Time For Scare-Mongering On Roe V. Wade

There must be an election approaching - the Times runs an op-ed decrying the horrors of illegal abortions in a pre-Roe v. Wade world:

   With the Supreme Court becoming more conservative, many people who support women’s right to choose an abortion fear that Roe v. Wade, the 1973 decision that gave them that right, is in danger of being swept aside.

When such fears arise, we often hear about the pre-Roe “bad old days.” Yet there are few physicians today who can relate to them from personal experience. I can.

I am a retired gynecologist, in my mid-80s. My early formal training in my specialty was spent in New York City, from 1948 to 1953, in two of the city’s large municipal hospitals.

Since he practiced in New York and since this article is appearing in a New York publication, one might expect a mention of the fact that abortion was legalized by New York State in 1970, three years before Roe. v. Wade struck down abortion bans in some, but not all, parts of the country.  Or, since we are talking about the NY Times in an election year, perhaps one would not have quite that expectation.

Let's flash back to this Feb 2005 NY Times piece, written in the post-apocalyptic horror of the Bush re-election with the hope of reassuring the trembling masses:

FOR anyone interested in dodging partisan rhetoric long enough to think seriously about the coming decade in the American abortion battle, some of the most illuminating reading right now can be found on a chart. It's a partisans' chart, to be sure; the information that fills its tables was compiled by the New York-based Center for Reproductive Rights, whose lawyers have been arguing abortion cases for more than two decades.

But take a quick look down the column on the left, Existence and Status of Abortion Ban. That's ban, not regulation. Old abortion laws, unenforceable under Roe v. Wade, remain in the statute books of more than a dozen states.

The chart was first published last fall, along with a study full of footnotes and legal citations, both provocatively titled, "What If Roe Fell?"

In the months before the presidential election, that question had the ring of campaign sloganeering. Six weeks into the second administration of President Bush, it isn't sloganeering any more; it's a sober question, the subject of a parallel state-by-state study due later this year by lawyers from Americans United for Life, a group opposed to abortion rights.

And here's one condensation of the answer, once the dogged reader has plowed through all the particulars: Should the Supreme Court overturn Roe v. Wade, reversing completely the 1973 ruling that established a constitutional protection for the right to abortion, the ensuing legal and political tangle would be of epic proportions.

Roe is not going away anytime soon, it must be remembered, and might not, ever. Those hanging-by-a-thread warnings that issue occasionally from abortion rights advocates are based on a 5-to-4 count that places Justice Anthony Kennedy among Roe's opponents; many court watchers think that's a misreading of Justice Kennedy's abortion opinions, and that the actual count is 6-3 in support of the central holding in Roe, that women's fundamental right to abortion trumps states' power to ban or restrict it. If the 6-3 count is right, it would take an especially precise sequence of events to bring about a full reversal of Roe v. Wade. Two pro-Roe justices would have to leave the court (in other words, two besides the reliably anti-Roe Chief Justice William Rehnquist, who is expected to retire at the end of this term). Their two replacements would have to be sure votes against the principle of a constitutional abortion right. An appropriate case would have to work its way up the appellate system to be accepted for review. And all of this would have to conclude before a Democrat could become president and get a chance at realigning the Supreme Court all over again.

But three decades of impassioned, interminable argument have somehow congealed into a collective fantasy about what the reversal of Roe would mean - how the American abortion brawl would be over, lost or won, depending on one's point of view, but over. Wrong.

As the article explains, a simple repeal of Roe would leave abortion legal in many states.  Even the scare-mongering executive summary of the original study noted above does not manage to be that scary:

That said, we have found that women in more than half the country would be vulnerable to efforts by anti-choice forces to ban abortion.

In 30 states, women are at risk of losing their right to choose abortion after a reversal of Roe; 21 of these states warrant the highest level of concern.

In only 20 states does women’s right to choose abortion appear secure.

 

"Vulnerable to efforts" does not mean that an abortion ban automatically fall into place following the repeal of Roe.

And as for counting judges - Roberts and Alito replaced O'Connor and Rehnquist; O'Connor was counted as a Roe supporter, so the Times estimate of 6-3 in support of Roe is now down to 5-4.
.

Comments

[Chants]

The question of abortion is legislative, not juridical.

[syn]

"The question of abortion is legislative, not juridical."

After the last several decades of the low-grade civil-war the Roe vs Wade decision has created, there is no way I'm going to let the people in black robes dictate 'same-sex union between a man and a woman'.

Crimes against justice have consequences, judges and lawyers should know this most of all.

