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11/15/2005

Abortion myth revisited

I've already posted about this at least twice before, but the myth just refuses to die...

So once again:
Conservatives are fond of saying that if Roe were overturned, abortion would not be criminalized nationwide, but that the issue would simply become a matter for the individual states, whose legislatures could choose to allow or prohibit abortion.

This is a lie. It is also a common one, and part of a larger GOP strategy of publicly playing down the impact that O'Connor's retirement will have on abortion rights... GOP Blogger Mark Noonan writes:
You see, what upsets all conservatives - even pro-choice conservatives - about Roe is not that it legalised abortion in all 50 States, but that it usurped the powers of the States to determine such issues. I'm opposed to abortion, but I'm also very much opposed to having my rights as an American taken away from me by a few un-elected judges on the Supreme Court. Absent Roe, we would have to hard political fights in the States as each State seeks its own best route on the issue...some States would keep it legal upon demand; others would make it legal in some or most cases; a few would ban it outright.

....in the end, it would all work out in the wash. The pro-life and pro-choice GOPers would still be able to go to Washington and work together because the abortion issue would not be a national issue - it would be a State issue, where it properly belongs.
Even some Democrats seem to buy this nonsense. In the Atlantic Monthly a few months back, Ben Wittes wrote these words:
In the absence of Roe abortion rights would probably be protected by the laws of most states relatively quickly. Sure, certain state legislatures will impose restrictions that would be impermissible under the Supreme Court's current doctrine; some women might have to travel to another state to get abortions. ... In short, overturning Roe would lead to greater regional variability in the right to abortion ...
I don't know how the myth that an overturning of Roe would only have the effect of sending the issue back to state legislatures got started; without Roe, there would be nothing stopping Congress from passing a federal - nationwide - ban on abortion. Props to Atrios for pointing this out:
I've been saying this for some time, but there's no solid reason I've ever heard to believe that post-overturning Roe that abortion would become a state issue ... Whether or not a voting bloc could be maintained to outlaw abortion at the federal level is one question, but it would certainly be a political issue in federal elections.
Atrios links to Michael Dorf, who makes a similar point (emphasis mine):
In the immediate aftermath of a decision overturning Roe, the legality of abortion would be up to the states. We could expect that, in general, abortion would remain legal in clearly blue states like California and New York but would be prohibited in clearly red states like Texas and Louisiana.

But even this scenario may be unduly optimistic. Today’s Republican Party pays at most lip service to the notion of limited national power. The Justice Department was all too eager to interpret federal statutes to override Oregon’s law permitting physician aid in dying and California’s medical marijuana law. Likewise, Congress (including many Democrats) brushed aside the obvious federalism objections to its extraordinary intervention in the Terri Schiavo case.

Thus it is not alarmist to predict that within weeks -- if not days or hours -- of a Supreme Court decision overruling Roe v. Wade, Congress would enact legislation outlawing most abortions nationwide.
Whether or not a nationwide abortion ban would pass is anyone's guess. If you forced me to predict, I'd say that an absolute, outright ban might have a hard time getting through the Senate; we'd probably see something that basically eviscerated abortion rights while nominally stopping short of complete prohibition. That would be bad enough, but that's only a guess; complete prohibition could just as easily be the result.
It's also worth pointing out the Roe is the only thing standing in the way of draconian restrictions on abortion like parental and spousal consent, laws that get through the legislatures even in 'blue' states.

But most importantly, remember that a post-Roe America is one where the reproductive rights of women everywhere depend on the whims of Republican senators and representatives in D.C.

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