By Clarke D. Forsythe
Senior Councel, Americans United for Life
In 2005, changes in the membership of the United States Supreme Court (USSC) sparked claims by abortion rights organizations that the Court's 1973 decision in Roe v. Wade1 is threatened. With the confirmations of Chief Justice John Roberts and Justice Samuel Alito, followed by the USSC's 2007 decision in Gonzales v. Carhart,2 this claim has grown to a fever pitch among abortion advocates. To put it bluntly, this claim is utterly false and intentionally misleading. Five justices on the USSC in 2007 still strongly support Roe v. Wade: Stevens, Souter, Breyer, Ginsburg, and Kennedy.
Despite that fact, much ink has been spilled in the media about the practical consequences if Roe is overturned. What would overturning Roe mean? Would overturning Roe mean that the USSC would directly ban abortion, or that a federal statute would immediately prohibit abortion, or that state laws would immediately prohibit abortion? None of these scenarios would follow from the Court overturning Roe.
No justice on the USSC has advocated the position that the Fourteenth Amendment protects the unborn child as a "person;" even Justices Scalia and Thomas have repeatedly stated that abortion is an issue for the states to decide.3 Thus, overturning Roe means overturning the national right to abortion and returning the issue to the people at the state level.
Obviously, if Roe was overturned, there would be intense debate in the media and a flurry of political action. If there was a test case pending before the USSC to challenge Roe directly (there is not), there would be substantial public debate before the decision was rendered (as there was in the spring of 1992 before the Court's last consideration of Roe in Planned Parenthood v. Casey).
But most Americans -- and activists on both sides of the abortion debate -- might be shocked to know that there would be little immediate legal change if Roe was overturned tomorrow. Due to changes in state statutes and state judicial decisions before and since Roe, abortion would be legal in at least 42 states if Roe was overturned. And possibly -- due to likely legal skirmishing in state courts in the wake of any overruling decision -- abortion could be legal in nearly every state.
If Roe is overturned, the issue would be returned to the states and state law would prevail. Where do the laws of the 50 states stand on abortion?
First, even before the Roe decision in 1973, 14 states replaced their abortion prohibitions with regulations, some of which no longer exist. Second, since Roe many states have repealed their abortion prohibitions. Abortion prohibitions are still on the books in only 14 states, five of which would be blocked by existing pro-abortion state court decisions. Third, state courts in 16 states (some of which overlap with those states just mentioned) have created their own state versions of Roe (in effect creating a state constitutional right to abortion) which would block current or future legislation prohibiting and even regulating abortion.
This means that state abortion prohibitions remain on the books and would be enforceable in -- at most -- eight states: Arkansas, Louisiana, Michigan, Oklahoma, Rhode Island, South Dakota, Texas, and Wisconsin. Rhode Island's law prohibiting abortion is limited to abortion of a "quick" child, and "quickening" is typically understood to occur around 16 weeks gestation. A federal court has concluded that Louisiana's abortion prohibition has been "implicitly repealed" (though this would not be binding on state courts).
Sixteen states have state court decisions which have explicitly or implicitly created a state constitutional right to abortion. Five of these states have abortion prohibitions on the books: Arizona, Massachusetts, Mississippi, Vermont, and West Virginia. Thus, should Roe be overturned, these prohibitions would likely be unenforceable due to these decisions. Eleven other states have state court decisions that would block future prohibitions: Alaska, California, Connecticut, Florida, Idaho, Minnesota, Montana, New Jersey, New Mexico, New York, and Tennessee. In other words, if the people wanted to limit and/or regulate abortion in their state, they probably could not do so.
Twenty-six other states and the District of Columbia, while having no declared state constitutional right to abortion, have no abortion prohibition before fetal viability, and some have no prohibition of abortion at any time of pregnancy: Alaska, Colorado, Delaware, the District of Columbia, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, Missouri, Nebraska, Nevada, New Hampshire, North Carolina, North Dakota,4 Ohio, Oregon, Pennsylvania, South Carolina, Utah, Virginia, Washington, and Wyoming.
