Forty Years and Counting….

This past January saw the 40th anniversary of Roe v. Wade.  As folks protested and demonstrated about the decision at the Court, you had to share a little feeling of déjà vu; a little sharing of Justice Stewart’s reaction as described by Linda Greenhouse in her New York Times blog entry for the day: “I don’t understand.  We’ve decided that.”[1]

Except, of course, that the abortion issue continues to come back, like a bad penny or that tune that you can’t get out of your head.  On Wednesday, NPR blogged that the Arkansas legislature had just approved the most restrictive abortion law in the US, over the veto of its Democratic governor.  The bill requires abortion providers to perform an abdominal ultrasound that will allow the detection of a fetal heartbeat.  If there’s a heartbeat and the pregnancy is at 12 weeks or more, then no abortion can be performed; the bill allows exceptions to preserve the mother’s life, in cases of rape or incest, and in cases of medical emergency.  Mike Beebe, the Arkansas governor, claimed that the bill is not constitutional.   The bill’s major sponsor, State Sen. Jason Rapert, was “grateful that [the Arkansas Legislature] has continued to stand up for the bills that have passed.”[2]

Since the Court’s decision in Roe, the Court has had to struggle over the question of abortion rights.  Greenhouse’s January blog entry is a worthwhile read for the history of this issue in the Court and for the symbolism of the issue over its 40 year life.  Greenhouse argues that the case’s meaning for the justices was not about women’s rights, but about the ability of doctors to practice their profession without fear of criminal prosecution.  Thus, the issue for them was about policy, not about political ideology.  It was the ensuing conflict about abortion, and the use that political parties made of the issue, that caused it to become the hot button issue that it is.  And the current partisan alignment of abortion stances with the two parties, the increased partisanship of elections, and the close electoral divide make it likely that abortion will continue to be an issue.

Which leads me back to Greenhouse’s blog.  Greenhouse ends by pointing to a recent Wall Street Journal poll that found that 70% of respondents felt that Roe v. Wade should not be overturned.  This result, along with the recent 2012 election, leaves her feeling hopeful:

Until recently, I shared the sense of doom that pervades the abortion-rights community. But as the history of the last 40 years shows, elections matter, and the 2012 election matters a great deal. Those looking for signs of “regime change,” as my colleague Jack Balkin at Yale Law School puts it, can find them in unexpected places. The decision last week by Arizona’s governor, Jan Brewer, to accept the Medicaid expansion that she and other Republican governors had fought as part of their lawsuit against the Affordable Care Act was, I believe, an underappreciated portent of shifting tectonic plates….
On one of New Haven’s main streets, a few blocks from my office, is a building that houses the local Planned Parenthood affiliate. Its clinic provides a full range of women’s health services, including contraception and abortion. I grew up about five miles from that location – not then a Planned Parenthood clinic, of course. At the time I graduated from high school, a year before the Supreme Court decided Griswold v. Connecticut, not only was abortion still illegal in my home state, but so was birth control, even for married couples. Every time I drove by the building, and especially this week, I think to myself that despite all the worries and perturbations of the last 40 years, there’s progress.[3]


I wish I could share her optimism.  Legislatures have been adopting many restrictions on abortions in the past year and states are continuing to consider further restrictions.  Presumably, these restrictions have public support, belying the Wall Street Journal results.  That is because, despite the 70% support for upholding Roe, the same survey shows that Americans continue feeling ambivalence about abortion.  In the same poll, 23% of the respondents agreed that abortion should be legal “most of the time;” 35% agreed that the procedure should be illegal with some exceptions.  When combined with the 9% that support a total ban on abortion, this led to the conclusion that “Almost 7 in 10 respondents say there are at least some circumstances in which they don’t support abortion.”[4]

The ACLU has announced that it will challenge the Arkansas ban.  As other challenges are filed in other states, as they will, and make it to the Court, as I imagine they will,  I wonder how the Court will read public opinion after this past election.  If they truly “follow th’election returns,” which 70% will they see?

[1] Linda Greenhouse, “Misconceptions,” New York Times, January 23, 2013;; accessed Mar. 6, 2013.

[2] Bill Chappell, “Arkansas Legislature Embraces Strictest US Abortion Law,” The Two Way: Breaking News from NPR, Mar. 6, 2013,, accessed March 6, 2013.

[3] Greenhouse, Ibid.

[4] Louise Radnofsky and Ashby Jones, “Support Grows for Roe v. Wade”, Wall Street Journal, January 22, 2013; accessed March 7, 2013.

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