Roe v Wade is doomed to be reversed
for the simple reason that the decision was scientifically wrong, and the rise of color ultrasound is slowly unraveling the political and legal basis for its support. When mothers can now see their child's heartbeat
while still in the womb, it becomes more and more difficult to justify slicing the child to pieces through partial birth abortion.
The US Supreme Court now probably has five votes to reverse partial birth abortion: Roberts, Alito, Scalia, Thomas--and Anthony Kennedy as the decisive fifth.
But Kennedy is unlikely to join a reversal of Roe v Wade altogether. Kennedy's nickname while a Court of Appeals judge was "Flipper", and it's not impossible that he would support a reversal. But the likelihood is that he will not, and that means that South Dakota's push to ban abortion (except when the life of the mother is at stake) most likely will not succeed.
A better strategy would be to take seriously a problem with American abortion that more moderate pro-choice people might sympathize with.We might begin with this chart:
1.3 million--US abortion deaths in 2004 (est)
700,000--US heart disease deaths
560,000--US cancer deaths
107,000--US deaths in accidents
15-17,500--civilian deaths in Iraq since the beginning of the war
14,000--US AIDS/HIV deaths
2200--US military deaths in Iraq since the beginning of the war
59--death penalty executions in the US 2004The chart indicates the enormous loss of life through abortions relative to most of the other issues that currently engage the Republic's political attention
. But then add these two sets of facts:
Previous abortion: 1975: 18% yes. 2000: 45% yes.
Illegitimacy rate: 1975: 24.5%. 2000: 44%
Roe v. Wade is strongly correlated with an increase in illegitimacy in the US (24-->44%!). Roe has also become a routine form of birth control for the irresponsible and the careless. 55% of abortions in the US are performed on women seeking an abortion for the first time. 45% of abortions are for women having their second or third abortion (or worse!).
This suggests that perhaps 70-80% of women who have one abortion will be back for a second or third.
And on any view of abortion, that should be a scandal.
What should be done?
Most nations in the world have much more restrictive abortion laws than the US. In Germany in particular, there are very strict counseling requirements for any woman who seeks an abortion. If American law is to learn from the wisdom of our European counterparts, then there is every reason to seek in the US counseling laws that would identify why the woman was having the abortion, address the problem, and take steps to make sure there was no second abortion. Such a law would not end all abortions, but it might well end about half of them, and that would be an enormous step forward under the current regime.
A strong counseling law would address the issues of:
1) Does the woman understand and have access to birth control?
2) Does she have an alcohol problem? (A very good question for college students becoming pregnant after getting drunk at a party.)
3) Does she suffer from depression?
4) Does she suffer from self-esteem issues or other psychological problems that led to the pregnancy?
5) Is the woman in an abusive relationship?
6) Was the pregnancy due to incest?
7) Does she fear that she lacks financial resources to carry the child to term?
8) Is she fully aware of the option of adoption and the large number of couples seeking to adopt?
9) Is she aware of the scientific evidence of fetal development?
10) Has she seen an ultrasound of her child? (About 70% of women who see an ultrasound of their child choose to carry the child to term.)
A strong counseling law, modeled on the German experience, would likely lead to large reductions in American abortion rates. Strong counseling should be able to prevent a very high percentage of second abortions. And the very knowledge that counseling was a necessary requirement for abortion would encourage a higher level of seriousness and responsibility within American culture as a whole.
It would also have a very good chance of being upheld by the Supreme Court. This is in part because relatively mild counseling laws have been upheld under the Casey decision of 1992. But this is also because Anthony Kennedy, the key 5th vote, has made international law central to his understanding of the US Constitution.
Now there are very severe problems with what Kennedy has done with the Constitution using foreign law. But whatever one thinks of his work, pro-life leaders would be well-advised to write challenges to Roe that can be rationalized under his framework. For Kennedy is now the decisive swing vote on abortion, and without his support no move toward a more pro-life Constitution can succeed.
A final advantage is that a strong counseling law would be much less controversial with the American people than a ban on abortion as broad as South Dakota seeks. As tragic as abortion is, a wise pro-life movement will follow the path cut out by the NAACP in the legal strategy that led to the end of segregation: to move carefully, cautiously, step by step.