State Law After Roe

Following up on last night's post about the South Dakota and Mississippi abortion bans, Josh Goodman of Governing magazine's '13th Floor' blog sent me a link to his analysis of state abortion law in a post-Roe America. Relying heavily on data from NARAL, Goodman concludes that "23 states would be likely to ban most abortions, 20 states would keep abortion legal... and 7 states would be battlegrounds...."

While it's a pretty solid piece of research, I'm surprised at some of the conclusions he reaches. For example, I have trouble accepting that Rhode Island would be likely to ban abortion, while Kansas would not. Since he uses Kansas as an example, I'll let him speak for himself on his methodology.

I took into account natural legislative inertia -- it's much easier to maintain the legal status quo than it is to change it. Look at Kansas, where there is currently no abortion ban on the books. NARAL lists the Kansas House as anti-choice, the Senate as mixed-choice and Governor Kathleen Sebelius as pro-choice. It would be difficult to pass an abortion ban in Kansas because Sebelius and the Senate could block it.

I would suggest that he's overlooking the social impact of an upending of Roe v. Wade. It's not as if such an event would occur in a vacuum where the "natural legislative inertia" would remain intact. Quite to the contrary, the end of Roe would likely bring a blizzard of activism on both sides of the issue. And in Kansas, even though I understand Goodman's take, I think the ensuing anti-choice uproar would push the state to join the ranks of abortion outlawing states.

Ultimately, with few exceptions, like swapping Kansas and Tennessee into the ban category, I'd say that Goodman's analysis sounds about right, at least numbers-wise (23 ban, 20 don't ban, and 7 on the fence). That means that if Roe is overturned (something that won't happen over night), the nation will be split about 50/50 when it comes to outlawing choice, with a number of states imposing varying levels of restriction. Like I said earlier, this is no longer an issue that exists merely in the abstract.

Tags: abortion, Judges, states (all tags)

Comments

18 Comments

Re: State Law After Roe

How does the population break down? I figure, with the exception of Texas, most abortion-banning states will be fairly small, so the population would be disproportionately located in legal abortion states. Not much of a silver lining, but that's one hell of a dark cloud.

by Gpack3 2006-03-07 11:17AM | 0 recs
Re: State Law After Roe

According to the article, 137 million people live in states where abortion would likely remain legal, 129 million live in states where abortion is likely to be outlawed, and 30 million live in states where the outcome is uncertain.

by David Kowalski 2006-03-07 01:04PM | 0 recs
Kansas

A few years ago I attended a Planned Parenthood event held in metropolitan Kansas City to honor Missouri and Kansas state legislators who were pro-choice. My Missouri representative was honored at the event. All of the Missouri legislators so honored were members of the Democratic Party. It was not the case when it came to Kansas. At the luncheon I sat at a table with two Kansas republican legislators. I made a point of shaking their hands because up until then "I had never met a pro-choice republican."

The republican suburbs of Kansas City in Kansas are a significant portion of the pro-choice population for that state.    

by Michael Bersin 2006-03-07 11:17AM | 0 recs
Some states...

that he lists are just farfetched. Under "battleground" he has: DELAWARE, MASSACHUSSETTS and NEW MEXICO. Delaware and New Meixco both have Democratic governors, and I doubt EITHER would sign an abortion-banning bill. It would be the absolute end of Richardson's career. Massachussetts? Doesn't the Republicans only hold like 4 seats in the legislature? Don't make me laugh.

Other states that he probably has wrong: Arizona (Dem. Governor, unlikely), Arkansas(Even though it's pro-life, the legislature has a dem Supermajority), Colorado(Dems control legislature...), Michigan(Granholm signing this? Are you insane?), Minnesota(Somehow the idea of Minnesota banning abortions seems like it would be political suicide for every Pro-life politician that votes "yes" including the Governor), Rhode Island(Do I even have to explain?), Wisconsin (Doyle would veto that B like no other)

by KainIIIC 2006-03-07 11:18AM | 0 recs
Re: Some states...

Arkansas, dunno.  A lot of those Democrats aren't really Democrats.

Consider that in 2004, supposedly Democratic voters outnumbered Republican voters in the exit poll by a full 10%, and yet Bush still won the state in a walk.  Arkansas and Louisiana are the two southern states where the party ID switch hasn't fully occurred.

by Steve M 2006-03-07 12:34PM | 0 recs
Re: Some states...

