A World without ‘Roe’

October 17, 2012

by E. Sebastian Arduengo

A more conservative U.S. Supreme Court would likely result in the gutting of Roe v. Wade, which for close to 40 years has guaranteed women’s access to reproductive health care. A decision overturning Roe wouldn’t make abortion illegal nationwide, but would have the effect of putting the issue in the hands of state governments – a lot like the issue of same-sex marriage.

Anyone who’s been following news about what the states have been doing to limit access to abortion providers knows that this is disconcerting news for women.

In Mississippi over the summer, the state legislature passed a bill requiring abortion providers to have admitting privileges at local hospitals that would have had the effect of ending abortion in the state, the implementation of which was stayed by a federal judge. In Louisiana, a law was passed making abortion a strict liability medical procedure, meaning that patients would be able to recover against abortion providers without any proof of fault or negligence. That law too, was held to be unconstitutional by a judge.

Many more states are itching for the day when the Supreme Court says that reproductive rights are no longer protected by the Constitution. The Center for Reproductive Rights, says there are at least five states that have so-called “trigger” laws that would automatically make abortion illegal without a post-Roe clash in the state legislature. Others would simply have their pre-Roe anti-abortion laws go into effect. Reproductive rights would be in immediate danger in about 30 states the second Roe is overturned.

Louisiana’s “trigger” law says:

[the] policy of this State is to protect the right to life of the unborn child from conception by prohibiting abortion impermissible only because of the decision of the United States Supreme Court and that, therefore, if those decisions of the United States Supreme Court are ever reversed or modified or the United States Constitution is amended to allow protection of the unborn then the former policy of his State to prohibit abortions shall be enforced.

A recent op-ed in The New York Times spells out what this would mean for women:

Women desperate to end a pregnancy would find a way to do so. Well-to-do women living in places where abortion is illegal would travel to other states where it is legal to obtain the procedure. Women lacking the resources would either be forced by the government and politicians to go through with an unwanted or risky pregnancy, attempt to self-abort or turn to an illegal — and potentially unsafe — provider for help. Women’s health, privacy and equality would suffer. Some women would die.

It was exactly this situation that led the Supreme Court to its decision in Roe, well that and the fact that, as previously reported on the ACSblog, there is ample constitutional support for the protection of reproductive rights.

Next year, Jan. 18 - 19, ACS will host, along with the UCLA School of Law, the Williams Institute, the Yale Information Society, and the Program for the Study of Reproductive Justice, a conference centering, in part, on the impact Roe has had on advancing liberty and equality. See here for more information about the conference.

For more on why courts matter in other areas of law, see the ACS paper Courts Matter: Justice on the Line.