This being something of a problem, for The Guardian has decided to give us an article about abortion in America.
Will 2020 be the year abortion is banned in the US?
That is at least a useful demonstration of Betteridge’s Law, for the answer is no.
It’s important to understand the basics here. And I’ll describe as basics, not with every possible nuance.
Roe v Wade is the case at issue. This did not make abortion legal in the US. It was legal, in circumstances and in places, before that case was decided. If it is overturned it will be legal in places and circumstances still.
What Roe v Wade did is say – in an appalling piece of legal reasoning, whatever the desirability or not of the outcome – is that in the penumbra of the Constitution there is a right to abortion up to some point. Thus States may not make rules limiting the access to that constitutional right.
In the absence of this case States will be able to – as they did before this case – makes varied rules which define access or not to abortion. As they did before some will have liberal access, others will have restrictive to none no doubt.
Whatever the Supreme Court decides will not make abortion illegal in the United States, because that’s not even what the case is about. Rather, is there a right to it? If not then it’s one of those things which are, given that it’s not part of the enumerated powers of the Federal Government in upholding the constitution or anything, up to the States to decide upon.
This week marks the 47th anniversary of the landmark US supreme court case Roe v Wade, which legalized abortion
No, it didn’t. Abortion was available in – for example – New York state before that decision.
It’s also possible to get very confused about American politics, as The Guardian is doing:
Until Roe, abortion was seen mostly as an issue for the Catholic church, and it was predominantly Democratic states that opposed access to abortion and contraceptives.
The South is culturally more conservative – also more religious, not quite the same thing but linked – than the rest of the country. And, as an overhang from the Civil War and Reconstruction (Republican carpetbaggers were a real thing) the South was Democratic up until around and about those mid-1970s. Solidly so, this is what Nixon’s “Southern Strategy” was all about, turning those cultural conservatives into Republicans. It worked too, for an electoral definition of “worked”.
Now, most Americans – nearly 80%, according to Gallup polling – support legal abortion in at least some circumstances.
Therefore, when the State legislatures craft legislation upon the matter, having been freed by the Supreme Court to do so if they overturn Roe v Wade, that’s the legislation people will get. Legal abortion in at least some circumstances.
As, you know, damn near every European legislature has done? As, in fact, was happening in the US before Roe:
In 1967, Colorado became the first state to decriminalize abortion in cases of rape, incest, or in which pregnancy would lead to permanent physical disability of the woman. Similar laws were passed in California, Oregon, and North Carolina. In 1970, Hawaii became the first state to legalize abortions on the request of the woman, and New York repealed its 1830 law and allowed abortions up to the 24th week of pregnancy. Similar laws were soon passed in Alaska and Washington. In 1970, Washington held a referendum on legalizing early pregnancy abortions, becoming the first state to legalize abortion through a vote of the people. A law in Washington, D.C., which allowed abortion to protect the life or health of the woman, was challenged in the Supreme Court in 1971 in United States v. Vuitch. The court upheld the law, deeming that “health” meant “psychological and physical well-being”, essentially allowing abortion in Washington, D. C. By the end of 1972, 13 states had a law similar to that of Colorado, while Mississippi allowed abortion in cases of rape or incest only and Alabama and Massachusetts allowed abortions only in cases where the woman’s physical health was endangered. In order to obtain abortions during this period, women would often travel from a state where abortion was illegal to states where it was legal. The legal position prior to Roe v. Wade was that abortion was illegal in 30 states and legal under certain circumstances in 20 states.
Repealing Roe wouldn’t make abortion illegal, it would make it a matter for State legislatures. Or, as is so often the case, The Guardian doesn’t know what it’s talking about.