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Wednesday, April 26, 2006

A Post-Roe Landscape

Following up on the excellent earlier post by TMcD, I'd like to point out some additional difficulties for Republicans should Roe be overturned. There is no reason to assume that abortion regulation will, in fact, be devolved back to the states. In the absence of Roe the national government can ban abortion clinics, just as it can ban marijuana trafficking. The folks who brought you S. 653 "For the Relief of the Parents of Terri Shiavo" aren't exactly strict observers of states' rights. There will be demands for a national abortion ban: why should murder be permitted anywhere, after all?

But even if the controversy were confined to the states, banning/restricting abortion will require pro-lifers to resolve scores of difficult legal issues. What will the punishments for violators be? Will women be punished, or only providers? Will there be an exception for rape? If so, where is the burden of proof? Will women have to prove rape? Will there be special courts or agencies set up to process all the cases? How will they expedite those "life of the mother" exceptions so that they're not aborting viable fetuses? If the waiver is granted, will there be appeals or injuctions on behalf of the to-be-terminated fetus? What kind of documentation/portfolio of evidence will be necessary for women to get their health/life exceptions? What health conditions during pregnancy actually constitute a threat to a woman's life? (Pre-eclampsia? Heart disease?) Will women be permitted to abort severely malformed fetuses? (What is "severely"?) New judges will have to be hired to process all these claims; a whole new body of case law will have to be developed, all rife with potential scandal and controversy. Regardless of the paperwork/bureaucracy involved, it will involve unpleasant indignities for women who will become progressively more outraged.

The Post-Roe landscape is filled with landmines for pro-lifers. It's easy--as Democrats know so well--to be opposed to something when you don't have to implement an alternative. The pro-life movement has enjoyed 30 years of this kind of out-of-power irresponsibility. Just let them try to govern in the aftermath of Roe, and they'll wish it were back in place.


At 9:32 AM, Blogger tenaciousmcd said...

Nice follow-up, Frances. I'm glad you mentioned the practical issues that would develop for the legal system. I thought about adding some of this to the earlier post, but held back for running long, and you've introduced several good wrinkles I hadn't even begun to think of. Adding to the problems of implementation here is that all of these courts would need to operate in a very short time window--probably just six weeks. After all, women don't usually know that they're pregnant until a few weeks into the pregnancy, and the pro-lifers certainly won't want any rape-exception abortions occurring after the first trimester.

As for the lack of moderation among pro-lifers, we've had a good example on campus here this week. Every couple of years, a pro-life outfit sets up a massive pictoral display on the quad outside the student center with graphic pictures of aborted fetuses (the cuter and bloodier the better), juxtaposed with pictures of dead Jews from the Holocaust. The slogan: "abortion is genocide." Now, I won't deny the visceral effectiveness of some of this, and no doubt much of it is aimed to shock the liberal humanitarian conscience. But framed this way, it is not exactly something you can compromise on. After all, who would say to Hitler, "OK, but only the gypsies and a few of the Jews."


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