I only just got around to reading Ryan Lizza’s very interesting article on New York City’s role, past and present, in the abortion wars. His basic point about the nature of that role seems right. But he makes, or so it seems to me, three mistakes.
1) He writes: “As the famous Casey case made its way up the judicial ladder, there was one federal judge in Pennsylvania who believed that even the extreme spousal-consent provision was constitutional. His name was Samuel Alito.” It was a spousal-notification provision, and such provisions are favored by upwards of 70 percent of the public, which makes it hard for the “extreme” tag to stick.
2) He seems to buy the argument that New York state outlawed abortion in 1828 because of concerns that it was unsafe for the mother, and not because of concerns that it kills unborn children. He cites James Mohr’s book Abortion in America to support this view. Mohr sometimes takes this line with regard to abortion statutes–his book contains a strained reading of Connecticut’s 1821 law, for example. But his discussion of New York’s law refutes the notion that it was motivated by maternal safety. (Mohr challenges Cyril Means Jr.’s argument that it was so motivated.)
3) Lizza writes, “If Roe is overturned, Cristina Page, author of the forthcoming How the Pro-Choice Movement Saved America, estimates that as many as 30 states would likely move toward criminalization. . .” I think it’s foolish to attempt to make such an inevitably speculative estimate. But if I were to make the attempt, I would want to rely on something less sloppy and stupid than Page’s book.
Page uses a Center for Reproductive Rights report from election-season 2004, a report clearly designed to alarm pro-choicers. She notes that the report considers 21 states highly likely to ban abortion if Roe falls. The report’s methods are dubious. Colorado gets in because it has a pre-Roe ban on the books. Here’s what CRR says: “Because of [an] earlier court decision finding parts of the statute unconstitutional, abortion would not immediately be restricted if Roe is overturned. It is possible, however, that if Roe is overruled, state officials would seek to undo this earlier court decision so that the more restrictive provisions from the pre-Roe statute would be revived.” It’s possible, sure, and I hope it happens. But highly likely?
Then Page considers nine states where “abortion rights will be uncertain.” She adds, “Three of these states (Arizona, Idaho and Indiana) would probably quickly ban abortion since both legislative houses and Governor are currently pro-life.” That’s flat wrong about Arizona. Gov. Janet Napolitano is pro-choice. She was governor when Page started her book (if you believe her introduction), and she’s still governor now. If she’s really getting that information, as she says, from an internal NARAL memorandum, I am happy to learn that there’s much more incompetence there than I had thought.
She’s still six short even on her own account. Here’s how she handles it. “In most of the remaining six [states], uncertainty may act the same as a ban. In only two of these states today are the Attorneys General today (sic) solidly pro-choice. Thus, doctors who perform abortions in these up-for-grabs states won’t be sure if they’re protected by law. And, in the absence of clarity, a politically ambitious prosecutor could accuse doctors of violating the law–even charge them with murder–and throw them into lengthy, costly and perilous court battles. The result is that effectively, if not definitively, abortion will likely be lost as a right in 30 states if Roe falls.”
If Roe falls, there’s no statutory ban on abortion, and the state legislature doesn’t act, abortion isn’t illegal in the state. There is no “uncertainty” about that. Prosecutors can’t charge ahead without any statutes to guide them. If they did, judges wouldn’t allow it. Page’s scenario is insane. And even if it were true, it would only get her to 28.