Friday, July 01, 2005

Roe No More?

Now that O'Connor is retiring from the Supreme Court, it's hard to imagine that there will be a pro-Choice majority on the bench come next session. How great a catastrophe would it be if Roe were overturned?

I strongly support the principle that women ought to have access to safe and legal means to control their own fertility, including surgical abortion. However, I sympathize with those who point out that the constitution does not explicitly guarantee the right to an abortion. Roe itself is based on the idea of a constitutional right to privacy, itself a nebulous inference from the text. I don't think it's a radically 'originalist' (ala Scalia) argument to make that when the right to have a surgical procedure is this many logical steps removed from the text of the constitution, then it falls into the Tenth Amendment category of rights which the people are meant to define and protect via the legislatures of the States.

But constitutional law arguements aside, how likely are the states to take away the right to an abortion if Roe is overturned? Certainly it varies by state, but the political fight would be harsh, and we would end up with a patchwork of pro-Life and pro-Choice states. But remember that the public support for limiting abortion (parental notification, outlawing 'partial-birth') does not extend to outright banning of the procedure. I suspect that most states would revert to something similar to the English common law as it existed for hundreds of years: that abortion is legal only during the first trimester.

What's more, without the centerpiece rallying cry of the Religious Right's culture war, they would lose much of the fervor which spills into other issues and fuels the rise of more extreme-Right candidates. I really don't think that overturning Roe would be an unmitigated disaster, and there may be some tactical benefits.

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