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 on it.

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 country."

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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