No more Roe v. Wade

[Ed]

Being the precient diety that I am, I am thinking beyond a SCOTUS decision that limits Roe. Let us assume that the extreme case occurs: Roe is struck down and the decision concerning abortion is left to the States (fer ferriners, getting rid of Roe does not, ipso facto, make abortion illeagel, it simply would mean that women to not have a federally protected right to one).

The result would mean, I suspect, that the red states would pass laws in favor and the blue the reverse (or vice versa, I tend to be colorblind to media created buzz things).

What then? Well, one or more states would become abortion meccas, like Las Vegas for gambling was. What does the religious right do then? They can fret and fume and pray but they would have to go thru state by state to get laws passed. They will not be completely sucessful, there will always be one.

The impact will be almost exclusively directed at the poor that cannot travel.

A mess. Unlimited litigation.

 

[drkitten]

Being the precient diety that I am, I am thinking beyond a SCOTUS decision that limits Roe. Let us assume that the extreme case occurs: Roe is struck down and the decision concerning abortion is left to the States (fer ferriners, getting rid of Roe does not, ipso facto, make abortion illeagel, it simply would mean that women to not have a federally protected right to one).

If Roe vs. Wade is struck down, a federal ban on abortion would happen almost immediately.

 

[headscratcher4]

If Roe vs. Wade is struck down, a federal ban on abortion would happen almost immediately.

I think not...brave as the anti-choice politicians like to sound on this, there is still the reality of the polls, which say that, while disliking abortion per se, most Americans (over 60%, I believe) do not want to see Roe overtuned and would not want to see abortion made illegal (at least not in the ways it was illegal prior to Roe). Politicians, being politicians, will heed the polls or suffer the consequences. I suspect that federal politians will, for the most part, leave it to state legislatures to work out the abortion laws. Sadly, as Ed has pointed out, this will mean a distinct lack of uniformity and hurt the poor (those unable to travel) most.

In the end, it seems to me, that while Roe has some decidedly uneven reasoning behind it, so much of the law is now based on Roe that overturning it will mean a huge battle over laws beyond just abortion laws, indeed, it will call into question the whole basis of decisions made about "privacy" for the last thirty years.

I suspect that many Americans, even those who dislike Roe or see themselves as pro-life, THINK they have a right to privacy (even if they don't think their neighbor does). They may be very surprised and angery if SCOTUS overturns Roe and its presumption/creation of a right of privacy.

Overturning Roe, like the decision itself, will not settle the issue in any way...it will create as many problems as the decision itself, if not more, IMO.

 

[BPSCG]

If Roe vs. Wade is struck down, a federal ban on abortion would happen almost immediately.

Really? Why do you think so? If there is any "mainstream" opinion on abortion in this country, it is that there should be some restriction on it, (e.g., on partial-birth abortion and abortion on minors without parental consent), but that it should by no means be outlawed. You don't have to be a fanatic to find killing a child that is seconds away from being born alive and healthy to be morally repellent, and you don't have to be a fanatic to find killing a pre-sentient clump of a few dozen cells to be of little or no moral import. I think the opinion of the vast majority of people in this country falls in that continuum (it's only the extremists at both ends that you get to see on TV), and I've never seen any evidence that Congress has the will to defy the popular majority on anything.

So whence will come the federal law banning abortion nationwide?

 

[Ed]

If Roe vs. Wade is struck down, a federal ban on abortion would happen almost immediately.

What is the consitutional basis for such a ban? Who bans it? Congress? a Presidential Order? I think not.

 

[Manny]

Agree with headscratcher4 and BPSCG.

The first thing to happen after a hypothetical overturn of Roe v Wade would be a pretty big crisis for the Republican party. There are a lot of pro-choice (at least first-trimester pro-choice) people in the Republican party who don't particularly care that the party leaders talk tough on the issue because they know nothing can be done about it right now. Let 'em bluster, the pro-choice position is the law of the land. That would obviously have to be refought in a post-Roe environment.

The next thing that would happen would be either a smaller crisis or a huge opportunity for the Democrats. Now that it's possible to ban abortion, the Democrats could either pick up huge numbers of moderate Republican voters if that side handles its crisis poorly or they could stick with their own morally and politically untenable positions like being against parental notification laws and for partial-birth abortion. The same thing applies. There are lots of Democrats who believe that if it's reasonable to require parental notification of a freaking tattoo or a stinkin' Tylenol from the nurse's office, it's reasonable to require it for abortion but they don't mind their party leaders' tough talk because the more permissive views don't win the day and/or because they tolerate it as part of keeping choice alive generally.

At the end of the day I doubt that many states would ban abortion entirely -- maybe one or two along the bible belt and maybe Utah. A larger number would place restrictions on the procedure, some of which would be reasonable and some not so much. And virtually no state will allow state-funded, no-parent-telling 34th week abortions.

 

[RandFan]

Aborition is a great wedge issue. Politicians on both sides of the aisle can effectively use it to appeal to their base. As headscratcher4 and BPSCG have pointed out there is little political will to get rid of Roe. Oh, it's possible but very unlikely that there will be a federal ban.

