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.

Abortion protest. Click image to expand.
Abortion protests outside the Supreme Court marking the anniversary of Roe v. Wade

Supporters and opponents of abortion agree on nothing. One side says this is a conversation about fertilized eggs; the other says it's about fetuses. One side says the debate is about personal autonomy; the other says it's about murder. One side sees exceptions to abortion restrictions for reasons of maternal life or health as necessary to protect life; the other sees them as cunning "loopholes."

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

Increasingly, however, there is a fundamental assumption both sides seem to share, even if they don't say so, and it may well shape the future of abortion rights in America: Opponents and supporters of abortion appear to have taken the position that Roe v. Wade is no longer the law of the land.

Since the start of this year, 916 measures seeking to regulate reproductive health have been introduced in 49 states. According to the Guttmacher Institute, by the end of March, 15 laws had been enacted in seven states. These laws include an expansion of the waiting period in South Dakota from 24 to 72 hours and a requirement that counseling from "crisis pregnancy centers" include scientifically flawed data on risk factors. There are new regulations in Utah and Virginia governing abortion clinics. Legislation has been introduced in 13 states requiring that women have an ultrasound procedure before having an abortion—and in seven of those states, the woman must view the fetus and listen to a detailed verbal description as well. Measures have been introduced in 17 states copying a Nebraska law banning abortion at 20 weeks, on the theory—again based on questionable medical data—that this is when a fetus can feel pain.

It hardly bears observing here that most of these measures are against the law. That law is Roe v. Wade. Making abortion illegal after 18 or 20 weeks doesn't meet the viability test that was laid out in Roe, and 72-hour waiting periods and doing away with health exceptions for the mother would also violate both Roe and its progeny.

Abortion opponents don't bother to deny this. As the Rev. Pat Mahoney, director of the Christian Defense Coalition, told CBN news: "We don't have to see a Roe v. Wade overturned in the Supreme Court to end it. … We want to. But if we chip away and chip away, we'll find out that Roe really has no impact. And that's what we are doing."

Gone are the days in which legislatures at least attempted to ensure state regulations conformed to the broadest interpretation of the Roe constraints. The new game lies in expressly violating Roe and Casey, at the state level, in the hopes of either forcing the issue at the Supreme Court or making abortion unobtainable as a matter of fact. Either way, abortion opponents believe they will win—and here pro-abortion rights groups may actually agree.

After Justice Anthony Kennedy's vote in 2007 to uphold the federal ban on so-called "partial birth" abortion—even though it was virtually identical to a state ban struck down just before for failure to include an exception to protect the woman's health—Kennedy moved the goalposts for future abortion regulations. In a majority 5-4 opinion fretting about the mental health risks for women who "come to regret their choice to abort," Kennedy opened the door to a whole raft of state regulations that—under the guise of helping women make smarter choices—in many instances make it all but impossible for them to make choices at all. Since the court hasn't heard an abortion case in the intervening four years, Kennedy's wobbliness in Gonzales v. Carhart has emboldened abortion foes to push their cause even further and frightened those who are pro-abortion rights into being grateful for what they have.

The risk of challenging these clearly unconstitutional laws and then losing at the Supreme Court is evidently so high, according to Terry O'Neill, president of the National Organization for Women, that it's not worth taking. As she explained last week to Rachel Maddow, the fear that Justice Samuel Alito would vote to overturn Roe is so deep that reproductive rights groups may be opting to leave the state bans in place. And, as she conceded in that interview, wherever unconstitutional state abortion bans go unchallenged, they become law.

D.A. Kolodenko, writing today in San Diego CityBeat, makes the argument that Maddow has been advancing for weeks: Do supporters of reproductive freedom really want to cede all this actual legislative ground for concern over a judicial hypothetical:

This is a dangerous Catch-22. In order to keep in place the existing federal law protecting a woman's right to choose, pro-choice organizations are limited in what they can do about the spate of new anti-abortion laws being passed in states dominated by anti-choice conservatives. What we're witnessing is a stealth campaign to make an abortion illegal or as difficult to obtain as possible in as many states as possible, and it's working.

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.

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.

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