Outlook: In Roe's Reversal, a Trap

Conservatives Could Enact Laws to Keep Abortion-Seekers From Crossing State Lines

"President McCain appoints a suitably conservative replacement, and a complaisant or cowed Senate confirms the nomination. ... Well, that wouldn't be so bad, you may think. Some states (or even cities and counties) will offer abortion, and others won't. Women will just have to go to New York or someplace else if they want or need to end a pregnancy. A lot of states had pretty liberal laws in 1972 ... but it's not 1972. ... Is it possible, you ask, that in a post-Roe world, states would be able to pass valid laws stopping women from leaving to obtain an abortion? It seems un-American. But a lot of law professors have looked at this question, and although they're still debating it, many of the best in the business believe that this is something states probably can do."

Feminist author Linda Hirshman, author of "Get to Work: A Manifesto for Women of the World," was online Monday, Sept. 29, noon ET to discuss her Outlook article about the restrictions states may place on abortions and women seeking them if Roe v. Wade is overturned.

The transcript follows.

Archive: Transcripts of discussions with Outlook article authors

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Linda Hirshman: I suggest we try to confine ourselves to the subject of my article. If an anti-abortion president is elected, what are the possibilities under the American legal system? I have written on the substance of abortion elsewhere (go to Slate and read it), and that discussion is not new.

What I want to emphasize is what is new. The Republican platform has for 20 years included a commitment to do whatever it takes to reverse Roe v. Wade, and candidate John McCain repeatedly has avowed that life begins at conception. Yet many people in both parties stroll around smiling at the benign diversity of state-by-state regulation of abortion. It's time for some tough-minded analysis. What will the world look like after Roe? The deluge?

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Cincinnati: What do you think has created the atmosphere in which there is now the potential in the United States for laws to be enacted regarding the restrictions of crossing state lines for abortion? What do you think is causing the lack of concern among many of our politicians for women's privacy, and basic human rights? I don't particularly approve of abortion, but because of the relevance of this issue in the political arena, I think general attitudes in our culture toward women are creating a very precarious and dangerous atmosphere for women overall. Why do so many of the protests from women's organizations fall on deaf ears? Also, what do you think effectively can end this culture war that abortion seems to be the crux of?

Linda Hirshman: This is a crucial question. I think many people, including women, do not care as much about women's lives as they care about men's lives. After all, men have ruled society since recorded history, so their lives are the standard. So issues like this get put in the Ladies' Room -- girly stuff that is slightly dirty.

I also think that people take for granted the rights that they have and are unable to imagine a different world.

And finally, I think the media and institutions of American governance are heavily centered in liberal states and cities, and many in them are astonishingly ignorant of the lived experience of people in rural and Southern states -- and to some extent figure anyone not smart enough to move to New York deserves what they get.

What they fail to realize is that because of biology, females are scattered always evenly around the society, and the poorest, least-white and youngest have the least choice of where they live.

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Laurel, Md.: Maybe I'm naive, but I don't understand. How can the law be overturned? Does it go up for renewal every election period? Please help me understand. This always has been a personal decision, and I don't understand how others think they can tell people how to live their lives. Are you going to take care of the child? No, so mind your own business and keep your laws off my body. I had one at 17 -- it was the best decision I ever made, and I have to live with my choice every single day. The would-be father was killed not long after, and I went to college, got a degree and am very successful. None of that would have happened had I been saddled with an unwanted baby.

Linda Hirshman: Roe is a decision of the U.S. Supreme Court. It is the law of the land, just like the decision desegregating the schools from 1954 was. Only another Supreme Court, or, in the case of a constitutional decision like Roe, a constitutional amendment, can overturn the ruling.

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Mobile, Ala.: Linda, thanks for the article. I think the majority of "pro-lifers" have failed to realize the very real and terrifying consequences if Roe were to be overturned. I am an adamant pro-choicer who has since moved to an extremely conservative state. Other than the usual (writing letters, supporting my local Planned Parenthood), how should one work to make people aware of what could happen should Roe go? I'm also curious if you think something like Chicago's JANE group would emerge in states that prohibit abortion. Thanks!

Linda Hirshman: I think you should e-mail my article to everyone you know. :)

In addition to what you do, if you do not want to live in the situation I described, you will have to work to ensure that the party and candidates who vow to overturn Roe do not get elected.

I do think women will start groups like Jane, which did forbidden abortions for some years just prior to Roe, with, if I recall correctly, no injury or deaths. I also think they will start underground railroads to take women needing abortions out of states that forbid abortion travel to states where they may obtain abortions without the police finding out about it. When I began reading the legal scholarship, I immediately was reminded of the years right before the Civil War, with the Fugitive Slave Act.

