October 13, 2006

What if Roe v. Wade were overturned?

I'm here in St. Louis at the St. Louis University School of Law, where I'm a panelist responding to a lecture given by lawprof Richard Fallon on the subject of what things would be like if Roe v. Wade were overturned. He's speaking now, so let me keep you informed.

Fallon says he's never taken a position on whether Roe should be overturned, and his point here is to examine the various legal problems that would arise if it were overturned. He identifies four fallacies about overruling Roe:

1. There's a belief that overruling Roe would wipe the slate clean. In fact, there are old statutes on the books of the various states outlawing abortion. Would these statutes spring back into effect? Could these statutes be enforced retroactively?

2. There's a belief that overruling Roe would necessarily return the question to the states, but there's "almost no doubt" that Congress has the power under the Commerce Clause to pass laws that trump whatever the states might want to do.

3. There's a belief that overruling Roe would extract courts from the abortion controversy -- "get out of the abortion umpiring business," as Justice Scalia once put it. But really, the courts will just have to deal with a new set of abortion-related questions. What if a state outlawed abortion even where it was needed to save a woman's life? Don't women have some right to defend themselves at the constitutional level, quite aside from whether there's a broader right to abortion? And then there would be all sorts of questions about the scope of that right that would haunt the courts endlessly. And what if some states tried to restrict their citizens as they sought to travel to other states to obtain abortions? Complicated legal questions would arise here too.

4. There's a belief that Roe v Wade could be overruled without having much effect on the rest of constitutional law. What would be the ground for overruling the case? Even if the Court took a "modest" approach to the overruling and merely found no fundamental right to abortion, it would represent a triumph of "popular constitutionalism," and this might inspire new political efforts to exert pressure on the Court to change things to respond to political pressure.

Now, the commenters. Panel 1 is up. I'm on Panel 2, after lunch. Susan Appleton of Washington University Law School is speaking now. Also on this panel: Stephen Gardbaum (UCLA School of Law), Michael Greve (American Enterprise Institute), and Mark Rosen (Chicago-Kent College of Law).

FINALLY FINISHING THIS POST: Panel 2 was Anthony J. Bellia, Jr. (Notre Dame Law School), Alan Howard (Saint Louis University School of Law), and me. I said I thought that to collect all the possible post-Roe legal troubles is, implicitly, to make an argument against overruling Roe. Overruling Roe would create a new set of problems, and it is natural (and conservative) to prefer to the known problems to the unknown, but I think those who like Roe have a motive to underestimate the problems we have now and to exaggerate what the new problems would be. I support preserving Roe myself, but I don't think those who support overruling it should or will be pushed back with hypertechnical legalistic puzzles that essentially say: this is all too complex for you to fathom, so you really aren't competent to have an opinion here.

At the end of the first panel, a woman asked: If there really are all these problems without Roe, why didn't we see them before Roe? Afterwards, I said to one of the other law professors, that was a great question, do you know who that woman was? Answer: Phyllis Schafly's daughter.

21 comments:

John Thacker said...

claim the need for government to make reproductive and end of life decisions for individuals.

As opposed to the need for individuals to make end of life decisions for other individuals? I believe in personal choice-- but I don't really believe in the ability of a husband to make decisions for a wife (absent a clear document), and there are plenty of decisions that I don't think a parent should be able to make for a child (killing them being one of them).

"it’s possible that pro-life and pro-choice extremists could thwart the moderate compromises that national majorities have long supported."

It's possible. Then again, the Court has already been thwarting the moderate compromises that majorities have supported, and that are implemented in most European countries. In practice, US law is quite extremist on the issue compared to Europe.

MadisonMan said...

In practice, US law is quite extremist on the issue compared to Europe.

And not just with regards to abortion.

goesh said...

To continue with my lawyeresqueness kick, I suppose the first inclination would be towards paths of previously established 'order' vis-a-vis the old Laws still on the books. The pill and coat hangers would be the reality of the People's response but in what proportion I haven't a clue. This would be good fodder though for the political fight George alludes to, that much is certain.

Kel said...

Prof. Althouse,

You forgot the biggest falacy of all: the one peddled by feminists that overruling Roe would outlaw abortion everywhere and mean a return to back-alley abortions.

Brent said...

Why is it that the courts(with the Massachusetts exception, so far) are so reticent to enforce gay marriage?

Because they are smart enough to see the damage done to the national fabric by Roe.

goesh said...

I have no doubt the lower socioeconomic folks would resort to many more back-alley abortions but I like to think we still have enough going as a nation that our alleys would not be flushing blood onto the streets in torrents.

chickelit said...

