Saturday, April 26, 2008

Alternate History #5: Roe v. Wade heads back to the states!

Recently, certain states in Mexico have begun to legalize abortion in increasing numbers of circumstances. Mexico is generally more culturally conservative than the US, but it has worked out a totally different system of federalism and states' rights for abortion. The central government won't dictate policy, and each state can set its own limits. The more developed, cosmopolitan states have begun to legalize more kinds of abortions.

Obviously there are opponents to this measure, but in the state which have legalized, these objectors - mainly religious Catholics - are seen as needlessly domineering. Could something similar have happened in the US?

Some people have argued that Supreme Court decisions dictate American culture - Brown v Board eliminated the validity of segregation which was still enjoying some popular support in the south. Yet sometimes Supreme Court decisions create opposition movements - Roe v Wade is the most obvious of these. Before Roe, abortion law in the US was a patchwork of permissive laws in liberal states to total restriction in the conservative ones to any number of moderate limitations in the Midwest.

When Roe made all US abortion law uniform by making it a right, it didn't change the culture the way Brown did. The reason for this difference escapes me - why did one decision make the result more popular, the other make it less popular? Both decisions were for generally liberal causes, done in the face of large opposition which was largely in the south. However, the difference between the cases does not change this fact: in Roe, a large number of states were dragged further to the political left in abortion law than they were willing to accept.

But what if the Supreme Court had decided that they couldn't form a majority opinion in Roe? What if they decided that any result would have been too divisive for both Court and Country? What if the Court had given a unanimous opinion that abortion policy was a state matter, not to be handled at the federal level?

Several things would change. First, I believe that a large amount of the power and popularity enjoyed by the pro-life movement comes, originally, from the top-down manner in which Roe imposed new law. Roe created a rally point - the number of religiously-motivated politicians vowing to 'overturn Roe' is proof of this. Without something both symbolic and federal, the pro-life movement could never have attained its current clout and power.

So in 1973, when abortion becomes a state matter, the laws are all over the place. What this means is that some states with total bans would border others with very slight restrictions. It's unlikely that laws prohibiting travel across state lines to procure abortion would have passed - they might be ruled unconstitutional by state or federal courts. This means that each state is not a 'black box' - people in restricted states could travel into a neighboring state if they wanted an abortion.

In an article about the Mexican state laws, the commentator, a rather utopian libertarian, pined that if Roe had gone back to the states, laws all around the nation would be much more liberal and acceptable. I think this is a bit naive, since it seems to assume that the wave of cultural conservatism starting in the 1980s, and possibly ending with this current election, would not have happened, or would be much weaker. I personally think Roe help the political Christian movement - always present but dormant until the 80s - come back into the mainstream. Roe woke up the religious conservatives but did not create them. What this means is that if abortion law was a state matter today, the red states might even be tightening their restrictions or banning the process entirely. To assume that, without Roe, abortion law would gradually 'progress' to liberal law is wrongheaded.

But in red states, where religious conservatives sought to ban all abortions, there might be an additional wrinkle. Even with Roe, certain states (I'm looking at you, South Dakota) have tried total bans anyway. If Roe was liberal overreaching at the federal level, there's no reason to think there wouldn't be conservative overreaching at the state level. In this alternate timeline, during the apogee of the conservative Christian movement certain states would have issued total bans and found their general population just as upset as people were over Roe. The reason abortion law becomes so contentious is that it is often settled by one side muscling its morality upon the other. This creates resentment, and the conservatives who tried total bans in their states would find that out for themselves.

My opinion is that by 2008, all or almost all state laws would allow abortions for rape, incest and the health of the mother. A great number would allow it fully, and a few states would have no parental consent laws for minors. Abortion law handled at the state level is less divisive and creates less hatred between pro-choice and pro-life. Plus it pushes the aggregate law towards moderation since any overstepping will cause an adverse reaction.


Anonymous said...

roe v wade has been a rallying cry for both sides and often caused people to bullet vote for their candidate, ignoring other issues on which to vote. if as you pose an alternate history, what choice does a poor person in in a no abortion state have of getting a safe affordable procedure, guidance, and transportation to a good clinic? who funds it? with that said I honor your idea. would some of us to the left of center like to see roe overturned, meaning the supreme court went conservative. after 20 plus years of right control and the liberals just beginning assert themselves again, how can I trust things will be ok

back to the future

Anonymous said...

i think your alternate history here is pretty good, and yet one worry would be that a cluster of (southern?) states might ban abortion even for rape and incest and then what would a (poor) woman do since it would entail travel to another state perhaps too far away. i do agree that the far right has been able to "rally" around the abortion issue quite possibly due in part to Roe v. Wade.

my main question is always this:
why is it bible thumping and not women! although, of course there are plenty of women opposed, too, but it's the men who seem to be the most adamant about NO CHOICE for women. men should not be deciding these intimate and personal and most precious of rights for any woman!!!

my other thought is this. does anyone else find it outrageous the way that planned parenthood comes under attack for educating young women about birth control (pills and other methods) and at times their funding has even been withdrawn for birth control. yet on tv and in print ads and pretty much everywhere you look there are ads for viagra, it's cheap and easy to get and advertised to men as " you deserve to have this sexual right."

well, women should have to right to prevent pregnancies, too.

our society is so perverted sometimes: viagra is great for men, step right up!!! but birth control should be regulated for women and, of course, the pharmacies make viagra cheap while birth control is not.

i always remember what one comic said about viagra being used by an old man. it's like running a flag pole up an abandoned building.

now that's a good one.

zeno, you are thoughtful in your approach to these personal issues, and even-handed and it is a pleasure to read you

a woman, mother, sister and reader