[Mb-civic] Life After Roe - William Saletan - Washington Post Sunday Outlook

[William Swiggard]

Life After Roe

By William Saletan
Sunday, March 5, 2006; B01

For the first time in 14 years, legal abortion in the United States is 
in serious jeopardy.

In recent days, the shape of this assault has become clear. First, on 
the morning of Justice Samuel Alito Jr.'s debut, the Supreme Court 
announced that it would review the constitutionality of the 
Partial-Birth Abortion Ban Act, setting up what anti-abortion activists 
hope will be the beginning of the end of Roe v. Wade . The next day, 
South Dakota lawmakers passed a ban on virtually all abortions, and 
abortion rights groups vowed to litigate it all the way to the high 
court, which would force the justices either to overturn or reaffirm 
Roe. A few days later, the court told the abortion rights side it could 
no longer use racketeering laws to halt blockades and protests at 
abortion clinics.

The impending legal battles put us on the verge of repeating the last 
two decades of the abortion war: anti-abortion victory, abortion rights 
backlash. At the end of the cycle 20 years from now, we'll be right back 
where we are today. Unless, that is, we find a way out.

And that means moving beyond Roe.

Politically, legally and technologically the 33-year-old court decision 
is increasingly obsolete as a framework for managing decisions about 
reproduction. But only the abortion rights movement can lead the way 
beyond it. The anti-abortion groups can't launch the post-Roe era, 
because they are determined to abolish its guarantee of individual 
autonomy, and the public won't stand for that. It must be up to 
reproductive rights supporters to give the public what it wants: 
abortion reduction within a framework of autonomy.

Three political asteroids are heading toward us that make the latest 
round of the abortion confrontation inevitable. The first is the 
so-called "partial birth" abortion ban. Second is the South Dakota law. 
The third is the potential retirement of Justice John Paul Stevens. The 
order in which they hit will determine how close Roe comes to being 
overturned. But one way or another, they'll reignite the cycle of 
victory, backlash and defeat.

Six years ago, in the middle of the 2000 presidential campaign, the 
court struck down a partial-birth ban from Nebraska because it was too 
vague and lacked an exception for pregnancies that threatened the 
woman's health. The case, Stenberg v. Carhart , was decided on a 5 to 4 
vote. Anti-abortion groups faced a choice: Add a health exception to the 
federal partial-birth bill to get it through the court, or refuse and 
gamble that a future court, populated by justices chosen by President 
Bush, would reverse Stenberg and uphold the ban.

They gambled, and the gamble paid off. In July 2005, a week before an 
appeals court sent the federal ban toward the Supreme Court, Justice 
Sandra Day O'Connor, the fifth vote in Stenberg, announced her 
retirement. Her replacement by Alito creates an almost certain five-vote 
majority against Stenberg. Justices don't overturn precedents casually, 
but Stenberg is far more vulnerable than Roe. Roe is more than three 
decades old, was a 7 to 2 decision, has been used as a basis for 
subsequent Supreme Court opinions and was reaffirmed under fire 14 years 
ago in Planned Parenthood v. Casey . Stenberg is six years old, was a 5 
to 4 decision, hasn't been woven into subsequent opinions and was never 
reaffirmed. Roe affects many women and is popular. Stenberg affects 
fewer women and is less popular.

A Roberts-Alito-Stevens court would probably overturn Stenberg in June 
2007. There's no chance it would overturn Roe, since five of the 
justices who reaffirmed Roe in Casey would still be on the court. But 
the ruling could set off a political explosion. That's what happened 17 
years ago when the court, in Webster v. Reproductive Health Services , 
narrowed its interpretation of Roe. Justice Harry Blackmun, Roe's 
author, accused his colleagues of inviting legislatures to attack Roe, 
which he predicted "would not survive." That was enough to scare 
pro-choice voters and make them a decisive force in many states. Three 
years later, in Casey, Blackmun warned the country that he would soon 
have to retire, putting Roe in jeopardy.

A similar warning from Stevens in the upcoming partial-birth case could 
easily set off such an explosion next summer. Or Stevens could guarantee 
such an explosion by retiring.

If he does neither, South Dakota will do it for him. Because the South 
Dakota ban so flagrantly defies Roe, lower courts will probably strike 
it down quickly, moving it up the chain. If it comes out of an appeals 
court by the end of 2007, abortion rights groups will take it straight 
to the high court, hoping to make Roe a central issue in the 2008 
elections. The court might refuse to hear the case if it's clear that 
five justices won't reconsider Roe. Or it might sit on the case until 
after the elections. But the explosion will happen anyway. By May 2008, 
Stevens will be 88, two years beyond the age at which any other recent 
justice has died or retired. Everyone will know that he has one foot out 
the door, and so does Roe.

In short, 2008 will look a lot like 1989, with a surge of pro-abortion 
rights voting and a frightened retreat by anti-abortion politicians. But 
one thing will be different: The House, Senate and White House will be 
up for grabs. Instead of picking up a couple of governorships, Democrats 
and abortion rights supporters could find themselves in control of the 
federal government.

