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Life After Roe
Hysterical references to "back-alley abortions" are absurd.


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The mainstream media, eager to read a setback for conservative values into the most recent election results, has pointed to pro-life defeats in four states where the issue was on the ballot. Abortion restrictions were defeated in South Dakota, Oregon, and California, and voters approved a stem-cell-research measure in Missouri. While it’s certainly fair to say that many pro-life advocates were disappointed with these results, it’s actually the pro-choice forces that suffered greater long-term damage.

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The damage is to the myth that pro-choice activists have been peddling for decades, namely that but for Roe v. Wade – the Supreme Court’s 1973 abortion-on-demand fiat — there would be no legal abortions. Abortion advocates, with the help of many in the media, encourage the false belief that overturning Roe is equivalent to outlawing abortion. Even when forced to acknowledge that the end of Roe would simply be the beginning of a democratic process — in which each state determines what level of protection to afford to abortion rights — activists warn of a new Dark Ages. In more conservative states, access to abortion would be completely wiped out, they say. And, across the nation, the health and lives of American women would be endangered by draconian restrictions on abortion.

The goals of this fear mongering are at least threefold: Scare affluent women into filling the coffers of the Center for Reproductive Rights and its ilk; discourage moderate voters from supporting Republicans; and justify the obstruction of conservative nominees to the Supreme Court and lower federal courts. All one need do is read exit polls, examine the financial statements of the pro-choice behemoths, or observe the circus that the judicial confirmation process has become to know that the strategy of fear has been working.

But that strategy hit a roadblock on November 7, when the election results gave Americans the clearest picture yet of what abortion law would look like under a post-Roe democratic regime. The picture is one that only moderates will love.

In South Dakota — one of the reddest states in the Union — voters handily defeated a law that would have permitted abortions only where the mother’s life is in danger. That result casts much doubt on whether, in a post-Roe world, even a single state would pass an abortion law that didn’t have additional exceptions. Even if the South Dakota ballot measure had passed, its single exception would have rendered warnings about women dying nothing more than rhetoric.

In the pink state of Missouri — which President Bush won by seven percent in 2004 — voters narrowly approved Amendment Two, a constitutional provision to allow embryo-destroying research. While the abortion issue was not itself on the ballot, the defeat for pro-life forces, who vociferously opposed the amendment, is notable. Even when there is no Supreme Court fiat to frustrate the will of pro-life voters in red states, they do not get everything they want. Instead, moderation and compromise prevail. Amendment Two, which contains stiff penalties for those who cross certain ethical boundaries, was itself a compromise.

Lessons can also be learned from parental notification laws on the ballot in Oregon and California. California’s Proposition 85, requiring physicians to notify a parent or guardian before performing an abortion on a minor, except in cases of medical emergency, was defeated 54 to 46 percent. A similar measure in Oregon was defeated by the same margin. The lesson: in blue states, even proposals for modest restrictions on abortion — parental notification is favored by a sizeable majority of Americans and has been upheld by the Supreme Court — will often fail when voters have their way.

The election results in these four states give us a good indication of what abortion law may look like after Roe’s demise. Instead of the hysterical picture painted by pro-abortion groups, there will likely emerge a legal landscape which closely follows the values and judgments of the people. In blue states, the legal regime will be virtually unchanged from the heyday of Roe. In moderately red states, compromises between pro-life and pro-choice voters will develop. And, in a handful of very red states, substantial restrictions on abortion will be softened by a number of exceptions.

This picture should be pleasing to anyone who appreciates the benefits of democracy: give and take, local control, and laws that are responsive to our values rather than imposed from above — all qualities sorely lacking in the current Roe-dominated abortion regime. But don’t expect to see the likes of Planned Parenthood acknowledging either the advantages of the democratic process or the reality that this month’s election results should allay their darkest fears. After all, it’s hard to scare voters, motivate contributors, and tie up judicial nominations by embracing moderation.

 – Curt Levey is general counsel of the Committee For Justice, which promotes constitutionalist judicial nominees.



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