Overturning Roe wouldn’t outlaw abortion

By Peter A. Brown KRT

Americans think that abortion ought to be legally available, but not easy to get.

Of course not everyone feels that way, but the polling data show that to be the consensus position in the United States on this most emotional of issues. Moreover, Americans’ views are long-held and unlikely to change.

But no one should be under the misconception that abortion would become illegal throughout the United States if the Supreme Court overturned Roe v. Wade.

All this is worth remembering as it appears we are headed for a new, and perhaps higher stakes, series of court and political fights over perhaps the most emotional of all issues.

The Supreme Court has agreed to decide the constitutionality of a congressional ban on a late-term procedure – a law that seems to be the kind of restriction most Americans favor. There are many who think the addition of John Roberts and Samuel Alito to the court bodes well for this law, even though it was thrown out by lower courts.

And, the court will almost certainly find itself ruling down the road on an expected South Dakota law that appears to conflict with Roe and bans nearly all abortions. Both Roberts and Alito said in their confirmation hearings they would respect established court precedent, such as the 1973 Roe decision.

The anti-abortion rights groups that think they can leverage their stronghold on the Republican Party to halt all abortions ought to understand just how far they are from majority support nationally.

But the abortion-rights folks who would allow a 15-year-old to terminate her pregnancy in the eighth month without her parents’ knowledge are just as out of touch with Middle America.

Several polls of Americans taken during January’s confirmation hearings for Alito tell the tale.

A CBS-New York Times survey found that 38 percent felt abortion should be generally available, 39 percent favored stricter limits, but only 21 percent said it should not be permitted. A Gallup/USA poll found only 25 percent wanted Roe overturned, but 38 percent thought abortion laws should be made stricter, 20 percent wanted them looser and 39 percent liked the status quo.

Americans tell pollsters they favor restrictions on abortion rights that would require minors to notify or get their parents’ consent, set waiting periods and prohibit women from having the procedure in the final trimester of pregnancy.

The case that will go before the Supreme Court involves one type of late-term abortion. Its critics call such procedures “partial birth” abortions because they occur when the fetus’ head is lodged in the birth canal. The fetus is brought out feet first and the skull is punctured to allow doctors to vacuum out the brain. The procedure is known medically as “intact dilation and evacuation.”

When asked specifically about this procedure, strong majorities of Americans tell pollsters they do not think it should be legal.

The key issue in this case, and others involving abortion restrictions, is a 1992 Supreme Court decision that upheld Roe and said the law could not impose an “undue burden” on women. That, until now, has been interpreted to mean that any law must protect the health/life of the mother, an exception that abortion-rights opponents say has been abused.

The case is likely to be heard in the fall, during an election campaign that was already expected to be emotionally charged, given the war in Iraq and deep divisions within the country.

The betting is that since Alito replaced Sandra Day O’Connor, who was the swing vote on restrictions, his support of some other abortion limitations as an appeals-court judge might indicate his inclination and lead to reversal of lower courts ruling.

An effort to block the South Dakota law is unlikely to reach the Supreme Court for some time. But even if the court were to reverse Roe, that would not make abortion illegal nationally.

It would just leave it up the states to decide how to handle the issue within their borders.

Given public opinion, that probably means that in some states abortion would become illegal, but in most it would be available under varying restrictions. If nothing else, Americans would then begin paying a lot more attention to their state legislators.



Peter A. Brown is assistant director of the Quinnipiac University Polling Institute and a former editorial-page columnist for the Orlando Sentinel. Readers may send him e-mail at [email protected].