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March 9, 2003   

Worst Choice
by Jeffrey Rosen

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Post date 02.19.03  | Issue date 02.24.03 Email this article.  E-mail this article

"As the 30th anniversary of the Roe decision approaches, women's right to safe, legal abortions is in dire peril," The New York Times wrote last month in an editorial called "The War Against Women." When Roe v. Wade turned 30 on January 22, pro-choice activists repeated the conventional wisdom that abortion rights are under siege. "A woman's right to choose is probably in the greatest danger ... since Roe vs. Wade was handed down," Kate Michelman, the head of the newly renamed NARAL Pro-Choice America, told USA Today. "With a slim one-vote margin on the Supreme Court protecting freedom of choice," Michelman insists, Roe is in danger of being overturned with a single Supreme Court appointment. And, with the Senate, House, and White House in the hands of pro-lifers for the first time since Roe was decided, pro-choicers fear that its overturning would be followed by widespread restrictions on early-term abortion rights for the first time since the 1970s.

But the alarmism about abortion rights is wrong. Rather than hanging by a five-to-four thread, the core principle of Roe is supported by six justices. And, even in the unlikely event that Roe were overturned, the core right it protects--the right to choose abortion early in pregnancy--isn't likely to be threatened on a broad scale. For the past 30 years, national polls have revealed a consistent and moderate consensus on abortion: Majorities strongly oppose bans on early-term abortions and strongly support restrictions on late-term abortions. If Roe were overturned, the relative political weakness of the extreme pro-life position would be exposed, and the Republican Party would be torn apart at the seams because many Republicans oppose early-term bans and would desert the party in droves. "The last thing in the world the White House would want is that Roe v. Wade is overturned," says a prominent Republican congressional aide. "The reason being is that it would energize the nation's pro-choice constituency, ... and it would cause a huge fissure in the Republican Party, which has been generally harmonious over the issue because of the belief that the pro-life position will never truly be tested." At the same time, if Roe were overturned, the expanded and moderate Democratic majority would be free to distance itself from extremists in the pro-choice movement who persist in fighting restrictions on late-term abortions, which most Americans embrace. In short, 30 years later, it seems increasingly clear that this pro-choice magazine was correct in 1973 when it criticized Roe on constitutional grounds. Its overturning would be the best thing that could happen to the federal judiciary, the pro-choice movement, and the moderate majority of the American people.


Despite the rhetoric of pro-choice interest groups, there is little chance Roe will be overturned anytime soon because six justices--Stephen Breyer, Ruth Bader Ginsburg, Anthony M. Kennedy, Sandra Day O'Connor, David Souter, and John Paul Stevens--believe the Constitution prohibits states from banning early-term abortions. Pro-choice activists, eager to suggest that the Court is one step away from the apocalypse, note that when the Court, in a five-four decision in 2000, struck down bans on so-called partial-birth or late-term abortions, Kennedy dissented. They portray his vote as an indication that he has changed his mind on the constitutionality of all abortions, including early-term procedures. "Kennedy jumped ship," Sylvia Law of New York University School of Law recently told Women's Enews. "Roe is always hanging by a thread."

But Kennedy did not jump ship, and Roe is not hanging by a thread. In upholding Roe in the 1992 case Planned Parenthood v. Casey, Kennedy made clear that he thought the Constitution prohibited restrictions on early-term abortions and permitted restrictions on late-term ones. It was Kennedy who wrote the most sweeping and expansive sentence in that opinion upholding the core of Roe: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life," he wrote. "Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State." Two and a half years ago, when the Court struck down bans on late-term abortions in Stenberg v. Carhart, adopting a far more expansive position on abortion protections than the one he originally embraced, Kennedy indicated, understandably, that he felt he had been duped. His dissent, however, didn't mean that he had abandoned his moderate position. In fact, he explicitly said the opposite: "When the Court reaffirmed the essential holding of Roe [in 1992], a central premise was that the States retain a critical and legitimate role in legislating on the subject of abortion, as limited by the woman's right the Court restated and again guaranteed," Kennedy wrote in his dissent in Stenberg. "The Court's decision today ... repudiates this understanding by invalidating a statute advancing critical state interests, even though the law denies no woman the right to choose an abortion and places no undue burden upon the right."

For the Court to overturn Roe, then, two of the six justices who oppose bans on early-term abortions would have to retire, and both would have to be replaced by committed opponents of the core of Roe. Even in a second term by George W. Bush, this is unlikely to transpire. Conventional wisdom, for what it's worth, holds that O'Connor and William Rehnquist are most likely to retire, giving Bush one pro-choice seat to replace, not two. And, even in the unlikely event that O'Connor and Stevens were to retire, Bush is unlikely to replace both of them with committed opponents of Roe, because his advisers know that the decision's reversal would be a disaster for the party. Indeed, when Karl Rove was asked at a press coffee last month whether Roe should be overturned, he dodged the question. "Rove understands the political calculation, and he's never been a zealous pro-lifer," says a GOP pollster who asked not to be identified. "Hard-core conservatives want someone who passes the Souter test and will overturn Roe, but, for the Republican political establishment, that's the nightmare scenario." For this reason, it seems unlikely that Bush would risk nominating two hard-core opponents of Roe. Given the political firestorm that would ensue, it seems even less likely that two would be confirmed.