 

[Luke T.]

The number of abortions in America before and after Roe v. Wade did not change. And the number of deaths which resulted from illegal abortions at the time Roe v. Wade was working its way through our legal system was not much more than the number of deaths from legal abortions today, contrary to any scare tactic B.S. you hear from the pro-choice side. The "5,000 deaths a year" you still see on NARAL and Planned Parenthood websites today is a willful, conscious lie.

Please, please ask me to prove this. I have evidence in spades.

Or you can just read this topic on Skeptical Community that I started a while back.

I am pro-life and had some strong biases which I was forced to let go of in the face of hard evidence I found myself. It was an interesting process. The topic is only three pages, but there are lots of links which are all worth reading. If you have a few hours, take the time. It is worth the journey.

 

[Tricky]

I'm thinking that if Roe vs. Wade is overturned, organized crime will rejoice because RU486 (the abortion pill) will quickly become a very profitable source of income.

Actually, I had hoped the pill would make the abortion debate moot with no doctor to shoot.

 

[drkitten]

I think not...brave as the anti-choice politicians like to sound on this, there is still the reality of the polls, which say that, while disliking abortion per se, most Americans (over 60%, I believe) do not want to see Roe overtuned and would not want to see abortion made illegal (at least not in the ways it was illegal prior to Roe).

Unfortunately a single poll number vastly oversimplifies the issue.

Part of the issue is that opinion on Roe vs. Wade is not geographically uniform. If you break down the polls simply by red-state/blue-state, for example, well over 50% of the population in red states would like to see Roe overturned. Even in so-called blue states, much of the power base of the existing representatives often comes from the conservative contingent. For example, Pennsylvania (IIRC) is technically a blue-state, was identified as a battleground state in the most recent presidential election -- and its two senators, Rrlen Specter and Rick Santorum, are among the most conservative in the Senate. Santorum, in particular, would most likely be fighting to sponsor a federal bill outlawing abortion. Pennsylvania has two large, liberal, cities (Philadelphia and Pittsburgh) and at a national level, most of its representation are the sort of conservative Republicans that would not be out of place at a South Dakota farm show.

Because of the "republican" (structural, not political) form of government that the US has, the representatives do not necessarily reflect the poll results. This is part of the reason that there are a number of historical questions -- I believe socialized medicine is one -- where a majority of Americans have been in favor literally for years (the poll results started showing majority support for at British-style NHS in the 1950s!), but the government has not been responsive.

The question isn't whether 60% of the American population holds an opinion, but whether or not 60% of the elected representatives represent people who hold that opinion.

Politicians, being politicians, will heed the polls or suffer the consequences.

I disagree. Politicians will heed the VOTERS' wishes, not the poll respondents', and only on a local level. Democrats who don't vote, for example, are pollitical non-entities (as of course are Republicans who don't vote, but the voter turnout among Republicans is much higher). Democrats who vote but don't donate money have little more power (again, the formal situation is identical, but the demographics differ).

 

[drkitten]

What is the consitutional basis for such a ban?

The Commerce Clause, of course.

I honestly don't see the relevance of this question in any practical sense. Congress can, and does, routinely pass laws without any constitutional basis whatsoever. The only effective countermeasure to such laws is to use the (Federal) court system to attemt to declare such laws unconstitutional, a judgement that relies on the cooperation of the judicial system in general and the SCOTUS in particular. Any SCOTUS that was willing to overturn Roe vs. Wade would almost certainly be willing to uphold an abortion ban, more or less without regard to the actual legal merits of such a law.

 

[headscratcher4]

I'm thinking that if Roe vs. Wade is overturned, organized crime will rejoice because RU486 (the abortion pill) will quickly become a very profitable source of income.

Actually, I had hoped the pill would make the abortion debate moot with no doctor to shoot.

Because it requires at least two treatments (RU486 + another pill) it was unlikely that RU486 would ever still the controversy. On the other hand, the morning after pill called "Plan B" has a far greater potential to make "choice" even more private and take it below the radar screen, which is why the pro-life movement is doing everything possible to circumvent the FDA and keep Plan B off pharmacey shelves as an OTC product. If you could buy it as easilly as condoms, efforts to limit access or condemn its use would be extremely intrusive into the private lives of women....

 

[drkitten]

Really? Why do you think so? If there is any "mainstream" opinion on abortion in this country, it is

... largely irrelevant.

Because "mainstream opinions" don't make law. Lawmakers do, in response to pressure groups. Where was the "mainstream opinion" regarding Terry Schiavo?

 

[Manny]

Part of the issue is that opinion on Roe vs. Wade is not geographically uniform. If you break down the polls simply by red-state/blue-state, for example, well over 50% of the population in red states would like to see Roe overturned. Even in so-called blue states, much of the power base of the existing representatives often comes from the conservative contingent. For example, Pennsylvania (IIRC) is technically a blue-state, was identified as a battleground state in the most recent presidential election -- and its two senators, Rrlen Specter and Rick Santorum, are among the most conservative in the Senate. Santorum, in particular, would most likely be fighting to sponsor a federal bill outlawing abortion. Pennsylvania has two large, liberal, cities (Philadelphia and Pittsburgh) and at a national level, most of its representation are the sort of conservative Republicans that would not be out of place at a South Dakota farm show.

