The Abortion Fight Is Just Getting Started

Pro-life activists celebrate the U.S. Supreme Court’s ruling outside the Court in Washington June 26, 2014. (Jim Bourg/Reuters)
No matter what the Supreme Court does, big changes are coming.

NRPLUS MEMBER ARTICLE T he Supreme Court’s new conservative majority is getting ready to chart a different course on abortion. Most observers expect the Court, over a series of several cases, to narrow or overturn the right to abortion it has enforced since 1973’s Roe v. Wade. And this week it heard arguments in June Medical Services v. Russo, a challenge to a Louisiana law requiring abortion doctors to have admitting privileges at a nearby hospital.

This is a very big deal. Yet no matter how it turns out, it will be but one battle in a long war over abortion.

If the Court indeed wipes out Roe, it will be an incredible victory for the pro-life movement — to be followed immediately by epic fights in Congress and the states. And if, by contrast, the Court’s conservatives get cold feet or fail to hold their majority long enough to get the job done, the members of a future liberal Court will still have to work to preserve the right their forebears invented nearly half a century ago. Here’s why.

Let’s start with a scenario where the conservatives do what they were appointed to do and overturn Roe. This does not ban abortion; it merely removes the courts from the argument and turns the issue over to the political process.

On the state level, plenty of red governments stand willing to restrict abortion. Some have even enacted “heartbeat bills” banning the practice earlier than the Court currently allows or “trigger laws” that kick in when Roe ends. But these states might not deal too big a blow to abortion in general, because so much of the U.S. population lives in dense blue states and people seeking abortions can cross state lines if they need to. One study estimated that ending Roe could reduce the abortion rate as little as 13 percent.

Staunch believers in federalism, including yours truly, might nonetheless be happy to leave it at that. But there will also be calls to handle the issue federally instead of state by state. Some conservatives argue that the 14th Amendment allows Congress to ensure that unborn children are granted the equal protection of the laws. Others reply that the amendment was not originally understood to ban abortion, and that the power to “enforce” the amendment is not a license for Congress to change what the amendment means. Meanwhile, liberals are already talking about “codifying” Roe, which would resolve the issue nationwide in the opposite direction. Huge battles in Congress, and another trip to the Supreme Court, could be in the offing.

And whatever happens legally, those hoping to protect unborn children are going to struggle in the face of widely available drugs that make it easy to kill a baby in the early stages of pregnancy. This week The New Republic had a piece about “self-managed” abortions in Latin America using over-the-counter medications. Activist groups walk women through the steps of getting the pills, causing the abortion, and disposing of what the article calls “pregnancy tissue.” In the U.S. as well, women who want abortions but don’t want to involve doctors can find these pills online. Under an abortion ban, demand for such products will skyrocket. Shutting down a black market is famously hard even when the law is on your side.

And what about the other possibility here, the one where the conservatives chicken out or lose their majority before they can destroy Roe? Well, in that case, the Court’s existing precedents will eventually confront a different technological development: doctors’ ability to keep babies alive at younger and younger ages. The Court has consistently held that states have more latitude to regulate abortions when the babies are “viable” (though even these restrictions have limits). As artificial-womb technology improves, this term will apply to more and more babies.

In one sense, the question of whether you can kill a baby in the womb at X weeks shouldn’t hinge on whether it can survive outside the womb at that point: It’s the same baby, with the same features, either way. But viability does make one crucial philosophical difference. If the baby can survive outside the mother, the mother isn’t just asking to be rid of the baby when she seeks an abortion; she’s separately asking for the baby to be killed, above and beyond the measures needed to preserve her bodily and financial autonomy. As the age at which a baby can survive without its mother creeps downward, will a liberal Court endorse what Margot Cleveland has called a “constitutional right to a dead baby“? Or will it give states more freedom to restrict later-term abortions?

Roe is a horrendous decision. The Court should vacuum its brains out. But no matter what happens, this fight is far from over.

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