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Arlington, Va.: I'd like to hear your comments on the fact that the current climate already has made it difficult for women to seek abortions, with the reduction of number of clinics and some doctors not performing the procedure. I believe it is Mississippi where there is one clinic in the whole state and a waiting period, so poor women must travel, miss work, etc., to procure an abortion. Not only do I fear for my fellow women, I fear for myself -- I may not require an abortion, but I could have medical need to end a pregnancy or even have difficulty getting care after a miscarriage under these conditions.

Linda Hirshman: There is a kind of cultural divide already rending the United States, even with Roe on the books. Abortion turns out to stand for many very difficult aspects of modernity: gender equality, female empowerment, female control of their own futures (this was Betty Friedan's crucial insight all those years ago -- what distinguishes humans from animals).

Modernity also brings with it urbanism, industrial and post-industrial economies, racial diversity, and secularism. People fear and hate modernity for some or all of those reasons, and the cultural war on abortion clinics and doctors creates abortion-free zones, such as you describe, which seem to give some symbolic satisfaction to people who otherwise cannot escape the other aspects of modern life.

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Southern Maryland: Instead of simply returning the abortion issue back to the states, wouldn't a more conservative court rule that states have no authority to legalize abortion at all?

Linda Hirshman: As I said in the article, it is possible that the Court will rule that the fetus is a person under the Fourteenth Amendment. There is some precedent for private enforcement of Constitutional law, but the general rule is that Congress has to pass a statute, like the old civil rights acts, enforcing the Constitution. With a Democratic Congress one would hope such a law would not pass, but it is the case that half the Democrats in Congress voted to confirm Justice Roberts recently, and he has been consistently anti-abortion ever since.

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Washington: I can't even believe we are having his discussion. Roe v. Wade never will be overturned by The Supreme Court. The liberals love to use the "Republicans will outlaw abortion" line and the Republicans keep stringing along their religious right constituents, making them think they're on their side when it comes to abortion. We all know both sides are just playing the other to get more votes -- and, Linda, you ought to be ashamed of yourself for playing along.

Linda Hirshman: I suppose my shame would then be shared by the professors of constitutional law and conflicts of law at Yale, Harvard, Columbia, Chicago Kent and Penn, all of whom have had this discussion. There is a conference at Yale in October on the subject, so I guess there is enough shame to go around. The Court voted 5-4 to uphold the constitutionality of the so-called partial-birth abortion law just last year. Sen. McCain's Web site commits to appointing Justices who will overturn Roe, and Jeffrey Toobin's excellent recent book, "The Nine," tells the story of how the Republicans' successful fought to defeat the candidacy of Harriet Miers actually was a proxy fight I'll call "David Souter: Never Again."

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Bethesda, Md.: I tend to be more in line with Laurel's thoughts and wonder why "the sky if falling" argument is made about this issue even with the potential for a pro-life President. President Bush is pro-life, but even his Chief Justice (Roberts) during confirmation recognized the importance of stare decisis. I just do not see Roe being overturned unless some kind of fundamentalist Christian is elected -- and the chances of that happening are slim to none.

Linda Hirshman: I do believe that the federal so-called partial-birth abortion law, which Roberts voted to sustain, is, in reason, undistinguishable from the Nebraska law that had been struck down a mere year or so earlier. So much for stare decisis.

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Silver Spring, Md.: Rob Stein's recent article shapes my thinking. Most (60 percent) of abortions are for women who already have children. Approximately 1 percent of white women had an abortion in 2004, compared with 3 percent of Hispanic women and 5 percent of black women. I think abortion is becoming an issue for mothers of color, which is about as far into the political margins as you can be. I expect many/most states to completely outlaw abortions, with a handful of states remaining available for women who have the resources to travel for the procedure.

washingtonpost.com: Study Finds Major Shift in Abortion Demographics (Post, Sept. 23)

Linda Hirshman: I know that black and Hispanic women have more abortions per capita than white women do, although I did not know it was that different. I think there is a deeper issue at work here, and I wish more attention would be paid to it. Denying control over reproductive fate is an act of disrespect not only to the women who need abortions, but to all women -- even old postmenopausal broads like me. One thing that has not come up here today but that matters is that pill-based abortions may generate a black market that will take some of the worst cases out of the picture. Even if this chemical abortion alternative were completely effective and safe, what interests me is not just the fate of the individuals, but the political and cultural implications of living in a society that subjects women to this kind of treatment. That is why I started the article with the reports from what went on in West Germany before 1991.

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Lansdale, Pa.: Ms. Hirschman, thank you so much for raising this issue, which I frequently have tried to inject into political chats here at washingtonpost.com without success. Are there any anti-abortion candidates who have gone on record with the policy consequences of their stances, addressing how cross-state or even international abortions are going to be monitored and prevented?

Linda Hirshman: I want to see the moderator at the debate Thursday night and at the presidential debates that follows ask each of the candidates whether, in light of their belief that life begins at conception, they would advocate putting women who seek abortions in prison for murder (the German law included a one-year prison sentence for the women).

