Atlanta Journal-Constitution (US) ,
May 14, 2006
The Day After Roe
If Roe v. Wade were reversed result could
be chaotic culture war, professor says
Author: Bob Dart
Washington --- What if the hopes of anti-abortion
advocates and fears of abortion rights
supporters came true and the Supreme Court
reversed the landmark 1973 Roe v. Wade
decision guaranteeing women the right
to an abortion?
What happened next would depend upon where
you live.
With no national statute or ruling either
protecting or outlawing abortion, the
issue would move to state Legislatures
and attorneys general. Meanwhile, Congress
would be pressured from both sides to
quickly enact a federal law.
"In many of the 50 states, and ultimately
in Congress, the overturning of Roe would
probably ignite one of the most explosive
political battles since the civil rights
movement, if not the Civil War,"
Jeffrey Rosen, a George Washington University
law professor, writes in the latest issue
of The Atlantic Monthly.
In an article titled "The Day After
Roe," Rosen envisions a scenario
in which 86-year-old Justice John Paul
Stevens retires this summer. President
Bush nominates "fire-breathing social
conservative" Judge Edith Jones of
Texas to replace the moderate Stevens.
She is confirmed after the Republican
Senate majority changes the rule on filibusters
to prevent the Democrats from blocking
the vote.
Bolstered by Jones and Bush's other appointees,
Chief Justice John Roberts and Justice
Samuel Alito, the court's conservatives
use an upcoming case on so-called partial-birth
abortions to overturn Roe altogether by
a 5-4 vote.
Activists on both sides agree that even
if the Supreme Court abolishes the landmark
decision, the abortion issue will not
go away.
"Some people mistakenly believe that
reversing Roe would automatically result
in a ban on abortions. That's not the
case at all," said Douglas Johnson,
legislative director of the National Right
to Life Committee. "It would just
remove the judicial barrier to having
elected lawmakers decide where the lines
should be drawn."
"We would enter an era of intense political
turmoil in every state across the country,"
predicted Susan Cohen, director of government
affairs for the Guttmacher Institute,
a pro-abortion rights research group focusing
on reproductive health policies.
Some states, such as Alabama, never repealed
their pre-Roe laws banning abortions and
could immediately try to enforce them.
Other states, such as California, have
state laws protecting abortion, so the
Roe reversal would have no effect. And
in many other states, the issue would
likely go straight to the Legislature.
Lawmakers in several states, including Louisiana,
have passed "trigger laws" that
would severely restrict abortions upon
a reversal of Roe. Abortion rights activists
would likely challenge these laws in courts.
In about 10 other states, the highest state
courts have ruled that the state constitution
guarantees broad abortion rights. Even
with anti-abortion governors and Legislatures,
such states might have to amend their
constitutions --- a generally lengthy
process --- before any change could be
made in abortion laws.
In most states, including Georgia, the Legislatures
would have to enact new laws on abortion.
"The extraordinary spectacle of 50
state Legislatures fighting over the question
of when life begins would rivet the nation
and overwhelm the state legislators themselves,
many of whom are part-time representatives
with little aptitude or inclination for
debating the finer points of ontology,"
Rosen wrote.
But Johnson said the anti-abortion movement
would rather take their battle to legislative
bodies in a post-Roe America than to continue
to fight in federal courts.
"That's not to say we would always
like the results" after Legislatures
vote, he said. "We will not be satisfied
if some unborn children are left unprotected."
Few, if any, states would enact absolute
abortion bans, Johnson said, adding that
there is widespread support, even in anti-abortion
circles, to permit abortions in cases
when the woman's life is threatened or
when pregnancy was caused by rape or incest.
Reversing Roe would "also open the
door for Congress to get into the act,"
said Cohen. "They could step into
the fray and try to reach some national
standard."
But given its dismal record of reaching
consensus on everything from saving Social
Security to providing universal health
care, few activists would count on Congress
to settle the post-Roe abortion debate.
The latest Harris poll shows the country
almost evenly split, with 49 percent supporting
Roe and 47 percent opposing it. The remaining
4 percent were unsure. That would seem
to favor a middle-of-the road approach.
But Rosen, in an interview on The Atlantic
Monthly Online, said, "It's possible
that legislators now are so much in the
thrall of interest groups' politics that
they're no longer able to perform that
delicate balancing act.
"Part of the fun of this futuristic
scenario that I was invited to play out
in the piece is to ask whether, now that
pro-life and pro-choice groups are pushing
their Republican and Democratic legislators
to the extremes, you might have situations
where state Legislatures and Congress
are unable to represent the will of the
moderate majority," he said.
In that case, he speculated, the answer
might be a third political party.
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