Scholars see Legal Abortion without Roe

The big litmus test of President Bush's Supreme Court nominees has been whether they will vote to uphold a woman's right to choose an abortion as a constitutionally protected right.

However, outside of that box is an even bigger question: what effect would overturning the precedents that created and upheld abortions as a constitutionally protected right (i.e. Roe v. Wade and Planned Parenthood v. Casey) have on the legality of abortions in general.

Currently, because of those two Supreme Court decisions, abortions are legal unviersally across the nation. No person (pregnant woman or presiding doctor or nurse) can be charged criminally for receiving or giving an abortion. However, were the two decisions overturned, then the question of whether receiving or giving an abortion is a crime would depend upon each individual state legislature.

Some states - including Wisconsin - still have abortion on the books as a crime. However, these states do not prosecute those individuals who seek abortions, knowing full well that abortions are currently protected under the U.S. Constitution. However, with the precedent establishing that protection erased, there is no reason to think that states could not charge individuals for abortions under these existing, but dormant laws.

Yet, Congress itself could react immediately to any decision overturning Roe and/or Casey. It could seek an amendment to the U.S. Constitution, preserving the right to abortion in explicit language, or create incentives to states to not prosecute individuals for giving or receiving abortions.

The most likely result of the death of Roe and/or Casey would be a state-by-state determination of the legality of abortions. Some states would allow abortions in all cases, some might restrict them after a waiting period / parental notification / father-of-fetus notification, and some might limit them to cases of rape, incest, or mother's health. Some states will undoubtedly make all abortions illegal, period. However, according to this poll conducted by Survey USA, only 9 states currently possess strong pro-life majorities (Utah, Louisiana, Arkansas, Idaho, Alabama, Mississippi, West Virginia, Kentucky, Tennessee). Thus, those states which will maintain the woman's right-to-choose will probably outweigh those few states in the Mountains, South, and Appalachians who are strict right-to-lifers.

Regardless of the result, many legal scholars see overturning Roe as a good thing. Even though they may be pro-choice, they believe that Roe was terribly decided, creating harmful precedent, resulting in the opening of a can of worms of issues that should remain out of the court rooms and in the legislatures. Letting the legislature decide, as the voice of the people, gives the end result legitimacy that is missing from the court's interpretation of the U.S. Constitution.