The Day After Roe

If the Supreme Court overturns Roe v. Wade, it will set off tectonic shifts in the American political landscape not seen since the civil-rights movement—or perhaps even the Civil War
I: The States

The day after Roe, the handful of state abortion bans that were passed before Roe but never formally repealed would arguably spring back to life. According to Clarke Forsythe, of Americans United for Life, there are eleven state laws already on the books that would ban abortion throughout pregnancy without making exceptions for threats to a woman’s health. (Most have narrow exceptions allowing abortion in cases where the life of the mother is seriously threatened; some also include exceptions for rape or incest.) In at least seven of these eleven states (Arkansas, Louisiana, Michigan, Oklahoma, South Dakota, Texas, and Wisconsin), the draconian abortion bans have never been blocked by state courts as violations of state constitutional rights, and therefore could, in theory, be immediately enforced. If the governor or attorney general in any of these states announced an intention to support these miraculously rejuvenated abortion bans, and if state courts agreed that the bans hadn’t been implicitly repealed, abortions might indeed be outlawed in most circumstances.

Even in the most conservative states, however, the overturning of Roe would put any pro-life governor or attorney general in a tight spot. For the truth is that draconian state bans on abortion that failed to provide widely supported exceptions would likely be unpopular with majorities in all the states in question. According to Clyde Wilcox, a Georgetown University professor who has studied public opinion on abortion, there would be majority opposition to any law that failed to include these exceptions, even in the most conservative states. “My guess is that any state that has a total prohibition on abortion—that can’t stand,” Wilcox told me. “If you look at the polls, you’ll never get more than 15 or 20 percent that would ban all abortions. Across the board, around 75 percent are in favor of exceptions for rape, incest, and fetal defect, as well as the life and health of the mother. Even in the most conservative states, that will be over 50 percent.” In other words, there’s less variation among states when it comes to public attitudes about abortion than you might expect. In national Gallup Polls over the last thirty years, two-thirds of Americans have consistently said that abortion should be legal in the first trimester of pregnancy, although in the second trimester, the number plummets to 25 percent, and in the third trimester it falls further, to 10 percent. And since 1973, according to polls conducted by the National Opinion Research Center, overwhelming majorities—between 80 and 90 percent—have said that abortion should be available to a woman if her health is seriously endangered by the pregnancy, or in cases of rape or risk of serious fetal defects. Whether in conservative states like Texas, swing states like Ohio and Pennsylvania, or liberal states like California, public support for access to abortion in cases of rape, fetal defect, and threats to a woman’s health, as well as for restrictions on abortion generally, is overwhelming.

The current abortion drama in South Dakota provides the best predictor of what might happen if a handful of other states try to resurrect old abortion bans, or pass new ones, that fail to include exceptions for rape, incest, and serious threats to a woman’s health. In March, South Dakota became the first state since Roe was decided to pass a law that bans all abortions except when a woman’s life is seriously threatened. The law, which contains no other exceptions, was opposed by many national pro-life organizations, which contended that it went too far. And their misgivings proved to be prescient. As soon as the ink was dry on the South Dakota law, a backlash started to develop. A group called Focus South Dakota began collecting signatures for a recall referendum that seeks to place the abortion ban on the ballot in November, giving the citizens of the state an opportunity to repeal it. That group’s own statewide polls, at least, suggest that the recall referendum has a good chance of succeeding. In its survey of registered South Dakota voters, taken a week after the abortion ban passed, 57 percent said they would vote to repeal the ban, and 33 percent said they would vote to uphold it. According to Jim Robinson, who conducted the poll for Focus South Dakota, these results are entirely consistent with the responses of South Dakota voters over the past two decades. “The number of voters who say abortion shouldn’t be legal under any circumstances has stayed pretty much the same for years, at about 15 percent,” Robinson told me. “You can add another 20 percent who think there should only be an exception for the life of the mother. We’ve known for some time that this sort of ban would be opposed in the state two to one, which is pretty much the same as the national numbers. But because one party is in control here, you have an extreme minority who came to dominate the legislature and drank their own Kool-Aid.”

