What would happen if Roe v. Wade was overturned?
I should start by making something clear: even if Justice O'Connor is replaced by James Dobson himself, it is highly unlikely that Roe v. Wade will be overturned any time soon. There are still five Justices on the Court (Kennedy, Souter, Stevens, Ginsburg, Breyer) who were in the majority in Planned Parenthood v. Casey in 1992, and there is no reason to think that any of their votes will change. The deciding opinion in Casey rested entirely on the grounds that Roe v. Wade was too controversial and had been on the books too long to be overturned, and that was over thirteen years ago. That rationale is even more compelling today. Although abortion remains a contentious political issue, there is a general consensus in the legal community, even among conservative scholars, that that ship has sailed, that it's simply too late and would be too destablizing to reopen the issue after all these years. Therefore, even if 2 or 3 more conservative Justices are appointed to the Court, I think it's somewhat unlikely that Roe will be overturned.
That being said, it's still worth asking the question: what would happen in Roe were overturned? In a very short-term sense, the answer is nothing. Overturning Roe would not make abortion illegal, it would simply open the door for Congress or the states to pass such laws. Given that a solid majority of Americans support keeping abortion legal, it is highly unlikely that federal legislation would be inacted. Even if Republicans could scrape together a majority in both houses (very unlikely, even assuming they still controlled both houses), any such law would be immediately filibustered. Indeed it's not even clear that Congress would have the power to pass such a law. If an anti-abortion law were passed, the same conservative Court that overruled Roe would likely strike down the law on federalism grounds.
On the state level, anti-abortion statutes would have very little chance of passing in the majority of states, particularly in the blue states. So in a majority of states abortion would remain legal. Some red states, particularly in the South, would likely have enough popular support (at least at first) to ban abortion. Some of these attempts might actually be blocked by state courts judges, who would be free to find a right to abortion within their own state constitutions.
On a political level, overturning Roe would galvanize the left in an unprecedented way. New organizations would spring out of nowhere, contributions would come pouring in. The backlash would be intense and far-reaching. Attempts to outlaw abortion would be greeted by strong and organized opposition. In states where abortion is outlawed, networks would be established to help women obtain abortions in other ways, either by going out-of-state, or more likely, by providing access to RU-486. Overnight an underground market for RU-486 would be established that would be nearly impossible for state officials to regulate. Doctors who disagreed with the law would continue to perform abortions. Over time, the backlash against these laws would drive popular opinion even more in favor of abortion rights, and one-by-one, the states that outlawed abortion would repeal their laws. Alternatively, at some point Congress would step in and protect basic abortion rights, either through direct federal legislation or through indirect powers of the purse (e.g. withholding highway money). My guess would be that in less than a decade, abortion would again be legal in every state, and all of it through democratic processes instead of judicial fiat.
Now, I'll be the first to admit that it would be much easier just to leave well enough alone, and I suspect that that's what the Court will eventually decide as well. But I went through this hypothetical exercise to make a simple point: abortion is not what we should be worried about. That battle will be won, whether we have to do it the easy way or the hard way. It's the other issues (such as the future of affirmative action, the administrative state, and the separation of church and state) that will keep me up at night.
That being said, it's still worth asking the question: what would happen in Roe were overturned? In a very short-term sense, the answer is nothing. Overturning Roe would not make abortion illegal, it would simply open the door for Congress or the states to pass such laws. Given that a solid majority of Americans support keeping abortion legal, it is highly unlikely that federal legislation would be inacted. Even if Republicans could scrape together a majority in both houses (very unlikely, even assuming they still controlled both houses), any such law would be immediately filibustered. Indeed it's not even clear that Congress would have the power to pass such a law. If an anti-abortion law were passed, the same conservative Court that overruled Roe would likely strike down the law on federalism grounds.
On the state level, anti-abortion statutes would have very little chance of passing in the majority of states, particularly in the blue states. So in a majority of states abortion would remain legal. Some red states, particularly in the South, would likely have enough popular support (at least at first) to ban abortion. Some of these attempts might actually be blocked by state courts judges, who would be free to find a right to abortion within their own state constitutions.
On a political level, overturning Roe would galvanize the left in an unprecedented way. New organizations would spring out of nowhere, contributions would come pouring in. The backlash would be intense and far-reaching. Attempts to outlaw abortion would be greeted by strong and organized opposition. In states where abortion is outlawed, networks would be established to help women obtain abortions in other ways, either by going out-of-state, or more likely, by providing access to RU-486. Overnight an underground market for RU-486 would be established that would be nearly impossible for state officials to regulate. Doctors who disagreed with the law would continue to perform abortions. Over time, the backlash against these laws would drive popular opinion even more in favor of abortion rights, and one-by-one, the states that outlawed abortion would repeal their laws. Alternatively, at some point Congress would step in and protect basic abortion rights, either through direct federal legislation or through indirect powers of the purse (e.g. withholding highway money). My guess would be that in less than a decade, abortion would again be legal in every state, and all of it through democratic processes instead of judicial fiat.
Now, I'll be the first to admit that it would be much easier just to leave well enough alone, and I suspect that that's what the Court will eventually decide as well. But I went through this hypothetical exercise to make a simple point: abortion is not what we should be worried about. That battle will be won, whether we have to do it the easy way or the hard way. It's the other issues (such as the future of affirmative action, the administrative state, and the separation of church and state) that will keep me up at night.
posted by A.L. at 10:23 PM
1 Comments:
Anonymous Liberal--I recently came across your blog, and I think that you have some interesting things to say. By the way, I'd like to make a small correction to your post about the Supreme Court and abortion decisions. Justice Ginsberg succeeded Justice White in 1993, and Justice Breyer succeeded Justice Blackmun in 1994, so Ginsberg and Breyer were not on the court in 1992. They probably would support the Planned Parenthood decision, though. I think that your speculation about the possible results about a possible reversal of Roe v. Wade seem pretty plausible, and I am opposed to abortion. However, I think that the Democratic Party has lost many working class and union voters, because some party activists seem more interested in cultural issues like abortion rights and gay rights. It seems that some Democratic politicians rarely speak and work on minimum wage and workplace safety and other economic issues, among other things. I applaud the politicians who have opposed Bush's Social Security proposals. Anyway, I hope that you can continue to blog in spite of a probably tough work schedule.
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