[kim]

Same sex? Well, yes we are, with complementary appurtenances.
=====================================

[Pofarmer]

I think I'd trade same sex marriage for abortion, do you think that would fly?

[Pofarmer]

Also, I wonder how many good candidates the Dims have alienated by this one issue litmus test for national office. Does that help explain some of the feel good non-conservative Rhino ism going on??? These folks would be Dim's if not for the abortion issue?

[kim]

It's a win/win, Pf; more childless married couples to do adopting.
==========================================

[kim]

In '06, in order to win, the Dems exposed their own pathology about homosexuality. This primary, in order to find a candidate, the Dems exposed themselves on gender and race. Surely, thinking voters have sensed this, and the caricature of a security policy, and will tend away from the left, this election. Hoi polloi must follow the thinkers, unless history is no guide.

There was a hint of this in my question for J. Merritt as to what she thinks of the fact that half the Democrats have now discovered that Joe Wilson is, was, and forever will be, a big fat liar. The Khost Dancers prance on, oblivious to their inanity.
====================================

[Topsecretk9]

Of course Lar-Bear has a new "whitey" post up with his ever moving goalposts and story rewrites

Today's installment include the detail that this tape was for sale on Trinity's website as early as March 2008

OK, in response to commenters who point out that there should be quite a few of these copies out there then, not to mention in every candidate who ran's oppo safe, he tells he commenters to be patient and

Comment by joey | 2008-06-04 03:37:51

YEAH OKAY!… IF IT WAS SOLD IN THE CHURCH THERE WOULD BE THOUSANDS OF COPIES. 2ND THE REPUBLICANS WOULD OF RELEASED IT BY NOW. YOU AND YOUR STORY ARE FULL OF CRAP. I DONT BELIEVE IT ANYMORE.

Reply to this comment
Comment by Larry Johnson | 2008-06-04 03:39:02

They did not know where to look. We cracked the code yesterday."

They- republicans did not know where to look- they- Larry and Joe--Cracked the code.

Wonder if Scary collected the million for the Dr. Evil republican Billionaire?

[kim]

So Larry's a cracker after all?
=================

[Jane]

Also, I wonder how many good candidates the Dims have alienated by this one issue litmus test for national office.

I dunno, sitting in the Northeast I see if exactly the opposite. My 82 year old mother votes for Choice in every election. That was my position as well until sometime in the 90's when I decided Choice was no longer an issue. I think the reason it gets talked about at all is because it benefits the left.

[GMax]

Wouldnt the "they" be Larry, Curly Joe and Moe?

 I still like the Alfred E. Neumann analogy.

[GMax]

But lets see, the Dem primary is just over. Exhaustive nominee with tarnished halo bestowed upon him by the press, is lagging a little to a lot with female voters and presto NYT finds an issue to talk about. Just coincidence no doubt.

[Porchlight]

I think the discussion of *Roe* benefits the left. But Roe is just part of the overall abortion question. Obama's voting record on abortion is going to be made much of and is going to hurt him. At minimum it will further compound his Catholic problem in heavily Catholic states like PA which he can't afford to lose.

[cathyf]

The problem is that roe raised the ante. The court can't just reverse it because of stare decisis -- our legal system doesn't allow Emily Litella "Never mind" do-overs. If there is a constitutional amendment, then it means no abortion anywhere.

Before the civil war we had different laws on slavery in different states. Once all those northern farmboys were slaughtered in order to keep the union together we had the emancipation proclamation and 13th amendment, and there was one slavery law for the whole country. The south wasn't going to be allowed to go back to the status quo ex ante.

[Neo]

What Roe v Wade ?

This is really sad ..

traditional subjects were invented by the middle classes and are "mere stepping stones to wealth".

Make 'em stupid and poor .. they will be easier to control.

[TIM]

Interesting that he points out early on that the Supreme Court and NOT the Constitution gave women the right to an abortion. Judicial Activism anyone?

[GMax]

Actually Cathyf the court most certainly can just reverse. It has done so in the past with gusto. Look at Plessy v Ferguson. The court, which must wait for a case to find its way to them, can merely decide that any precedent stated by a prior Supreme Court to be not an appropriate precedent, to present unique issues not previously addressed or simply wrongly decided.

[Jane]

Actually Cathyf the court most certainly can just reverse.

It's not gonna happen. And if it does, expect democrat majorities for the next kajillion years.

[GMax]

That was not my point. I dont expect Roe v Wade to go away as precedent. But its wrong to say a case once decided is sacrosanct. It most certainly is not if but 5 solons decide otherwise.

