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The reality of Roe

The landmark abortion ruling is established law. Overturning it would cause severe upheaval.

January 22, 2008

Thirty-five years ago, the Supreme Court, under the leadership of one Nixon appointee and in a decision written by another, asserted that abortion was protected by the right of privacy and guaranteed under the 14th Amendment. That decision, Roe vs. Wade, has inspired many protests and rallies in the years since, and will so again today.

The precedent set by Roe is more threatened now than ever. The appointments of Justice Samuel A. Alito Jr. and Chief Justice John G. Roberts Jr. have reduced the presumed support for Roe to a small majority on the court. Meanwhile, the four justices in the court's liberal wing are growing old and could conceivably be replaced by the next president (John Paul Stevens will turn 88 in April). Even without a majority on the court, abortion foes have been chipping away at Roe one law at a time, and they have made alarming headway, culminating in a high court decision last April that for the first time since 1973 upheld a ban on a procedure -- controversial "partial-birth" abortions.

A return to the days when states were free to ban abortion would be disastrous and deadly. A recent review of U.S. abortion statistics backs up what pro-choice activists have long asserted: Those most likely to get an abortion tend to be those least able to afford to travel to another state to get one. According to the Guttmacher Institute, the abortion rate among women living below the federal poverty line is almost four times higher than that among more affluent women. Statewide bans would lead to back-alley procedures by desperate women, who would die needlessly because politicians shut down clean and safe clinics.

That appalling possibility should trouble all the justices, but particularly Roberts. For him to overturn Roe would be to contradict his stated devotion to precedent and to turn his back on his mentor, former Chief Justice William H. Rehnquist. In Dickerson vs. the United States, which challenged whether suspects must be read their Miranda rights for their statements to be admissible in court, Rehnquist wrote for the majority in 2000 that regardless of whether justices supported the original Miranda decision, it had become "part of our national culture" and therefore deserving of protection. Roe, in the same way, created a now well-established right that would cause severe upheaval if it were overturned.

Sadly, too many conservatives attack judicial activism, then practice it. That makes this year's elections all the more important: Every Democratic candidate supports Roe, while only one Republican, Rudolph W. Giuliani, agrees (and he hedges). Something to keep in mind during this election season.

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