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Will there be Life after Roe?

J.C. Willke, MD

What happens if Roe is overturned? Pro-abortion media and politicians blanch at the very thought. They react in “chicken-little” style, saying the sky would truly fall. They tell everyone who will listen that all abortions would be criminalized; women would die; they would probably be put in prison and that back-alley abortions would return. In fact this type of reaction is totally irrational and non-factual. Let’s take a more accurate look at life after Roe.
 

Assuming that Chief Justice Roberts would vote to overturn Roe (not necessarily a sure thing), then there are three votes on a nine-justice court – Scalia, Thomas and Roberts. Let’s also assume that Samuel Alito would support overturning Roe, an assumption that we cannot, of course, be totally sure of. But assuming he joins the three, you then have four votes to overturn on a nine-justice court, which isn’t a majority. We would need one more vote.
 

This is certainly not beyond the realm of possibility. President Bush has three more years to serve. Justice Stevens is 85 years old and Justice Ginsburg has had surgery for colon cancer. In three years there is a definite possibility that one more vacancy could occur, making way for another nomination. Assuming the 2006 elections do not end the pro-life Republican majority in the Senate, then Bush may be able to place another pro-life justice on the Court. In this case, a pro-life majority of five would then exist and Roe could be overturned. Needless to say, there are a few if’s in the above scenario. However, it is certainly possible, maybe even likely, so let’s consider what would happen if Roe vs Wade was overturned.
 

Would it be overturned or would the sitting justices consider it to be “settled law?” Would they respect precedent and observe the tradition of stare decisis? This means that since this has been observed for so many years, it has become a part of the culture of the country and should not or cannot be overturned. Certainly we are hearing a continuing cacophony of voices from the left telling us that this is in fact settled law and therefore can’t be changed.
 

But let’s look back to the 19th century when the Plessey vs Ferguson, 1896, decision by the Supreme Court ruled that for racial matters of education and social policy, separate but equal facilities were to be constitutional. As the decades rolled by, it became increasingly evident that, while this was the sitting law, it was not settled law. And finally, in 1954 the court ruled in Brown vs Board of Education that separate but equal was in fact not equal and overturned that longstanding precedent. What the Brown decision did was correct an injustice, a social mistake that had become increasingly evident.
 

Can we say the same about abortion? Increasing numbers of people, certainly the vast pro-life movement, would say, “Yes.” Over time, the Roe decision has not become accepted social practice and just law; exactly the opposite has happened. There is no single decision in the 20th century that has caused more turbulence, unrest and basic total disagreement. Clearly this is not settled law. Therefore, a rational look at the picture as it exists today must conclude that stare decisis does not apply and that this decision may well be ripe for correction.
 

Actually Roe vs Wade and its companion case, Doe vs Bolton, have been unstable even from the beginning. These decisions were based on the Griswold decision in 1965. Griswold established that there was a zone of privacy in the constitution that applied to marriage and procreation. The constitution never spoke of this, but that didn’t stop the Supreme Court. They found “privacy” in the emanations from the penumbra of the 5th and 14th amendments. Back then we had to grab a dictionary to find that emanations were vapors or radiations and penumbra was an astronomical term that described the shadow cast by an eclipse. So, the privacy doctrine was grounded in vapors arising from a shadow – not exactly a concrete foundation.
 

When the Roe decision came down in January of 1973, there was an entire host of legal scholars, many who were pro-abortion, who unanimously said that the right to abortion was invented and had no basis in the constitution. As Justice Byron White stated in his dissent, legal abortion was the result of “raw judicial power.”
To say that this is an unstable opinion is merely to note the obvious: it is simply too extreme. This one Court decision swept away every law in all 50 states that in any way, shape or form protected the developing child within the womb. Abortion-on-demand was now law for any reason whatsoever throughout the entire nine months of pregnancy. That’s extreme.
 

By comparison, we note how other nations have legalized abortion. With almost no exceptions, every nation in the world that has legalized abortion has done so through a legislative process. In passing legislation, there is brought to bear testimony, evidence, etc., from both sides of an issue before a final decision is made. This method prevents extreme results, and usually the outcome is some type of a compromise. But the Roe decision simply cut off all debate and leaped to an extreme conclusion. This undoubtedly is why the United States has spawned far and away the strongest pro-life movement of any country in the world. If this had crept up on us like a frog being slowly boiled in water, the awesome pro-life movement in the US would probably not exist today.
 

