Michael Barone on Roe v. Wade

Citing the results of the recent Survey USA poll, Michael Barone suggests that even if the Court overturned Roe v. Wade, the practical consequences of such a decision would be minimal:

I wrote the other day that if Roe v. Wade were reversed, probably only three jurisdictions—Utah, Louisiana, and Guam—would criminalize abortion. That tends to be supported by the Survey USA poll that shows "pro-life" and "pro-choice" opinion in each state. Utah and Louisiana are Nos. 1 and 2, 61 percent and 57 percent antiabortion respectively. (Guam, a territory, is not included in the survey.) In the following states, between 51 percent and 55 percent are rated as "pro-life": Arkansas, Idaho, Alabama, Mississippi, West Virginia, Kentucky, and Tennessee. So I suppose it's possible that their legislatures would vote to criminalize abortion (though it's also possible that the Democratic governors of West Virginia and Tennessee would veto such laws).

Barone is correct in pointing out a fact often overlooked by the uninformed left, namely, that overturning Roe would not make abortion illegal across the country, but rather return the issue to state legislatures. And assuming his numbers are correct, Barone may also be right in assuming that very few states would actually outlaw abortion given the option. But these points do not justify Barone’s dismissive stance on possible challenges to Roe.

But efforts to criminalize abortion are unlikely to do anything but sputter in the large majority of states. The issue will quickly come to be seen as irrelevant in most. Some pro-choice voters and leaders may actually believe that a reversal of Roe v. Wade would produce widespread criminalization of abortion. But the more clear-sighted of them, I think, understand that it would not. What they are interested in is less facts on the ground than the exaltation and celebration of the right to abortion as an abstract idea.

In the context of judicial precedent, I wouldn’t call the right to abortion "abstract." The Court’s decision in Roe was based on the inherent "right to privacy" protected by the Constitution. According to Justice Blackmun, the right to privacy is not absolute, but it protects abortion unless "the state interests as to protection of health, medical standards, and prenatal life, become dominant." The extent to which compelling state interests outweigh the personnel right to privacy will continue to be argued on a case by case basis, but the fact that Roe currently sets the standard for such debates is of vital importance to civil libertarians. Barone may be right that the legal discussions surrounding Roe begin somewhere in the realm of the abstract, but the implications of these discussions inevitably cross the threshold into real life.

There is a reason that opponents of the pro-life philosophy call themselves pro-choice rather than pro-abortion. Nobody but the sick and twisted relishes the idea of aborting fetuses, but millions of Americans (about half of us) relish the idea that a thick wall stands between our government and our ability to make decisions affecting our personal lives. In spite of the political baggage with which it has been burdened, the Court’s decision in Roe continues to fortify the wall that stands between our personal lives and our government. While overturning Roe may not make it harder to get an abortion in the U.S., it would weaken the defenses we’ve erected around our civil liberties, defenses well worth protecting.

--Matthew McCoy