If you enjoyed this week's supreme court gay marriage marathon, then get ready for the sequel. Coming soon to the supremes, thanks to a slew of radical state laws: women's right to legal abortion, relitigated.
On Tuesday, Republican Governor Jack Dalrymple of North Dakota signed a ban on abortion after the detection of an embryonic heartbeat, evident as early as six weeks into pregnancy through (you guessed it) transvaginal ultrasound. That was just one of three far-reaching anti-abortion bills he signed. Earlier this month, a similar fetal heartbeat bill became law in Arkansas, after the GOP-controlled legislature overrode the Democratic governor's veto. Kansas, Mississippi, and other states are also considering fetal heartbeat bills; so-called "personhood" measures are advancing in North Dakota and other states.
The practical impact on women's access to abortion in these states will be devastating. But that's not the ultimate point of the laws. In his formal statement, North Dakota's governor called the fetal heartbeat bill "a legitimate attempt by a state legislature to discover the boundaries of Roe v Wade". The sponsor of a similar bill in Ohio was more direct:
"There is a crack in the door in Roe versus Wade and we're going through it."
Forty years after a woman's legal right to abortion was enshrined in the US, the real object is to goad the supreme court into reconsidering its 1973 decision.
It's no secret to anyone who followed the 2012 elections that the right and the GOP hope to overturn Roe. With several laws now teed up for the supreme court's consideration, the good news for those who support reproductive freedom is that Roe has broad support. According to the 2012 exit polls, 59% of voters favored legal abortion. A recent NBC/ Wall Street Journal poll (pdf) showed 70% opposed to overturning Roe.
Yet, as we've seen from the same-sex marriage cases, part of the battle will be over how Americans and the justices themselves assess the appropriate role for the court in divisive social issues. For that reason, with abortion potentially headed back to the court, it's time for those who support reproductive freedom to challenge the pervasive misunderstanding of Roe's political and social impact.
Conventional wisdom holds that the supreme court got ahead of public opinion on abortion, cut off a healthy political debate, stopped rational incremental reform in its tracks, polarized the nation, and ultimately undermined the cause.
Just about every count of this indictment is wrong, as law professors Reva B Siegel and Linda Greenhouse have shown again and again in their debunking of the Roe backlash narrative. At the time the Court heard Roe, 64% of Americans supported abortion decriminalization. State-by-state abortion law reform had already stalled, thanks largely to lobbying by the Catholic Church. Yet Roe did not spark a spontaneous rightwing backlash. As I detail in my book Delirium: The Politics of Sex in America, it was the Equal Rights Amendment and other issues surrounding women's equality, not Roe v Wade, that mobilized fundamentalists into rightwing politics and the GOP.
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In short, Roe v Wade did not catalyze the "culture war" or cause America's political polarization. The decision retains broad popular support.
The lesson many have drawn from the false Roe backlash narrative is that contested social issues should be kept out of the courts. But the relentless effort to chip away at the right to legal abortion over the last 30 years proves exactly the opposite of what Roe's detractors claim. A small minority of anti-abortion activists, through savvy lobbying and political organizing, has been able to sway state lawmakers to adopt unpopular laws that infringe on individual liberty. Those who say let legislatures do their work, should consider that only 9% of Americans favor laws such as North Dakota and Arkansas have recently enacted.
Upholding Roe 21 years ago, Anthony M Kennedy and two other Republican justices wrote, in Planned Parenthood v Casey:
"At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe and of the mystery of human life."
In Eisenstadt v Baird, a landmark case legalizing birth control for unmarried individuals, Republican Justice William Brennan wrote:
"If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."
These eloquent paeans to our constitutionally protected freedom remind us why certain decisions belong in the courts, not in legislatures vulnerable to lobbying by well-organized – and often unpopular – special interests. But for Roe v Wade, American women would have long ago effectively lost the ability to decide when and if we bear children.
This week the US supreme court seemed wary of getting ahead of the legislative process on marriage equality. To those who claim marriage equality is inevitable and advise the supreme court to bide its time, the battles over abortion rights offer a cautionary tale. More to the point, the tsunami of radical anti-abortion laws headed their way should remind the supremes of the necessary role they play in America's constitutional democracy.