Is Roe v. Wade Still The Law?

Thursday, April 21, 2011

Welcome to Politics Bites, where every afternoon at It's A Free Country, we bring you the unmissable quotes from the morning's political conversations on WNYC. Today on the Brian Lehrer Show, Dahlia Lithwick, senior editor at Slate, discussed her recent article on the deterioration of Roe v. Wade due to state and local legislation.

The rise of state laws

In the short time since the 2010 election, a staggering 916 measures have been introduced in 49 states that seek to chip away at Roe v. Wade. The number of pro-life governors has risen from 21 to 29 and many of these states have majorities in the state legislatures on the same page.

The polling shows that in general, public opinion has remained consistent about abortion--a majority believe abortion should be legal under some circumstances. What's changed is that legislators have become more emboldened.

Most of the state measures aren't direct attacks on Roe v. Wade but they essentially scrape away at the law's power so much that it becomes impotent. Some laws do things like extend the mandatory abortion waiting period from 24 hours to 72 hours, provide mandatory religious counseling, or compel women to look at their ultrasounds. Lithwick says all the work is around the margins of Roe:

It's all really a response to a shift that we see in Justice Kennedy's thinking in a 2007 case where he starts to say 'women are going to have regrets' and so a lot of these measures are a way of saying 'we don't want women to have regrets so we'll give them more counseling, more ultrasounds, more information and then they'll really know what they're doing.'

Science has overtaken the original Roe v. Wade decision

Lithwick cited Sarah Kliff's recent piece in Politico that suggested one reason these state laws haven't been challenged is that some believe Roe could be stripped down by the Supreme Court. Roe is vulnerable because the decision was rooted in science - and medical advances since 1973 have significantly shortened the time-line of when a fetus is declared "viable" - able to survive outside of the womb. Just one change on the Supreme Court - like Justice Kennedy's stance - has the potential to alter everything.

"Our Science" vs. "Your" Science

The big problem is that now each side has their own "research" to back up their own argument - even if the studies have been declared bunk by the scientific establishment. The "fetal pain theory" and "the regret theory" (that women who abort suffer trauma from regret after an abortion) have been largely discredited.

So I think we're going to see a huge surge not just in this kind of legislation at the state level, but a huge surge in states saying, well, if fetal pain is the new standard then we're going to try for fetal pain, and that will have the effect of hollowing out Roe v. Wade without the Court having to lift a finger.

It doesn't matter anymore, it doesn't matter whose study you use, each side believes their study is true, each side believe the other side's science is wrong. We're never going to agree on the medical line, we don't even agree on the studies.

But when it comes to politics, who cares about objectivity?


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Comments [29]

Veronica Smith from portland, oregon

We are not going to progress with this issue at any rate when people are throwing around terms and accusations that only push us further apart. This has obviously been a strong, ongoing concern, and there's a reason for that. There are many reasons why it is hard to speak for a voice that hasn't found itself yet. The core of this argument lies in the question of consciousness of the developing fetus. Both arguments make sense to certain extents, and on both sides there are flaws observed. Abortion is a very complex subject, and we can't pretend we know what's best for anyone, especially if they aren't developed yet. All I can say is that if you think a woman who gets pregnant should without question conceive, thus deeming her eligible to be a proper parent, then you should also deem her eligible to know what's best for her seed. However, there's the adoption option which is the perfect alternative for mothers who give birth, but who we don't see fit to parent the child. Unfortunately we can't effectively decide whether a mother is able to care for her child (with the exception of obvious and extreme cases of neglect and abuse) if we've already made the assumption that she is mature enough to handle nine months of confusion she will likely face because she was forced to incubate a ball of DNA into a living, breathing conscious being for nine months against her will.
Abortion might not have been anyone's burden if only we were all perfectly responsible and clearly understood the consequences of unsafe sex (which include more than just babies!). Unfortunately, you can still get pregnant even when you are told by your doctor that you are doing the right thing by using contraceptives. These doctors also tell you that there is a still very small risk of becoming pregnant even when properly using your chosen contraceptive. So this brings us to a whole new argument that needs to be considered before the one of abortion. What is the definition of being responsible in a situation like sex and is it possible for everyone to agree one standard? Many believe that using birth control and condoms are responsible choices, but does that change when the girl ends up pregnant? I thought she was being responsible? Notice by looking at our own lives and the lives around us that abstinence isn't practiced and accepted by everyone. If men have the right to have sex without doing it for the sake of reproduction, then women should be allowed the same privilege without being judged, because either way, when that man is exercising his sexual freedom, he is making love to women who are being punished for his own desires .

