Abortion: A Reality Check

Since some changes in the high court there has been a lot of hand wringing on the part of pro-choice advocates and some cautious optimism on the part of the pro-life lobby. However, now is the time for a reality check. First, it is highly unlikely for Roe v. Wade to be overturned entirely. This is unlikely for two good reasons. First, even a court sympathetic to an anti-Roe position is unlikely to over turn a decision which has lasted 30 years. Both of the new nominees stated that they respected previous court rulings and it would take something extraordinary to entice them to overturn such decisions.

Most Supreme Court justices are loath to go against a previous court decision. Supreme Court decisions become the precedents on which other decisions are based. There needs to be a sense of finality or at least stability in those decisions which outlasts the terms of the justices themselves for the legal system to function with any degree of certainty. The justices understand this and, thus, will not easily overturn a previous court's ruling without some massive change in the cultural millieau.

This brings us to the second reason that Roe is unlikely to be overturned. This is a court decision that enjoys a great deal of public support. Polls repeatedly show 70-80 percent of the American public support legalized abortion. While the courts, theoretically, are to not consider public sentiment, and only the limits of the law and the constitution, they can't totally ignore the will of the public.

So, Roe is safe for the time being, however, as we pointed out Roe was much more limited than many current abortion laws and pro-choice philosophy would like us to believe. One could easily see a tightening of abortion regulations within the scope of the Roe limitations.

We could see parental notification (and possibly parental permission) laws be passed and survive court challenges. Late term abortion bans will likely stand scrutiny by the Supreme court if the laws are written well with safeguards for those women whose life or health is threatened. Informed consent and waiting period laws will probably find a friendlier hearing at the court than in the past.

However, even the overturning of Roe would not eliminate abortion in the U.S. Before Roe nearly 1/3 of the states had some sort of legalized abortion on the books. And the laws were not always vigorously enforced. If Roe was overturned, the majority of the states under pressure from constituents would probably pass their own abortion laws and the expedient of traveling to a pro-abortion state would return.

The pendulum is swinging back, but it has lost most of it's momentum. If we are lucky, it will land somewhere close to center ground.