Not necessarily... it's more of a Dem-state level party, but the fact is that they're unwilling to adhere to Northeastern Liberals like John Kerry. In that same election, while the Republicans wanted to Reduce the Dem majority in the Legislature, or recapture it altogether, instead the Dems won a Supermajority. The Democratic party is NOT dead in Arkansas, but no one seems to really be paying attention there. Also note that Beebe is ahead in all polls for Governor.

by KainIIIC 2006-03-08 08:30AM | 0 recs
Re: Some states...

"Delaware and New Meixco both have Democratic governors, and I doubt EITHER would sign an abortion-banning bill."

According to the analysis, in Delaware, New Mexico and Massachusetts abortion is ALREADY banned by pre-Roe laws which are unenforceable as long as Roe remains in effect.  Legislative action would be needed to repeal those bans to make abortion legal in the event Roe were overturned.  Massachusetts has alot of pro-life Democrats, so don't assume Democrats can override a veto.

Of course, alot of this is projection since it would take years for the South Dakota law to make its way to the Supreme Court (during which time the pro-life side hopes Justice Stevens will have been replaced).  States with old abortion bans should move to put Roe-like laws in place when the political opportunity arises.

by CA Pol Junkie 2006-03-07 01:16PM | 0 recs
Re: Some states...

I'm not exactly sure about New Mexico and Delaware, but I'm almost positive that Massachussetts would override the ban. Even though a lot of dems may be pro-life, the Republicans only control a handful of seats in both legislatures (and I kid you not there). It's pretty bizarre to imagine there being more pro-life Democrats than Pro-choice Democrats.

In Delaware, quite a bit of Republicans are pro-choice (such as Michael Castle, its token republican). I'm sure they'd work together to repeal this ban.

by KainIIIC 2006-03-08 08:34AM | 0 recs
Re: Some states...

Wisconsin (Doyle would veto that B like no other)

My local morning news in Madison indicated today that Wisconsin's pre-Roe abortion ban is actually still on the books, and would go back into effect if Roe were overturned.  I don't know if this is correct or not, but if it is, I wonder how many other states would fall into the same category.  There is simply no way the current WI legislature would repeal an abortion ban that was delivered up to them from 35 years in the past.

by aaronetc 2006-03-08 05:31AM | 0 recs
Re: State Law After Roe

I say: Let the people get what the people want. And then change people's opinions if your not happy with them.

Deciding the abortion issue through courts was not just undemocratic, it might also have hurted the pro-choice cause in the long run. In the rest of the western world, where there is nothing akin to the Supreme Court, abortion rights are uncontroversial today. People have been convinced to accept them, through reasons and through experimenting with different approaches to the issue.

Pushing abortion rights through the courts energized the opposition and ultimately helped move the political landscape in America to the right. The RR would not have existed today if it wasn't for Roe vs Wade.

by Populism2008 2006-03-07 11:31AM | 0 recs
Re: State Law After Roe

In the rest of the western world, where there is nothing akin to the Supreme Court, abortion rights are uncontroversial today.

Not sure where you're getting that. I'm pretty sure most modern democracies have equivalents to our Supreme Court.

Maybe you meant "nothing akin to Roe v. Wade," but I think the more relevant point is that most modern democracies are far less religious than the United States - and the exceptions, like Ireland and Poland, are also nations with very restrictive abortion laws. Abortion rights are anything but "uncontroversial" there.

by Mathwiz 2006-03-07 12:25PM | 0 recs
Re: State Law After Roe

There was a time when the people didn't want blacks and whites to marry or attend the same schools. Are you suggesting the courts should have stayed out of those fights too?

The reason the Supreme Court exists is that majorities will use the the power of their number to restrict the civil rights of minorities. The right to physical autonomy is a fundamental human right that no majority should be able to take away.

by Gpack3 2006-03-07 02:58PM | 0 recs
Re: State Law After Roe

I think those predictions are way off base. Nothing like that will happen.

First of all, let me say that the days of Roe vs. Wade are numbered. For those Democrats who didn't think that voting for Bush would affect Roe and who later claimed that supporting Roberts or Alito didn't matter. Let this be a lesson to them.

But your analysis is way off. We have to start thinking about a post-Roe reality. The repeal of Roe will not necessarily affect very much. In fact, I compare the issue to the Death Penalty debate of the 60s and 70s. Back in the 60s, people were having second thoughts on the death penalty. Depending on the poll question, about half the country supported banning it (much like with abortion today).

The Supreme Court eventually ruled that the Death Penalty was unconstitutional. The next thing you know the country went into an uproar. That 50% soon became 66% to 70% who supported the death penalty and opposed the courts decision. The ruling was eventually reversed in 1976.

