Boston Globe, November 14, 2004
What happens if
Roe is overturned?
By Drake Bennett, Globe Staff
ABORTION DIDN'T GET much airtime in the 2004
presidential campaign, but after the votes
were counted it didn't take long for the issue
to bubble to the surface. The day after the
election, Senator Arlen Specter (R-Pa.) called
down the wrath of the freshly emboldened right
wing of his party, and endangered his ascension
to the chairmanship of the Judiciary Committee,
by letting slip that he thought it "unlikely"
that nominees to the federal judiciary "who
would change the right of a woman to choose"
would be approved by the Senate.
Meanwhile, over in the executive branch, President
Bush nominated White House counsel Alberto
R. Gonzales to succeed John Ashcroft as attorney
general -- in part, Republican insiders told
reporters, as a stepping stone to a future
Supreme Court appointment, a way to "burnish
[Gonzales'] credentials with conservatives"
who were leery of his insufficiently hard line
on affirmative action and, in particular, abortion.
All of this has played out against the backdrop
of 80-year-old Supreme Court Chief Justice
William H. Rehnquist's treatment for thyroid
cancer. When it comes -- and it looks to come
soon -- the confirmation battle over Rehnquist's
successor will be fought most bitterly over
Roe v. Wade, the 1973decision that gave constitutional
protection to a woman's right to an abortion.
With Bush likely to appoint as many as three
justices during his second term, and with social
conservatives expecting a reward for their
loyalty at the polls, Roe looks as vulnerable
as it's been in a long time. But if it goes,
today's Republican coalition, paradoxically
enough, could end up going with it. And that
may be Roe's best guarantee of survival.
Of course, it's easy to overstate the chances
of Roe's demise. Rehnquist already opposes
Roe, so two of the six current justices who
oppose bans on early-tern abortions would also
need to retire and be replaced by Roe opponents
for the calculus to change.
That's not likely in the near future -- but it's
not impossible. And then what? What would happen
if the High Court effectively washed its hands
of abortion and left it up to legislators?
Ask pollsters and political scientists, and
the word "chaos" comes up a lot.
In all likelihood, after fierce political brawling
in statehouses across the country, a crazy
quilt of differing laws would emerge, with
some states keeping abortion widely available
and others placing a range of restrictions
A few states might ban abortion altogether, though
estimates of just how many vary considerably.
A month before the election, the Center for
Reproductive Rights, an abortion rights advocacy
group, announced that without Roe, 30 states
would likely outlaw abortion. Naral Pro-Choice
America puts the number at 12. Certain states
have passed so-called "trigger laws"
that would outlaw abortion as soon as Roe were
overturned. Others that were included in the
tallies have statehouses controlled by politicians
vehemently opposed to abortion. (Massachusetts,
like 12 other states, still has a pre-Roe abortion
ban on the books. Since it's among the most
abortion-friendly states in the country, however,
this statute would almost certainly be repealed.)
Even in some of those states pegged as most likely
to outlaw abortion, it would be no easy thing.
For example, Naral's list includes Minnesota,
on the basis of the antiabortion stance of
both the state's governor and a majority of
its state legislators. But pollster Rob Daves
of the Minneapolis Star-Tribune has found that
66-70 percent of Minnesotans consistently say
that the decision to have an abortion should
be between a woman and her doctor.
Even in Louisiana, one of the least abortion-friendly
states in the country, 52 percent of registered
voters in an October poll said abortion should
be "sometimes legal" (13 percent
said "always legal," 31 percent said
"never legal"). According to Susan
Howell, a political science professor at the
University of New Orleans and a longtime observer
of Louisiana politics, "There are certainly
plenty of Republicans in this state that are
ambivalent" about abortion. Plenty, she
goes on, are even pro-choice.
The rub, of course, is in what, exactly, "mostly
legal" means. A 2002 survey conducted
by the National Opinion Research Center found
that while strong majorities thought abortion
should be legal in cases of rape or a strong
likelihood of birth defects, less than half
thought it should be legal if a woman simply
didn't have enough money to support another
child. If those sorts of attitudes were codified
into law, as they would be in some states,
it would take a lot of the choice out of the
right to choose.
Technically, nothing would prevent the US Congress
from getting in on the act. "The most
extreme thing imaginable," says Roger
Evans, a lawyer with Planned Parenthood, "is
that the Congress goes kind of hog-wild and
enacts laws to prohibit abortion across the
Such a bill, however, would only make clear to
everyone what's widely acknowledged among pollsters
who follow the issue: that overturning Roe
would decimate the Republican Party. According
to Karlyn Bowman, a resident scholar at the
American Enterprise Institute who has looked
at poll data going back to Roe, the country
has had a remarkably consistent pro-choice
majority for 30 years. How big depends on how
the question is asked, but in a Gallup poll
early last year, 66 percent said abortion should
be "generally legal" in the first
trimester, 25 percent in the second trimester,
and 10 percent in the third trimester. And
it's a durable majority, says Bowman. "There's
remarkable internal consistency on the polls,
the numbers just do not move."
Nor can this majority opinion be seen as simply
a product of the Supreme Court's imprimatur,
and one that would therefore erode if the Court
reversed itself. In a Gallup poll taken a year
before Roe was decided, 64 percent of Americans
said they thought the decision to have an abortion
should be between a woman and her doctor. In
light of figures like these, Justice Ruth Bader
Ginsburg, who supports Roe, has nevertheless
argued that the sweep of the Supreme Court's
decision in Roe short-circuited a pronounced
move in the early 1970s toward liberalizing
state abortion laws and triggered the antiabortion
backlash the followed.
What shifts there have been in public opinion,
says pollster John Zogby, have been due to
what he somewhat dramatically calls "cataclysmic
events" like the murder of the obstetrician
Barnett Slepian in 1998 or the debate over
so-called "partial-birth" abortion
during the past couple of years. The reversal
of Roe, he believes, would be another such
cataclysm, tilting the field to abortion advocates.
As for the Republican Party, Ann Stone, chairman
and founder of Republicans for Choice, says,
only half in jest, "There would be revolution
in the streets! I've said that to [Karl] Rove
to his face, and I think he believes it."
With Roe in the judicial dustbin, arguments
against abortion could no longer be couched
in the language of state's rights and judicial
activism that Bush used on the campaign trail.
In all likelihood, the party would have to
make good on the commitment, enshrined in its
platform, to outlaw abortion.
This prospect would divide the Republican Party's
moderate and conservative wings in a way that
nothing else could. According to a Pew Research
Poll conducted early this year, 43 percent
of Republicans opposed "making it more
difficult for a woman to get an abortion."
(Democrats, incidentally, are much more united
on the issue; in the same poll only 23 percent
favored making it more difficult for a woman
to obtain an abortion.)
Not all of these Republicans would be willing
to desert their party over the issue, but enough
of them would to make the difference in a closely
divided electorate. As Zogby puts it, "This
could induce a walkout of pro-choice Republicans,
as well as soccer moms, security moms, and
other sort of moderate, on-the-fence voters.
This would be tantamount to the Pat Buchanan
[Republican National Convention] speech of
1992 and then some."
None of which can much appeal to Republican strategists
who have grown comfortable with the current
arrangement of at once blaming and relying
on the court for legalized abortion. Which
is why we may see the White House go with Gonzales,
unburnished credentials and all, as its second
Supreme Court nominee if a more anti-Roe judge
gets Rehnquist's spot. To paraphrase a famous
Republican, the party just likes having Roe
to kick around.
Drake Bennett is the staff writer for Ideas.
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