How would Wisconsin fare under such a change? I no longer live there, so I don't really know. In my mother's day, girls travelled to California for abortions.

chickelit said...

Imagine if feminists put the time and effort (not to mention money)into childcare and childcare reforms that the public perceives they put into defending late-term abortion? Hell, they might even get more men to join them. But that's asking too much right?

Revenant said...

Reality checks are needed, I see.

me,
If Roe is overturned, abortion will be legal in the northeast and on the west coast, and mostly illegal everywhere else. Thus, the wealthy women will travel and get abortions, and the poor women will buy black market RU-486 or self-abort in other ways

Meanwhile, back in reality, you don't have to be wealthy to travel to another state. Even if you live in the deep South or midwest you can get to a "blue state" for two or three hundred bucks at most, and generally for a lot less than that. Almost the entire population of the United States either lives in a blue state or can drive to one and back again over the weekend. There is no excuse for a woman of childbearing age not being able to get her hands on what amounts to a few days' salary at McDonalds -- but in any case, the problem can be solved by redirecting some of the money the pro-choice lobby to help poor women travel.

One messy question left would be states who have laws saying a fetus has the same rights as you or me from the moment of conception then making it illegal for women to travel outside the state for an abortion.

Even assuming that the states could get away with passing a law like that, they can't prove that a woman broke it. So again the threat is nonexistant.

seven,
Abortion is simply illegal in many European countries.

That's not true at all. See here. It IS true, however, that there are many European countries that restrict abortion much more heavily than the United States does.

Simon said...

Well, this is vaguely frustrating. I'd have given serious thought to driving over to St. Louis for that debate, with or without Ann's presence, but certainly with.

I think Jeff Rosen's Atlantic piece, cited by George, raises a host of serious questions (for example, if Rosen really believes half of what he writes, then as a Democrat, he should advocate the immediate overturning of Roe).

Lastly, I strongly dissent from the idea that Congress has the power under the commerce clause to legislate generally on abortion. Certainly there are specific ways that Congress can legislate about abortion: conditioning federal money, for example, or legislating for D.C. or the military. But in my view, abortion is simply too far disconnected from commerce (under conservative legal theory of the commerce clause, at any rate) to count. If the test for whether an action is sufficiently connected to interstate commerce is whether money changes hands, then surely - by even stronger reason than Justice Thomas' Raich dissent - then Congress can regulate practically anything? Abortion is morally wrong, but it is not commerce. Merely paying for it by credit card rather than some kind of speculative purely-intrastate fungible commodity doesn't suffice to extend Congress' grasp to the issue. Or if you want to make the argument - as Andrew Hyman has done - that the mere fact that abortion "create[s] a need for medical supplies that have to be obtained via interstate commerce," then you have to explain why that is any different to Lopez: if abortion's connection to interstate commerce is that it must be paid for using some means of exchange which travels across state lines, and that it "create[s] a need for medical supplies that have to be obtained via interstate commerce," why is it not equally true that guns must be similarly paid for using some means of exchange which travels across state lines, and that guns similarly create a need for bullets that have to be obtained via interstate commerce?

Simon said...

Alan said...
"Since the Shiavo mess I've become a rabid pro-choicer. I just don't see how a conservative can say in one breath that they believe in limited government and in the next claim the need for government to make reproductive and end of life decisions for individuals."

That is a straw man at worst and a red herring at best. The former because not every Republican (and certainly not every pro lifer, for that matter) supported what the House did on Schiavo, while half the Democrats who participated in the House vote voted in FAVOR of the bill. The latter because what happened with Terri Schiavo has NOTHING to do with abortion.

chickelit said...

nms said
"...for that simple reason, government, religion and self-annointed do-gooders should keep thier opinions to themselves."

Your logic could just as well be used to defend gay marriage- gay people will always marry-you cannot understand the motivation unless you are a gay-please make it legal.
I could argue that you couldn't possibly understand the motivation behind Terry Shiavo's parents actions- they gave her life in the first place-why should the husband (who had icky motives) be allowed to pull the plug? You seem to be arguing natural rights or something. The problem with your logic is that the sum of each individual act has impact on society. Just look at Russia if you want an example of out-of-control abortion on demand.
Getting back on topic, as I see, there are defensible legal arguments on both sides, both populated by proponents. At present, the proponents for one side dominate, but that is changing. And both sides are doing a lousy job at defending their own extremist's positions.

Simon said...

Seven Machos said...
"I don't understand the Schiavo thing."

I think it's a debate best kept out of this thread, to avoid any possible muddying of the waters per Alan's comment. The only way in which it relates to abortion is that it was, like abortion, the subject of inappropriate Federal meddling in a subject of pure state jurisdiction.

