Political Animal


January 22, 2013 12:15 PM Roe v. Wade’s 40th Anniversary: The Irrepressible Conflict

By Ed Kilgore

Today is the 40th anniversary of the U.S. Supreme Court’s Roe v. Wade decision making access to abortion services a federal constitutional right rather than a matter of state policy. And in many respects, it could seem like a time of celebration for defenders of reproductive rights. A president committed to the defense of Roe has just begun his second term in office, and may well have the power to shape the Supreme Court for quite some time to come. A new NBC/WSJ survey shows public support for maintaining Roe—by more than a two-to-one margin—is at an all-time high.

But at the same time, those wanting to reverse Roe—or, for the most part, to replace it with a constitutional doctrine making zygotes “persons” accorded all the rights and privileges conferred by the 14th Amendment—have become more adept than ever at pursuing indirect or covert means of unravelling reproductive rights via state legislation. One recent trend involves “fetal pain” statutes banning pre-viability abortions—already law in nine states—that represent pretty direct challenges to Roe which no one is quite sure the current Supreme Court would invalidate.

But even if Roe survives as before and the wave of anti-choice state legislation flowing from the 2010 Republican landslide retreats, we still have to come to grips with the fact that a significant if decisively outnumbered minority of Americans, for reasons ranging from religious doctrine to fear of women’s sexuality, view or claim to view legalized abortion as a “Holocaust,” and themselves as akin to the anti-Hitler resistance. There’s really no compromise available with these folks, and no particular evidence that they are going away, ever, unless, miraculously, someone invents a 100% effective method of contraception that does not disturb fertilized ova and is somehow made available for free to 100% of the population (and even then, some, perhaps a majority, of today’s anti-choice activists would object to that on religious and/or natalist grounds).

Anti-choicers love to compare their cause to that of the abolitionists. They are correct in one respect: this is an irrepressible conflict in which total victory is required but never, ever assured. About the most pro-choice activists can hope for is that the death grip of their opponents on one of America’s two major political parties can be relaxed. But that seems many years away. So the odds are high that we will continue to commemorate Roe v. Wade for the immediate future as an important signpost on the road to reproductive self-determination for women, but not as any sort of end-point.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.


  • c u n d gulag on January 22, 2013 12:27 PM:

    So, no constitutionally approved right to a woman's right to choose in some areas - in part, because of fetal pain.

    But, pretty much the same group of peopler is for guns everywhere, despite the pain that 20 dead children felt right as they died, about 6 years after they stopped being fetuses.

    Good to know.

  • Dave Munger on January 22, 2013 12:29 PM:

    If the perfect, universally available contraceptive were a reality, I think you'd find that many, if not most "pro-lifers" don't care so much about the fetus as they do about people having sex in ways they don't approve of (e.g. out of wedlock, with no intention of producing offspring). This contraceptive would be the target of attacks just as vehement as those made today against abortion doctors and women who choose to terminate their pregnancies.

  • arkie on January 22, 2013 12:50 PM:

    A 100% effective contraceptive would do nothing to prevent the situations in which a woman who wanted to be pregnant discovers that her fetus is horribly malformed or that the pregnancy is endangering her own health or life. Abortion must remain a legal, safe, and available option for women.

  • Quatrain Gleam on January 22, 2013 12:52 PM:

    Oh it exists, Ed. The problem is that men have to do it.


    And we all know that the abortion and contraception battles have vanishing little to do with children and everything to do with controlling women's sexuality.

  • Peter C on January 22, 2013 1:25 PM:

    "About the most pro-choice activists can hope for is that the death grip of their opponents on one of America’s two major political parties can be relaxed."

    I'd be OK with their death grip destroying one of the major political parties. The Whigs no longer exist on our political landscape. I've given up on hoping that the Republicans reform themselves and survive their idiocy. I don't think we have to worry about having only a one-party society; another party will spring up to take their place.

    We have to have the confidence to imagine a better world. Until we can imagine it, it cannot occur.