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.