Today, in a fascinating article, the LA Times examines whether now, more than ever, there is a real threat to Roe vs. Wade. Over the last eight years, reproductive rights advocates and legal scholars have warned of a time when the legal right to abortion on a federal level may soon disappear.
But, as the LA Times reports, this time "they may be right."
With four of the nine Supreme Court justices supporting the Roe vs. Wade decision, and at least one of those, Justice John Paul Stevens, likely nearing retirement (he is 88 years old), this presidential election may hold the fate of Roe v. Wade in its hands.
"Clearly, Roe is on the line this time," said Indiana University law professor Dawn Johnsen, a former lawyer for NARAL Pro-Choice America. "It is quite clear they have four votes against it. If the next president appoints one more, the odds are it will be overruled."
As many as three justices who support Roe vs. Wade may step down during the next presidential administration leaving the fate of the decision hanging by a thread. However, as the article reports, many just don’t take the threat seriously:
Some advocates worry that the perennial cries of "Roe is falling" has had the effect of muting such claims.
The article goes on to discuss how, despite the potential attack on Roe vs. Wade, neither presidential candidate has made the issue a central focus of their campaign. The truth is, while neither of the candidates need to in order to win over the critical uncommitted or undecided voters, they should.
The LA Times quotes Wendy Long, a former Justice Thomas clerk, as stating that overturning Roe vs. Wade would not automatically criminalize abortion but rather send the decision to the states to legislate the issue:
"I think the consensus is Roe will fall slowly and incrementally, not in one decision," says Wendy Long, a former Thomas clerk and counsel to the Judicial Confirmation Network. "And the day after Roe is reversed, abortion still will not be illegal," she said, "since many states would not outlaw it."
But, as Donna Crane with NARAL Pro-Choice America has written for this site, as many as 23 states would automatically criminalize abortion if Roe vs. Wade were overturned. This would certainly lead to a public health crisis, the blood of which would be on the hands of those responsible for overturning the decision. As well, Roe vs. Wade is the basis for all rights of women to autonomy and to control the fate of their lives and their families’ lives.
The other reason the presidential candidates don’t highlight Roe vs Wade in their campaigning, however, is because the majority of Americans support the Supreme Court decision. The decision carefully weighs the interests of the woman and the fetus, ensuring that a pregnant woman holds the right to sever the connection between herself and her fetus until the fetus can live outside of her body. At that point, the decision is such that the woman may only access an abortion if her life or health are in danger. Too, Americans already have the opportunity to effectively outlaw abortion in their own states and have attempted to do that to no avail so far.
The truth is, though, that Roe vs. Wade is a moot point for so many women in this country. South Dakota, for example, has one abortion provider (flown in from another state) for all the women in the state who want or need to access an abortion procedure. In many cities and towns around the country, abortion is not an option for low income women without health insurance or the means to pay for the procedure. In yet other states, legislatures acting for supremely political reasons decide that women should not be able to access abortion services unless they sit through government-sponsored speeches; and physicians are barred from providing medical services unless they recite information with no medical basis, for example.
Tomorrow the U.S. Supreme Court will begin its term, with no abortion related cases on the docket. But Roe vs. Wade is a question that may be answered by the next President of the United States. As the article notes:
Some conservative lawyers agree that a McCain victory would only set the stage for overruling Roe. Regardless of who wins the White House, Democrats are likely to maintain a majority in the Senate, and they could block a staunchly conservative nominee to the high court.
For a fictional take on what the overturning of Roe vs. Wade might look like, check out Linda Hirshman’s, Red State – a serialized novel being published on Tuesdays and Fridays on this site. The novel explores an imagined post-Roe country and is definitely not a place any of us want to end up.