Keeping Roe v. Wade Is Not Enough | Opinion

When I was about 14, a senior at my school got in trouble. That's what we called it, and it was. Everyone knew, and they knew that the guy was an attractive rich kid who drove a convertible. He went off to college, and she never came back to high school.

By the time I got to college, abortion was legal in New York. But I didn't go to school in New York. I was at Wellesley, where there wasn't even a gynecologist on campus because prescribing birth control to unmarried women was illegal in Massachusetts.

And abortion? We used to pass the hat to collect enough money to pay for the abortion and the round-trip bus fare to New York, which allowed girls to finish college and not be mothers at 18. But if the girl hemorrhaged on the bus on the way back, we lived in fear that the local hospital would tell the college what we were up to.

And then everything changed. Roe v. Wade was decided in 1973. Women—at least those who lived in urban areas and had money—got their bodies back, and the abortion wars in politics and the courts began in earnest.

Norma McCorvey (L), the original Jane Roe in the Roe vs. Wade landmark abortion decision 25 years ago, addresses a group of teenagers at a pro-life convention in Chicago January 17, 1998. REUTERS

Lying on a gurney at Boston City Hospital, after desperately trying to find even a drop of lemonade in all the lemons in my life, I found one.

When I walked out of that alley that horrible night, when I got through hours of being grilled by police—which really wasn't as bad as the cops who didn't grill me because the man was black—when I spoke to the doctor who couldn't believe such a thing could happen in the Back Bay, after my mother told me not to ever tell anyone because no man would want me again, after I got so many shots I couldn't sit still at my college graduation that day, I made a decision. I was heading to law school, and I was going to change things. My story had power—if I was willing to face the consequences of using it (which turned out, at its worse, to be death threats—two of them pretty serious.) I have never stopped since.

Years ago, I debated Bill O'Reilly. He started baiting me with every dubious pro-choice thing people have said, having a great time, until I interrupted him. "Bill, look behind you at the City of Boston," (actually, the city was just a projection of a picture on a screen.) "If you look closely and follow Commonwealth Ave to Kenmore Square, you will find the alley where I was brutally raped when I was 20."

"Would you really force someone like me, a college kid raped by a guy with an ice pick, to have that child?"

The interview was over soon after. The crew all gave me a thumbs up. Bill looked furious, but he shouldn't have been surprised—I've been using that argument since I was 20. And we have come a long way.

Today, most people wouldn't believe how contentious support of Roe v. Wade used to be, even in the Democratic party.

In the courts, notwithstanding 25 years of Republicans in the White House since Roe, Roe v. Wade is still the law of the land. Judge Kavanaugh will dance when he's asked about it in his hearings, saying he doesn't want to prejudge cases, but I'm not putting money on him being the fifth vote to overrule it.

Brett Kavanaugh shakes hands with U.S. President Donald Trump after being nominated to the Supreme Court in the East Room of the White House on July 9, 2018 in Washington, D.C. SAUL LOEB/AFP/Getty Images

A recent series of Gallup polls found that 70 percent of all Americans do not want to see Roe v. Wade overturned. You may remember the headlines. But it's not really so surprising. First of all, America has changed. Barack Obama is one the most talented politicians I have ever seen in action, but he would have lost with the demographics that Michael Dukakis faced. And yes, since he was my candidate, Dukakis would have won if the electorate looked like it does today.

Second of all, Gallup wasn't asking whether you supported abortion rights; they asked if you wanted to see Roe v. Wade overturned. That's not really news. The Pew Research Center asked the same question two years ago and got 69 percent; but when the question is whether abortion should be legal in most or all cases, it's closer to 55 percent.

She who controls the question has a lot to do with the answer. And as the White House pointed out after President Trump was vilified for saying abortion was a 50-50 issue, in another poll conducted by Gallup in May, 48 percent of all Americans described themselves as pro-choice and yes, 48 percent say they are pro-life, which doesn't necessarily mean they want to impose their beliefs on others.

In politics, you don't poll Americans, you poll voters. And when you are polling voters, what you need to know is not their position on every issue, but which ones they are voting on. Seventy percent of all Americans may not want to overturn Roe, but a healthy number of those folks elected Donald Trump.

Besides, who needs to overrule Roe v. Wade? If Roe were overturned, and the states freed to make their own laws, abortion would still be legal in the blue states. Women with money would go to New York or California or even Massachusetts, or find a private physician.

If you live in a rural area, or a bright red state, and you don't have money, Roe v. Wade doesn't mean much right now.

In Texas, where there have been major political battles about abortion, 96 percent of the counties have no abortion provider. According to the data from the Guttmacher Institute in 2014, 90 percent of the counties in America had no abortion providers and 39 percent of women aged 15-44 lived in those counties.

After a burst of anti-abortion activity in 2017, including a number of obviously unconstitutional bans, the Institute concluded that 23 states are extremely hostile to abortion and six more are classified as hostile, for the first time including Iowa and West Virginia. And 58 percent of all American women of childbearing age live in those states.

Abortion protesters outside the White House on January 22, 1973, after the Supreme Court ruled in Roe v Wade to regognize a constitutional right to privacy that gives women the right to choose abortion. REUTERS

When I talk to college students in big cities, they can't really believe that I used to pass the hat. "You don't look that old," they've been telling me for the last 20 years. For them, everything has changed. They take their control over their bodies for granted. They don't know what it means to get in trouble.

For women who live in one of those counties with no provider or one of those hostile states, women who can't afford the cost of an abortion which most of the restrictions aim to increase (Medicaid pays for pregnancy, not abortion,) women who can't make two trips to the clinic for warnings they don't need (as if women haven't really thought through their decision,) women who can't afford an unnecessary ultrasound, teenagers who have to get parental consent or a court's (what does a judge know about the right to control your own body?), and for providers strapped by burdensome regulations that have nothing to do with science, our victories don't mean quite so much.

States have passed more than 1,100 laws restricting abortion since Roe was decided, and there are four justices on the Supreme Court who, as far as I can tell, have never seen a restriction they don't like; Justice Kavanaugh will almost surely make it five.

It is a tribute to the courageous leadership of women like Faye Wattleton, the former president of Planned Parenthood, and Cecile Richards, its current president, that we have come as far as we have. But Republicans have been trying for years to cut funding to Planned Parenthood, the biggest provider of reproductive health care for poor women, and they are still trying.

In May, President Trump issued a proposal that any family planning clinic that performs abortions or even refers women to a provider (and Planned Parenthood provides reproductive care to more women, especially poor women, than anyone else,) will lose a major source of federal funding if they so much refer a patient for an abortion, much less offer them them.

Keeping Roe v. Wade is not enough. Rights don't mean very much when you can't exercise them. Don't be fooled by the headlines. Don't just look at your own state. I'm tired too, but we still have miles to go before we sleep.

Susan Estrich is a well-known litigator, legal and political analyst, author and law professor. She is the Robert Kingsley Professor of Law and Political Science at the University of Southern California, and was the first woman president of the Harvard Law Review.

The views expressed in this article are the author's own.​​

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