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.

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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 Court's credibility.
• Garrow suggests that some groups active in the abortion field are behaving deceptively:
  • 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 abortion."

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 being overturned:
  • 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 liberal:
  • 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 v. Wade:

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 return trip.
• 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 country?

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 assigned the same set of human rights as do newborns, infants, children and adults. These rights 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." ₈

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 office." ₅

Lack of unanimity within pro-life groups about the path forward:

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 the anti-abortion bill:

• 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." ₇
• 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." ₇
• 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 state Legislature.
• 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

Related essay:

• Laws restricting abortion in the U.S. and Canada

References:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

1. 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.
2. David Garrow, "Liberty & Sexuality: The right to Privacy and the Making of Roe v. Wade," McMillan, (1994).
3. "Scalia on the Constitution," About.com, at: http://usgovinfo.about.com/
4. "S.D. House Outlaws Abortion," Sioux City Journal, 2006-FEB-11, at: http://www.siouxcityjournal.com
5. "Bush disagrees with South Dakota abortion ban," Agence France Presse, 2006-FEB-28, at: http://news.yahoo.com/
6. "Election of Matt Blunt Signals Reemergence of Missouri Pro-Life Values," Americans United for Life, 2004-NOV-03, at: http://www.unitedforlife.org/
7. Matt Franck & Jonathan Rivoli, "Missouri anti-abortion leaders question strategy of bills to ban procedure," St. Louis Post-Dispatch, 2006-MAR-02, at: http://www.stltoday.com/
8. "Is Roe v. Wade doomed? The abortion battle is heating up as states pass anti-abortion bills," ABC News, 2006-MAR-03, at: http://abcnews.go.com/

Copyright � 2004 & 2006 by Ontario Consultants on Religious Tolerance
Latest update: 2006-MAR-12
Author: B.A. Robinson

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