For the first time since the Supreme Court gave American women an unrestricted right to abortion in early pregnancy, Roe vs. Wade seems to be in real danger of being overruled. Last week the state of Louisiana, overriding its own governor's veto of a law which would criminalize most abortions, became the fourth state in the past two years to enact statutes which can be sustained only if the Supreme Court overturns Roe vs. Wade.
Given the direction of the court, such a turnabout appears to rest on a single vote -- that of Justice Sandra Day O'Connor, who has yet to declare herself on the fundamental issue of whether women have a basic constitutional right to determine whether to carry an unwanted pregnancy to term.
What would be the result of an outright reversal of Roe vs. Wade? In a word, confusion. To begin with, there is a large question about the extent to which the old state abortion statutes, which were in effect at the time of the Roe decision, would simply spring back into operation.
Virtually every state in the Union would be subject to the political bloodletting over new abortion laws that took place in 1990 and 1991 in Maryland. Legislatures from Maine to California would be paralyzed by abortion politics.
And once each state acted, there would be a confusing patchwork of laws. Maryland would have a liberal abortion law. California would revert to the law signed by then-Gov. Ronald Reagan, which for all practical purposes allows abortion on demand. Louisiana and other Southern states would no doubt pass the most stringent abortion laws; women and their doctors would face long prison terms for doing what is today a constitutional right.
As a practical matter, this would mean that abortion would continue to be available to women with the means to travel across state lines to obtain the procedure. Those who would be deprived of access to abortion -- or at least safe abortions -- would be poor women, especially poor young women.
There is, however, one aspect of overruling Roe vs. Wade that has largely been overlooked. Roe vs. Wade rests upon a precedent called Griswold vs. Connecticut, a 1965 case which declared unconstitutional a state statute which trenched upon the right of even a married couple to determine what method of contraception they would use. It is hard to see how the court could overrule Roe without overruling Griswold as well.
But, one might say, no state today would attempt to restrict access to contraception. Oh? Well, several states did just that at the time the Griswold case was decided, just 26 years ago.
Perhaps more importantly, a number of traditional contraceptive devices, including the IUD and even some forms of the pill, are considered "abortifacients" and could be outlawed as well, because they work by preventing a fertilized egg from implanting in the womb. It is virtually certain that in some states zealous prosecutors would attempt to outlaw these devices if Roe vs. Wade were overturned.
Such a denouement is not far-fetched at all. Once you start down the slippery slope of telling women how many children they must bear, there is no way to tell where it will end.