What if Roe v. Wade were Overturned?

Which side would win in a democratic debate if Roe v. Wade got overturned?

As we recognize the 39th anniversary of the most controversial decision in Supreme Court history, there is one crucial question we cannot afford to leave unanswered: Just what would happen if Roe v. Wade actually did get overturned?

According to this rather demagogic ad from the 2008 presidential election, overturning Roe would result in women being sent to prison en masse. The creators of the ad are either shameless deceivers, or painfully ignorant. Right up until 1973, women never faced criminal penalties for obtaining illegal abortions – only the doctors did. And even today in the pro-life movement, those who desire to give abortive mothers jail time remain a fringe within a fringe. For a far more accurate idea of what America would be like if Roe were to be overturned, set your time machine to 1989, and then watch how debate on the issue played out over the subsequent three years.

At the beginning of the Supreme Court’s 1988-1989 term, Justice Harry Blackmun, the author of Roe, predicted that his most famous ruling would be overturned during the term. “You can count the votes,” he told a law school audience. Indeed they could: the two original dissenters (Rehnquist and White) were still on the Court, and the three Reagan appointees (O’Connor, Scalia, and Kennedy) made five. Not only that, but shortly thereafter the Court agreed to decide an abortion related case out of Missouri called Webster v. Reproductive Health Services.

The Webster ruling, handed down on July 3, 1989, was very complex. Basically, four Justices appeared to take the position that Roe should be overruled, four Justices angrily huffed that Roe should be left alone, and O’Connor, alone in the middle, provided the fifth vote to uphold Missouri’s pro-life law, but asserted that the Court should not re-examine Roe at the present time. Without delving too much into to boring details, the most widely accepted interpretation of the fragmented Webster ruling was that it represented an invitation to pro-life states. Go ahead, the Court seemed to be saying, pass the biggest, baddest, most restrictive abortion law imaginable – even one outright outlawing the practice – there’s a great chance that you’ll be vindicated here at the Supreme Court.

In 1990 and 1991, pro-choice stalwarts William Brennan and Thurgood Marshall retired from the Supreme Court, ostensibly allowing President Bush to augment the anti-Roe wing of the Court even further. When the Court agreed to consider Planned Parenthood v. Casey in 1992, the uncontested consensus was that Roe was finished. Except, as it turned out, it wasn’t. To the bewilderment of court watchers, O’Connor, Kennedy, and Souter teamed up to save Roe. Four months later Bill Clinton was elected President, and within the year he had replaced Justice White with the pro-Roe Justice Ginsburg, securing Roe‘s safety for the foreseeable future.

But what about that three year period between Webster and Casey when it looked like Roe was doomed? What was the political discourse on abortion like then? Pro-lifers won’t like the answer, but history is history. When Webster was handed down, pro-choice became chic and pro-life became toxic overnight. A steady stream of previous pro-life politicians began announcing that they had changed their mind, and now supported a woman’s right to choose. Major elections actually turned on the issue. The Freedom of Choice act gained amazing momentum in Congress and came close to passing. Let’s take a more detailed year-by-year look at the “highlights” of the era.

1989: Governor Bob Martinez of Florida called for a special session of the legislature immediate after Webster was decided. He was roundly thrashed within the state for this move, and in the special session, not a single bill even made it out of committee. Only Pennsylvania passed any sort of pro-life bill, and it only introduced a few extra hoops to jump through rather than actually banning any abortions. In the New Jersey gubernatorial race, Republican Jim Courter abruptly switched to the pro-choice side, and still lost decisively. Meanwhile in Virginia, Marshall Coleman stuck with his pro-life stance, and managed to do what had been thought completely unthinkable in the late 80s: lose to a black Democrat in the south.

1990: Early on, the territory of Guam outlawed abortion except to save the life of the mother, but it was downhill from there. Among the states, only Utah, Idaho, and Louisiana seriously consider bans. Utah ended up postponing further debate until 1991. In Louisiana, Governor Buddy Roemer (yes, the fringe 2012 candidate for President) vetoed a bill without a rape and incest exception, and then vetoed the bill again when one was added. Idaho passed a bill allowing rape and incest exceptions. Democratic Governor Cecil Andrus vetoed the bill, and in the elections for state legislature in November, pro-choice candidates won majorities in both houses. Both Roemer and Andrus had previously considered themselves pro-life. Many other states considered more incremental legislation, although this too frequently got bogged down.

1991: In South Dakota, a ban passed by the House failed by one vote in the Senate. In Wyoming, a ban didn’t make it out of committee. In Alabama, the Senate just ignored a ban passed by the House. The North Dakota legislature passed a ban, but it was vetoed by Democratic Governor George Sinner. Utah actually did get a ban put into law, but it contained a rape an incest exception. Mormon doctrine allows abortions for rape and incest, but Roman Catholic and Southern Baptist doctrine does not, and accordingly, debate over those exceptions raged in the Louisiana legislature. Finally, the ‘purists’ were defeated, and a bill containing the rape and incest exceptions was passed – over yet another Buddy Roemer veto.