[Jane]

GMax,

I agree with you there.

Obama has now declared his priority is to bring the 3 Israeli soldiers home. That might come right after he hires all the new teachers.

[MayBee]

I'm watching his AIPAC speech and I realize I just can't stand him.
I used to loooove him.

I see why people get so weird about Bush, who had such high positives after 9/11. The comedown from the high of really really liking someone is so much worse than starting off as apathetic toward them.

[Jane]

Someone correct me if I'm wrong - Weren't the democrats angry for years about the fact that we didn't let our allies do the negotiating for us? Wasn't that an endless theme?

Cause now Obama says that's a bad thing. He wants to lead all negotiations.

Go figure!

[Danube of Thought]

Even if McCain wins, he's going to be looking at a Senate that will never, ever confirm any justice who is even remotely suspected of being inclined to reverse Roe.

If the constitution were to be amended--and there is zero chance of that--the only appropriate amendment would be one that simply affirmed that the question is a matter of state law. Very few states at this point would outlaw the procedure, and in any that did, one would have to beware of state supreme courts willing to find abortion a right under the states' consitutions (see, e.g., California on same-sex marriage). This is a dead horse.

My perverse little dream is that McCain wins, Stevens retires, and Schumer et al. get really obstructionist about new nominees. At that point McCain just says "OK, I'll play these," and continues with an eight-justice court until the Senate elections of 2010. But try to imagine McCain doing that.

Mornin', Jane.

[Jane]

Morning Dot,

I like your perverse dream.

I'm worried about the difference in oratory ability - It's hard to know how closely people pay attention.

[MayBee]

Yes, Jane.
After Iraq, we got yelled at by the Dems and "the world" that we didn't let the Europeans do it their way.
That was in a time before history, though. Even the youtube debate is quickly becoming a time before history. The "unconditionally" thing has become "strong diplomacy".

[MayBee]

In debates, McCain should do well over Obama. I think McCain just plain old knows more than Obama does, and Obama didn't do well at his debates with Hillary.

Speeches all go to Obama. That's also where he spreads his half-truths to tens of thousands of adoring fans.

[GMax]

DOT I was about to say that the two most likely retirees are Stevens due to age and Bder Ginsburg due to ill health. Perhaps both. That would leave Souter and Clinton's other appointment over on the leftwing of the Court fairly isolated.

Two Kennedys would be better than either of those two, who are in my own opinion, the two most liberal members of the Supreme Court.

I dont think you can filibuster Supreme Court nominees repeatedly. The American people will see advise and consent differently than that. You might get away with one, but you will have to Bork him, and it will run you dry on powder for the next nominee and the next nominee.

At some point the American people will say, respect our choice for the executive branch or else you are making a mockery of our government. It would cost Democrats dearly with all but the most rabid.

Now will McCain know a conservative from a hot rock? Only if he has proper assistance.

[Pofarmer]

It's not gonna happen. And if it does, expect democrat majorities for the next kajillion years.

Doubtful. There's actually pro-life Dim's out here in the hinterland. They have to be to get elected. The Dims would control the metro area's, which I think is now a given, and everywhere else I think it would be a positive.

[Pofarmer]

At some point the American people will say, respect our choice for the executive branch or else you are making a mockery of our government.

Waxman's got a head start on it now, and I'm not hearing much clamoring for it to stop.

[Jane]

There's actually pro-life Dim's out here in the hinterland.

Yeah but don't forget pro-choice republicans.

I'm ambivalent on the issue for the most part, but I probably wouldn't vote for a referendum banning choice.

[Sue]

Kimmy,

So Larry's a cracker after all?

You owe me a keyboard. ::grin::

[Sue]

I'm ambivalent on the issue for the most part, but I probably wouldn't vote for a referendum banning choice.

To me, whether you would vote for or against is irrelevant. I just want you to vote. Instead of judicial fiat.

[Sue]

Maybee,

Speeches all go to Obama. That's also where he spreads his half-truths to tens of thousands of adoring fans.

McCain should give a speech on speeches. Tell the people if you want someone who gives good ones, Obama is your man. If you want someone whose speeches aren't soaring but who knows how to get the job done, I'm your man. Or something like that. Point out, over and over, how Obama gives great speeches and he doesn't. Deflect it before it even gets started.

[Jane]

McCain is proposing a joint town hall meeting on June 12th with Obama in Philly.

Good job McCain. No speechifying allowed.