Since the South Dakota ban passed, the approval rating of the governor, Mike Rounds, has dropped by 12 percentage points, and several state legislators have announced their intention to switch parties from Republican to Democrat. Legislators who voted for the ban, including a few Democrats, already face primary challenges from abortion moderates. Robert Burns, a political-science professor at South Dakota State University, thinks the backlash against the South Dakota law could precipitate a political realignment in the state, helping Democrats in state senate elections as well as influencing the gubernatorial and congressional elections. Burns suggests that Republican pro-choice voters, who had been willing to support pro-life legislators as long as the disagreement seemed symbolic, may desert the party. And if South Dakota–style bans on abortion were imposed in other states, the evidence is that they would be equally unpopular. Polls taken in March by organizations ranging from Pew to Fox News produced similar findings: by about a 59 to 36 percent margin, voters oppose a South Dakota–style ban in their own state. And 62 percent in the Fox News poll said that they supported the right to choose if the pregnancy “risks the mother’s mental health.”

The day after Roe v. Wade falls, members of the pro-life movement will face a choice: Will they heed the lessons of South Dakota and include at least a physical-health exception in any abortion law, or will they doom themselves to political defeat? This choice could split the movement in two, and legislatures in some pro-life states might prefer principled failure to pragmatic accommodation. Not all of the seven states where the pre-Roe abortion bans are lurking have a popular-recall procedure. This means there might be some states where most citizens would oppose the rejuvenated abortion ban but a defiant state legislature would refuse to repeal it. This is a recipe for voter revolt. In other states—such as Michigan and Arkansas—pro-life legislators could try to head off a recall referendum by modifying the resurrected abortion bans to reflect the will of the voters. In the end, few of the seven states that reconsidered their old abortion bans would be likely to settle on laws as extreme as South Dakota’s. After the Supreme Court seemed to be on the verge of overturning Roe, in 1989, in Webster v. Reproductive Health Services, Louisiana introduced a bill that would ban abortion with exceptions for threats to the woman’s life but not for rape or incest. The governor vetoed the bill, and rape and incest exceptions were finally added. But even rape and incest exceptions are too narrow to satisfy voters in most states, who support some kind of health exception as well.

The day after Roe, a handful of states would try not only to revive old abortion bans but also to pass new ones. “The real battles will occur in the red states, and they will be knock-down, drag-out battles,” says the Republican consultant Whit Ayres. In the wake of the South Dakota law, a number of state legislatures (including those in Alabama, Indiana, Georgia, Kentucky, Missouri, Mississippi, Ohio, Oklahoma, Tennessee, and West Virginia) are now considering extreme bills that would make it a crime for doctors to perform abortions unless the life of the mother is threatened, with no other exceptions. The Mississippi ban has already passed the state house of representatives, which added exceptions for rape and incest, and Governor Haley Barbour has pledged to sign it if it passes the state senate. And yet, the day after Roe, even pro-life legislators would have to think twice about passing abortion bans without the health exceptions that a majority of the public clearly favors. These representatives, unable to depend on the bans being struck down by the courts, would face the certainty of a voter rebellion if they defied public sentiment.

In short, the overturning of Roe would put pro-life legislators in an agonizing position: many are inalterably opposed to including an exception for threats to women’s health; they argue that these exceptions have been broadly interpreted by doctors and courts in the past to include psychological as well as physical health, in effect subverting the bans and making abortions available throughout pregnancy. “People in the pro-life movement are opposed to health exceptions in any form,” the pro-life scholar Paul Linton told me. “On the other hand, people will have to consider whether a narrow physical health exception might be a political necessity.” If any of these states now pondering extreme bills did, in fact, pass broad bans without a health exception, they should expect voter insurrections similar to the one now taking shape in South Dakota. By contrast, if health exceptions were included, although abortions might be formally restricted in some states from the beginning of pregnancy—a significant change in the law—elective abortions might, in practice, remain widely available for those who were willing to negotiate the procedural hurdles involved in proving a threat to their mental or physical health.

