Why Rove can't replace Roe

Ramesh Ponnuru speculates about the world after Roe v. Wade:

What if the first move of pro-lifers after Roe were to try to ban third-trimester abortions? The courts would no longer be in the business of rescuing pro-choice Democrats' most extreme positions. Wouldn't the shoe be on the other foot then? The Democrats would then have to choose between satisfying hard-core pro-aborts and appealing to the center.
Assuming the repeal of Roe v. Wade, I don't think it would be so simple as a "first move" to totally ban anything. Roe v. Wade did not declare all abortions legal; it merely said that the right of privacy outweighed the rights of states to prohibit first trimester abortions:
....[T]he decision established a system of trimesters, whereby the State cannot restrict a woman's right to an abortion during the first trimester, the State can regulate the abortion procedure during the second trimester "in ways that are reasonably related to maternal health," and in the third trimester, demarcating the viability of the fetus, a State can choose to restrict or even to proscribe abortion as it sees fit.
If Roe is reversed, the states will once again have the right to prohibit such abortions. Whether they would do that and how far they would go remains to be seen. But it's not a one-shot deal. The only way to prohibit abortion nationally would be by a constitutional amendment.

Unless, of course, states' rights were abolished by the same hypothetical court which overturned Roe v. Wade. (Hint: it's NOT Rove v. Wade, OK? Why do I keep seeing that?)

Very unlikely -- because the very basis of overturning Roe would be states' rights!

Several years ago, I spent some time with a group of anti-abortion conservatives who were very worried about the post-Roe scenario, and they were not at all sanguine about "states' rights." One of them opined that no state should have the right to legalize abortion, because that was simply as wrong as legalizing slavery.

My point here is not to argue issues of right or wrong (although I have discussed abortion before.) The founders envisioned that states might have differing views of right and wrong, as they did at the time of the founding.

So, in answer to Mr. Ponnuru's question, "Wouldn't the shoe be on the other foot?" I'd say that it can't be, because one size won't fit all.

AFTERTHOUGHT: Considering that a reversal of Roe v. Wade would have to be based on states' rights, is it in the long-term interest of the anti-abortion folks to seek such a result? Would congressional legislation prohibiting third trimester "partial birth abortions" be consistent with a Roe reversal? What about the reemergence of federalism on the left?

Am I a heretic for raising this issue? I'm in neither camp, so I don't see how. But if I were advising the anti-abortion lobby, I might suggest they think about unintended consequences of reversing Roe v. Wade. States' rights can be a two edged sword.

posted by Eric on 11.23.04 at 02:32 PM





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Comments

"Rove v. Wade" HAHAHAHAHAHAHA!!!!

That's a scream, ha! ha! Karl Rove must love being so famous now. I wonder what Norma McCorvey thinks about that. (I know what she thinks about the decision.... but anyway....)

I have written many times that when (I consider it a "when" not an "if") Roe v. Wade is overturned, it will be a huge blow to the Republican party unless they are very, very careful and very lucky.

Not because angry pro-choicers will storm out of the party. But because many religious conservatives who now stick with the party entirely due to this issue will no longer have a compelling reason to vote Republican, and Democrats can try appealing to those voters again and have a reasoanble chance of success.

Roe v. Wade is a millstone around Democrats' necks.

Dean Esmay   ·  November 24, 2004 06:26 AM

You're right, Dean.

Forgive my cynicism, but I think because of numerous factors there are enough disparate elements who will work in collusion to ensure that Roe will never be reversed. Power abhors too much "disruption."

Eric Scheie   ·  November 24, 2004 08:33 AM

More seriously, extremely interesting analyses. Actually, it was a later, much less talked about, decision, Doe vs. Bolton, which did more to establish the current regime of abortion "on demand" right up to the moment of birth or beyond (partial birth abortion).

As I've said before, I fully understand the libertarian, pro-choice, arguments for abortion, and that was my position for a long time. A woman's body is her own property and the government has no right to interfere with her use of it. That's a quintessentially conservative argument and I agree with it.

But, I've become more liberal now on this issue and I'm against most abortions, at least after the first few weeks. You and Jeff Soyer (and _why_ did I not comment on that brilliant post you wrote back then??) both nailed it down very well. As soon as it has a human brain, human sense organs, it's human enough. At that point, there's another body, another person, involved, and the government must protect its life from being wantonly killed. The whole raison d'etre of government is to protect life, as well as liberty and property.

Those pro-lifers you talked to had a point about abortion, slavery, and "states' rights". I would like to see a future Supreme Court extend Fourteenth Amendment protection to the unborn, at least in the third trimester. I have been contemplating a Constitutional Amendment, a Human Life Amendment, to that effect.

But even Lincoln did not try to abolish slavery all at once. He was content merely to contain slavery, keep it confined to the states where it already existed. It was the Southern whites who insisted on extending slavery to the territories. A state-by-state approach seems to me to be the most practical at this point in time, as it is with homosexual marriage. The best we can do at this time is reverse Roe vs. Wade, or perhaps Doe vs. Bolton, and remand the issue back to the states to wrangle with.

One illusion needs to be cleared up, though: Dean and others seem to be of the belief that, if Roe vs. Wade was reversed and the issue left to each state, everybody would be happy again. To the contrary, I have to say. On the national level, without the abortion issue, our politics and jurisprudence might be quieter. But, knowing both pro-choicers and pro-lifers as I do, within each state, things could really heat up. The premises of both camps with regard to the personhood of the unborn are just too irreconcilable at this point. Pro-lifers would continue to demand an end to the ritual slaughter of babies, while pro-choicers would scream that each piece of proposed legislation was a plot by the Pope to keep women barefoot and pregnant. State legislative races could get _too_ interesting. The solution is difficult....

Around and around it goes, where it stops nobody knows....



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