The price of overturning Roe v. Wade

Be careful what you wish for; you just might get it.

Pro-life activists have waited over 30 years for the Supreme Court’s makeup to shift against Roe v. Wade, and with Chief Justice John Roberts and newly-confirmed Justice Samuel Alito on board, many of these activists are thinking that the time is right for a full frontal assault on the constitutional right to abortion.

Almost as if on cue, mere weeks after Justice Samuel Alito took the bench, South Dakota passed a measure banning abortion except when the woman’s life is in danger. In step with this testament to wishful thinking, Mississippi has passed a similar bill out of committee that looks likely to become law, and a Missouri legislator has introduced his own version, along with a proposed amendment to the state constitution.

The upshot of all of this is unclear. Even if Roberts and Alito are willing to overturn Roe, there are still five votes to reaffirm the decision and reinforce its dubious status as “super-duper precedent,” or whatever Senator Arlen Specter calls it, despite its glaring jurisprudential flaws. A brazen challenge also risks awakening the pro-choice movement in a way that a piecemeal chipping away of Roe would not. Right now the pro-life movement has the debate going its way–asking for too much too soon may jeopardize the momentum.

America’s view of abortion has changed noticeably since 1973. Back when Roe was decided, the issue was primarily framed in the terms of a woman’s right to choose what to do with her own body. The fetus simply didn’t play much of a role in the moral debate. But decades of medical advancement has made the fetus a much more prominent player in the game. People see a fetus in the second trimester–with identifiable fingerprints, limbs, features and movements–and have an understandably harder time discounting it as just a jumble of cells. And partial-birth abortions of late-term fetuses turn the stomachs of even usually ardent pro-choicers.

Many in the pro-choice movement are starting to acknowledge that reality. Former president Bill Clinton started the trend by advocating that abortions be “safe, legal, and rare.” Why rare? If abortions are truly an unqualified good, there’s no reason to push for less of them. But now it has become clear that abortions are not good; they are to be avoided through the use of birth control or abstinence. Abortions have become seen as, at best, a necessary evil.

And this has the die-hard pro-choicers quaking in their Birkenstocks. Katha Pollitt, a writer for The Nation who apparently thinks it’s still 1973, frets, “Abortion has become a bit like flag-burning–something that offends all right-thinking people but needs to be legal for reasons of abstract principle.” The days of “my body, my choice” have long passed Pollitt by. Between advancements in birth control and fetal observation, the moral argument for abortion has weakened greatly, to the point that the morality now weighs heavier on the pro-life side. And when the moral ground is lost, a decision like Roe, founded primarily on moral and not legal reasoning, will face an inevitable extinction.

Surely this cheers the pro-life crowd, but there are hard realities that they must face as well. There is a practical need for abortions, at least in the earliest stages of pregnancy. Even responsible couples using birth control correctly face a risk of an unwanted pregnancy, and people widely support making abortion available in cases of rape and incest, or when a woman’s health or life is in danger. “Rare” abortions are truly the best that can be hoped for.

But making abortions less needed means preventing unwanted pregnancy through contraception, and many pro-lifers have been simultaneously working to limit access to various methods of birth control. This only creates demand for the abortions they wish to eliminate. At some point, the pro-life movement is going to have to decide between fewer abortions or less birth control. They can’t have it both ways.

In addition, if Roe is overturned that means the states will be responsible for setting their own abortion policies. States like South Dakota that are chomping at the bit for the opportunity to virtually ban abortion will begin to feel a shift now that the most radioactive political ball has been tossed in their court. When the inevitable practical results of state policies start emerging, the bans will simply be found to be politically untenable. Nobody will come forward to sing the praises of abortion, but neither will anyone celebrate the effects of unwanted babies, regretful mothers sneaking out of state, and self-administered abortions.

In the end, pro-lifers may eventually get the reversal of Roe that they have always wanted, but with it will come the realization that ending abortion simply isn’t possible. That’s when the hardest decisions will have to be made. And they’ll only have themselves to thank for it.

James N. Markels is an attorney and a regular columnist for Brainwash.