Overturning Roe vs. Wade won't necessarily ban abortion in state

By Rachel Campbell

Sunday, January 22, 2006 2:02 AM CST

As the confirmation hearings for Supreme Court nominee Samuel Alito got under way earlier this month, Planned Parenthood warned that a single ruling from the nation's highest court could make abortion illegal in Wisconsin.

The group said that under state law, women and doctors could be sentenced to prison and fined for performing abortions in any case other than when a pregnant woman is dying. Only Roe v. Wade, the Supreme Court ruling in support of abortion rights, is preventing the Wisconsin law from going into effect.

However, the issue is not that clear, according to a legal expert. Not only is Alito's position on abortion more ambiguous than a straight anti-abortion stance, state law and existing legal opinions make it difficult to conclude what would happen in Wisconsin, or anywhere for that matter, if Roe v. Wade was

overturned.

Not only would such a decision affect abortion rights, it could also reach into areas such as access to contraception.

"The status of pre-Roe state law in the event of an overruling of Roe and Casey would be, simply stated, a mess," said University of Wisconsin-Madison Law professor Allan Weisbard, who specializes in bioethics, health law, family law, and law and religion (and who coincidentally attended Yale Law with Alito), said in an e-mail interview. "Casey" refers to the 1992 Supreme Court decision in Planned Parenthood v. Casey, in which the high court affirmed a married woman's right to an abortion.

"So much has built on the abortion decisions across so many areas of law, that enormous confusion would ensue. This is a key reason that many legal scholars who opposed Roe and sought its overturn in the late 1980s ... have now changed their minds (e.g., Charles Fried, who was Solicitor General and who testified at hearings on behalf of both (new Chief Justice of the United States John) Roberts and Alito)."

Alito hearings

Groups opposed to Alito's confirmation have rallied around the abortion issue, arguing that he may tip the Supreme Court against Roe vs. Wade.

During the hearings, Alito seemed to respond to all

questions related to abortion rights with a diplomacy that, oxymoronically, bordered on antagonistic: When asked what his position might be on future challenges to the legality of Roe v. Wade, the landmark case in which the Supreme Court deemed existing state anti-abortion laws unconstitutional, Alito, 55, responded, "I would approach the question with an open mind." It was a pledge he repeated numerous times, in one form or another.

But many, particularly Democrats, believe Alito closed his mind on the abortion issue long ago. Alito, after all, described himself in a much-publicized 1985 job application within the Reagan administration as "proud of (his) contributions in recent cases in which the government has argued in the Supreme Court � that the Constitution does not protect a right to an abortion." And according to USA Today, "in 1991 he wrote an opinion that favored upholding a Pennsylvania law that required a woman to notify her husband of her intention to seek an abortion."

That law was struck down in 1992 in Planned Parenthood v. Casey, thanks to retiring Justice Sandra Day O'Conner's deciding vote. Alito has been nominated to replace O'Connor on the bench.

Alito's historical opposition to abortion rights, and his tendency during his confirmation hearings to echo dissenting late Chief Justice William Rehnquist's anti-Roe arguments, seem to make him every pro-lifer's friend and every pro-choicer's foe.

But while it's true, as groups such as Planned Parenthood have pointed out recently, that Wisconsin still has an anti-abortion statute on the books, local scholars - and the laws themselves - color it unlikely that Alito, if confirmed, would be able to ban outright all abortion in this state.

Weisbard said it's likely Alito would, rather than overruling Roe v. Wade entirely, "be more permissive about the allowable scope of state-imposed restrictions on the exercise of the abortion right and the state's expression of preference for carrying a pregnancy to term over terminating."

This new priority, to favor states' rights over citizens' rights, could extend to informed consent, waiting periods, and contraception, among many other areas - many, many other areas.

While overturning Roe v. Wade would lead to confusion, it remains a possibilty, Weisbard said. In considering a future abortion case, the Supreme Court "might, in theory, decide that the Constitution does not protect the abortion decision at all;" a decision that "would, to a large degree, return the issue to the states."

Alito's confirmation is expected to move forward this week. The Senate Judiciary Committee will vote on Alito's confirmation on Tuesday, and he is expected to gain the needed votes for full confirmation by the Senate.