As this data makes clear, the claim that the overturning of Roe would introduce legal and social chaos is simply untrue. What it would do is rescind a national right to abortion, get the federal courts out of the way of blocking public will, and allow American public opinion to be more accurately reflected in abortion policy. As Justice Sandra Day O'Connor, dissenting in her first abortion case in 1983, wrote, "When we are concerned with extremely sensitive issues, such as the one involved here [abortion], 'the appropriate forum for their resolution in a democracy is the legislature.'" She was right. Abortion should be returned to the people in the states -- not because that would mean that abortion would be immediately prohibited, but because that's where the Constitution left the issue: to be decided by the people exercising their right to self-government through their representatives in the states.
Over the past three decades, the USSC has made a terrible mess of the abortion issue. It has issued contradictory rulings that have given vague and confusing guidance to state legislatures and to the federal courts. Despite assuming the self-appointed role as "the national abortion control board," the Court has been largely oblivious to public health data showing the negative physical and psychological impact of abortion on women. Its decisions -- especially the 2000 decision in Stenberg v. Carhart, striking down the partial-birth abortion bans in 30 states -- largely conflict with public opinion. The Court has inflamed the issue in American politics by imposing a national rule of abortion-on-demand that conflicts with public opinion. Its rigid national rule prevents the civil resolution of the issue through the normal give and take of the democratic process. By its rulings, the Court insists that this state of affairs must continue, despite the fact that abortion would remain legal in at least 42 states if the issue was returned to the people.
Moreover, as the nominations of Chief Justice John Roberts and Justice Samuel Alito demonstrate, Roe has corrupted the judicial nomination process by making its retention the key issue in the Senate's review of judicial nominees, a position confirmed by Senator Patrick Leahy on Vermont Public Radio's "Switchboard" program on July 27, 2005.
Even with the confirmation of Chief Justice Roberts and Justice Alito, there are still five justices who strongly support Roe. But, for the sake of the Court, the federal judiciary, the Senate, women's health, and American political life and discourse, abortion should be returned to the people -- and the sooner the better.
Endnotes
1. 410 U.S. 113 (1973).
2. 127 S. Ct. 1610 (2007).
3. See Webster v. Reprod. Health Serv., 492 U.S. 490, 532 (1989) (Scalia, J., concurring in part and concurring in the judgment) ("this Court's self-awarded sovereignty over a field where it has little proper business since the answers to most of the cruel questions posed are political and not juridical"); id. at 535 ("our retaining control, through Roe, of what I believe to be, and many of our citizens recognize to be, a political issue"); Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502, 520 (1990) (Scalia, J., concurring) ("[T]he Constitution contains no right to abortion. It is not to be found in the longstanding traditions of our society, nor can it be logically deduced from the text of the Constitution -- not, that is, without volunteering a judicial answer to the nonjusticiable question of when human life begins. Leaving this matter to the political process is not only legally correct, it is pragmatically so."); Planned Parenthood v. Casey, 505 U.S. 833, 979 (1992) (Scalia, J., with Thomas, J., concurring) ("The States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so. The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting."); Stenberg v. Carhart, 530 U.S. 914, 956 (2000) (Scalia, J., dissenting) ("If only for the sake of its own preservation, the Court should return this matter to the people -- where the Constitution, by its silence on the subject, left it -- and let them decide, State by State, whether this practice should be allowed."); id. at 980 (Thomas, J., dissenting) ("Nothing in our Federal Constitution deprives the people of this country of the right to determine whether the consequences of abortion to the fetus and to society outweigh the burden of an unwanted pregnancy on the mother. Although a State may permit abortion, nothing in the Constitution dictates that a State must do so.").
4. Although not a pre-Roe ban, North Dakota enacted a law in 2007 making the performance of an abortion a felony if Roe is overturned.