Roe v. Wade’s 40th Anniversary: The Irrepressible Conflict

Today is the 40th anniversary of the U.S. Supreme Court’s Roe v. Wade decision making access to abortion services a federal constitutional right rather than a matter of state policy. And in many respects, it could seem like a time of celebration for defenders of reproductive rights. A president committed to the defense of Roe has just begun his second term in office, and may well have the power to shape the Supreme Court for quite some time to come. A new NBC/WSJ survey shows public support for maintaining Roe–by more than a two-to-one margin–is at an all-time high.

But at the same time, those wanting to reverse Roe–or, for the most part, to replace it with a constitutional doctrine making zygotes “persons” accorded all the rights and privileges conferred by the 14th Amendment–have become more adept than ever at pursuing indirect or covert means of unravelling reproductive rights via state legislation. One recent trend involves “fetal pain” statutes banning pre-viability abortions–already law in nine states–that represent pretty direct challenges to Roe which no one is quite sure the current Supreme Court would invalidate.

But even if Roe survives as before and the wave of anti-choice state legislation flowing from the 2010 Republican landslide retreats, we still have to come to grips with the fact that a significant if decisively outnumbered minority of Americans, for reasons ranging from religious doctrine to fear of women’s sexuality, view or claim to view legalized abortion as a “Holocaust,” and themselves as akin to the anti-Hitler resistance. There’s really no compromise available with these folks, and no particular evidence that they are going away, ever, unless, miraculously, someone invents a 100% effective method of contraception that does not disturb fertilized ova and is somehow made available for free to 100% of the population (and even then, some, perhaps a majority, of today’s anti-choice activists would object to that on religious and/or natalist grounds).

Anti-choicers love to compare their cause to that of the abolitionists. They are correct in one respect: this is an irrepressible conflict in which total victory is required but never, ever assured. About the most pro-choice activists can hope for is that the death grip of their opponents on one of America’s two major political parties can be relaxed. But that seems many years away. So the odds are high that we will continue to commemorate Roe v. Wade for the immediate future as an important signpost on the road to reproductive self-determination for women, but not as any sort of end-point.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.