Abortion was legalized throughout all nine months because of the second decision, Doe vs Bolton, which stated that an abortion could be done for reasons of health, and then defined “health” in the broadest possible terms. Health included “all factors, physical, emotional, psychological, familial and the woman’s age.” Roe also defined the health exception saying, “Maternity or additional offspring may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by childcare. There is also the distress for all concerned associated with the unwanted child. There is the problem of bringing a child into a family already unable, psychologically or otherwise, to care for it. There are the additional difficulties and continuing stigma of unwed motherhood. All of these are factors that the woman and her responsible physician will consider.”
 

So “health” in these two decisions, so broadly defined, extended abortion throughout the entire nine months of pregnancy and amounted to any social, economic or other reason as defined by the woman herself. All she needed was a licensed physician to do the job, and all she needed for that was money.

If Roe is Corrected
What will happen if Roe and Doe were actually reversed? More than two-thirds of the states have legally repealed their pre-Roe laws or have amended them to conform to these two decisions. Only four states have enacted post-Roe laws that would prohibit some or most abortions throughout pregnancy. Federal courts have declared three of these, Louisiana, Rhode Island, and Utah, unconstitutional. If the feds were removed from this picture, they would probably again be able to protect preborn life. South Dakota has just enacted a trigger statute, which will go into effect if Roe and Doe are overturned.
 

Of the less than one-third of the states that have not repealed their pre-Roe laws, most would be ineffective in preventing abortions, either through their direct language, by court interpretation, or would allow abortion because of mental health. These include Colorado, Delaware, Massachusetts, Alabama and New Mexico. State constitutional limitations in MA, MS, NY, NM, VT, AZ and WV would likely allow abortion.
 

In summation, only 7 states — Louisiana, Michigan, Oklahoma, Rhode Island, South Dakota, Wisconsin and Arkansas — would have laws that are probably enforceable if Roe and Doe were overturned. These states account for less than 10 percent of the total population of the United States. In the balance of the states and the District of Columbia, abortion would remain legal, probably throughout pregnancy.
 

These rather grim facts cause a great deal of dismay to many pro-life people. Some may throw their arms up and in effect say, “All of this work for all of these years, and now we still don’t have much.” Let’s hope that it does not discourage pro-lifers for, in fact, reversal of these Supreme Court decisions would be a marvelous and momentous happening. It would be the absolutely essential first major step in returning protection to the unborn. For without it, we have only been able to make small, incremental advances for the past 33 years. If Roe is reversed, the federal courts will finally be removed from the equation. Then the decision goes back to the voters, to the people in each individual state. Laws can be passed and state constitutions can be changed to protect the unborn.
 

Some states, particularly in the South and Midwest, would undoubtedly pass new laws within the next year or two, substantially or almost totally protecting the unborn. Other states would narrow the time abortion can be done from 9 months down to three. Others would pass more protective legislation such as spousal consent, age limitation, or more stringent requirements for abortionists. These would reduce the number of abortions. In some states there would be roadblocks such as a pro-abortion Speaker of the House who would bottle up a protective bill. But that situation might only be temporary until the next election. He might be replaced and the will of the public would truly govern. Finally, of course, there would be states, on the east and west coasts particularly, that would retain state-paid abortion-on-demand. Yes, they could become a Mecca for abortion to those living in states with protective laws, but that is a far better situation than what we have now. This will not happen overnight. It will take time, but then time is on our side, because then the law will be a great teacher.
 

Protective laws, pro-abortion activists argue, would only drive abortions underground; women would bleed and become infected from back alley abortions, and that abortion would still be the order of the day. That didn’t happen in Poland after a national pro-life law was enacted and caused abortion to basically end. Yes, there were some women who crossed the borders, but basically none of the dire predictions materialized. I would predict the same would happen in the United States. Slowly our population would be reeducated, not just to the fact that abortion is wrong, or that it hurts women. Americans will slowly but surely see the advantages to ending abortion and once again respecting innocent human life. Our culture has suffered beyond comprehension because of this disrespect for human life. The abortion culture has infected everything it has touched. Slowly this would dissipate.
 

Then our ultimate goal could be realized. There would be an ample majority in enough states to persuade Congress to see the necessity of protecting all unborn life. Then, someday in the foreseeable future, Congress would pass a federal human life amendment and there would be enough states to ratify it.
This would be the end of the story. Your author does not expect to live to see this, but his children probably will. However, the key that must be turned in the lock to begin this process is the reversal of Roe vs Wade.

 

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