Do We Know How to Reverse Roe? Print
By Peter Brown   
Tuesday, 08 February 2011

Yesterday, Robert Royal wrote another characteristically provocative piece here at The Catholic Thing. We surely do not know exactly what “poverty” is, let alone how best to fight it or how we will know when we have won the war against it. In this respect, abortion is a much more cut and dried issue. We know that abortion is immoral and should be stopped. But do we really know a foolproof manner to stop it? Color me skeptical. In other words, it is one thing to have moral certainty that abortion is wrong and must be stopped and quite another to have practical certainty about how to bring about its demise. 

Dr. Royal did not tell us what he has in mind, but presumably he advocates returning to the abortion regime prior to the odious 1973 Roe v. Wade decision. I know I certainly do. This political strategy against abortion has been the center of pro-life efforts since the movement’s inception in the 1970s. Yet it is a common misconception among pro-lifers that Roe “legalized” abortion. 

In fact, by the time the Roe decision was handed down in 1973, over two-thirds of American women lived within a two-hour drive of a state with legal abortion. Many larger states like California and New York had already liberalized their abortion laws and many other states were preparing to take up legislation to do likewise. Roe pushed the country farther and faster on abortion than it would have gone on its own and in a way difficult for abortion foes to reverse. But we should not kid ourselves that the end result of essentially legal early-term abortion would have been significantly different without Roe. Overturning Roe today might not be the Holy Grail that many right-to-lifers suppose. 

And that presupposes that pro-lifers even know how to overturn Roe. The political strategy here is easy enough to understand — get control of the GOP nominating process and make sure that all Republican presidential and vice-presidential candidates have strong anti-abortion bona fides and then make sure that those candidates get elected. Then, when Supreme Court vacancies occur, make sure that the president keeps his commitment to appoint “strict constructionist” justices.  

Well, how is this working?

For starters, pro-lifers have only succeeded in electing Republican presidents about half the time since 1976 — which is hardly surprising given we have a two-party system wherein both parties are pretty evenly matched historically. And about those SCOTUS appointments, well….of the seven appointments to the high court in the abortion era, GOP presidents have only managed to appoint four reliably anti-Roe justices. And that is not even counting Nixon’s “Minnesota Twin” disasters of Harry Blackmun and Warren Burger. 

      Massacre of the Innocents by Fran├žois-Joseph Navez (1824)

I assume that all these nominations were made in good faith. But due to the confirmation process itself or political or social pressure on the bench, it’s apparently just not that easy to predict what a justice will do. Stealth judicial appointees have learned to dance around abortion questions in the confirmation hearings, but abortion opponents have had many unpleasant surprises from those judges whom they thought saw Roe as they did (see Souter, David: Supreme Court Associate Justice of). Over thirty years after the election of Ronald Reagan, pro-lifers are still waiting for that elusive fifth anti-Roe justice. 

Short of achieving an outright abortion ban nationally or through the states, pro-lifers would be and, indeed, are at the moment working on ways to restrict abortion. Parental notification laws, waiting periods, mandatory ultrasounds, bans on partial birth abortions and on public abortion funding, and so forth have been pushed successfully by pro-lifers. It is not unreasonable to assume that these initiatives have helped reduce abortions somewhat. But do we know how much they have reduced abortion and whether other measures in combination with these might reduce the rate further? No, we do not.

For instance, do we know to what extent the Family and Medical Leave Act — which mandated that employers provide their employees with unpaid parental leave — might have also helped reduce the abortion rate? This law was generally supported by Democrats but opposed by most Republicans. A similar question could be asked about other past and proposed future welfare-state expansions. Does subsidized medical care and income assistance (welfare or EITC) for lower income Americans disincentivize abortion or, alternatively, could it be structured by pro-lifers so that it did?  

The answer might suggest that it is not a good long-term strategy for pro-lifers to decouple opposition to abortion from political support for an effective social safety net. We do not really know how much these programs might actually help — even though the “other” political party currently champions them. 

But even if the strategy of reversing Roe were to succeed, would abortion opponents know how to stop abortion then?  

Even assuming they could enact them, for laws to succeed in a free society they have to enjoy broad public support — both in the ballot box and the jury box. Do pro-lifers really know how to convince enough of their fellow citizens that even early abortions should be generally outlawed? I’m skeptical. 

Moreover laws require at least some support in cultural mores to be effective. Practically speaking it would be very difficult to stop by statute alone what is now one of the most common medical procedures in America, absent some profound changes not simply in law and politics but culture as well. But how do we reshape the culture, to the extent that it is even possible to speak of a single American “culture?” I haven’t figured this one out yet and I don’t think anyone else has either.   

This is why I fear that knowing that abortion is wrong is a far cry from knowing exactly how to stop it! On the second question, we still have more to learn. 

Peter Brown is completing a doctorate in Biblical Studies at the Catholic University of America.

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