A World without Roe: How Different Would It Be?

Abstract

In anticipation of the U.S. Supreme Court's decision in Webster v. Reproductive Health Services (3 Jul 1989), this issue of the Hastings Center Report includes articles by Glendon, M. Mahowald, and N. Rhoden under the unifying title "Abortion: searching for common ground." Each author acknowledges the polarization of public and political opinion after the Court's 1973 Roe v. Wade decision, and seeks to establish a common ground in the abortion debate upon which a regulatory structure could be built. Glendon, author of the monograph Abortion and Divorce in Western Law: American Failures, European Challenges (Harvard; 1987), describes Roe as the most permissive abortion law in the industrializled West. She suggests that the United States might look to European laws as models where experience has shown that political compromise is possible when regulating abortion in countries where public opinion on the issue is deeply divided.With the present controversy over the right of a pregnant woman to an abortion, a series of articles were commissioned to investigate the myriad of complicated issues inherent to this debate. This article hypothesizes what the possible changes in abortion rights will be now that the US Supreme Court has the pro-choice justice Lewis Powell replaced by the more conservative Anthony Kennedy. Since the Supreme Court rarely reverse decisions, it will most likely give state courts more jurisdiction and state legislatures more freedom to change abortion rights. Although pro-choice and anti-abortion groups feel that there is no middle ground, it is likely that the Roe v. Wade precident will be trimmed and reshaped by further cases and legislation to the extent that a middle ground is found. The acceptance of a middle ground policy already exists in European countries, but that does not insure acceptance by the US populace. Although many people fear the decisiveness of a state by state battle on such an emotional issue, this article argues for the expansion of state interpretation so that America is forced to define itself on this issue. Ultimately, the decision will probably maintain compassion for pregnant woman while giving more concern to fetal life.