Yesterday we spent time talking about the legal underpinnings of the Roe/Casey decisions. So, the question now is, what would happen of Roe v. Wade/Planned Parenthood v. Casey were actually overturned.
What Would Happen if Roe/Casey were Overturned?
If Roe/Casey were overturned, what actually happens on the ground might not change all that much.
Why do I say that?
Because there have been so many restrictions enacted by state legislatures that in many states, there are barely any abortion clinics still operating or any abortions taking place.
Consider the following: here are the number of abortion clinics operating in certain selected mid-west states:
• North Dakota: 1 • South Dakota: 1 • Nebraska: 3 • Kansas: 4 • Oklahoma: 3 • Montana: 5 • Idaho: 3 • Wyoming: 1 • Utah: 2 • Missouri: 1
That’s 10 states with only 24 abortion clinics. Or not even 2.5 clinics per state.[1] Compare that to the 152 clinics in California or the 95 clinics in New York state or even the 71 clinics in Florida.
As a practical matter, legal abortion is already almost non-existent in the ten states listed above (and in many other states that have limited access to abortion).
States Have their Own Constitutions
States have their own constitutions, and many of those constitutions could come into play if Roe/Casey were overturned. Remember that more than ten years before the Supreme Court authored Obergefell v. Hodges, 576 U.S. ___ (2015), the decision making gay marriage constitutional under the U.S. Constitution, the Massachusetts Supreme Judicial Court had already decided Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003), which made gay legal under the Massachusetts Constitution.
Many states never got around to tackling the question of the right to an abortion under state constitutions because the issue had already been decided by Roe v. Wade. That federal decision pre-empted the question of state constitutionality by making it clear that no state could just ban abortions outright, regardless of what was in their own state constitution.
Overturning Roe/Casey would not mean that state constitutions cannot be found to incorporate a state right to abortion. It would simply mean that this right is not to be found in the federal constitution.
Even without finding a basis in their own constitutions, states can also go about the task of protecting the right to choose simply by changing legislation. Using the example of Massachusetts again, the Commonwealth recently passed (and the Governor signed) Chapter 155 of the Acts of 2018, An Act Relative to Reproductive Health, which, among other things, repealed a 150-year old law that banned abortion in the Commonwealth.
Other pro-choice states are, of course, free to do the same. States which are not pro-choice – which includes at least the 10 states listed above – are not likely to follow suit. In most of those states, it’s likely that the number of clinics which can offer abortions would drop to zero, and that abortion would be completely prohibited. But again, in many of those states, access to abortion is already effectively non-existent.
Abortion in Other Countries
There seems to be quite a range relative to the number of abortions performed in other countries. The highest rates of abortion take place in Greenland (who knew!) and Belize[2] Some of the lowest rates of abortion have been reported in countries like Chile, Panama, and Trinidad and Tobago.
The rates here are calculated per 1000 women between the ages of 15-39. Some significant countries include:
• Russia: 37.28% • China PR: 26.07% • France: 20.79% • United Kingdom: 20.21% • United States: 17.13% • Italy: 10.87% • India: 02.87% • Mexico: 02.50%
The United States, as one can see, is in the middle of the pack. Not nearly as high as Russia or China, but quite a bit higher than India or Mexico.[4]
Let’s take a closer look at two countries which are on opposite sides of the spectrum with respect to legality: Belize and the Netherlands. The rate in Belize, where abortion is basically illegal, is an extraordinary 59.59%. The rate in the Netherlands, where abortion is mostly completely legal, is about 12.1%.
What does this prove?
It proves that there is not much of a relationship between the legality of abortion and the number of occurrences.[5]
Changes in Technology
One thing that has changed dramatically in the intervening 45 years since Roe was decided is how abortions can be performed. Whereas abortion used to be a surgical procedure, it can now be a “medicated” procedure through the use of the abortion pill. Commonly known as the RU486 pill, this is actually two medications that are used together: Mifepristone and Misoprostol. These medications, which do require a prescription in the United States, can be used safely (with a few exceptions) up until about 70 days after a woman becomes pregnant.
In a world where we have a very serious opioids crisis, it seems hard to imagine that there wouldn’t also be a vigorous traffic in abortion medication. It wouldn’t be much harder than trafficking in opioids. So, this alone – that abortion can now be performed through the ingestion of a couple of pills – changes the equation. While it’s obviously much better for abortion to stay legal, at least now, if abortion does become illegal, women would not have to resort to going back to coat hangers to get it done.
[1] There are plenty of other states, most of them in the South, who also don’t have more than two to three clinics. Most of the states listed above are in the far west.
[2] Although to be fair, the statistics reported from Belize date back to 1996. Some other countries also have their most recent statistics from 2001 or 2004, and their reliability cannot really be verified.
[3] It’s interesting that all those Christians who are recently converted Russophiles that the country they’ve recently become fans of has one of the highest abortion rates in the world.
[4] These figures include both legal and unsanctioned abortions. Especially with respect to the unsanctioned abortions, it’s not clear to me how reliable this data really is.
[5] This one example does not, by itself, prove that point. But if you examine many other countries, you will see that there really isn’t much of a relationship. Some catholic countries (Mexico, for example) have a very low incidence of abortion; other catholic countries (Belize and French Guiana, for example) have rates that are very high. It seems to be the local culture which is determinitive.
