations to make
it more difficult for women to get the best and safest reproductive health-care
services. South Dakota's ban is the most sweeping abortion ban passed by any
state in more than a decade. Planned Parenthood will go to court to ensure
women, with their doctors and families, continue to be able to make personal
health-care decisions © not politicians."
President George W. Bush indicated his opposition to some of these state
bills that criminalize abortions. Although he favors severely restricting
abortion access, he feels that exceptions should be included in the bills in
case of rape or incest. He told ABC news in an interview: "That, of course,
is a state law, but my position has always been three exceptions: Rape, incest,
and the life of the mother." When asked if he would include a health
exception, he said: "I said life of the mother, and health is a very vague
term, but my position has been clear on that ever since I started running for
Lack of unanimity within pro-life groups about the
There appears to be a lack of agreement among pro-life groups over bills that
would criminalize virtually all abortions.
- Some in the movement would prefer to continue with their past
strategy of tightening up access to abortion by requiring parental consent,
necessitating parental notification, or introducing new restrictive
regulations for abortion clinics.
- Others feel that now (early 2006) is the best time to launch laws that
will eventually find their way to the U.S. Supreme Court where they might
have an excellent chance of overturning Roe v. Wade. This would release each
state to create its own laws concerning abortion.
Nancy Keenan, president of NARAL Pro-Choice America, said: "I think most
Americans have been watching a stealth strategy. But now they're coming out from
behind the curtain....Both sides are dangerous. Both sides are infringing on
freedom. They both share the goal of overturning Roe....Our people are
angry and motivated, and they continue to believe that politicians should not be
involved in a decision that's between a woman, her family and God."
In Missouri, the split in the pro-life movement has become obvious. There appears to be considerable support for delaying
- Gov. Matt Blunt has a history of solid support for the pro-life
movement. 6 But he
discussed a general abortion ban with reporters on 2006-MAR-02: He
said: "I'm not convinced it's necessary."
- Reporters for the St. Louis Post-Dispatch
wrote: "...some leaders in the solidly anti-abortion Legislature
say the ban is not a top priority for legislators."
- Sam Lee, of Campaign Life Missouri -- a group opposed to abortion
access -- said: "The pro-life community is divided on what the
best strategy is." He feels that it is too early to test the new makeup
of the U.S. Supreme Court;. He is concerned that the views of Chief Justice
John Roberts and Justice Samuel Alito remain unknown.
- Larry Weber, spokesperson for the Missouri Catholic Conference
said: "I'm very disinclined to bring cases that intended to overturn Roe
v. Wade without knowing if we have the votes" to accomplish it.
- Patty Skain, spokesperson for the Missouri Right to Life said
that she shares Crowell's goals but feels that the timing is not right.
- Tom McClusky, spokesperson for the Family Research Council, a
Fundamentalist Christian group, said: "It's a brand-new world for
pro-life people right now. You've got people who are cautious and people who
think it's not a time for caution."
- Senate President Pro-Tem Michael Gibbons, (R-Kirkwood) suggests that
there is no need for a bill to restrict abortion in Missouri when other
states like South Dakota are proceeding
independently. He indicated that the bill is not a high priority for the
- Senator Sen. Chuck Graham, (D-Columbia), believes that legislators may
not allow the bill to proceed. Many anti-abortion senators and
representatives are uncomfortable with a bill that does not provide an
exception for rape or incest. He said: "What some of them fear is being
pinned down on each one of those votes."
Lee, of Campaign Life Missouri is concerned that an immediate approach
to overturn Roe v. Wade might backfire. The U.S. Supreme Court might refuse to
hear an appeal on the Missouri law or on some similar piece of legislation.
Other pro-lifers fear that the court could issue a ruling which actually
supported abortion access. McClusky of the Family Research Council said
that the court ruling: "...might just further validate Roe v. Wade, which is
one of the fears." 7
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- Robert Landauer, "Roe v. Wade in no immediate danger of repeal," Newhouse News Service, 2004-DEC-12, published in Honolulu Star-Bulletin,
Page F5 & F8.
- David Garrow, "Liberty & Sexuality: The right to Privacy and the
Making of Roe v. Wade," McMillan, (1994).
- "Scalia on the Constitution," About.com, at:
- "S.D. House Outlaws Abortion," Sioux City Journal, 2006-FEB-11, at:
- "Bush disagrees with South Dakota abortion ban," Agence France
Presse, 2006-FEB-28, at:
- "Election of Matt Blunt Signals Reemergence of Missouri Pro-Life Values,"
Americans United for Life, 2004-NOV-03, at:
- Matt Franck & Jonathan Rivoli, "Missouri anti-abortion leaders question
strategy of bills to ban procedure," St. Louis Post-Dispatch, 2006-MAR-02,
- "Is Roe v. Wade doomed? The abortion battle is heating up as states pass
anti-abortion bills," ABC News, 2006-MAR-03, at:
Copyright © 2004 & 2006 by Ontario Consultants on
Latest update: 2006-MAR-12
Author: B.A. Robinson