Roseman: Overturning Roe v. Wade is Not the Solution

If we’re going to protect life, we need to amend the Constitution.

by Levi Roseman | 5/31/21 2:05am

The Supreme Court case Dobbs v. Jackson Women’s Health has sparked controversy on both sides of the political aisle. The central issue of this case is whether the state of Mississippi can outlaw abortions after the fifteenth week of pregnancy, which is before a fetus is viable to live outside of the womb. For thirty years, the Supreme Court has never upheld a “pre-viability” ban of this kind. If the Court were to uphold this Mississippi statute, it would mark a distinctive shift in its attitude toward abortion. Yet, regardless of the Court’s decision, the extent to which the Court’s ruling will impact access to abortion — both in Mississippi as well as the United States as a whole — remains unclear.

One of the primary concerns raised by pro-choice activists about this case is that the conservative justices on the Court may use it as an opportunity to overturn Roe v. Wade, the landmark 1973 case that ruled that the Constitution protects the right to access an abortion without excessive government interference. I’m skeptical of this. But I’m much more perplexed that pro-choice folks treat Roe’s supposed demise as though it were the ultimate defeat. I am equally as confused by pro-life folks who treat Roe’s demise as some sort of ultimate victory. In reality, overturning Roe v. Wade is neither of those things. 

Overturning Roe v. Wade would, likely, simply allow all states to decide whether and how to regulate abortion themselves. Texas and Alabama, for example, would probably ban all abortions except in the most extreme circumstances, since both states have recently passed legislation that significantly restricts the procedure. Alabama’s measure banning virtually all abortions, signed in 2019, is tied up in legal challenges, and Texas’s measure banning all abortions before six weeks, signed a few days ago, is likely to attract them, but both laws would have much easier paths to implementation if Roe v. Wade was out of the picture. We can also assume that New York and California will still allow abortions later in pregnancy given that both states currently have laws that protect abortion access up until six months after conception. So, abortion would be highly variable across the country: plenty legal and readily accessible in blue states, highly restricted or entirely illegal in red states and a constant battle in swingier states. This begs the question: if Roe v. Wade were overturned, would abortion rates really change much at all? I argue that they would likely change little, if at all.  

Let’s look at the facts. Around 800,000 abortions occur every year in America. According to the New York Times Upshot, overturning Roe v. Wade would likely decrease abortions by about 100,000 per year. That’s only a 13% decrease. Granted, if you’re pro-choice, you might be concerned by a 13% drop off. If you’re pro-life, you might be quite pleased with a 13% dropoff. But we’d still have around 600,000 to 700,000 abortions in this country every year — which is exactly the problem. 

To this end, consider just one simple question: what if human life begins at conception? If that were the case, then we end over half a million unique human lives every year. Surely, these lives are innocent of any wrongdoing, which means we deprive them of life without consent, due process, or even a chance at a future. To me, this should be a morally troubling thought, no matter whether you’re a Democrat or a Republican, a religious person or an atheist. This thought should be troubling for anyone who values human life for any reason. 

It appears as well that we don’t have to speculate too hard about the narrow question of when life begins. A 2018 survey from the University of Chicago found that 75% of surveyed biologists agreed with the statement, “In developmental biology, fertilization marks the beginning of a human's life since that process produces an organism with a human genome that has begun to develop in the first stage of the human life cycle.” This group of more than 5,000 scientists spanned the spectrum of very pro-choice to very pro-life. The study explicitly does not answer the question of when a developing human should begin to possess rights from a legal or moral perspective, but regardless, it does demonstrate substantial agreement on the question of when a human life begins. 

So what should we do with this information? I believe we must do our best to balance our most fundamental values of a nation. Didn’t our founders declare hundreds of years ago that two of our most fundamental values are life and liberty? The issue of abortion sets these values against each other. How do we balance the life of an unborn child against the liberty of the mother to control her own body? Whether we offend life or whether we offend liberty, we strike a blow against one of our greatest ideals. How do we choose between the two?

As grave as a consideration this may be, we must wrestle with the fact life usually trumps liberty, at least in cases that involve directly killing another human being. Is there any liberty interest that gives us the right to actively end the life of another human being? One such exception may be instances of self-defense, supported by the “Stand Your Ground” laws that exist in many states. But only in rare cases can an abortion be reasonably considered “self-defense.” Of course, when a full-term pregnancy threatens the life of the mother, a strong self-defense claim becomes salient. That’s why even Alabama’s abortion law — generally considered the strictest in the country — allows exceptions for protecting the life of the mother. But that accounts for only a small number of all abortions. What should we do about all the rest?

Overturning Roe v. Wade is clearly not enough, as it would leave a patchwork of abortion laws across the country that would still threaten the right to life. One theoretical solution is to pass an amendment to the Constitution that would protect life from the moment of conception, which would, in effect, ban abortions except when the life of the mother is in danger. But wouldn’t that just push all abortions underground and to back alleys? After all, multiple studies have found that abortion restrictions fail to significantly reduce the number of abortions. But these studies often center on economically underdeveloped countries that lack the infrastructure to enforce much of any laws, much less abortion proscriptions. Few studies control for these important variables. Those that do find that abortion restrictions, in developed nations like the U.S., do indeed reduce abortion rates quite substantially. The most effective restrictions, therefore, would be those that apply across state lines and are long-lasting. Since the constitutional amendment process is onerous and ultimately much more permanent than a national law, a Life Amendment is the best way to protect life for generations to come.

But, of course, we can’t stop there. A Life Amendment to the Constitution would also cause a lot of serious problems. If we “pro-lifers” are to be truly pro-life, then we should also fight to alleviate the necessary hardships that a Life Amendment would create. Illegal —and dangerous — abortion rates would likely rise. We would have to proactively support women who might seek out such procedures. We should work to reduce unintended pregnancies that may lead to attempts to secure an illegal abortion, perhaps by increasing access to pre-conception contraception or reforming sex education. We should legislate that fathers must pay a share of prenatal and birth-related medical expenses. We should work to reform and support the foster-care and adoption systems in the U.S., since they would certainly be stressed following the ratification of a Life Amendment. Overall, we must ramp up our effort to support mothers and babies at all stages of life. But I’m putting the cart ahead of the horse. Before we can guarantee post-birth care and support, we have to make sure the children live long enough to be born. 

Levi Roseman is a member of the Class of 2021. 

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Correction appended (June 1, 2021): A previous version of this article cited the abstract of a University of Chicago study, which posited that 95% of biologists surveyed agreed that life begins at conception. The methodology of the study — more accurately referred to as a survey — does not support the topline number of 95%; 75% of surveyed biologists agreed with the statement, “In developmental biology, fertilization marks the beginning of a human's life since that process produces an organism with a human genome that has begun to develop in the first stage of the human life cycle.” The survey also did not claim to answer the question of when a fetus merits legal consideration. The article has been updated to reflect these factors and to include a link to the survey.