If 'Roe' were overturned - USATODAY

Posted 7/26/2005 7:33 PM
If 'Roe' were overturned
By Laura Vanderkam

So far, most senators are withholding judgment in the battle to confirm Judge John Roberts, nominated by President Bush to replace retiring Justice Sandra Day O'Connor on the Supreme Court, but that hasn't stopped everyone else from trying desperately to discern the nominee's views.

Pundits are making a mini-scandal over whether Roberts was ever a member of the Federalist Society, a conservative legal group. Ralph Neas, president of the liberal People for the American Way, is fretting over Roberts' "sparse public record." James Dobson, head of Focus on the Family, told supporters, "We need to be in prayer that Judge Roberts' true colors will become apparent before a final confirmation decision is reached."

The real issue at hand

On both sides, people talk broadly about wanting to know Roberts' views because the next judge will shape the "direction" of the country, but let's not mince words. Most of this angst is about one issue: abortion. Liberal groups are terrified that Roberts will bring the court one vote closer to overturning Roe v. Wade, the 1973 ruling that overturned state laws banning abortion. Pro-life groups hope, fervently, that he will.

I don't know whether the Supreme Court, with Roberts, will overturn Roe. I do know it won't matter much if it does.

You see, for all the rights rhetoric, abortion is not an abstract concept. It's a medical procedure requiring a doctor willing to perform it. In states where abortion is frowned upon — the states likely to ban abortion if Roe is overturned — abortion providers are already more rare than purple Volkswagen Beetles. Most abortion providers, understandably, prefer to practice in states where people support them, i.e., states where abortion won't be banned.

This reality means that however much energy is spent on Supreme Court nominee battles, a Roe reversal wouldn't change the country's total number of abortion providers much. In fact, a year after Roe is overturned, it would be the rare woman who would notice any difference in her life at all.

In the past year, as passionate people on both sides have dug their Supreme Court battle trenches, a few pro-choice organizations have attempted to rally supporters with reports on which states would ban abortion if Roe fell. Shortly before the 2004 election, for instance, the Center for Reproductive Rights announced that 21 states were highly likely to ban abortion and nine somewhat likely.

The problem with these calculations is that they tend to include pre-Roe abortion bans still on the books. Roe superseded these laws in practice. In theory, some bans would immediately become law if Roe were overturned. But this theory implies that legislators and voters in these states wouldn't be able to debate and pass laws saying otherwise.

Given the split in U.S. politics, many would do just that. Of the 21 states the Center for Reproductive Rights claims are most likely to ban abortion after Roe, seven have Democratic governors. These governors would not be able to preside over new post-Roe abortion bans without risking a party revolt. Of the other 14 states, one (Rhode Island) votes consistently Democratic in presidential races. Though not all Democrats support abortion, it's unlikely that the 60% of Rhode Island voters who chose Sen. John Kerry last fall would be inspired to support a ban.

Another state, Ohio, is too much of a political tossup to count in the ban camp. Colorado might vote "red," but the state's recent election of a Democratic senator and new Democratic majorities in its statehouse implies that the politics are pretty split.

That leaves us with 11 states. According to data from The Alan Guttmacher Institute, these states had 122 abortion providers in 2000. That's less than 7% of the 1,819 abortion providers — a fluid number, to be sure — in the USA. Most of those 122 providers (65) are in Texas. If pro-choice forces can hold on to Texas (not unlikely, given the feisty Democratic minority's tendency to flee to Oklahoma to deny the Legislature a quorum when its members are miffed) we're down to 57 providers. If the Democrats controlling the Alabama and Arkansas legislatures decided to act like Democrats, not Dixiecrats, that total could fall to 36. Spread across eight vast states, that's low enough to be useless to an average woman seeking an abortion.

In Mississippi, Kentucky and the Dakotas, 98% of counties have no abortion providers; in Missouri and Nebraska, 97% lack them. In these Roe-unfriendly states, women already have to travel hours to obtain abortions; in a post-Roe world of crossing state lines, that story wouldn't change.

Even if all three of the only "somewhat likely" states with Republican governors, legislatures and voting tendencies (Indiana, Idaho and Georgia) banned abortion, that would affect just 48 providers. In a "worst-case scenario" (for pro-choice types) that included a Texas ban, overturning Roe would affect a maximum of 170 providers, less than 10% of the U.S. total.

What are they fighting for?

In their zeal to fight over the Supreme Court, though, neither side of the abortion debate has absorbed these numbers. Few pro-life groups realize they've fought a 30-year battle to put just a handful of doctors out of business. Pro-choice forces haven't grasped that the millions they'll spend lobbying to block Bush's nominees could tip a lot of legislative races in places such as Kentucky and Texas. Or, for that matter, build a lot of clinics near the borders of states likely to enact or keep abortion bans.

Instead, over the next few years, the two sides will fight the political equivalent of World War I trench warfare — bloody contests over 6 inches of turf. Millions will be spent. Nominees will suffer the same "Borking" fate as Judge Robert Bork did in the 1980s. The filibuster might melt with the "nuclear option."

Yet in the end, a post-Roe world will look a lot like a Roe world — except we'll like each other a lot less, thanks to the battles.

New York City-based writer Laura Vanderkam is a member of USA TODAY's board of contributors.