Last month, in an editorial headlined "The War Against Women," The New York Times declared, "As the 30th anniversary of the Roe decision approaches, women's right to safe, legal abortions is in dire peril." Kate Michelman, the head of what's now called NARAL Pro-Choice America, told USA Today: "A woman's right to choose is probably in the greatest danger ... since Roe vs. Wade was handed down." According Michelman, "a slim one-vote margin on the Supreme Court" protects "freedom of choice" and a single appointment by George Bush could repeal that freedom.
Jeffrey Rosen, a professor at George Washington University and the legal affairs editor of The New Republic, thinks this is all hogwash.
Pro-lifers have long understood -to their chagrin -that the Supreme Court isn't nearly as hostile to abortion rights as abortion-rights activists claim. Rosen, who favors abortion rights, notes the Supreme Court is pro-choice by a margin of two -not one -justices. And it's almost inconceivable that two pro-choice justices will retire and be replaced by two anti-Roe justices any time soon.
According to the Michelman crowd, Justice Anthony Kennedy is anti-Roe and pro-life because he voted in favor of a ban on partial-birth abortions in 2000. But this overlooks the fact that Kennedy has always argued that Roe permits states to regulate late-term abortions. On more than one occasion, Kennedy has reaffirmed his support for Roe.
The causes for this poor analysis are twofold. First, abortion rights groups, like NARAL, have a financial and political interest in making Roe seem more imperiled than it is. Second, these extremists are unwilling to concede what is readily apparent to most Americans: There is a big difference between aborting a pregnancy at two weeks and aborting one at eight months.
That's why pro-life groups had their biggest victories in more than a decade over the issue of partial-birth abortion. The average Joe or Jane can draw a meaningful distinction between a "clump of cells" and an eight-month-old baby.
This perspective may not be philosophically defensible to pro-lifers who believe life begins at conception or to pro-choicers who believe that a baby has no right to life until the umbilical cord is cut. But that happens to be where the vast majority of Americans come down.
A recent CNN/Gallup/USA Today poll is just the latest confirmation. Two-thirds of Americans believe abortion should be legal in the first trimester. In the second trimester, when viability begins, that plummets to a quarter of Americans. And in the last trimester, when partial-birth abortions take place, only 1 in 10 Americans favor keeping abortion legal.
Rosen believes that America would be better off if Roe vs. Wade were overturned partly because
the decision is bad constitutional law, but also because such an action "would expose the fundamental weakness of the extreme anti-abortion position."
Rosen argues, somewhat persuasively, that the Republican Party would be severely damaged if Roe were overturned. Right now, Republicans benefit from the fact that a majority of Americans may be pro-choice, but the majority of people who vote specifically on the abortion issue are pro-life. So, Republicans can say they are pro-life without doing anything about it.
If Roe were overturned, and abortion became a legislative issue rather than a judicial one, Rosen predicts that many pro-choice Republicans "would desert the party in droves" while Democrats could cut loose their pro-choice extremists.
He also argues, more plausibly, that very few states would pass abortion bans very different from what most Americans feel -few restrictions for early abortions, quite a few for late ones.
There are some problems with Rosen's analysis. While establishing that Roe will be around for a while, he fails to recognize that this means predictions of where American attitudes will be many years from now are shaky.
Science continues to change the equation on both sides. Birth control will presumably become more reliable and, at the same time, embryology is making the life-begins-at-conception argument more plausible to many. After all, the first baby picture most of us see these days is taken in utero. Cloning may scare many Americans into becoming hardliners on reproductive issues.
Also, there's the issue of politics. Many of us have argued that Roe was a bad decision because it short-circuited the democratic decision-making process in which voters hammer out compromises at the ballot box.
Who is to say that if Roe were overturned Republicans wouldn't try to offer a compromise position rooted in allowing the various states to experiment with different solutions? Also, who is to say that pro-choice extremists wouldn't wield more clout in the Democratic Party than Rosen anticipates? The point is, no one knows.
But Rosen is surely right about one thing. The country would surely be better off if Roe were overturned sooner rather than later.