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The Future of Abortion Rights in America

From Tom Head,
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Abortion Rights in 2012

The pro-life movement is divided in two between pragmatists who embrace incremental regulation, and radicals who reject incremental regulation in favor of full prohibition. The hostility between these factions is in some ways greater than the hostility between the pro-life and pro-choice movements.

Because 1990s clinic violence has put radicals in a difficult position, pragmatism is ascendant within the movement. Meanwhile, that same clinic violence, coupled with the Terri Schiavo debacle, has greatly reduced the influence of the pro-life movement as a whole within the Republican Party. One need only ask: How likely would it have been that pro-choice Rudy Giuliani would be leading the Republican pack ten years ago, regardless of his other credentials?

At least three Supreme Court justices on the conservative end of Gonzales v. Carhart, and all four dissenting justices, appear to have fully embraced some version of the Casey standard: That women have a right to an abortion, and that the interests of fetuses may be protected by the state as long as such protection does not pose an undue burden on that right. The meaningful disagreement is over what "undue burden" means. Pro-life pragmatists, naturally, favor a narrow interpretation; pro-choicers, a broader interpretation. This distinction is not as dramatic as the old abortion debate, but it is the de facto debate in the Supreme Court and, therefore, limits realistic debate in state legislatures.

By 2012, expect the positions of Chief Justice John Roberts and Justice Samuel Alito to be made clear. If in fact they are pro-Roe in its essence under a narrow interpretation of the Casey standard, which is where I believe them to be, then the anti-abortion movement will continue to lose influence in mainstream politics even as the Court permits more state regulation of the procedure.

The ban on live intact D&X is probably not going anywhere. States will make a last-ditch effort to ban abortion which, if this results in a 7-2 Roe majority in the Court, will further marginalize the radical element within the pro-life movement. Other regulation, such as parental notification laws, will probably continue to be approved by the Supreme Court even as outright bans are rejected.

Meanwhile, the context of the debate will gradually shift. The number of abortions will almost certainly decrease as availability and public awareness of new alternatives, such as emergency contraception, increases. Over time, the abortions that do take place will be more likely to take place at home, by way of RU-486, than at a clinic.
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