States vs. DC, Roe v. Wade, & Blackmun vs. history

Happy Harry Blackmun week! The man who wrote Roe v. Wade was confirmed to the U.S. Supreme Court 44 years ago this week. Call it an observance rather than a celebration. Don’t pile all the blame on him, though. He had six colleagues sign on with him to the decision.

The author of Roe v. Wade (official photo)
The author of Roe v. Wade (official photo)

If Blackmun’s appalling handiwork were to be overturned today, we’d probably see thunderous press releases and not much else. Abortion law would devolve to the states, where abortion advocacy groups are already active and in some cases spectacularly successful. Some states keep abortion almost completely unregulated (hello, New Hampshire) while others put women’s health ahead of politics. Some states even go so far as to protect the right to life of children who survive attempted abortion. Other states – again, New Hampshire provides an apt example – quietly support the notion that a right to abortion means a right to a dead child, as opposed to a terminated pregnancy, and so children who survive attempted abortion are literally on their own.

In fact, federal courts have ruled over the years that a lot of things abortion advocates call “anti-choice” are actually consistent with Roe: parental involvement, with judicial bypass. The right of taxpayers not to be forced to fund abortions. Post-viability bans and restrictions (and state involvement at that point was explicitly okayed in Roe). Licensing of abortion facilities. Statistics collection. You get the idea. I can’t help but wonder why abortion advocates support Roe so strongly while tirelessly fighting the very things Roe has been interpreted by the courts to allow.

Back when I did a lot more media work, pre-Internet, I was on a WGIR-AM radio program as a representative of a pro-life group, being interviewed side-by-side with a NARAL-NH representative. The one thing we agreed on at the time was that fifty state battles would be a bad thing. From my transcript of the discussion:

NARAL spokesman (yes, a man): That would almost be the worst-case scenario, if it were just whittled away and we went back to a patchwork of laws around the country, as we had before.

Me: [The group I was representing] is not looking for fifty battles rather than one. The basic issue is, what is involved in abortion? Is it simply another medical procedure? If it were just another medical procedure. then a patchwork of state laws would be appropriate. But if it does indeed involve a human life – as it does – a human life that is helpless and unable to speak for itself, then it becomes an issue that should be decided on the national level. It is not merely a woman making a decision for herself. It is a woman making a decision for herself and that other life.

NARAL: I think the national approach works best. We agree there, but probably for different reasons….We’re talking about serious human rights. We’re talking about the rights of women to make choices for themselves. We’re talking about the Constitution guaranteeing rights to all citizens. That is a fundamental principle that needs to be applied consistently throughout the country.

Fast-forward twenty-five years. Where’s the action? In the state capitals. I’ll take it. That’s where the most protective legislation originates. Some states have recognized that women’s health is NOT protected by keeping the names and complaint records of specific abortion providers secret.  The state level in Pennsylvania is where the laws came from that finally nailed Kermit Gosnell. Statistics reporting comes from states. Most of the “anti-choice” restrictions that the Supreme Court has approved: state-level.

Is this what Blackmun envisioned? Who cares? This was a man who failed to envision more than fifty million dead children and an undetermined number of dead and injured women.

I say keep it up in the State Houses, wherever they may be. National efforts are worthwhile but aren’t enough. If the Supreme Court hasn’t shifted to respecting a basic right to life – and it hasn’t – go to state representatives. Nag. Goad. Persist. Persuade. Twenty-five years ago, I wouldn’t have said that. Now, without hesitation, I do.


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