Refusing to Abandon Roe

| Tue Jun. 20, 2006 2:25 PM EDT

Most people have heard the argument from various "contrarian" liberals that overturning Roe v. Wade would actually be a boon for abortion rights—not to mention the Democratic party—because it wouldn't make much of a difference anyway and it would rouse pro-choicers from their apathetic slumber. Examples are here and here. It's totally false, of course, but it's still an insidious idea that seems to have some staying power among well-to-do male pundits living in blue states. So I'm glad Scott Lemieux took the time to shred the argument in this American Prospect article.

But the other thing to note—and Scott sort of gets at this in his piece—is that Roe v. Wade is somewhat beside the point here. Don't get me wrong, I'm very glad Roe exists, and even seem to be one of the few people convinced it was correct as a legal decision. But barring John Paul Stevens dying or some similar catastrophe (and I'm not much for praying, but I could be persuaded to light a candle for Stevens), the Supreme Court isn't likely to overturn Roe anytime soon.

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Instead, as Helena Silverstein and Wayne Fishman point out here, a Court with Anthony Kennedy as its swing justice is just going to chip away at abortion rights, bit by bit. And while that won't be nearly as disastrous from a pro-choice standpoint as overturning Roe would be, it will still be pretty damn disastrous. The court will start upholding more and more state and federal restrictions, supported by "centrists," that will a) make it harder for women to get first-trimester abortions by putting in place "waiting periods" and the like and b) restrict the very late-term abortions that are being necessitated by the first group of regulations.

So the real battle, then, will be at the state level. And that's what made this piece, by Allison Stevens, so intriguing. Stevens notes that pro-choice groups are much, much less organized at the state level than pro-life groups. NARAL has chapters in only 29 states, compared to 50 for the National Right to Life Committee. And the pro-choice state groups largely tend to fight defensive battles rather than fighting an "incrementalist counterattack" by introducing "initiatives of their own that could preserve, or even improve, access to abortion." Nationwide, states have enacted 194 major restrictions on abortion compared to only 39 major laws protecting access.

Ramesh Ponnuru has long gloated about how effective the pro-life "incrementalist" strategy has been at the state level, and he has a point. Stevens has a good example: ridiculously stringent laws (known as TRAPs) that regulate abortion providers, from the size of the parking lot to the width of the hallways, have been extremely effective at shutting clinics across the country down by driving up costs. (The regulations are, of course, totally unnecessary: abortion is already an extremely safe medical procedure—much safer than actually giving birth, for instance.)

But it's stealthy enough that it doesn't incur much of a backlash. So I can somewhat understand the rationale behind the argument that only the death of Roe will wake people up to what's going on here and spur pro-choice groups into fighting back at the state level. As Scott shows that that's exactly wrong. But I'm also not sure what can reverse the pro-life "incrementalist" attack, apart from a major strategy shift among state-level groups—which Stevens recommends—and a more liberal Supreme Court that actually strengthens abortion rights rather than simply preserving the status quo.