Life After Roe
For the first time in 14 years, legal abortion in the United States is in serious jeopardy.
In recent days, the shape of this assault has become clear. First, on the morning of Justice Samuel Alito Jr.'s debut, the Supreme Court announced that it would review the constitutionality of the Partial-Birth Abortion Ban Act, setting up what anti-abortion activists hope will be the beginning of the end of Roe v. Wade . The next day, South Dakota lawmakers passed a ban on virtually all abortions, and abortion rights groups vowed to litigate it all the way to the high court, which would force the justices either to overturn or reaffirm Roe. A few days later, the court told the abortion rights side it could no longer use racketeering laws to halt blockades and protests at abortion clinics.
The impending legal battles put us on the verge of repeating the last two decades of the abortion war: anti-abortion victory, abortion rights backlash. At the end of the cycle 20 years from now, we'll be right back where we are today. Unless, that is, we find a way out.
And that means moving beyond Roe.
Politically, legally and technologically the 33-year-old court decision is increasingly obsolete as a framework for managing decisions about reproduction. But only the abortion rights movement can lead the way beyond it. The anti-abortion groups can't launch the post-Roe era, because they are determined to abolish its guarantee of individual autonomy, and the public won't stand for that. It must be up to reproductive rights supporters to give the public what it wants: abortion reduction within a framework of autonomy.
Three political asteroids are heading toward us that make the latest round of the abortion confrontation inevitable. The first is the so-called "partial birth" abortion ban. Second is the South Dakota law. The third is the potential retirement of Justice John Paul Stevens. The order in which they hit will determine how close Roe comes to being overturned. But one way or another, they'll reignite the cycle of victory, backlash and defeat.
Six years ago, in the middle of the 2000 presidential campaign, the court struck down a partial-birth ban from Nebraska because it was too vague and lacked an exception for pregnancies that threatened the woman's health. The case, Stenberg v. Carhart , was decided on a 5 to 4 vote. Anti-abortion groups faced a choice: Add a health exception to the federal partial-birth bill to get it through the court, or refuse and gamble that a future court, populated by justices chosen by President Bush, would reverse Stenberg and uphold the ban.
They gambled, and the gamble paid off. In July 2005, a week before an appeals court sent the federal ban toward the Supreme Court, Justice Sandra Day O'Connor, the fifth vote in Stenberg, announced her retirement. Her replacement by Alito creates an almost certain five-vote majority against Stenberg. Justices don't overturn precedents casually, but Stenberg is far more vulnerable than Roe. Roe is more than three decades old, was a 7 to 2 decision, has been used as a basis for subsequent Supreme Court opinions and was reaffirmed under fire 14 years ago in Planned Parenthood v. Casey . Stenberg is six years old, was a 5 to 4 decision, hasn't been woven into subsequent opinions and was never reaffirmed. Roe affects many women and is popular. Stenberg affects fewer women and is less popular.
A Roberts-Alito-Stevens court would probably overturn Stenberg in June 2007. There's no chance it would overturn Roe, since five of the justices who reaffirmed Roe in Casey would still be on the court. But the ruling could set off a political explosion. That's what happened 17 years ago when the court, in Webster v. Reproductive Health Services , narrowed its interpretation of Roe. Justice Harry Blackmun, Roe's author, accused his colleagues of inviting legislatures to attack Roe, which he predicted "would not survive." That was enough to scare pro-choice voters and make them a decisive force in many states. Three years later, in Casey, Blackmun warned the country that he would soon have to retire, putting Roe in jeopardy.
A similar warning from Stevens in the upcoming partial-birth case could easily set off such an explosion next summer. Or Stevens could guarantee such an explosion by retiring.
If he does neither, South Dakota will do it for him. Because the South Dakota ban so flagrantly defies Roe, lower courts will probably strike it down quickly, moving it up the chain. If it comes out of an appeals court by the end of 2007, abortion rights groups will take it straight to the high court, hoping to make Roe a central issue in the 2008 elections. The court might refuse to hear the case if it's clear that five justices won't reconsider Roe. Or it might sit on the case until after the elections. But the explosion will happen anyway. By May 2008, Stevens will be 88, two years beyond the age at which any other recent justice has died or retired. Everyone will know that he has one foot out the door, and so does Roe.
In short, 2008 will look a lot like 1989, with a surge of pro-abortion rights voting and a frightened retreat by anti-abortion politicians. But one thing will be different: The House, Senate and White House will be up for grabs. Instead of picking up a couple of governorships, Democrats and abortion rights supporters could find themselves in control of the federal government.