A question frequently ignored by both sides in the debates about Roe v. Wade,410 U.S. 113 (1973)—the Supreme Court decision which along with its companion case and successors found a nearly-unlimited Constitutional right to abortion on demand—are the practical consequences of its reversal.
As a preliminary matter, let me state that I both consider Roe v. Wade to be atrociously bad constitutional law—a fact acknowledged even by many legal scholars who support of abortion rights—and that—as a matter of policy— I am opposed to a legal ban of abortion during the earliest stages of pregnancy. The former hardly needs explanation and has been explained at far greater length and more ably than I could do here. The latter has always been my opinion, based on the autonomy of individual women—a right for which I have considerably greater respect than even most soi-dissant advocates of women's rights—and has only been strengthened by my own recent experience:
Due to a rare chromosomal disorder both of my children were conceived via IVF and underwent Preimplantation Genetic Diagnosis. As a consequence, more than one hundred embryos conceived of my wife and me were discarded, rather than implanted, because they were diagnosed with abnormalities so severe that they most likely could not have implanted themselves and even if they could have would have spontaneously aborted within weeks. Conversely, because of an unrelated accident, both of my children were also born four-months premature but today are healthy, beautiful, clever toddlers who carry only minor scars from their extreme prematurity. That the same babies whose fingers I first held could have been murdered at will under the Roe regime had they still been located within their mother's womb strikes me as self-evidently morally wrong as any other murder of innocents.
But my personal views are unlikely to be the subject of widespread interest and are not the subject of this post.
Rather the question is: What would happen if Roe was completely repealed? Clearly, some states, probably a dozen or more, would ban most or all abortions. Equally clearly, many states, likely a far larger number, would permit all or almost all abortions. Any federal ban on abortion more severe than withholding federal subsidies would be extremely unlikely to pass and should—and quite possibly would—be found unconstitutional under the limitations of the Congressional legislative power. So, what would the effect of a reversal be on a pregnant woman's ability to procure an abortion?
Practically none. Any woman seeking an abortion in a restrictive state could visit a non-restrictive state to have her abortion performed. This is readily done in an age of cheap air travel and often even cheaper bus travel. The travel itself would be constitutionally protected under a variety of other Constitutional provisions and far more solid court precedent. Nor could a state ban an abortion performed in another state. Finally, even if all federal funding for abortion was eliminated, this should pose no major obstacle. The country's leading abortion provider—Planned Parenthood—claims that abortions are only a tiny fraction of its business and individual early-stage abortions are quite inexpensive. In so far as federal funding for abortions was eliminated, Planned Parenthood, other abortion providers, and their many wealthy supporters favoring abortion rights could easily make up the funding for that small fraction of women too destitute even to afford something so inexpensive.
In short, overturning Roe would do very little to limit access to abortion. Abortion rights supporters should stop claiming that doing so would turn the United States into a theocracy in which women are enslaved as procreation machines. Abortion rights opponents should stop claiming that it was a reckless and evil Supreme Court that brought abortion to America—if they want to assign blame, they should look at the many democratically elected legislative bodies favoring abortion rights and which in this matter largely represent the views of their constituencies.
Whether Roe is overturned has virtually no practical effects on the availability of abortion. Therefore, the debate on whether Roe should be overturned ought to focus exclusively on whether it was a sound interpretation of the Constitution. As it very clearly was not, Roe ought to reversed.