Revenant said...

Women who become pregnant unintentionally will ALWAYS find a way to terminate that pregnancy--whether she has to risk her job, her relationships, her health or her life. Period.

Eesh. Speaking as a pro-choice person, I would like to say: Please never talk to anyone about abortion ever again. If you really believe what you wrote I can only assume you don't actually know any women.

Most women who become pregnant unintentionally opt to keep the baby or put it up for adoption. Abortion, while common, is NOT the usual means by which an unintended pregnancy is handled. Even among those women who would prefer to abort their pregnancies, not all will be willing to risk prison time to do so. And almost none would, as you suggest, abandon their friends, relatives, job, and health just to avoid giving birth. Because very few women share your view that a fetus is some horrible, "Alien chest-burster" pod-person-like organism that must be destroyed at all costs.

Oh, and can we please, please, PLEASE not rehash the goddamned Schiavo case again?

submandave said...

"The reality is that no court ruling, no anti-choice terrorists, no criminal penalties will ever stop women from obtaining abortions ... For that simple reason, government, religion and self-annointed do-gooders should keep thier opinions to themselves."

nms, this has always been the least rational argument for abortion. "They're gonna do it anyway, so it shut up about it." One could just as easily argue that punks are going to slap kids and take their candy anyway, so why bother to make it illegal.

The fundamental reason pro-life activists work to restrict abortion-on-demand is for the simple reason that they believe it is is a greater morally wrong to stop the life potential of an innocent human-to-be than to force a woman to cary to term. The law is rife with situations and cases where the rights of two or more individuals come in conflict. Hell, one may say that's the only legitimate reason to have laws. Abortion-on-demand carries the implicit assumption that either the unborn have no rights at any point in their development until (for some reason) the moment they begin respirating air or that the most trivial right of the mother always trumps the greaterst right,the right to life, of the unborn. This is an assumption that, if clearly stated, I doubt most Americans would agree with.

Simon said...

"Abortion-on-demand carries the implicit assumption that either the unborn have no rights at any point in their development until ... the moment they begin respirating air[,] or that the most trivial right of the mother always trumps ... [and right] of the unborn."

Well, to be fair, I think that the paradigm is that the pro choice crowd doesn't believe that the unborn child is alive, and that it is therefore incapable of having any rights. That position doesn't make much sense to me, but I do recognize the sincerity of their views.

MadisonMan said...

Whether or not you want to rehash Schiavo, the fact is that the entire Republican Leadership jumped on the Buttinsky Bandwagon. Simon, it may be true that Schiavo muddies the water, but who was carrying the dirt to the dam? The President, the Speaker, the Senate Majority Leader. All of them. This is who you want to make your medical decisions for you?

Politicians have no business deciding my best course of action when I'm talking to a doctor. Why? Because they don't have my best interests at heart...they're concerned first and foremost with their donors and their re-election possibilities.

chickelit said...

"the pro choice crowd doesn't believe that the unborn child is alive,.."

Belief vs. disbelief, is that what it boils down to?

chickelit said...

Madison Man
"Politicians have no business deciding my best course of action when I'm talking to a doctor."

That's also a decent reason for government to stay out of the healthcare business completely

Revenant said...

Abortion-on-demand carries the implicit assumption that [...] the most trivial right of the mother always trumps the greaterst right,the right to life, of the unborn

I don't think most people consider control over their own bodies and what's allowed to happen to them to be their "most trivial right". Most people, I suspect, would consider it to be among their most important rights. Certainly if I was forced to choose between control of my own body and, for example, the right to criticize the government, I'd keep the former right and abandon the latter.

But in any case there is nothing shocking or unconservative about the idea of people valuing their own rights over rights that other people think are more important. The Founding Fathers, for example, violated quite a few Englishmen's rights to life in order to protect "lesser" rights like speech, liberty, et al. They called it "the Revolutionary War".

Thought experiment: if I'll die unless I receive a medical treatment I cannot afford, do I have the right to make you pay for it? If you answer "no" then you acknowledge that the right to life does not always trump all other considerations. If you answer "yes" then you just signed up for communism. Which is the conservative position?

And seven -- "don't talk about Schiavo" means "don't talk about Schiavo", not "make one last claim and then hope nobody ELSE talks about Schiavo". :)

jimbino said...

Freder,

I don't know of a more recent poll, but it seems Ann Landers found in hers that 70% of her respondents favored retroactive abortion of their offspring!

www.stats.uwo.ca/faculty/bellhouse/stat353annlanders.pdf

Whether or not they'd lie to their unwanted kids is another question.