The day after Roe, of course, there would be just as much mobilization in blue states to protect abortion as there would be in red states to restrict it. Even without Roe v. Wade, according to the Center for Reproductive Rights, a woman’s right to choose would be secure in about twenty-three states. Six of these (California, Connecticut, Maine, Maryland, Nevada, and Washington) already have laws on the books protecting choice throughout pregnancy. In ten others (Alaska, California, Florida, Massachusetts, Minnesota, Montana, New Jersey, New Mexico, Tennessee, and West Virginia), state courts have ruled that their state constitutions protect abortion rights broadly throughout pregnancy. And in seven more (Hawaii, Iowa, New Hampshire, New York, Oregon, Vermont, and Wyoming), the political climate is sympathetic to choice, and citizens are likely to demand strong new laws protecting abortion.

The day after Roe, pro-choice activists in the most liberal states would have to be careful not to overreach, to avoid duplicating the errors of their pro-life counterparts in the most conservative states. If, for example, pro-choice activists make clear to state legislators in Iowa that they won’t accept any state law that imposes restrictions on late-term, partial-birth abortions, which are intensely unpopular throughout the country, they may alienate the moderate middle of the electorate. But regardless of potential self-inflicted wounds by Democratic activists, the right to choose in the twenty-three bedrock pro-choice states is likely to remain broadly available throughout pregnancy.

It’s conceivable that a year or two after Roe, as many as a dozen red states would adopt draconian restrictions on abortions throughout pregnancy, while a larger group of more populous blue states would offer the same access to abortion as they do now. What effect would this have on the national abortion rate? “My guess is that no more than a dozen states could sustain a total abortion ban, and these are principally states where virtually no legal abortions are performed today,” says Gerald Rosenberg, a University of Chicago professor who has studied the effects of Roe on abortion rates. “That doesn’t mean that individual lives wouldn’t be severely impacted, but in terms of national numbers, the effect would be small.” For example, if the South Dakota ban survived the overturning of Roe, the national impact would be negligible. In 2000, fewer than 1,000 women obtained abortions in South Dakota, representing one-tenth of 1 percent of all the abortions performed in the United States. That year, there were only two abortion providers in the state, and about 30 percent of South Dakota residents who sought abortions traveled to other states, such as Colorado and Nebraska. If the South Dakota abortion ban took effect, that percentage would certainly rise. But while women in the most conservative states would increasingly travel for abortions in a post-Roe world, the fact is they have been traveling for abortions throughout the three decades Roe has been on the books. In 2000, according to a report by the Guttmacher Institute, a pro-choice research organization, 87 percent of all counties in the United States had no abortion providers, one-third of all American women lived in these counties, and 25 percent of all the women who obtained abortions traveled at least fifty miles to do so. “In the past, the impact of some state restrictions that tried to limit access to abortion was primarily to delay rather than prevent abortions, because women can travel to another state,” Lawrence B. Finer of the Guttmacher Institute told me. “But if more and more states pass such restrictions, it becomes harder to travel, which could have a disproportionate impact on poorer women.”

A dozen state abortion bans might not dramatically change the national abortion rate, but they would dramatically change state and national politics. After Roe, women with disposable incomes would still be able to travel to have an abortion. Poor women, on the other hand, might be forced to seek abortions from illegal local providers. If television footage began to show arrests of illegal abortion doctors, the political framework for the abortion debate would almost certainly be transformed. “With Roe on the books, the focus of the abortion debate has tended to be on issues like partial-birth abortion, which is a huge political winner for Republicans,” says Michael Klarman of the University of Virginia, a scholar of the Court and public opinion. “If you take Roe off the books, the focus will be on poor women in a handful of states trying to get illegal abortions, and these highly salient examples are going to benefit the other side.”

Presented by

Jeffrey Rosen, a law professor at George Washington University and legal-affairs editor of The New Republic, has written previously for this magazine about John Ashcroft and the legacy of the late Chief Justice William Rehnquist. His latest book, The Most Democratic Branch: How the Courts Serve America, will be published this month by Oxford University Press.

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