A World without Roe: How Different Would It Be?

A World Without Roe: How Different Would it Be? Though presented with many opportunities over the past 16 years, the Supreme Court has yet to retreat from its ruling in Roe v. Wade, the case that is now understood as establishing a constitutional right to abortion. The Court's ruling this year in a Missouri abortion case may be different. No one knows exactly how the views of the newest justice, Anthony Kennedy, differ from those of Lewis Powell, the Roe-supporter he replaced. It seems, though, that Kennedy could well end up siding with Roe critics O'Connor, Rehnquist, Scalia, and White, tipping the scale against Blackmun, Brennan, Marshall, and Stevens. But even if most justices no longer support Roe, neither the worst fears of pro-choice partisans nor the highest hopes of pro-lifers are likely to be realized. Only rarely does the Supreme Court make an abrupt break with its past rulings. And the sustained controversy provoked by Roe will doubtless discourage the Court from now delivering as stunning a blow to those concerned about women's rights as it did in 1973 to those who expected the law to protect fetal life. What seems more probable is that the line of decisions extending from and expanding Roe will be pruned and reshaped to achieve a better balance between the rights of pregnant women and the protection of developing life. Rather than overruling Roe outright, the justices may simply broaden the category of abortion-related issues that can be thrashed out in the give-and-take of the legislative process. If so, Roe v. Wade might well emerge shorn of some of its wider implications. But its narrow holding--that a statute permitting abortion only to preserve the life of the pregnant woman is unconstitutional--would probably remain intact. What kinds of statutes would state legislatures produce if the abortion issue were returned to them, or if, as is more likely, the opening in the window of permissible state regulation were gradually widened? In the six-year period before Roe v. Wade, nineteen states had already liberalized their abortion laws. We can gain some idea of how this law revision process might have played itself out not only by examining these laws, but by examining abortion law in other developed nations that have settled the matter legislatively. The first conclusion is that a middle ground does exist. Although many people consider moral compromise on abortion impossible, Western European experience shows that political compromise is not only possible but typical, even in countries as deeply divided on the abortion question as ours. A second striking fact that emerges from comparison of legal approaches of Western nations to abortion is that no country in Europe has gone so far as our Supreme Court in permitting abortion on demand. A small group of countries does exempt abortion from criminal penalties during approximately the first trimester of pregnancy. But even Sweden (which is the least restrictive in this respect) begins to regulate in the interest of the fetus after eighteen weeks, in contrast to the regime of Roe v. Wade, which forbids such regulation until viability and permits it thereafter only on condition that it does not interfere with the health (broadly understood as "well-being") of the pregnant woman. At the other end of the West European spectrum are two countries (Ireland and Belgium) that have what amounts to a blanket prohibition on abortion. The typical approach by far, however, is a compromise that takes various forms, but has four common features: (1) abortion is clearly identified as a criminal offense even in the first trimester, but is exempt from punishment under certain conditions; (2) after the early weeks of pregnancy, these exemptions are strictly limited and closely supervised; (3) criminal sanctions are directed only or mainly toward the abortionist rather than the pregnant woman; and (4) the places where abortions may be performed are regulated so that abortion cannot become a specialized profit-making industry. …