What If Roe Fell?
scariest reading you’re likely to do this year won’t come
from Stephen King. Instead, this season’s creepiest spine-tingler
derives from policy analysts at the New York-based Center for Reproductive
a 132-page booklet released in late
2004, addresses the consequences of overturning
Roe v. Wade
and provides a state-by-state, territory- by-territory analysis
of what would happen if the Supreme Court revokes the legal right
to terminate unwanted pregnancies.
to the document, a decision to repeal
will most likely
not make abortion illegal in the United States. Rather, such a decision
will remove all federal protections for reproductive choice and
will grant each state the authority to set its own abortion policy.
This means that if a state is so inclined it will be able to ban
abortions completely or limit access to cases of life endangerment,
rape, or incest. The only states in which the right will be protected
are those that have already passed legislation, separate and apart
from federal dictates that grant abortion rights to residents.
impossible? While denial will probably edge its way into most of
our psyches, the sad truth is that the composition of the Supreme
Court has for several years been ripe for change. Justice Steven
Breyer, the newest member of the bench, was appointed in 1994 and
rumors about the impending retirement of William Rehnquist, John
Paul Stevens, and Sandra Day O’Connor continue to surface.
Should they go—and should Dubya appoint jurists who toe the
line of Christian fundamentalism to replace them—today’s
five to four pro-choice majority will shift and in most locales
a state’s interest in protecting fetal life will trump feminist
arguments about women’s rights, sexual autonomy, and reproductive
Center’s investigators found just 20 states in which abortion
is relatively safe from Court machinations: Alaska, California,
Connecticut, Florida, Hawaii, Maine, Maryland, Massachusetts, Minnesota,
Montana, Nevada, New Jersey, New Mexico, New York, Oregon, Tennessee,
Vermont, Washington, West Virginia, and Wyoming.
remaining 30 states—as well as the District of Columbia, Guam,
and Puerto Rico—are poised to reevaluate their policies; 21
will likely restrict abortion access. That’s not all. Like
a page from Ken Loach’s 2004 film,
, the states
of Alabama, Arizona, Louisiana, North Carolina, Oklahoma, and Rhode
Island have punishments on the books and, in the event of
demise, will impose sentences ranging from 12 months in the county
jail (Alabama) to 10 years of hard labor and a “fine of no
less than $10,000 and not more than $100,000” (Louisiana) on
anyone guilty of causing an abortion or aiding and abetting a woman
who wishes to obtain one.
the report is stomach churning, it is meant as both a reference
tool and an activist prod. As such, Center staffers remind readers
that the Court has not yet acted and that there is a great deal
of work that pro-choice activists can do to safeguard abortion availability.
“In some states,” the authors write, “only defensive
strategies are realistic; in others, advocates should consider an
affirmative strategy to protect the right to choose abortion.”
if Roe Fell
offers numerous suggestions, the strongest
of which is to find sympathetic lawmakers and have them introduce
legislation to protect abortion from federal erosion. A model Reproductive
Privacy Act is provided as a guide to help anyone interested in
writing a bill to keep abortion legal in their state.
booklet also advises activists to work on repealing long-forgotten
abortion bans that remain on the books since these laws will be
enforceable if the Court overturns the 1973 Roe decision. In addition,
the report urges activists to lobby against any and all restrictions
on access—from parental consent and notification laws to 24-hour
waiting periods between requesting an abortion and having the surgery.
the report urges the pro-choice community to become pro-active and
develop plans to deflect the impact of a possible abortion prohibition.
“As history teaches, anti-choice legislators will be busy introducing
and pushing for bans on abortion if they sense that
in danger. Their efforts will become more frenzied if the composition
of the U.S. Supreme Court changes and as controversial litigation
makes its way up the Court.” Broadly inclusive coalitions,
the authors write, need to be formed now so that strategies can
be developed before—not after—the Court has acted.
its part, NARAL is gearing up for what communications director David
Seldin calls “the mother of all confirmation battles,”
following any new Supreme Court appointments.
president is going to push as much and as hard as he thinks he’ll
be able to get away with,” Seldin continues. “We will
do our best to rally the support we know is there for
We plan to keep ringing the alarm bells through our state affiliates
and at the national level.”
is the co-author of
Targets of Hatred: Anti-Abortion Ter-
(St. Martin’s Press, 2001).