The last days of Roe v. Wade?
Pro-choice abortion advocates are warning ominously that the Supreme Court is about to overturn the landmark Roe v. Wade abortion rights decision. The head of the Center for Reproductive Rights said “alarm bells are ringing loudly” with the threat of overturning Roe. Democratic politicians are raising the same alarms.
The Republican-dominated Court agreed to review a Mississippi law that bans any abortions after 15 weeks of pregnancy. Lower federal courts have ruled against the law. If the High Court reverses those decisions and upholds the Mississippi statute, it effectively would allow states to overturn Roe protections.
I’ll wager and give odds on two bets: one the High Court conservatives will uphold the Mississippi law, while disingenuously rationalizing they are not overturning Roe v. Wade. That’d be a political calculation to minimize the fallout.
A solid majority of Americans favor retaining the protections of the 1973 abortion decision, which permits abortions in the earlier stages of pregnancy, when most occur. That runs counter to the Mississippi law — other impediments make it difficult for women there to get an abortion before 15 weeks.
Waiting in the wings would be a just-enacted Texas law that bars the procedure after a “fetal heartbeat” is detected, usually about six weeks after conception, before some women even know they are pregnant. The Court over the years has cited instead a test for “fetal viability,” when a fetus can survive outside the womb, usually about 24 weeks.
If, as I predict, the Court sides with Mississippi while trying to claim it’s not to overturning the almost half-century precedent, there could be one powerful counter: Justices Elena Kagan or Sonia Sotomayor opening their dissent with: “The Court has just overturned Roe v. Wade.”
Other states certainly would follow. Elizabeth Nash, the state policy analyst for the Guttmacher Institute, the go-to place for abortion data, told me she figures at least 15 states, perhaps more than 20, would then adopt the Mississippi restrictions.
With few exceptions, these are the poorest states in America — Mississippi has the lowest per capita income — but states with strongly anti-abortion legislatures, and Republican governors, like Alabama and Arkansas, are not far behind. As follows, they have the highest poverty rates, Mississippi, the highest, at almost 20 percent.
It is primarily poor, young women of color who get abortions. Guttmacher reports more than half are Black or Hispanic.
Since de facto overturning Roe leaves decisions to the states, and there are more than a dozen states with liberal abortions laws, most women of means wouldn’t be much affected; they could travel to New York or California.
Many poor women don’t have that option.
An example: There were two abortion clinics in Toledo, Ohio; one closed, and the other partially closed. Some women would drive to Detroit for the procedure. That entails travel expenses, losing a day’s pay, perhaps child care expenses — in addition to the cost of the abortion.
Abortions have, in fact, steadily declined over the past 30 years. In 2017, the last year for which Guttmacher has data, there were 862,000 abortions, down about 20 percent from six years earlier and down almost half from three decades before.
Anti-abortion advocates attribute this to restrictive laws, closing clinics, and setting barriers. Among the 26 states that reduced the number of clinics, 24 saw declines in their abortion rates, especially in places like Texas, where 25 clinics were closed.
But there have been comparable declines in states that haven’t imposed restrictive laws — even in some that have liberalized access. In that same period, of the 15 states that added clinics, 13 experienced declines in their abortion rates, as did eight of the nine states where the number of clinics remained constant.
Nash attributes this to these states investing “in safety net programs and expanded access to contraceptives, with a big assist from the Affordable Health Care Act, and providing comprehensive sex education.” There also is greater use of medication abortion drugs.
Remarkably, after decades of ferocious fights, public opinion has barely budged. Most voters want abortion to be available, though not without some limitations. They oppose repealing Roe v. Wade but have mixed views on specific restrictions.
Politically, the lines have been clearly drawn: There are few anti-abortionists in the Democratic party and few pro-choice Republicans. On balance, though, whatever the polls show, the intensity factor has been greater among the anti-abortion voters, which is why they have gained currency.
The court won’t hear the Mississippi arguments until the next term, and there won’t be an outcome for a year or so. The decision will be critical. If the interpretation is just another chipping away at abortion rights, the politics won’t change. If it is seen as ending Roe v. Wade, it may be a new political ballgame.
Al Hunt is the former executive editor of Bloomberg News. He previously served as reporter, bureau chief and Washington editor for the Wall Street Journal. For almost a quarter century he wrote a column on politics for The Wall Street Journal, then The International New York Times and Bloomberg View. He hosts Politics War Room with James Carville. Follow him on Twitter @AlHuntDC.