Experts See Legal Abortion Without Roe

The two vacancies on the Supreme Court (search) have abortion activists on either side sounding the death knell of Roe v. Wade, the landmark 1973 ruling overturning state laws that criminalized abortion.

But some legal scholars who support abortion rights say that may not be such a bad thing.

"Roe was terribly reasoned," said Scott Powe, a professor at the University of Texas School of Law. "I think there's some requirement under the Constitution that if you cannot explain a decision and its relationship with legal materials, it's not a valid decision."

Powe, who describes himself as "100 percent pro-choice," is far from alone in his criticism of Roe. Justices Antonin Scalia and Clarence Thomas have made no secret of their revulsion toward Roe on legal grounds.

But what may have been lost in the often shrill battle over abortion is that even people who believe abortion should be legal are uncomfortable with the arguments in Roe.

Jack Balkin, a professor at Yale Law School, asked some of the nation's foremost constitutional law scholars to imagine how they might have written Roe. The results are compiled in "What Roe v. Wade Should Have Said: America's Top Legal Experts Rewrite America's Most Controversial Decision."

"Rights are most secure when they are supported by legislative enactment," Balkin told He said he believes the right to abortion would have been better settled if it had been articulated through congressional channels.

A case in point, Balkin said, was 1954's Brown v. Board of Education ruling that made racial segregation illegal. The decision was so unpopular at the time — even among anti-segregation legal scholars — that it inspired segregationist lawmakers to mandate congressional hearings for Supreme Court candidates, a process Judge John G. Roberts got to know quite well last week.

"Brown truly becomes law, really becomes something everyone's on board with after the Civil Rights Act of 1964," Balkin said. "At that point, Congress said, 'We are behind Brown.'"

In other words, he said, Brown was not considered by many Americans to be legitimate until its basic tenets were codified through the legislative process.

"Anything the court does that is controversial is going to be in danger as long as it's controversial," added Michael Dorf, professor at the Columbia University School of Law. "The reason why racial segregation in schools is not going to come back is not because all nine justices think Brown is right. It's because the country has accepted that it is right."

Most legal scholars agree that Roe and Brown are separate animals, a belief that has pushed pro-choice legislators to repeatedly try — and fail — to get a national abortion law on the books. Moreover, the death of the Freedom of Choice Act — a proposed legislative remedy allowing abortion — during President Clinton's administration was arguably a turning point for abortion politics in this country.

Abortion rights activists say they found themselves increasingly on the defensive after the Republican Revolution in Congress in 1994, and on red alert since President Bush's victory in 2000. The chasm between the pro- and anti-abortion camps has only grown wider, with right-to-life groups emboldened in recent years.

In the past decade or so, Roe's breadth has been chipped away by legislation and rulings on a host of "sidebar" issues: parental consent, late-term or partial-birth abortions and public health care funding.

But any real danger to Roe, which both camps claim exists, may be merely rhetorical. Even if Roberts, who cautiously evaded questions on Roe last week, is confirmed as chief justice of the Supreme Court, and even if an anti-abortion candidate like Judge Priscilla Owen (search) is tapped to succeed retiring Justice Sandra Day O'Connor, the court may still not have enough votes to overturn Roe.

"[Justice Anthony] Kennedy is willing to restrict it but not overturn it," Dorf told Kennedy, a moderate conservative, is widely seen as O'Connor's successor as the court's swing vote.

In fact, the real fight over the political makeup of the court is likely to come when its eldest member, 85-year-old Justice John Paul Stevens (search), retires, say court watchers.

A Matter of Sexual Equality

Legal scholars who oppose Roe do so mainly because nothing in the Constitution or in the privacy rights spelled out in Griswold v. Connecticut indicates a constitutional right to have an abortion.

In addition, it has become increasingly clear that the way abortion is practiced and discussed today is not what the justices who decided Roe had in mind. In the 1970s, abortion was not "on demand" and the procedure was not accessible to most American women. Roe was in many ways more about protecting doctors from prosecution than granting a new right to women.

"Roe was written for doctors," Powe said, referring to the summer that the opinion's author, Justice Harry Blackmun, spent at the Mayo Clinic researching abortion. "It would have been more helpful if he tried to research law to do Roe rather than medicine."

Some legal scholars say they believe that if Roe is eventually overturned, the case for abortion could then be argued on due process or equal protection grounds.

"Criminalizing abortion requires women who have unwanted or nonconsensual pregnancies to go forward with the pregnancies, and there is nothing comparable with men," said Robin West of Georgetown University's law school. "The most straightforward constitutional argument is that mandatory or nonconsensual pregnancies impose a requirement of Good Samaritanism that is not required of men."

West, who contributed to "What Roe v. Wade Should Have Said," added that freedom from violations of autonomy was a more salient argument than the right to privacy.

"What strikes me as the most burdensome of this requirement of mandatory pregnancy is that it imposes on a woman that she use her body in a certain way. We're all required to pay taxes, etc., but we're not required to do with our body things we don't want to do. ... It is a striking anomaly in the law," West told

Arthur Caplan, director of the University of Pennsylvania Center for Bioethics, concurred: "We're not willing to go there when it comes to tradeoffs between any two people. We don't say no matter what happens, you are legally compelled to save people who are in peril."

But Columbia's Dorf said people are daydreaming if they expect the case for abortion beyond Roe would come back to the court as an equal protection claim.

The more likely scenario, Dorf said, is that Congress would move to pass federal legislation outlining abortion rights, to some an improvement over Roe, which does not lay out legislative parameters.

While "there's a decent chance" that today's Republican-dominated Congress would pass some kind of national ban that would trump state legislation, Dorf said lawmakers are more likely to end up following the cues of the majority of Americans.

According to a July Pew Research Center poll, 65 percent of Americans did not want to see Roe overturned, compared with 29 percent who wanted it gone. And only 9 percent thought abortion should be illegal in all cases.

Most Americans agree that the procedure should be available in cases of rape and incest or when the mother's health or life is in danger. More are comfortable with abortion early on; the later in the term, and the more viable the fetus, the more uncomfortable Americans get. Most agree 12-year-olds should not be able to get abortions at will, nor should women who refuse to use birth control.

If Congress did create a federal abortion law, "I am willing to bet there will be parental notification and there will be no taxpayer funding, but there will be abortions in the first half of pregnancies," Powe of the University of Texas said. "There would be room for nuance if it was a legislative matter because there would have to be compromises."

Another compromise may be needed: if the federal government creates a legislative remedy, states are likely to add their own restrictions to abortion laws, meaning access would vary across the country.

One scenario that interests legal scholars is the possibility Roe could come back as a commerce clause case. Powe said he could envision Texas and other similarly conservative states passing laws forbidding residents to travel to other states to have an abortion. But even if Congress also passed a law banning interstate travel for abortions, "the assumption would be it's unconstitutional," Powe predicted.

Powe compared the argument to residents in states that forbid gambling being able to travel to states like Nevada to gamble. Congress would be unlikely to pass such a law regulating interstate travel for activities that are legal in the destination state, he said.