The Day After Roe

from The Atlantic,
June, 2006:

... the long-anticipated moment has finally come to pass: Roe v. Wade is no longer on the books. What happens next? The results might not be what you expect. The day after Roe fell, of course, abortion would be neither legal nor illegal throughout the United States. Instead, the states and Congress would be free to ban, protect, or regulate abortion as they saw fit. But in many of the fifty states, and ultimately in Congress, the overturning of Roe would probably ignite one of the most explosive political battles since the civil-rights movement, if not the Civil War. A careful look at how the pieces of the Rubik’s Cube might begin to turn the day after Roe suggests that access to abortion wouldn’t necessarily become less widely available than it is now; that the Democrats could gain politically, perhaps even seizing the White House and both chambers of Congress; and that, when the dust settles, in five or ten or thirty years, early-term abortions would be protected and late-term ones restricted. Roe v. Wade was an entirely different matter. The Court’s decision, in 1973, to strike down abortion laws in forty-six states and the District of Columbia was high-handed, and represents one of the few times in history that the Court leaped ahead of a national consensus. In every Gallup Poll since soon after Roe was decided, small minorities of Americans—in the 20 percent range on each side—have said that abortion should be always illegal or always legal, while a large majority has said it should be legal under some circumstances and especially at the beginning of pregnancy. Later, the Court continued to ignore popular opinion when it struck down, in the name of Roe, many practices enthusiastically supported by the public, including spousal-notification laws, parental-consent laws, and informed-consent requirements. Critics of Roe v. Wade often compare it to the Dred Scott decision on slavery before the Civil War. In both cases, the Supreme Court overturned political compromises that national majorities supported, provoking dramatic political backlashes. If the Court decides to reverse ...., it might still preserve the core protections of Roe v. Wade for choice early in pregnancy. If so, it would express the sentiments of the majority of Americans on abortion far more faithfully than the current White House and Congress are likely to do.

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If, on the other hand, the Court does seize the opportunity to overturn Roe, it would at least allow national majorities to eventually make their constitutional views about abortion clear.

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