Is Roe v. Wade Still The Law?

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?