By E. Fletcher McClellan
As Republican-controlled state governments across the country enact harsh abortion bans, anti-abortion rights activists appear to be on the verge of a long sought goal: A U.S. Supreme Court reversal of Roe v. Wade, the 1973 decision that guaranteed a woman’s constitutional right to access the procedure.
They should be careful for what they wish for.
It is useful to recall what the legal situation was in the US prior to Roe.
Before the 1970s, abortion rights were controlled by the states. Access to safe procedures depended on a woman’s home state, financial resources and network of support. Roe established a uniform, nationwide right to access the procedure. The decision states that a woman’s decision whether to bring a fetus to term is protected by a constitutional right to privacy implied by constitutional provisions in the Bill of Rights and the 14th amendment.
Since the early 1970s, anti-abortion advocates have chipped away at reproductive freedom.
In its 1992 ruling in Planned Parenthood v Casey, the Supreme Court established the “undue burden” standard, inviting the states to enact restrictions on a case-by-case basis.
In the Pennsylvania case, the high court upheld state-prescribed waiting periods and parental consent for minors seeking abortions. Hundreds of restrictions have been enacted in the states ever since.
Since President Donald Trump’s election, the politics of abortion have shifted further rightward.
The debate over abortion access epitomizes partisan polarization. And Republicans have become more aggressive in pressing partisan advantages when they arise.
Trump has sided almost completely with the anti-abortion rights movement, appointing federal judges who have pledged strict interpretation of the Constitution. This is code for narrowing, if not eliminating, the right to privacy.
Led by Senate Majority Leader Sen. Mitch McConnell, R-Ky., Republicans have rammed through Trump’s judicial nominees, including Justices Neil Gorsuch and Brett Kavanaugh, who are both critics of the reasoning behind Roe.
Expecting a shift in judicial policy, several states adopted “fetal heartbeat bills” that banning abortions as early as six weeks, which is before many women even know they’re pregnant.
Ironically, these laws may be so extreme that the Supreme Court, in particular Chief Justice John Roberts, may be reluctant to reverse course.
Instead, the high court’s conservative majority will likely look for ways to narrow a woman’s right to choose.
Abortion rights opponent missed one such opportunity when the court blocked an Indiana law that prohibited abortions based on such fetal characteristics as disability or gender. In Pennsylvania, Republicans in the state House and Senate are pushing a bill that would ban abortions based on a prenatal diagnosis of Down syndrome.
For opponents, opportunities to constrict Roe may lie in challenges to state regulation. New procedures adopted in Missouri, requiring hospital-like standards for abortion providers, may lead to the closure of the only clinic in the state. Five other states have only one provider.
In addition, there are partisan fights over limiting access to contraception. Debates over family planning go back at least to the Reagan administration, which sought to ban use of federal funds to organizations that counseled or promoted abortions. Trump has been stymied in court with his attempts to revive this policy.
While assaults on reproductive freedom are taking place in Republican states, efforts to strengthen abortion rights are happening in blue states. Vermont recently affirmed a woman’s freedom to terminate a pregnancy from government interference.
Most if not all of the 20-plus Democratic presidential candidates have condemned recent abortion bans, and several pledged to expand access. In Pennsylvania, Democratic Gov. Tom Wolf has vowed to veto any abortion ban that reaches his desk.
The Republican-controlled state Senate declined last year to consider the abortion ban for pre-diagnosed Down pregnancies, and may be even more reluctant this year, now that Democrats are within striking distance of taking control of the chamber.
Public opinion on abortion is complicated. Majorities nationally and in all states oppose abortion bans. However, policymakers in some states believe that opposition to abortion rights is stronger than it really is, either substituting their own views or revealing that anti-abortionists are more effective lobbyists.
As the fight over abortion builds to a possible climax, think about this: One in four women will decide to have an abortion during their lifetime. All races, income levels, and all religious affiliations are represented. Over one-half of abortion patients are already mothers.
How many more women decided against having an abortion, but appreciated having the option?
Women do not make these decisions frivolously. The choices are laden with medical, financial, religious, personal, family, and empowerment issues.
Nor will women take lightly government policies that interfere with those choices.
If Roe v Wade is reversed and abortion policy is left to the states again, a tsunami of outrage will be unleashed.
Capital-Star Opinion contributor E. Fletcher McClellan is a political science professor at Elizabethtown College. His work appears frequently on the Capital-Star’s Commentary Page.