Roe v. Wade It's unclear how Wisconsin would respond if Roe v. Wade was overturned.

The 1973 ruling holds that "state criminal abortion laws, like those involved here (specifically, Texas' laws; Wisconsin's being footnoted as being "similar"), that except from criminality only a life-saving procedure on the mother's behalf without regard to the state of her pregnancy and other interests involved violate the Due Process Clause of the 14th Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy."

Though the court conceded that "the Constitution does not explicitly mention any right of privacy," it found "a line of decisions" made by the court that "recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution" - specifically, under the First, Fourth, Fifth, Ninth, and 14th amendments, in addition to the Bill of Rights.

USA Today also reported that "Sen. Susan Collins, R-Maine, said Alito assured her in a meeting � that he believed in a right to privacy." Duly noted.

In Roe v. Wade, the court also found that this "fundamental" guarantee extends to "procreation," "contraception," and "family relationships," among others, and "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

The court also determined that the Constitution's use of the word "person" "is such that it has application only postnatally," giving precedence to the living female U.S. citizen (or, put another way, taxpayer) - though progressively less precedence - over her unborn child.

The Court reaffirmed this in Planned Parenthood vs. Casey, finding that states' interests in unborn children "before fetal viability" (that is, before the fetus can survive, aided or unaided, outside the womb, which is about five to six months) "are not strong enough to support an abortion prohibition or the imposition of substantial obstacles" to

abortions.

Assuming Alito stands by his reported comments to Collins, the extension of privacy to a woman's desire to carry her pregnancy to term could be the first chink Alito finds in Roe's armor; finding that states' interests overrule a woman's could be another; and, though unlikely, finding that an unborn child's interests overrule a woman's could be a third. (This is "unlikely" because, just for starters, the Constitution likes to follow the word "person" or "persons" with "born or naturalized in the United States.") Wisconsin law Under Wisconsin law, abortion is illegal. Among the laws include:

* Any person, other than a mother, who intentionally destroys the life of an unborn child is guilty of a felony. If the mother is in her 16th to 18th week of pregnancy, they are guilty of a more serious felony.

* Any mother who intentionally destroys the life of an unborn child can be fined $200 and sentenced to six months in jail. If she more than 16 months pregnant, she can be charged with a felony.

* Abortions can be performed if the mother would otherwise be harmed or killed.

* An unborn child is described as a "human being from the time on conception until it is born alive."

It is commonly believed that Roe, enacted in 1973, canceled out all state anti-abortion laws, Wisconsin's among them. This is inaccurate.

First of all, part of the state ban on abortion was deemed illegal three years before Roe rolled around in the 1970 case Babbitz v. McCann, which was decided by a federal appeals court. The U.S. Supreme Court declined to take up the case, meaning one year after state law abolished virtually all abortion in Wisconsin, the abortion of fetuses up to 5 months old was made legal again.

So theoretically - and this is a big theoretically, given "all the unknowns" Weisbard pointed out about Roe being overturned at all - even if Roe is kicked to the curb, fetuses well into their second trimesters could still be legally aborted in Wisconsin according to Babbitz vs. McCann.

Second, Roe does not protect third-trimester abortions, and only somewhat protects second-trimester abortions from state regulation. The Supreme Court's opinion in Roe, based on extensive historical, medical, legal, philosophical, and religious research, was that the decision to abort in the first trimester was up to the mother and a state-licensed physician, and no one else; in the second, the state "may, if it chooses," regulate the abortion "in ways that are reasonably related to maternal health;" and in the third, states are free to ban the procedure altogether "except when it is necessary, in appropriate medical judgment, for the preservation of the life of the mother."

As it stands, Roe or no Roe, Alito or no Alito, Wisconsin is free to ban third-trimester abortions and some second-trimester abortions: In fact, under a 1985 law, according to the Legislative Reference Bureau, "Wisconsin has prohibited intentional performance of an abortion after the fetus or unborn child has reached viability, unless it is necessary to preserve the mother's life or health, as determined by her physician."

At the same time, the law prohibits the state from punishing mothers for having an abortion. The same 1985 law also "prohibits prosecuting, imposing a fine on, or imprisoning a mother with respect to any abortion law."

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