By William Saletan
Sunday, March 5, 2006
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.
That's where they need to ditch their old script. The last time abortion rights backers were in power over both Congress and the White House, in 1993 and 1994, they tried to enshrine Roe in federal law and subsidize abortions through Medicaid and President Bill Clinton's health insurance proposal. A couple of years ago, in a book about the abortion rights movement, I suggested that its agenda then had been too ambitious. Now I think it wasn't ambitious enough. Real ambition isn't about fortifying the territory you've won. It's about moving on so that the territory behind you no longer needs defending. The territory we need to leave behind is Roe.
Roe established a right to abortion through the end of the second trimester. The latter part of that time frame has always been the most controversial. Improvements in neonatal care have made fetuses viable--capable of surviving delivery--earlier than was possible in 1973. That's why Justice O'Connor said Roe was "on a collision course with itself" and eventually led her colleagues to abandon the trimester framework. Meanwhile, sonograms and embryology have made people aware of how well developed fetuses are while still legally vulnerable to abortion. We even do surgery on fetuses now, which makes aborting them seem that much more perverse. These developments may explain, in part, why two-thirds of Americans think abortion should be illegal in the second trimester--and why anti-abortion activists targeted partial-birth abortions for legislative assault.
But if medical technology has helped to expose this moral problem, it can also help us solve it. Second-trimester abortions are becoming not just harder to stomach, but easier to avoid. In 1973, according to the Alan Guttmacher Institute, fewer than 40 percent of abortions took place before the ninth week of gestation. By 2000, the latest year for which data have been analyzed, the percentage was nearly 60 and rising. The same high-resolution ultrasound that makes you queasy about aborting a 12-week fetus has made it safer to perform abortions at four or five weeks instead of waiting, as women were once routinely told to do. In 1993, only 7 percent of abortion providers could end a pregnancy at four weeks or earlier; by 2001, 37 percent could do it. And by 2002, two-thirds of clinics belonging to the National Abortion Federation were offering pills that abort pregnancies in the first seven weeks.
Better yet, technology is helping many women avoid unwanted pregnancies altogether. According to the Centers for Disease Control, "emergency contraception"--high-dose birth control pills taken after sex to block ovulation, fertilization or implantation--was almost unheard of a decade ago. By 2002, however, about 10 percent of women between the ages of 18 and 24 had used such pills. Some activists are fighting these pills in many states and at the Food and Drug Administration, but polls suggest that even most people who oppose legal abortion would tolerate the pills.
The most widely accepted moral solution, short of abstinence, is contraception taken before sex. Here, again, the news is basically good: Contraceptive use rose 11 percent from 1982 to 2002 (though progress was uneven), and during this period, the abortion rate dropped by about 30 percent.
Birth control isn't just more common; it's more effective. The weak link in contraception is the human being who's too excited, impatient or forgetful to take it or use it carefully. But technology can also help circumvent that weak link. When the CDC began tracking birth control methods in 1982, it had no category for long-lasting injectable contraceptives or implants. By 2002, it found that 4 percent of women were using these methods. Some injectables require refills every three months, but implants have improved considerably. The maker of Implanon, for instance, says that this implant takes barely a minute to insert, begins working within 24 hours, prevents pregnancy for up to three years and can be removed in less than three minutes with a 90 percent probability that a woman will resume ovulating the next month. In clinical trials, says the company, "no pregnancies occurred during use over approximately 73,000 monthly cycles," largely because the "user cannot forget to take the product."
Technology can't avert all our failings or tragedies. There will always be abortions. But when you look at the trends--more foolproof contraception, more access to morning-after pills, earlier and fewer abortions--you can begin to envision a gradual, voluntary exodus from at least half the time frame protected by Roe. That's the half the public doesn't support.
Maybe that six-month window made more sense in 1973 than it does today. Maybe, if we spend the next 10 years helping women avoid second-trimester abortions, we won't have to spend the next 20 or 40 years defending them. Maybe the best way to end the assault on Roe is to make it irrelevant.
The road out of Roe won't be easy. Conservatives are already fighting early abortion pills, morning-after pills, sex education and birth control. But that's a different fight from the one we've been stuck in since 1973. It's a more winnable fight, and a more righteous one. Five hundred years from now, people will look back on our surgical abortions the way we look back on the butchery of medieval barbers. Like the barbers, we're just trying to help people to the best of our ability. But our ability is growing. So should our wisdom, and our ambitions.
William Saletan covers science and technology for Slate, the online magazine at www.slate.com.