Saturday, March 11, 2006

After South Dakota: a workable plan to reverse Roe

[Picture: a beautiful colour ultrasound of a fetus yawning--this behaviour has been identified as early as 11 weeks through colour ultrasound.]

South Dakota's recent move to ban all abortions except those necessary to save the life of the mother has many pro-lifers concerned.

And with good reason.

Barring some change in the US Supreme Court, the South Dakota law is DOA when it gets to DC. There simply aren't five votes right now to reverse Roe outright.

There might, however, be a way to accomplish the functional equivalent of reversing Roe without going the South Dakota route. But it requires paying some attention to the Supreme Court and the key swing vote: Anthony M Kennedy.

There are three key things to realize about Kennedy: 1) He's not willing to reverse Roe outright, and he made that clear in the 1990s with Casey v. Planned Parenthood. 2) He is willing to uphold laws that do not constitute an "undue burden" on a woman's right to choose. He thought the ban on partial birth abortion (PBA) was fully consistent with Casey, and was furious with his colleagues for not agreeing with him. 3) Kennedy places a very high emphasis on international law as a guide to Supreme Court decisions.

Combined, these points suggest a strategy for a law that stands a good chance of picking up Kennedy's vote.

For starters, let's take a look at some basic international abortion statistics. The following are all from 1996 (the latest international data). The abortion rate is the number of women per 1000 women between the ages of 15-44 who have an abortion in any given year. The abortion percentage is the estimated percentage of pregnancies that end in abortion.

United States: rate: 22.9. Percent: 25.9. Law: legal through viability.
Belgium------rate: 6.8. Percent: 11.2 --illegal after 12 weeks. Mandatory counseling.
Finland-------rate: 10.0. Percent: 14.7 --illegal after 12 weeks. Informed consent.
Germany----rate: 7.6. Percent: 14.1 --illegal after 12 weeks. Mandatory counseling.
Ireland------rate: 5.9. Percent: 8.9 --illegal except for life of mother.
Netherlands--rate: 6.5. Percent: 10.6 --illegal after 13 weeks. Mandatory counseling
Spain---------rate: 5.7. Percent: 12.6 --illegal w/o 2 MDs certifying it necessary for life/health.
Switzerland---rate: 8.4. Percent: 13.3 --illegal w/o 2 MDs: easy or hard in some cantons.

What should be clear here is that the US abortion percentage is quite high relative to key European countries. It's also clear that many European countries have much more restrictive abortion laws. In particular, Belgium, Germany, and the Netherlands all ban abortion after 12-13 weeks (or put sharp limitations on it), and all have programs of mandatory counseling for any woman who seeks an abortion. These nations have abortion percentages of 11-14%, sharply lower than the 26% American abortion percentag.

What we need then is a European model law that would ban abortion after the first 12 weeks (unless necessary for the life of the mother) combined with a mandatory counseling program for any woman seeking an abortion.

Why would this stand a good chance of picking up Kennedy's support? For four reasons: first, one could make a strong a priori argument that 12 weeks is ample time for a woman to make a decision about abortion; hence banning abortion after that time would not constitute an "undue burden" on the woman's right to choose. Second, the fact that several European countries have laws quite similar to this would make a powerful case to Kennedy that this rule of law has widespread international support. Third, the fact only about 11% of US abortions take place after 12 weeks suggests that banning these abortions would not be an undue burden for the overwhelming majority of US women. Fourth, the rise of colour ultrasound has dramatically changed public perceptions of abortion, so one can reasonably argue that banning abortion after 12 weeks is in keeping with the evolving ethical standards of the American people.

Banning 11% of abortions is not as much as pro-lifers would like to do for the pro-life cause. But since reducing abortion by 11% would mean saving over 100,000 lives, this would still mean dramatic progress.

But more: coupled with a strong mandatory counseling program, the reduction in US abortions might be even more dramatic. There's no reason in principle why the US abortion rate couldn't be cut in half: reducing the current 26% rate to a more European 11-14% rate would be a major step in the right direction.

The strength of this as a legal strategy is that one could achieve this without ever needing to argue for a formal reversal of Roe. If, for example, Ohio adopted such a law, the state attorney general would not need to argue for the reversal of Roe or even Casey: one would merely ask the Court to find that a 12 week limit on abortions does not constitute an "undue burden" on the woman's right to choose. In effect, we would ask the Court do here something similar to what the Court did in Casey. In Casey, the Court dropped Roe's trimester framework, but upheld Roe, claiming that the viability criterion was the real heart of Roe, and that the trimester framework could be readily jettisoned. Here we would argue that the heart of Casey is the "undue burden" test, and that Casey's attachment to the viability criterion can be jettisoned with reversing Casey.

If the Court agreed, then Roe would be reversed in all but name. With the trimester framework dead and the viability criterion discarded, Roe would then be but the painting of a law, a face without a heart.

Such a move would of course send the pro-choice movement into spasms of hysteria. But it is very unlikely that the American people would share that hysteria. Roe would still be legally on the books. And most Americans would find little threatening in a ruling that left the right to choose intact as long as it was not unduly burdened. The very hysteria coming from the anti-Roe forces would serve to further alienate them from the American mainstream.

Note that this is a very different reaction than could be expected currently if the Supreme Court upholds South Dakota. Few Americans are currently prepared to support a pro-life law as broad as South Dakota's. If the Supreme Court upholds South Dakota, it can count on a very strong backlash, one whose political impact might threaten to undo or severely limit the gains of reversing Roe.

Certainly, there can be no guarantee that Kennedy would uphold a European model abortion law. But since a European model abortion law would not threaten Roe directly, it stands a much better chance of being upheld than South Dakota. What we need is for some state legislature to pass a law this summer along these lines, and put the strategy to a test.

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