That may be too bad for Democrats, because overturning Roe would expose the fundamental weakness of the extreme anti-abortion position. In the 30 years since the decision, public opinion about abortion has remained remarkably stable. As Everett Ladd and Karlyn Bowman of the American Enterprise Institute have noted, national polls from 1975 to the present suggest that public opinion on abortion for the past three decades has consistently included extremes on both sides that favor either no restrictions or total bans--each of which command about 30 and 20 percent support, respectively--and a vast majority in the middle that opposes both early-term bans and late-term abortions. Americans have reached a moderate consensus: In a CNN/Gallup/USA Today poll last month, 66 percent said abortion should be legal during the first three months of pregnancy; by the second trimester, when the fetus becomes viable, only 25 percent said abortion should be legal; and, by the third trimester, when so-called partial-birth abortions would be performed, only 10 percent say abortion should be legal. These numbers, too, have remained entirely consistent during the three decades since Roe was decided.

Despite these national trends, if Roe were overturned, it's true that some states would try to regulate early-term abortions. The precise number is hard to estimate. After the Supreme Court gave the states greater leeway to restrict abortion in 1989, only two legislatures--Louisiana and Utah--passed laws to ban early-term abortions (except in cases of rape or incest or to save the woman's life), and both were quickly struck down. By examining public records, including the campaign statements of governors and state legislators, NARAL estimates that twelve states "would likely ban abortion in all or most circumstances if Roe is reversed (AL, FL, LA, MN, MS, MO, NE, ND, OH, SD, TX, UT)." Ann Stone of Republicans for Choice offers a much lower estimate, arguing that first-trimester bans have a fighting chance of passing only in Louisiana, Mississippi, Missouri, Ohio, and Utah. Political scientists in several of the states on NARAL's list concur: They believe legislators in their states would be cowed by popular opinion. "Florida is basically a socially progressive state in its broad outlook; it is more pro-choice than pro-life on balance, and I don't believe the political culture in Florida really supports first-trimester bans," says Stephen Craig, a professor of political science at the University of Florida. "I would be surprised if a first-trimester ban made it into law, and I quite frankly would be surprised to see the Florida legislature even try to take such a draconian step." In North Dakota, says Robert Wood, a political science professor at North Dakota State University, "an absolute ban probably wouldn't pass. It's generally a conservative state but with a strong strain of libertarianism."

GOP pollsters suggest that even legislators in the most conservative states would feel pressure from popular opinion to allow abortion not only in cases of rape or incest but also when a woman's physical or even psychological health is threatened, a broad category that would allow women and their doctors flexibility. "I think it would be hard to get a total ban through any state legislature, even Utah, because the vast majority of Americans believe that abortions are undesirable but ought to be allowable under certain circumstances," says Republican consultant Whit Ayres. And, in the handful of states that are most likely to restrict abortion except in cases of rape or incest or to save the mother's life, local scholars suggest that popular opinion tends to be more liberal than the pro-life base and that a sweeping ban would provoke a political backlash. "I think there would be a strong reaction against strict controls if the Ohio legislature passed them," says Michael Burton of Ohio University. "It would certainly cause real problems within the Republican Party in Ohio, where the Republican voters are suburban and more liberal than the legislature on most social issues." Bill Richardson of the University of South Dakota predicts a similar dynamic in his state. "I wouldn't be surprised to see a first-term-ban bill introduced" if Roe were overturned, he says. "But I think the population is more moderate." In all these states, pro-choice voters were willing to vote for pro-life candidates because they knew Roe would prevent their positions from being enacted; if Roe were overturned, they would have to think again. Pro-life legislators, as a result, would themselves think long and hard before pulling the trigger to overturn Roe.

And, even if a handful of state legislatures did pass restrictions on first-term abortions, the political consequences would energize the pro-choice movement and hurt the Republican Party far more than it now benefits from pandering to the pro-life extremists. "You have a sizable number of Republican women and men who are in the vast middle group that tilt more toward the choice side," says Norman Ornstein of the American Enterprise Institute. If Roe were overturned, "it would help to redefine the Republican Party as a pro-life party. If anything could lead to realignment, I imagine this could do it. We're talking about a country at parity, and, if we see a shift of two or three or four percent, it could make a significant difference."

Under this kind of pressure, it wouldn't be long before Congress felt compelled to pass a federal abortion bill that mirrored popular sentiments on abortion, protecting early-term and restricting late-term abortions. Even a Republican Congress, Ornstein suggests, might ultimately pass a moderate bill along these lines, "especially if it looked like their support was hemorrhaging out there. You'd find an awful lot of Republicans saying, 'We have to take a middle ground here.'" Indeed, a Freedom of Choice Act that protected early-term abortions would have passed during the Clinton administration except for the fact that pro-choice activists refused to accept any federal legislation that failed to guarantee federally funded abortions for poor women--a position rejected by a majority of Americans. "We missed an opportunity because there were some who thought it didn't go far enough," Michelman told me.

The fact that we are about to fight another Supreme Court nomination battle by flyspecking the nominees' views on Roe points to the real costs of the decision today. Thirty years after Roe, the finest constitutional minds in the country still have not been able to produce a constitutional justification for striking down restrictions on early-term abortions that is substantially more convincing than Justice Harry Blackmun's famously artless opinion itself. As a result, the pro-choice majority asks nominees to swear allegiance to the decision without being able to identify an intelligible principle to support it. And the pro-life minority can criticize the legal weakness of the decision without having to acknowledge its political weakness in the country as a whole.

Thirty years ago, opposing Roe on constitutional grounds, Alexander Bickel wrote for the editors of this pro-choice magazine, "[I]t may take some time before the realization comes that this will not do." After three decades, it has become more obvious than ever that Bickel was correct and that the costs of retaining Roe outweigh any benefits. For better or for worse, Roe will not be overturned any time soon. But, if it were, the Democrats, the federal judiciary, and the moderate majority of American people could breathe a sigh of relief.

Jeffrey Rosen is the legal affairs editor at TNR.

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