[Barney Frank]

Most polls show approximately equal numbers strongly pro and anti abortion. However it is the large middle that is routinely misinterpreted. Most of them are only in favor of abortion in quite limited circumstances and are not in favor of abortion on demand, but are often counted as pro abortion because they support abortion in the relatively small number of cases such as rape or incest.
Smart Dems know this and in nationwide campaigns tightly limit their pro abortion rhetoric. When they don't, just as when they don't hide their anti gun rhetoric they regret it.

decrying the horrors of illegal abortions in a pre-Roe v. Wade world

Abortions, if illegal, are more dangerous to those undergoing them. Solution; make them legal rather than encourage women not to have them.
Hmmm, embezzlement, rape and murder, if illegal, are also more dangerous to their perpetrators. Solution? Why not the same as above?
This is the genesis of the argument that a fetus, even a viable one, is not a human being; unlike theft, rape and murder, abortion has to be seen as a victimless crime to survive.

[Danube of Thought]

Bork wasn't filibustered, his nomination went to the floor and was rejected. With the looming Dem majority in the Senate, they could do the same: give the nominee his hearing, vote against him on a party-line vote in committee, and if he still wants a floor vote, let him have it.

[GMax]

By Borking I meant smearing him unjustly. Whic is what happened. Same thing happened with Thomas they just could not muster the votes even with their smear campaign. You cant reject an infinitely qualified candidate proposed by the chief executive without reasons ( lots of them ) and not expect a backlash.

[GMax]

And just because Democrats will have a majority in the Senate does not mean the Democrat Party can reliably count on everyone to vote against a qualified nominee. Senators are notoriously for being tough to herd. And lots of Democrat Senators are from places that are not shy about electing Republicans, so its pretty doubtful that some would not see self preservation as being a higher order than party orthodoxy. Start with Lieberman, think he is going to abandon his buddy on judges? What about Nelson or either of the Arkansas duo?

[GMax]

And just because Democrats will have a majority in the Senate does not mean the Democrat Party can reliably count on everyone to vote against a qualified nominee. Senators are notoriously for being tough to herd. And lots of Democrat Senators are from places that are not shy about electing Republicans, so its pretty doubtful that some would not see self preservation as being a higher order than party orthodoxy. Start with Lieberman, think he is going to abandon his buddy on judges? What about Nelson or either of the Arkansas duo?

[Pofarmer]

This is the genesis of the argument that a fetus, even a viable one, is not a human being; unlike theft, rape and murder, abortion has to be seen as a victimless crime to survive.

Problem is, Scott Peterson was committed for DOUBLE homicide. When you want it, it's a child, when you don't, it isn't. I can't beleive somebody doesn't challenge this obvious double standard. Just because you are late, you don't get to break the speed limit, etc, etc.

[Sue]

There must be some mistake. Only republicans use fearmongering to win votes.

[Danube of Thought]

That double standard has been challenged, and the challenge rejected, but I don't recall the court's reasoning.

[Jim MIller]

Jane - It's been a while since I saw it, but the Gallup organization did a good study of abortion and voting. What they found was that small minorities condition their votes on the issue -- but that the small pro-life minority was larger than the small pro-abortion minority.

So, nationally, being pro-life is a small plus for a candidate. But that wouldn't be true in many places, probably including where you live.

Incidentally, young people are now somewhat more pro-life than older people.

(Barney Frank's description of the middle voters on this issue is consistent with what I have read. I would add just one point: A great many voters -- I don't recall whether they are a majority -- believe we have significant controls on abortion, even now.)

Prediction: Were Roe versus Wade ever to be repealed, we would move toward a "European" solution. Abortion is legal in almost every (every?) European country -- but restricted in every country. For instance, the British just had a debate about shortening the time when an abortion is permitted.

[Porchlight]

A great many voters -- I don't recall whether they are a majority -- believe we have significant controls on abortion, even now.

This is definitely true. Not long ago I had to explain to a liberal friend (a Ph.D.!) that legal late-term abortion existed. She thought it was illegal everywhere after 12 weeks. She also believed that if Roe is overturned abortion will be illegal everywhere overnight.

Wonder where she got those ideas? With that kind of disinformation floating around, it's not surprising that support for Roe is as high as it is.

Re: abortion restrictions in Europe, this BBC site is helpful: BBC NEWS: Europe's abortion rules

[Jane]

Rezko verdict is coming in!

[PapayaSF]

abortion was legalized by New York State in 1970, three years before Roe. v. Wade

Actually, at the time of Roe about 30% of the US population lived in states where abortion was legal to some degree.

[bgates]

CNN says Rezko guilty on 'some' counts. 'Some' turns out to be 16 of 24. Not the extortion charge, though.