Tuesday, January 22, 2013
Caitlin Borgmann (CUNY Law School) has posted Roe v. Wade's 40th Anniversary: A Moment of Truth for the Anti-Abortion-Rights Movement? on SSRN. Here is the abstract:
In the forty years since the Supreme Court decided Roe v. Wade, the anti-abortion-rights movement has pursued a strategy of incrementally whittling away at the right to abortion. Until the Court’s 1992 decision in Planned Parenthood v. Casey, which reaffirmed the right to abortion, the movement still harbored hopes of overturning Roe and passing a federal “Human Life Amendment” that would treat embryos and fetuses as constitutional persons. But alongside these efforts, and single-mindedly once Casey was decided, the mainstream anti-abortion-rights movement has sought to change “hearts and minds” about abortion by giving it disfavored treatment in the law through as many channels as possible. Advocates have pushed a steady stream of abortion restrictions through state legislatures, and sometimes Congress. They believe that this strategy has served to keep the issue alive in the public consciousness and will gradually turn the tide of public opinion against the procedure.
But restrictions short of a ban are not the end game for abortion-rights opponents. The incremental approach has left the movement in a sort of Zeno’s paradox, perpetually pursuing restrictions that get them only halfway from the political present to their goal, and thus never reaching it. Sooner or later, the movement will reach a moment of truth, when it must put aside the incrementalist strategy and openly pursue its goal of banning abortion altogether. Now, forty years after the Supreme Court recognized a constitutional right to abortion, that moment may have arrived. Recent state legislative sessions have suggested that the incremental approach is reaching its limits. Radicals impatient with the strategy have stepped up their fight for laws that directly challenge Roe v. Wade. For example, proposals for “personhood” measures, which would grant the full legal rights of persons to human life from the moment of fertilization, have proliferated in state legislatures and appeared on state ballots. In addition, several states have considered bills that would ban abortion from the moment the embryonic heartbeat becomes audible. Many states have enacted some or all of the Casey-approved restrictions, and advocates are running out of new incremental measures that the public is likely to accept. Roe v. Wade’s fortieth anniversary should push the incrementalists to consider whether their strategy has truly changed hearts and minds about abortion, or whether the movement has labored in vain for four decades, pointlessly layering on onerous restrictions that the public accepts, but that leave abortion still widely available in the United States.