According to Survey USA only 10 states have a pro-life majority (question: On abortion, are you pro-life? or Pro-choice?) and 32 have a pro-choice majority, of which 14 voted for the President in the last election.

 

[davefoc]

Although it is unlikely, there is another scenario. The legal case that the constitution proscribes abortion is just as strong as the legal case that the constitution proscribes the banning of abortion.

So, with sufficient motivation and moxy the supreme court could find abortion unconstitutional.

Despite the academic observation above, I agree that the most likely effect of the overturning of Roe v. Wade would be limited. It turns out that the states that would ban abortion don't have many abortion clinics anyway. I read an editorial on this awhile back. The writer had analyzed how many abortion clinics would be shut down as the result of the overturning of Roe v. Wade and it was a pretty small number.

 

[Kerberos]

The question isn't whether 60% of the American population holds an opinion, but whether or not 60% of the elected representatives represent people who hold that opinion.



I disagree. Politicians will heed the VOTERS' wishes, not the poll respondents', and only on a local level. Democrats who don't vote, for example, are pollitical non-entities (as of course are Republicans who don't vote, but the voter turnout among Republicans is much higher). Democrats who vote but don't donate money have little more power (again, the formal situation is identical, but the demographics differ).

Actually it's more complicated than that too, what matters isn't voters, but swing voters. If you're a democrat or a republican who despises the other party so much that you could never vote for it, or refrain from voting at all, your opinion is as irrelevant as someone who never votes or votes for a third party. Those that matter are the people who might vote for either party or who might vote for one party or for the sofa.

 

[BPSCG]

Although it is unlikely, there is another scenario. The legal case that the constitution proscribes abortion is just as strong as the legal case that the constitution proscribes the banning of abortion.

Well, yeah, possibly. After all, anyone who can argue that a woman may not carry a gun around with her even though the Constitution explicitly addresses the issue is capable of arguing that a woman may also not have an abortion when the Constitution doesn't address the issue at all.

Though I think most people who would want to disarm that woman wouldn't want to see her right to an abortion taken away. They'd rather have her kill her unborn child than the rapist who put it inside her. Go figure.

 

[TragicMonkey]

The Commerce Clause, of course.

I honestly don't see the relevance of this question in any practical sense. Congress can, and does, routinely pass laws without any constitutional basis whatsoever. The only effective countermeasure to such laws is to use the (Federal) court system to attemt to declare such laws unconstitutional, a judgement that relies on the cooperation of the judicial system in general and the SCOTUS in particular. Any SCOTUS that was willing to overturn Roe vs. Wade would almost certainly be willing to uphold an abortion ban, more or less without regard to the actual legal merits of such a law.

Exactly. Our new chief justice has just stated that "the federal government has the authority to determine what is a legitimate medical purpose and 'it suggests that the attorney general has the authority to interpret that phrase'". He's talking about the administration's unrelenting attempts to stop Oregon from having legal physician-assisted suicide. The principle seems to be Commerce Clause --> Drug Laws --> Feds overrule states on medicine and medical procedures.

 

[RandFan]

This is part of the reason that there are a number of historical questions -- I believe socialized medicine is one -- where a majority of Americans have been in favor literally for years (the poll results started showing majority support for at British-style NHS in the 1950s!), but the government has not been responsive.

I would love to see numbers on this. AIU, it is a widely held position that Clinton's attempt to socialize medicine led to the Republican take over of both houses of congress. I don't think you are correct in your analysis of poll positions. Do you have any evidence to support your thesis?

 

[Luke T.]

Exactly. Our new chief justice has just stated that "the federal government has the authority to determine what is a legitimate medical purpose and 'it suggests that the attorney general has the authority to interpret that phrase'". He's talking about the administration's unrelenting attempts to stop Oregon from having legal physician-assisted suicide. The principle seems to be Commerce Clause --> Drug Laws --> Feds overrule states on medicine and medical procedures.

I would like to see the source of the statement you attribute to Roberts. It looks suspiciously like this:

After surviving voter and legal challenges, the 1994 Oregon Death with Dignity Act ("Oregon Act"), O.R.S. 127.800 et seq, finally went into effect in October 1997. On November 6, 2001, with no advance warning to Oregon representatives, Attorney General John Ashcroft (herein referred to as "Ashcroft") fired the first shot in the battle between the state of Oregon and the federal government over which government has the ultimate authority to decide what constitutes the legitimate practice of medicine

http://www.dwd.org/pdf/jones_decision.pdf

So was Roberts summarizing one side's case, or was he stating his own opinion? Was he playing devil's advocate during yesterday's Q&A, as SC judges often do?

I hate quotes taken out of context and used misleadingly.