Should prochoicers just give up and let Roe go? With the resignation of Sandra Day O'Connor, more people are asking that question. Democratic Party insiders quietly wonder if abandoning abortion rights would win back white Catholics and evangelicals. A chorus of pundits--among them David Brooks in the New York Times and the Washington Post's Benjamin Wittes writing in The Atlantic--argue that Roe's unforeseen consequences exact too high a price: on democracy, on public discourse, even, paradoxically, on abortion rights. By the early 1970s, this argument goes, public opinion was moving toward relaxing abortion bans legislatively--New York got rid of its ban in 1970, and one-third of states had begun to liberalize their abortion laws by 1973. By suddenly handing total victory to one side, Roe fueled a mighty backlash (and lulled prochoicers into relying on the courts instead of cultivating a popular mandate). In 1993 Justice Ruth Bader Ginsburg caused a flurry when she seemed to endorse this view: Roe, she declared in a speech, had "halted a political process that was moving in a reform direction and...prolonged divisiveness and deferred stable settlement of the issue." It's not an insane idea, even if most of its proponents (a) are men; (b) think Roe went too far; and (c) want abortion off the table because they are tired of thinking about it.
But of course, if the Court overturned Roe, abortion would not be off the table at all. It would be front and center in fifty state legislatures. According to What If Roe Fell: The State-by-State Consequences of Overturning Roe v. Wade, a report published this past fall by the Center for Reproductive Rights, abortion rights would be at immediate high risk in twenty-one states, moderate risk in nine and "secure" in only twenty. Short of a takeover by the Taliban, it's hard to imagine abortion being banned outright in New York or California or Connecticut. But it is equally hard to imagine liberal abortion laws passing in the Deep South, Utah or South Dakota. And when you consider that Florida, Tennessee, Minnesota and West Virginia are listed as "secure"--all states that have seen recent antichoice victories and increasing Republican strength--you can see how volatile the abortion map could quickly become. Overturning Roe would definitely energize prochoicers and wake up the young featherheads who think their rights are safe because they have always had them. That's why some staunch prochoicers have "Bring it on!" moments: "Overnight," writes Susan Estrich in a recent syndicated column, "every election, for every state office, would become a referendum not on parental consent or partial birth abortion, but on whether regular old middle-class adult women could get first-trimester abortions. When you think about it that way, you have to ask: What could be better for Democrats?" Estrich rejects the thought, because--something the boy pundits forget--criminalizing abortion, however briefly, means many, many women would suffer atrociously.
The trouble is, getting rid of Roe would energize antichoicers too. Even in prochoice states, they might be able to win spousal notification requirements, bans on "partial birth" abortions or even on all second-trimester procedures except to preserve life and health. A national consensus on abortion might or might not develop over time, but any such would not likely be as permissive as Roe. Meanwhile--and possibly permanently--fortunate women in antichoice states would fly to New York or Los Angeles or Chicago, and the less lucky--the poor, the young, the trapped--would have dangerous, illegal procedures or unwanted children. It would be a repeat of 1970-73, when women who could get to New York--but only they--could have a safe, legal version of the operation that was killing and maiming their poorer sisters back home. The blatant class and racial unfairness of this disparity, in fact, was one of the arguments that pushed the Court to declare abortion a constitutional right. If Roe goes, that same disparity will reappear, relabeled as local democracy. And I'm not persuaded that the right to abortion will ever be the norm in, say, the South, where the religious right is strong, antiabortion sentiment is high and the political culture is inbred and hostile to women. Even now, there's only one abortion clinic in Mississippi, and the promised prochoice masses--the "regular old adult middle-class women"--have yet to arise.
Legislative control might be more "democratic"--if you believe that a state senator balancing women's health against a highway for his district represents democracy. But would it be fair? The whole point about constitutional protection for rights is to guarantee them when they are unpopular--to shield them from majority prejudice, opportunistic politicians, the passions and pressures of the moment. Freedom of speech, assembly, worship and so on belong to us as individuals; our neighbors, our families and our legislators don't get to vote on how we use these rights or whether we should have them in the first place. Alabamans may be largely antichoice, but what about the ones who aren't? Or the ones who are but even so don't want to die in childbirth, bear a hopelessly damaged baby or drop out of school at 15--or 25? If Roe goes, whoever has political power will determine the most basic, intimate, life-changing and life-threatening decision women--and only women--confront. We will have a country in which the same legislature that can't prevent some clod from burning a flag will be able to force a woman to bear a child under whatever circumstances it sees fit. It is hard to imagine how that woman would be a free or equal citizen of our constitutional republic.
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I note with sorrow the death of longtime Washington Post columnist Judy Mann, a vigorous voice for women's equality and, as she herself noted in her farewell column, one of a dwindling band of prominent women opinion writers with strong feminist and progressive views. Demoted from the Metro section to a slot next to the comics in 1992, Mann retired in her prime and died, of breast cancer, much too soon. I missed her column, and now, I'll miss hoping I'd come upon her byline, somewhere, again.