Supreme Court Justice Anthony Kennedy's resignation is sending the Left into a panic, terrified a fifth conservative vote could lead to overturning Roe v. Wade — what Democrats like Sen. Dianne Feinstein have hallowed as "super-precedent." Meanwhile, pro-life groups are jubilant, waiting in hopeful expectation that the decision even abortion supporter Justice Ruth Bader-Ginsburg has called unjustified "heavy-handed judicial intervention" will be consigned to the trash bin of jurisprudential history.
But what would a post-Roe world look like? Contrary to popular opinion, reversing Roe would not solve the abortion crisis in this country; it would simply kick the question back to the states to decide on a state-by-state basis, as was the regime pre-Roe.
Historically, since the founding of this nation, abortion has always been a matter within the purview and jurisdiction of the states, and never a federal matter. It wasn't until 1973 in Roe that this changed. Critics claim with Roe that not only did the U.S. Supreme Court usurp jurisdiction over a question that belonged to the states, the justices also distorted the Constitution's "right to privacy," interpreting it in a way never intended.
In the years immediately before Roe, the majority of states had outlawed abortion except for the life or health of the mother, while four had legalized it and 13 had allowed abortion in limited circumstances. The trend, however, was moving towards legalization — until Roe, when five justices on the High Court determined by judicial fiat that the states no longer had the right to decide the matter. The straitjacket ruling of Roe imposed on all 50 states — mostly against their will — led to a polarization that even abortion supporters recognize has harmed the country.
"Roe, I believe, would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statute before the Court," said feminist Justice Ruth Bader-Ginsburg. "Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict."
Some states already have "trigger laws" in case Roe is overturned. Laws in Louisiana, Mississippi, North Dakota and South Dakota will automatically outlaw abortion if Roe is reversed, the wording of South Dakota's law, for instance, making clear it goes into effect "on the date that the states are recognized by the U.S. Supreme Court to have the authority to prohibit abortion at all stages of pregnancy."
Other states have abortion bans still on the books from pre-Roe times, which could be revived and enforced if the case is struck down.
And then there are states that have enshrined the right to abortion in their constitution, including Alaska, California, Florida, Massachusetts, Minnesota, Montana, New Jersey and New Mexico, and who will likely continue to keep abortion legal.
But the issue would no longer be a federal matter, resolved instead on a state-by-state basis through the ballot box — as it was for approximately 200 years before Roe. With the right to travel protected under the Constitution, individuals who reject their state's abortion law can lobby to change them, or else move to another state.
Pro-lifers will still have to battle to educate and inform the public about the reality of abortion, and continue to work to restore a Culture of Life, state by state (something pro-lifers were already busily engaged in before Roe) — but at least in a post-Roe world, outlawing Planned Parenthood mills and shutting down abortionists' business would no longer be an impossible scenario but a real possibility — one out of reach of the long arm of the Supreme Court.