Left-Wing Lawyers Ponder End of Legal Abortion

Brendan Hoffman/Getty Images/AFP
Brendan Hoffman/Getty Images/AFP

In its January issue, the magazine of the Washington DC Bar Association mulls over the end of Roe V. Wade, the landmark Supreme Court decision that made abortion legal in all 50 States.

The story—“Can Roe v. Wade Survive”—opens on the cover and shows a massive number of pro-abortion protesters that converged on Washington, DC—between 500,000 and 1 million—way back on April 25, 2004 at the “March for Women’s Lives.” The editors had to reach back a full decade for such a picture because the march has never been replicated.

The heart of the Roe decision was to overturn the abortion laws in all 50 states, almost all of which outlawed abortion altogether. The Roe decision struck down all those laws and laid out the trimester system that—taking into consideration the life and health of the mother—allowed the States to regulate abortion in the second and third trimesters.

Contributor Anna Stolley Perksy gets the Roe decision largely correct, though she leaves out the fact that Norma McCorvey, the actual Jane Roe in the decision, later admitted to lying about needing an abortion because she had been raped. Persky also leaves out completely Roe’s companion decision handed down the same day, and this is key to understanding the current state of abortion in America.

Where Roe said the States, based on threats to a woman’s life and health, could regulate abortion, the Doe v. Bolton decision defined “health” so broadly as to include practically any reason and, according to abortion foes, gave the US our current regime of abortion on demand.

The Court decided: “[T]he medical judgment may be exercised in the light of all factors — physical, emotional, psychological, familial, and the woman’s age relevant to the well-being of the patient. All these factors may relate to health.”

Pro-lifers point out that this is so broad and vague that a 25 year-old woman could say she needed an abortion because she was too old to have a baby, and the same woman a year later at 26 could say she was too young.

Stolley does not explain how Roe and Doe could plausibly be overturned. Indeed, she does not even try to answer the question asked on the cover of the Bar Association magazine. Instead, she focuses on state regulations that do not block a right to abortion but rather act as inconveniences to women getting an abortion.

In recent years, due to the 1992 Casey decision that allowed for further state regulations that did not impose an “undue burden” on a woman getting an abortion, pro-lifers in the various states have come up with creative ways to bring down the number of abortions.

Pro-lifers have passed legislation related to waiting periods, where women in some states—Missouri, for instance—must wait 72 hours between asking for an abortion and getting one.

Other legislation includes making the physical plant of abortion clinics adhere to the same standards as other surgical clinics, including hallways wide enough for gurneys and other sometimes-costly changes.

Finally, some states have required abortion clinic doctors to get admitting privileges to local hospitals, something that abortion doctors are finding hard to do.

Abortion advocates point to such legislation as the reason abortion clinics are closing around the country—most dramatically in Texas, which has gone from 44 to 6 clinics in only a few years.

Even as inconveniences mount, none of these laws have struck at the underlying “right to abortion” found by the Supreme Court in Roe v. Wade and Doe v. Bolton.

The law remains that any woman wanting an abortion for any reason in any state still has a Constitutional right to get one.

The DC Bar Association magazine does point out some of the peculiarities of abortion law in the United States. The story explains: “Forty-two states prohibit non-medically necessary abortions after a specific point in pregnancy, usually at the time of fetal viability.” What the author does not say is any such laws that may still be on the books are not enforceable given the defining legal framework handed down by the Supreme Court in 1973. Having such currently unenforceable laws on the books are handy for both pro-lifers who can instantly refer to them if and when Roe and Doe are ever struck down, and abortion advocates who can point to the laws and erroneously contend that the US still regulates abortion in any meaningful way. It is still commonplace for mainstream media to report that abortion is illegal in many states in the later stages of gestation.

Even the Supreme Court’s upholding a ban on partial birth abortion—where a baby is fully delivered up to the head, which is then punctured with a knife and emptied of its contents—does not ban late-term abortion, only that particular method of late-term abortion. The underlying right stays intact. A woman still has a Constitutional right to even a late-term abortion and for practically any reason.

The Washington Bar Association did not deliver on whether Roe can survive, because there is no real prospect for Roe and Doe to be overturned with the current Supreme Court lineup.

There is a solid block of four Justices—Ginsburg, Breyer, Sotomayor, and Kagan—who support a right to abortion. There are three—Scalia, Thomas, and Alito—who are likely supportive of overturning Roe. Justice Kennedy seems willing to further regulate abortion but leans against overturning. And Chief Justice John Roberts has many conservatives concerned with his seeming desire to maintain what he sees as the credibility of the court, which could be construed as him supporting the precedent set by Roe and Doe.

Some pro-life legal scholars believe it will take a continuing shift in public opinion. Twenty years ago, only 35% of the American public called itself pro-life; now that number hovers just above 50%. In addition to a continued cultural shift against abortion, experts believe it will take not a five-member majority (because who would want to be that fifth Justice overturning Roe?) but six or even seven Supreme Court Justices voting to overturn. That prospect is a long way off. In the meantime, pro-lifers intend to keep chipping away at the state level and even working for legislation in the US Congress.

Follow Austin Ruse @austinruse