That's where they need to ditch their old script. The last time abortion 
rights backers were in power over both Congress and the White House, in 
1993 and 1994, they tried to enshrine Roe in federal law and subsidize 
abortions through Medicaid and President Bill Clinton's health insurance 
proposal. A couple of years ago, in a book about the abortion rights 
movement, I suggested that its agenda then had been too ambitious. Now I 
think it wasn't ambitious enough. Real ambition isn't about fortifying 
the territory you've won. It's about moving on so that the territory 
behind you no longer needs defending. The territory we need to leave 
behind is Roe.

Roe established a right to abortion through the end of the second 
trimester. The latter part of that time frame has always been the most 
controversial. Improvements in neonatal care have made fetuses 
viable--capable of surviving delivery--earlier than was possible in 
1973. That's why Justice O'Connor said Roe was "on a collision course 
with itself" and eventually led her colleagues to abandon the trimester 
framework. Meanwhile, sonograms and embryology have made people aware of 
how well developed fetuses are while still legally vulnerable to 
abortion. We even do surgery on fetuses now, which makes aborting them 
seem that much more perverse. These developments may explain, in part, 
why two-thirds of Americans think abortion should be illegal in the 
second trimester--and why anti-abortion activists targeted partial-birth 
abortions for legislative assault.

But if medical technology has helped to expose this moral problem, it 
can also help us solve it. Second-trimester abortions are becoming not 
just harder to stomach, but easier to avoid. In 1973, according to the 
Alan Guttmacher Institute, fewer than 40 percent of abortions took place 
before the ninth week of gestation. By 2000, the latest year for which 
data have been analyzed, the percentage was nearly 60 and rising. The 
same high-resolution ultrasound that makes you queasy about aborting a 
12-week fetus has made it safer to perform abortions at four or five 
weeks instead of waiting, as women were once routinely told to do. In 
1993, only 7 percent of abortion providers could end a pregnancy at four 
weeks or earlier; by 2001, 37 percent could do it. And by 2002, 
two-thirds of clinics belonging to the National Abortion Federation were 
offering pills that abort pregnancies in the first seven weeks.

Better yet, technology is helping many women avoid unwanted pregnancies 
altogether. According to the Centers for Disease Control, "emergency 
contraception"--high-dose birth control pills taken after sex to block 
ovulation, fertilization or implantation--was almost unheard of a decade 
ago. By 2002, however, about 10 percent of women between the ages of 18 
and 24 had used such pills. Some activists are fighting these pills in 
many states and at the Food and Drug Administration, but polls suggest 
that even most people who oppose legal abortion would tolerate the pills.

The most widely accepted moral solution, short of abstinence, is 
contraception taken before sex. Here, again, the news is basically good: 
Contraceptive use rose 11 percent from 1982 to 2002 (though progress was 
uneven), and during this period, the abortion rate dropped by about 30 
percent.

Birth control isn't just more common; it's more effective. The weak link 
in contraception is the human being who's too excited, impatient or 
forgetful to take it or use it carefully. But technology can also help 
circumvent that weak link. When the CDC began tracking birth control 
methods in 1982, it had no category for long-lasting injectable 
contraceptives or implants. By 2002, it found that 4 percent of women 
were using these methods. Some injectables require refills every three 
months, but implants have improved considerably. The maker of Implanon, 
for instance, says that this implant takes barely a minute to insert, 
begins working within 24 hours, prevents pregnancy for up to three years 
and can be removed in less than three minutes with a 90 percent 
probability that a woman will resume ovulating the next month. In 
clinical trials, says the company, "no pregnancies occurred during use 
over approximately 73,000 monthly cycles," largely because the "user 
cannot forget to take the product."

Technology can't avert all our failings or tragedies. There will always 
be abortions. But when you look at the trends--more foolproof 
contraception, more access to morning-after pills, earlier and fewer 
abortions--you can begin to envision a gradual, voluntary exodus from at 
least half the time frame protected by Roe. That's the half the public 
doesn't support.

Maybe that six-month window made more sense in 1973 than it does today. 
Maybe, if we spend the next 10 years helping women avoid 
second-trimester abortions, we won't have to spend the next 20 or 40 
years defending them. Maybe the best way to end the assault on Roe is to 
make it irrelevant.

The road out of Roe won't be easy. Conservatives are already fighting 
early abortion pills, morning-after pills, sex education and birth 
control. But that's a different fight from the one we've been stuck in 
since 1973. It's a more winnable fight, and a more righteous one. Five 
hundred years from now, people will look back on our surgical abortions 
the way we look back on the butchery of medieval barbers. Like the 
barbers, we're just trying to help people to the best of our ability. 
But our ability is growing. So should our wisdom, and our ambitions.

http://www.washingtonpost.com/wp-dyn/content/article/2006/03/03/AR2006030302078.html
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://www.islandlists.com/pipermail/mb-civic/attachments/20060305/fe8ef8fd/attachment.htm