They usually duck the question with talk about changing the culture and the like. The Los Angeles law I wrote about is directed "only" at the doctors, which is another dodge, as if jailing doctors were a good political practice. But before Roe, Wisconsin, for example, had a law that also made it a crime for the women. Oh boy. Back to the states.

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Arlington, Va.: Isn't this just the basest fear mongering, based on what lawyers think might happen?

Linda Hirshman: When we are talking about what the courts are going to do, I am a big fan on asking what lawyers think might happen. Who else would you ask: an astrologer?

In the area of sexual privacy, which started with the decision that sterilizing criminals was unconstitutional, the Courts have been the leaders in creating the social world we all share. When they act to reverse Roe, they will be creating a different world. Based on the cases that went before, lawyers in 1971 were predicting that the Court might find abortion to be constitutionally protected. Ditto with 1950's lawyers predicting that the Court would not tolerate the Jim Crow segregation laws much longer. The law professors whose work I used in my article looked at the precedents and what the Justices had said in different contexts and predicted that if Roe were reversed, there is a substantial chance -- although of course it is not certain -- that the states would act to extend their reach and that the Constitution would be interpreted to permit it.

So, Arlington, you have two choices: You can remain willfully ignorant of what "might happen," or you can consult a lawyer. I bet if you were wondering whether you had to pay a certain tax or how to set up your business without violating the securities laws, you'd ask (the horror) a lawyer!

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Linda Hirshman: In the little time I have left, I thought I would share with you two of the e-mails I received after my article appeared. Here is one:

"Since you are a lawyer and former professor of foolishness, I mean philosophy, your article in the Washington Compost proves you actually believe 'Missouri already allows civil litigation against anyone who helps a minor cross state lines to get an abortion without parental consent' out of spite. The taking of a minor across a state line, in this case, is an attempt to cover up a crime of child rape, counselor. I am sure you find no problem with wretched public schools preventing high school students from carrying aspirin in their book bags.

"Your thesis that states that outlaw abortion upon a reversal of Roe v. Wade actually would prosecute those who go to another state that permits such in the present time is ludicrous to all but an hysterical feminazi extremist like you. I almost would make an exception to abortion in your case so that no child has to suffer a screwball like you as a mother, assuming anyone would want to breed with you. Stick to trying to elect half-black Mohammed Islamobama by handing out leaflets; the only half-witted women you will frighten with tripe like this are those here illegally."

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Linda Hirshman: Here is the other: "Dear Linda: I would like to give you one angle of what if Roe goes.

"Many years ago, I was an emergency room physician in Albuquerque, New Mexico. From time immemorial, we were used to receiving women coming from Mexico after having had an abortion. When they did get to Albuquerque, it usually was 12-36 hours post-abortion, which gave the contaminated procedure enough time to flare-up into florid infection, usually involving the uterus/peritoneum, and not infrequently, septicemia, all of which are grave and life threatening. Then there were those who never completely stopped bleeding after their procedures , and had to be transfused. Worse, they would always try to hide the fact that they had received an abortion, which at times delayed their call for help.

"But as soon as the abortion became legalized in the U.S., all of these emergencies, remarkably, came to a halt. If Roe goes, the same scenario most probably will be repeated."

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Springfield, Mass.: How would you respond to the argument that Roe v. Wade changed the social environment? Many conservatives would argue that this was an activist court writing law, rather than interpreting the Constitution. What about the argument that we should stop consulting lawyers and judges with these questions, and leave the law-writing to the legislatures -- be they federal, state or local.

Linda Hirshman: This is an important and interesting argument. Although I regard the "activist" "interpreting the Constitution" to be just right-wing talking points, on the substance, I do not know what would have happened had the process I described in the late '60s and early '70s continued without a Constitutional decision.

Certainly a resurgent conservative movement, heavily driven by race, would have happened anyway. Such a movement is heavily based on a pre-modern vision of the society in which female equality is very threatening. I always recommend that people read Richard Weaver's "The Southern Tradition at Bay" and similar books from the early years of the American conservative revival for an understanding of how deeply conservatism relies on the "natural" inequality of the patriarchal family. So there would have been a substantial pushback or resistance, like the movement to resist the Equal Rights Amendment, or to liberalized abortion laws in many areas.

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Virginia: Linda, do you have kids? Do other highly educated feminists have kids too?

Linda Hirshman: This is so funny. Us sterile, ugly feminists. Who ever would want to have sex with us? And what awful children would we produce? Some time you should check out what happens to the children of highly educated feminists. It's a pretty great story: Among other things, almost none of them got pregnant in high school.

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Virginia: Can you please tell me where I can find the sources for the German border stories?

Linda Hirshman: Actually I found it in The Washington Post. But it also was referred to in all of the law review articles -- just Google abortion travel and in a report from the very well-respected Max Planck institute in Germany.

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Linda Hirshman: Okay, gotta go. A plug: Starting tomorrow, I will be publishing my novel, "Red State," which is set in the world after Roe, in serial chapters at the Huffington Post. Be there or be square.

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