1992: Serious legislative attempts to overturn Roe dried up. Only Guam, Utah, and Louisiana have passed bans, and only Guam’s lacks a rape and incest exception. In the November elections, following the Casey decision, pro-choice candidates for President took 62% of the popular vote. With the help of EMILY’s List, 27 new women were sent to the United States Congress. All 27 of them, even the Republicans, were pro-choice.

In the 1994 elections, after the threat to Roe had abated, the pro-life movement came back in a big way. To this day, the movement remains on the offensive, much as it was from 1973 to 1989. But as the reader will see, during the one time it really mattered – from 1989 to 1992 – it was the pro-choice side which was on the offensive. Conclusion: it’s politically easy to be pro-life when there’s no chance that you’ll have to deliver on your right-to-life rhetoric, but hard when banning abortion is a realistic possibility. Some liberals, like this guy here, even want to see Roe overturned because they quite reasonably assume that it will benefit them politically in the long run.

And there is the conundrum for us in the pro-life movement. We can observe that pro-life sentiment is (arguably) on the increase, but you can bet that this sentiment would drop like a stone were Roe to be seriously jeopardized again, as it could well be if Obama loses this year. Abortion is not a question of changing laws vs. changing hearts. Both must be done. In order for laws to actually be changed in the wake of Roe‘s demise, hearts will need to be changed first. It would be the saddest thing in the world for Roe to be overturned, only for the pro-life movement to finally realize that all along, a democratic majority of Americans really did support a woman’s right to choose.

Lawrence Hogan: the Original Pro-life Warrior

Representative Lawrence Hogan (R-MD)

When Lawrence Hogan was first elected to Congress in 1968, abortion was just a blip on the radar screen at the state level, and a total non-issue at the national level. But during his six years in Washington, abortion would permanently enter the national arena, and no one in Congress fought more valiantly for the cause of life than Hogan. It’s a pity he isn’t more remembered.

In 1970, New York legalized abortion, and did not require state residency to obtain one. This meant that someone in any of the 50 states with enough money for a round trip plane ticket to NYC could now legally have an abortion. Only three members of Congress seemed to notice, let alone care. The first two, John G. Schmitz (R-CA) and John Rarick (D-LA), were the sort of ultraconservative conspiracy theory-spouting cranks that no one pays much attention to. It was left to Hogan to be the ‘mainstream’ voice of the pro-life cause.

That cause would truly become national later that same year. The military, without approval from Congress or the president, authorized hospitals under their control to perform abortions, even if abortion was illegal in the state the hospital was located in. Hogan looked into overturning this policy by statute, but was ultimately able to convince President Nixon to unilaterally end the military policy. For the next two years, he, Schmitz and Rarick did their best to alert Congress about abortion’s march. In 1971, the big story was the Supreme Court’s ominously ambiguous ruling in United States v. Vuitch, and in 1972 the principal warning sign was a report from a federal family planning commission which recommended the legalization of abortion. As before, no one cared.

On January 22, 1973, Roe v. Wade hit the American government with all the fury of a diseased fruit fly (to shamelessly steal a phrase from Dave Barry). Nixon made no statement. On Capitol Hill, only two Congressmen immediately reacted. Feminist Bella Abzug (D-NY) gushed happily about the ruling, while James Allen (D-AL), a conservative Senator, gave a brief speech calling the decision morally wrong. After that, silence reigned for an entire week.

On the 30th, Hogan at last rose to speak. “I address the House today still badly shaken,” he began. “I cannot accept that it can be right – that it can be legal – to end one human life for the personal convenience of another.”

“I have lived 44 years, and I have always deeply loved my country. This is the first time in all those years that I have been in deep despair over the future of my country.”

“My initial reaction to the Supreme Court’s decision was that I did not want to be a part of a government which abandoned all respect for life. I seriously considered resigning from Congress. But I decided that the preferable¬† course would be to stay and do whatever I can to remedy the Court’s action.”

His speech continued on, and proved prophetic in many instances. Most editorial pages in the country opined that Roe had ended the abortion controversy. Hogan correctly predicted that they had only inflamed it. Additionally, he correctly discerned, at a time when most were under the delusion that the ruling was moderate, that the decision had made abortion legal for any reason in all nine months of pregnancy. Also in the speech was a comparison to the Dred Scott case – very possibly the first time this now ubiquitous comparison has ever been made. Hogan concluded by introducing a Right to Life amendment to the Constitution.

His closing words, from the distance of 40 years, are chilling: “The Supreme Court has made its decision. Now the Congress, the state legislatures, and the American people themselves must make their decision.”

And the American people did.