May. 09 2012 01:33 AM
CandyKane from Brooklyn

jgarbuz: Abortion has nothing to do with immigration, yet Capitalism has EVERYTHING to do with abortion and immigration.

Lets look back at history: Roe v Wade was decided in 1973; a period in which the manufacturing sector was in decline (which lead to massive urban unemployment), we were in the middle of a war which 50,000 people came home in a body bag and our nation was riddled in the heroin epidemic. People needed abortions because in this new society, people weren't able to care for children anymore. The traditional bread winner of the family, the man, could no longer care for an entire family. Therefore women hit the workforce in record numbers. The family dynamic completely changed.

We could have 100 million more people in our country, but there will still be immigration; the wealthy realized that they could find a workforce that costs much less than the American workforce.

Apr. 26 2011 03:33 PM
Harrison Bergeron from Fair Lawn NJ

Some clarification is in order:

My layman's understanding is that "Roe vs Wade" is not a "law" but rather, (by shorthand use), the legal decision of that particular case.

It is a curious aspect of our system of civil law, that such a decision may become a precendent for future similar cases -- regardless of any actual written law or lack thereof.

I understand that the particular legal decision was based upon a women's right to privacy as an extension of any citizen's right to free speech. This strikes me as a pretty fair stretch. The subject matter is two lives, (or at least one depending upon your point of view). Regardless of the motive of the deciding justices -- this has nothing to do with free speech.

Which brings us to the real heart of the legal problem: that abortion is neither legal nor illegal in this country.

Those spineless turds in Washington are afraid to make any law, because they know that they will anger a large part of the voters and maybe lose the next election on this one issue. So they make belive that it is a judicial issue rather than a legislative issue, and grill the candidates for supreme court justice on it. And we idiots let them get away with those sorts of performances time and again.

So who can be surprised that the issue is moving away from the federal government and to the state level?

Notice: The above statements are for entertainment only and should not be considered legal advice. The opinions expressed are purely those of the author. Neither WNYC nor NPR nor the web hosting agency assumes any liability for any statements.

Apr. 22 2011 09:52 PM

Please don't use the term "pro-life" to refer to the faction that is against women's reproductive rights (not to mention women's rights) on so many levels. Opposition to abortion is just the tip of the iceberg. Scratch the surface of the anti-choice groups' rhetoric and you find very misogynistic attitudes and a desire to limit and control women's choices over many issues that concern their sexuality.

It has been my experience that anti-choice activists invariably have children who have had unplanned pregnancies and, yes, abortions! Pro-choice proponents -- still the majority in this country -- raise girls who believe they have the right and the responsibility to decide when, where, how, and with whom to have sex and to have children.

Apr. 22 2011 09:17 AM
Gaetano Catelli from America

it's interesting, but rarely explicitly noted, that in the almost 40 [not 30, btw] years since Roe, public opinion has shifted enormously in favor of tolerance for non-whites, women, and gays, but not for depriving the unborn of a 'choice' of their own.

apparently, some issues are just different.

Apr. 21 2011 08:47 PM
Ed from Larchmont

Abortion is the killing of the unborn. We will stop abortion, or it will destroy our country, like slavery almost did in the 19th century. See the video 'Demographic winter'.

Apr. 21 2011 06:46 PM

Love how Dahlia Lithwick thinks it's an "extreme" view that abortions be legal under any circumstances.

Time for everybody to chill out on this "human rights" stuff, ok?

Apr. 21 2011 04:22 PM
Ron from Flairon District of Manhattan

Who do these pro-lifers think that they are, knowing the world better than anyone else? Listening to them, you will hear a big, very big, lie or a lot ignorance, if you prefer. If women can not have abortions, they will seek many methods to "clear"themselves of their own woes. This will result in various unhealthy ways to attempt to clear themselves of the mistake that they have made. The result many women will succeed in killing the fetus that they are carrying, and in the process, killing or maiming themselves. This makes two deaths as opposed to one.

If the child is permitted to survive, the mother and unwanted child are likely to lead lives that are considered useless and unwanted by society. This can contribute to violent, I don't give a damn crime, or even, in more extreme cases, suicide.

So, who are these hypocrites who tell us to obey God;s will? Does the Bible not state "forgive them, for they Know not what they do". I do forgive these pro-lifers, but can not forgive what they do.

