Why Roe v. Wade no longer matters

Anti-abortion and pro-abortion rights advocates both concede that the landmark abortion ruling of Roe v. Wade is effectively obsolete today, says Dahlia Lithwick at Slate.

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last updated 8 January 2015

Opponents and supporters of abortion rights don't agree on much, but both seem to concede that Roe v. Wade, the landmark Supreme Court ruling that says a woman's right to privacy extends to her decision to have an abortion, is effectively "no longer the law of the land," writes Dahlia Lithwick at Slate. Increasingly more and more states are enacting "invasive, paternalistic, and degrading" abortion regulations which clearly violate Roe, yet they become law because they go unchallenged. