A Post-Roe World

| Mon May 15, 2006 6:04 PM EDT

In the Atlantic this month, Jeffrey Rosen tries to imagine what would happen if the court overturned Roe v. Wade. Pandemonium, he says. Political upheaval. Democrats would probably capture Congress and the presidency. And so on. In other words, there's a lot in the piece about the politics of a post-Roe world, but less time spent on how overturning Roe would actually affect women. The brief argument in this passage seems quite wrong:

It's conceivable that a year or two after Roe, as many as a dozen red states would adopt draconian restrictions on abortions throughout pregnancy, while a larger group of more populous blue states would offer the same access to abortion as they do now. What effect would this have on the national abortion rate? … "[I]n terms of national numbers, the effect would be small," [says Gerald Rosenberg of the University of Chicago].

For example, if the South Dakota ban survived the overturning of Roe, the national impact would be negligible. In 2000, fewer than 1,000 women obtained abortions in South Dakota, representing one-tenth of 1 percent of all the abortions performed in the United States. That year, there were only two abortion providers in the state, and about 30 percent of South Dakota residents who sought abortions traveled to other states, such as Colorado and Nebraska. If the South Dakota abortion ban took effect, that percentage would certainly rise.

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So the idea is that South Dakota would ban abortion, but nearly everyone in the state who needed or wanted an abortion could just travel to Colorado, which is likely to protect abortion post-Roe (except, of course, for "poorer women" who can't afford it; tough luck for them), so it wouldn't matter. Maybe so. But what about a state like, say, Mississippi—which, as Rosen reports, is also likely to criminalize abortion if Roe falls?

Looking at USA Today's map here, none of Mississippi's neighbors are "likely" to protect abortion rights post-Roe. If a woman in Mississippi wanted to travel to get an abortion she'd probably have to go all the way to New Mexico or Illinois. How many women will be able to afford that trip? How many women can take that much time off? And in Mississippi, there are currently 165 abortions per 1,000 live births. That's lower than the national average, but it's still a lot of women who now have access—however restricted—to a safe and legal abortion provider. Overturning Roe would have a very large impact here, especially on poorer women (and probably on a large number middle-income women as well).

And, of course, it's entirely possible—likely, even—that if Roe fell, states such as South Dakota or Mississippi would pass laws making it illegal for women to travel out of state to get an abortion. That would create all sorts of messy interstate conflicts; presumably the federal government would have to step in at some point; and it could conceivably decide in favor of pro-life states. And suddenly state bans would have an even greater impact.

In that vein, Rosen notes that pro-lifers would probably try to pass federal legislation to restrict abortion nationwide if Roe were to fall (in other words, it's silly to think that the issue would simply be "left to the states.") That's correct. But he also thinks that federal legislation would never pass because abortion rights are so popular. Well, it's debatable whether abortion rights are really that popular, but in any case, what does this have to do with anything? The United States Congress doesn't mirror popular opinion. Among other things, the Senate is counter-majoritarian by design and is overrepresented by small red states. Small pro-life states. A national abortion ban—or something along those lines—is hardly unthinkable, even if it's fairly unpopular, and it's naïve to think otherwise.

At any rate, Rosen's piece might be focusing on the wrong issue, since, as Ramesh Ponnuru is fond of pointing out, pro-lifers seem to have largely given up trying to overturn Roe. Instead, they're following a stealth strategy—chipping away at Roe bit by bit. If the Alito-Roberts Court, for instance, ever overturned the Salerno standard for facial challenges, then states could have very severe abortion restrictions on the books for years before they were ever found unconstitutional. The effect would basically be the same as overturning Roe, but it wouldn't be quite so politically volatile. That seems more likely. But overturning Roe is certainly possible and would be much more disastrous, in practice, than Rosen's piece seems to suggest.

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