Making rights real: Roe's impact on abortion access.

Abstract

In recent years various pro-choice theorists have asserted that the 1973 Roe vs. Wade decision undermined access to abortion by removing the possibility for a social consensus established through ordinary legislative processes and by de-mobilizing abortion rights activists and galvanizing the right-to-life movement. These claims can be refuted through a counterfactual analysis of the alternative political scenarios. It is argued that abortion access is determined primarily by the permissiveness of the laws distance to abortion facilities and the availability of public funding and to a lesser extent by mandatory spousal or parental consent counseling requirements and waiting periods. Although Roe vs. Wade allowed states to ban abortions in the 3rd trimester and regulate them in the 2nd a womans claim dominates state interests in the 1st trimester. Abortion access had remained stable since 1973 but pro-choice forces have been unable to counter a trend toward state restrictions on abortion rights especially in terms of public funding. If instead of ruling on Roe vs. Wade in 1973 the Supreme court had given state legislatures the right to resolve the abortion issue pro-choice activists would have been forced to strengthen the abortion rights movement and to fight for legislation compelling public and private hospitals to offer abortion services. However weak support in the 1970s for the concept of abortion on demand makes this an unlikely scenario. Also politically infeasible is a scenario in which state legislatures determine abortion laws. Without the Roe decision a pattern of regional disparity in abortion access would have continued. At least 14 states would probably enact laws permitting abortion only to save a mothers life another 15 would adopt permissive laws and the outcomes in the remaining states would be uncertain. Common to all alternate scenarios would be overall reduced access to abortion and a political process based on sharp polarization rather than social consensus.