Obviously, in considering what a Supreme Court with five solidly conservative votes might do to the country's jurisprudence, almost all of the focus has been on Roe v. Wade, the 1973 landmark decision that recognized a constitutional right to abortion services for women. It was Roe, after all, that shifted the focus of the conservative moment toward the goal of changing the Court's composition so that it would, one day, overturn the decision. Reversing Roe has for decades now been, if one may pardon the expression, the Holy Grail of social conservatives. And now, depending on what happens not only with the nomination and confirmation process for Anthony Kennedy's successor, but also with the midterm elections and the fate of the current Republican majority in the Senate, the Grail may actually be in sight.
So it is worth pondering, for a few moments, the outcome of reversing Roe. What happens then? Do we suddenly, or eventually, find ourselves living in a world not unlike the one depicted in Margaret Atwood's "The Handmaid's Tale," where the reproductive rights of women are completely controlled by a theocracy, one not unlike the contemporary American evangelical movement? (Full disclosure for those who have not previously read my blog: I am what I would call a recovering evangelical, now a converted Jew, who knows a thing or two about how evangelicals think and operate.)
It's more likely than not that any reversal of Roe would be based on an analysis of constitutional rights as defined by the Tenth Amendment, which reserves any rights not explicitly guaranteed by the texts of the Constitution or the Bill of Rights to the states or the people. As the conservative justices would probably put it, since the texts of both documents do not explicitly refer to a right to abortion services, that right must necessarily be defined by the States and the voters (i.e., "the people"). This would undoubtedly led to various levels of abortion rights in different states, depending on the views of the voters in those states and the state governments they elect.
What might be true then, at least initially, is that abortion laws in different states might tend to move even further toward the extremes. Blue states, free of various restrictions enacted by Congress and the federal courts over the years, might end up permitting unlimited abortion on demand, while red states, no longer obliged by Roe to guarantee some level of access to abortion services would come up with levels of restrictions on women's health care services hitherto undreamed of by the Falwells and Grahams of the world.
The problem with this, however, is essentially the problem with so-called conservative efforts at health care reform, which tends to put ultimate decision-making power on providing health care at the state level. Health care is not only a national system, but an international one, which means that any decisions made on regulating it ultimately have to be made at the national and international level. As a consequence, even if Roe is reversed, Congress and whoever is President (hopefully, not the morally-compromised narcissist we have now) will be forced to develop some sort of federal law that will, in turn, control the level of abortion services across the country. In other, more concise words, we may be right back to where we are now, politically, on the question of abortion.
And there is yet one more interesting, potentially complicating factor for the future legality of abortion services in America. (Spoiler alert: it's good news for the pro-choice side.)
The Equal Rights Amendment, which has been limping along toward ratification for decades, is now just one state legislative approval away from full ratification and becoming part of the Constitution. True, a Democratic Congress and President would have to waive the inability of the ERA to be ratified prior to an earlier statutory deadline, but that's little more than a formality. As someone who has long imagined (gleefully) the litigation potential in the ERA being part of the fundamental law of the land, it has occurred to me that a reasonable position in litigation on the abortion question might produce the outcome that, for the ERA to be upheld, women could not be allowed to suffer a burdening of their rights based on the disparate impact of pregnancies on women, as opposed to men whose lives are not similarly burdened. This line of thinking could, in a post-Roe world, lead to a Supreme Court decision that, for all practical purposes, revives Roe under another name. Then, of course, overturning that decision would become the new Holy Grail of the social conservative moment.
And, to borrow a lyric from Cher, the beat would go on. And on. And on. With quite literally no end in sight.
I have rejected Bill Clinton as a political hero; however, there is something to be said for his standard for the existence of abortion services: safe, legal, and rare. I can't help but think that both sides of this seemingly never-ending debate would be better served by less friction in the legal/governmental system, and more cooperation toward making the Clinton standard not only the national one, but the international one. Women and children everywhere could potentially benefit so much from that level of cooperation.
And it might not hurt our legal/governmental system either. Maybe, just maybe, it could finally get back to focusing on making the country better, and less on who's winning the political game of chess that never ends.
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