Roe v. Wade: Is it still the law of the land?

The law, lawyers, and the court.
April 19 2011 6:49 PM

The Death of Roe v. Wade

Supporters and opponents of abortion seem to agree: It's no longer the law of the land.

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The end result is that Roe remains on the books, while for all practical purposes women can't get an abortion in Ohio, North Dakota, or Florida. I suppose you can call it half a loaf, but then, having half a loaf only really works if you are sort of pregnant.

There's one other (often forgotten) player in this elaborate game of chicken over reproductive rights, and that's the Supreme Court. Given that public opinion has changed virtually not at all since Roe v. Wade, my guess is still that the Roberts court is as uninterested in overturning the law as its challengers are in forcing the issue. It does not want to be the court that makes abortion illegal, or all-but-illegal, in America. The backlash would be staggering. The conservatives on the court are much happier with the status quo, allowing abortion as a matter of federal law while the states effectively outlaw it as a matter of fact. If the states continue to hollow out Roe from the core, there will be no reason for the court to hear an abortion case ever again.

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Just to be clear then: If Terry O'Neill is right, and fear of Samuel Alito is preventing anyone from challenging the host of increasingly invasive, paternalistic, and degrading state abortion regulations, it's not just abortion foes who are getting what they want. The court is, too. Abortion will have become all but impossible in America—for poor, minority, and rural women in particular—in direct contradiction to a Supreme Court decision, and the court itself will have done nothing to stand in the way. Is that what supporters of the right to abortion, not to mention the rule of law, really want? At the very least, let's put it to the test.