The End of Abortion

01/26/2006 11:02 am ET | Updated May 25, 2011

Roe v. Wade is over whether or not it is directly reversed. In Planned Parenthood v. Casey, the United States Supreme Court said it retained "the essential holdings" of Roe v. Wade notwithstanding substantial "reservations" that some of the justices had that the case had probably been decided. Stare decisis is not "an inexorable command."

Justice O'Connor's decision in favor of choice was more a states' rights decision than a pro choice decision. The Conservatives can embrace with ease her states' rights position while they reject the other aspects of the case. Roberts and Alito will not allow the case to stand when even the O'Connor Court had substantial reservations about Roe.

Abortion for all hangs on by a slender thread. The Hyde Amendment, which bars federal Medicaid funds from being used for abortion, strikes directly at the poor. The Fourth Circuit, in Greenville Women's Clinic v. Bryand, in a 2-1 decision in 2001, approved a rigorous bundle of requirements on clinics, ranging from the extensive and expensive training of clinic workers to the width of clinic doorways. These regulations made it so difficult for doctors, few in the states governed by the circuit court will perform abortions. The Fourth Circuit, with a 45 percent minority population -- one of the poorest in the nation -- succeeded with that decision in increasing the number of back alley abortions and deaths. The very conservative court overruled the trial judge who found the procedures irrational and crafted mainly to discourage the procedure. That law stood up when the full Fourth Circuit affirmed it, and the statute is now a model for new statutes being passed around the country.

You could drive a truck through the hole the Rehnquist-O'Connor Court left.

Many states, including Ohio, Georgia and Tennessee, are now trying to pass statutes that would threaten a woman's life or put her physical health in danger of "substantial permanent impairment." The Roe case said doctors could consider "all factors . . . relevant to the well-being of the patient, including emotional and psychological health."

The laws from Ohio and other states will be upheld. The doctors (in all but a few cases) are put in an impossible situation. We can't expect them to perform at their own risk.

Do you describe this as a reversal or a modification of Roe? Depends on who's doing the describing.

At the present time abortion is unavailable in many states that have already imposed regulations that are so burdensome on "abortion clinics" that the clinics cannot function. Those licensing requirements will spread, as putting pressure on women seeking abortions will. The Supreme Court will certainly uphold regulations requiring those women to first view ultrasound images of their fetuses, discuss the pain the aborted fetus will feel.

Fourteen states presently have laws criminalizing abortion -- a "small" modification can result in "murder-type" sentences on doctors.

The result will look very much like the Red-Blue state political map. The Red states would criminalize it -- the Blue states would not. An awful result.