Apr. 21 2011 03:50 PM
Karen from astoria

It was this piece she recommended:

Apr. 21 2011 11:30 AM
jgarbuz from Queens

Yeah, right, ignore anybody with a contrarian POV, and doesn't go along with the "conventional wisdom" or fashion of the time.
Why should the female gender, just because they possess the wombs, be the sole controllers of our future demographics and population numbers? Just as I was once against patriarchal control over women, so equally am I against matriarchal control over the future of our society.
If all of this is just a power struggle between males and females, then maybe we should just abolish marriage and family and start producing kids in factories. It's almost technologically feasible.

Apr. 21 2011 11:08 AM

oh, ok guys "Jargaz" is just an internet troll. He often comments here so clearly he listens to the show. He makes wildly extreme remarks and then watches the pot boil.

He's probably some kid. ignore him.

Apr. 21 2011 11:03 AM
jgarbuz from Queens

Actually, not only am I against abortion, but I am also against marriage and family, and believe in "Brave New World," where children would be manufactured and raised either by the state or by corporations in accordance to socioeconomic needs, as in the old book "Brave New World." I think we are moving into a post-family world. I think population control and demographics is too socially important to be left soley in the hands of women.

Apr. 21 2011 11:01 AM

Caitlin: right on!

Apr. 21 2011 10:58 AM

Office, I have no idea how the Right is able to reconcile this: they scream now that they are all about fiscal responsibility, but this fiscally responsible choice to not bring a fetus to term, is something they fully reject.

They scream NO BIG GOVERNMENT, but this issue..? oooooh, then they want the government all up in our jelly.

Why don't they just admit it: they want a Church State.

Apr. 21 2011 10:57 AM

So these women are deemed too emotionally fragile to have an abortion, but perfectly capable out raising a child they didn't want or plan for for the next couple decades?

Apr. 21 2011 10:55 AM
Sera from Hoboken

The problem with jgarbuz "argument" is that it is not native-born people who are willing to do the jobs that immigrants are willing to do. Thus, banning abortion does not eliminate the "need" for immigrants.

Apr. 21 2011 10:53 AM

Karen: you can always go back on the site and listen to the segment almost right away.

If you find it, please post! I plan on listening to this later when I am not at work.

Apr. 21 2011 10:53 AM

What gets missed is that this is a very difficult decision for women to make.

Why don't those same people who want to overturn Roe v. Wade, also don't want sex education taught in schools?

Get rid of religion, and we get rid of most of the arguments we have in this country

Apr. 21 2011 10:52 AM
Robin from Queens

That was an amazing piece. Thanks to the guest.

Apr. 21 2011 10:49 AM
Karen Fratti from Astoria

Anyone remember what the Politico article she recommended was? I can't find it.

Apr. 21 2011 10:49 AM
office from office

You are so right. The same people against abortion, would give use a nation full of unwanted children, leading to crime and extra social costs.

Abortion is anothre example of an issue that will result in losses for the Republican party.

Apr. 21 2011 10:48 AM

Hazel: you said it my Sister!

Apr. 21 2011 10:48 AM
Amy from Manhattan

Do those who want to spare women depression that may (or may not, apparently) result from having an abortion ever compare that to the rate of postpartum depression?
A lot of what I'm hearing about their justifications for their positions sounds very patronizing.

Apr. 21 2011 10:47 AM

Had there been no Roe v Wade, the violent crime spike predicted in the 90's, would have turned this country into a bigger mess. We would have needed MORE tax dollars to support wayward men and women with single mothers who knew they could not bear the awesome responsibility of bringing a human being into this world.

Keep YOUR religion off MY body.

Apr. 21 2011 10:45 AM

jgarbuz that is a disgusting "argument." Women should not be forced to bear children to provide a country with low-paid workers. Absolutely disgusting. You are definitely a man. And where are you getting "40 to 50 million" from? Are you implying that's how many abortions have been performed? I'd like to see a citation for that figure - it's ridiculous. Like so many of you anti-abortion men, you hate and fear women. Go to hell.

Apr. 21 2011 10:43 AM
jgarbuz from Queens

No people, no unemployment, eh? People are the problem. Get rid of people, you get rid of problems, eh?

Apr. 21 2011 10:43 AM
Amy from Manhattan

What about another aspect of science--the ability to keep premature babies alive who were born earlier than was possible before? Has this changed the definition of viability?

Apr. 21 2011 10:43 AM

Had there been no Roe vs. Wade, the unemployment rate would be 40 to 50 million people higher than today.

Apr. 21 2011 10:37 AM
jgarbuz from Queens

Had there been no Roe vs.Wade, there would be at least 40 to 50 million more native-born Americans to do the jobs, and far fewer immigrants now required to do them. This ties in with your previous segment. The fewer abortions, the less need for immigrants.

Apr. 21 2011 10:34 AM

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