And deep down in his heart, Hogan himself knew what their decision would be. In a press conference held the same day, he answered a question about the odds of the amendment’s passage by admitting that “candidly, the hopes are slim. It might take decades to turn around this decision.” Judging by the wording of their questions, the reporters who showed up to the press conference were themselves strongly pro-life, and they were taken aback by this admission. “It’s still medically, morally, and ethically a human being,” one reporter mused aloud. If not legally stopped for decades, millions upon millions of babies will have already died.

“Yes,” replied Hogan, “it’s a very dark day.” Only half joking, he added that “maybe we should start shopping for another country.”

And of course, Hogan’s proposed amendment never went anywhere. In 1974, he ran for Governor of Maryland and lost, and his suburban House seat was taken over by a pro-choice Democrat named Gladys Spellman. Today, his old seat is held by none other than Steny Hoyer.

In retrospect, I really wish he had resigned. As hard as he tried, he was never able to make any significant headway against Roe during his final two years in Congress. But his resignation would have been a powerful statement, much like Justice Curtis’ resignation following the Dred Scott decision.

As of this writing, Lawrence Hogan is still alive, and presumably he still lives in Maryland. If there’s one person who I’d love to see interviewed for the 40 year anniversary of Roe next year, it’s him.

1962: The Battle is Already Lost.

A great nation is not evidenced by high GDP, long life expectancy, and democratic freedoms. Rather, a great nation is evidenced by the character and hearts of its people. And one key indicator of a nation’s heart is its attitude toward abortion. Is abortion seen, as it is in the Philippines, Ireland, and many Latin American nations, as a heartbreaking violation of the right to life? Or is abortion seen, as it is in most of the western world, as a ticklish and complex problem best left to the individual conscience?

With this in mind, I turn to the depressing story of Sherri Finkbine. The year was 1962, and abortion was illegal in all 50 states with exceptions only for the mother’s life and (in a small handful of states) for serious threats to the mother’s health. It wasn’t even a political issue. NARAL did not yet exist, Planned Parenthood strictly limited their business to contraception, and no politician could ever expect to be asked for their position on abortion. One might easily think that America’s character was different in 1962. Maybe back then, Americans understood that there’s something fundamentally wrong about killing unwanted babies. That’s certainly the narrative that social conservatives often peddle these days.

In the early 1960s, Sherri Finkbine hosted an educational children’s show that aired in the Phoenix area. She sought an abortion after discovering that she had accidentally taken some Thalidomide pills that her husband had acquired overseas, thinking they were sleeping pills. When taken during pregnancy, Thalidomide causes all sorts of birth defects, most often turning limbs into tiny malformed appendages.

The Finkbines arranged for an abortion at a local hospital, in violation of state law. At the time, hospitals often quietly did this sort of thing if the patients were rich and well connected. But Sherri made the mistake of blabbing to a newspaper about it. Within a few days, her story had literally become front page news all across America, and the hospital hastily backed out of its prior commitment. Now unable to have an abortion in the US, the Finkbines flew to Sweden and had the operation performed.

Sherri Finkbine’s sad saga represented the entrance of abortion into the political realm. For the first time ever, the issue was being debated in the public forum. Perceiving the new political issue, Gallup conducted a poll asking whether Finkbine had done the right thing or the wrong thing. 52% said “right thing,” and only 32% said “wrong thing.” On day one, the battle had already been lost; as early as 1962, more than half of America found it justifiable to kill a baby if it had malformed limbs. America’s true heart was revealed.

The more one digs into the story, the sadder, and more merciless it becomes. First, Thalidomide did not always result in birth defects – there was still a good chance for a healthy baby. Ultrasound technology was virtually non-existent in 1962, so there was no way to find out for sure until birth. Finkbine was willing to potentially kill a normal baby as a hedge against a deformed one. As her story became public, she was inundated with pleas from less heartless couples. ‘Let us adopt and raise your baby’ they all pleaded. She remained unmoved, and instead reacted with indignant rage.

When Finkbine spoke with reporters, she gave them quotes of truly stunning callousness. In fact, I can think of no pro-choice advocate in the fifty years since who could so reliably provide such soul-chilling quotes. Here’s an example:

It would be the cruelest thing in the world to let my baby be born with only a 50-50 chance of being normal. And I am concerned about our other children. How would it affect them? Some people think that what I want to do is wrong. If it would make them happy, we would be glad to start again next month and try to have a normal baby (TIME, 1962)

She raises a good question: how will it affect her other children to learn that she only loves them because they’re “normal”? How will it affect them to learn that she considers them fungible commodities? How will it affect them to learn that being abnormal is considered worthy of death?

Again, this is what 52% of Americans in the Gallup poll said was the “right thing.” It was only a matter of time before the nation’s laws began reflecting its moral coarseness. The following three years were fairly quiet, but then in 1965 a German measles epidemic caused hundreds of babies to be born with birth defects. Abortion once again resurfaced as a political issue – this time for good. A mere eight years later, Roe v. Wade codified what was already in American hearts.