After that, it was up to the individual states to reinstate the death penalty. So in the beginning few states had it. But little by little, it was reinstated through direct government action (passing a law in the state legislature) or through initative or referendum.

If/when Roe is overturned. I have no doubt many governors will attempt to ban it in their respective states. But this will go too far for most people and a huge backlash will ensue.

That's where we step in. Just like the conservatives, we'll have to take the fight to the state legislatures or hold initatives and referendums on the subject. My prediction, is when everything settles down. Fewer than 10 states will actually keep a ban in place. Some states may have limits, but in the end, abortion will be legal in the vast majority of them.

My prediction is that the issue will become so poisonous to Republicans, that just like how liberals today would never advocate abolishing the death penalty - neither will they with abortion. Consider this, even in a conservative state like South Dakota, half of the people polled thought their government went too far.

Given this fact, do you honestly believe that states like Ohio or Pennslyvania will be able to keep the ban in place?

This issue is actually a lose-lose situation for Republicans. Even if they are successful in overturning Roe, not very much will change. People who want abortions, from very conservative states, will just go to states where abortions are offered. People in Utah will go to California. People in South Dakota will go to Minnesota. In the end, nothing much will change, except people will think the Republicans are a bunch of assholes.

by JackBourassa 2006-03-07 12:11PM | 0 recs
Rhose Island

Well, let's see: NARAL says that both the governor and the state legislature are anti-choice in Rhode Island, and then notes that it has a laundry list of anti-choice laws on the books, including an abortion ban.

The Tennessee Constitution has been interpreted to prohibit certain abortion restrictions that the United States Constitution hasn't, hence the decision there.

by Drew 2006-03-07 12:26PM | 0 recs
Re: State Law After Roe

Some interesting coomments, but ultimately not very illuminating because they hinge on 1973 assumptions. Should Roe be overturned, and Republican control of the three branches remain, abortion will be banned nationally by the Congress. The whole "tenth amendment says leave it up to the states" tack by the Right has always been a dishonest dodge. They want to ban it by hook or by crook and if they control Congress they'll do it, damn judicial review.

It would have been an interesting question to pose to Alito, assuming he'd answer it: "Let's assume Roe has been overturned. Does Congress have the authority to ban abortion everywhere?"

by KevStar 2006-03-07 12:27PM | 0 recs
Federal Law After Roe

I question that reversing Roe would punt the issue back to the states. That'd be the best case; in addition to governors' vetoes, there are also state Supreme Courts which would likely uphold abortion rights in several states, so we may not be even as bad off as Goodman's analysis suggests. But would Congress really stay out of the issue?

We never had a Federal law banning any kind of abortion before Roe, but we have one now: the "partial-birth" abortion ban. And if another Bush appointment overturns Roe, Congress is likely to consider a total ban. Remember, even before the 1994 GOP takeover, both houses had anti-choice majorities.

by Mathwiz 2006-03-07 12:35PM | 0 recs
Re: State Law After Roe

My hunch: the SD law is running to lose.

Objectively, as noted above, the last thing the GOP wants is to see Roe overturned.

And, if SD-ers were really trying to finesse the retirement (or poisoning, Heaven forfend!) of Justice Stevens, that would be a very silly thing to do.

I suspect the SD bill has one of two purposes: an immediate goosing of the base, followed by a decade of legal mire, and SCOTUS refusing to take the case.

Or to get the law to SCOTUS, in the expectation that it will be struck down, but that the opinions will provide a road map (to coin a phrase) for subsequent bills. (A complete ban gives a tabula rasa on which the court could delineate what it would accept as constitutional. Whereas a ban with exceptions might make it easier to muddy the waters.)

I would defer, of course, to those who inform their hunches with actual expertise in the subject!

by skeptic06 2006-03-07 12:37PM | 0 recs
Re: State Law After Roe

Rhode Island voting to ban wouldn't surprise me in the least.  People who don't live in New England usually don't know this, but the most politically active group in RI are socially conservative Portuguese Catholics.  Very strong bloc.

As for Massachusetts, don't forget that the state Democratic Party structure includes many VERY conservative old-school Irish Catholics.  They may be Dems, but progressive and female-friendly they're not.  The idea that MA is ultra-liberal is a joke.

by BarmyFotheringayPhipps 2006-03-07 04:49PM | 0 recs

Diaries

Advertise Blogads


----------- myDD - skin -----------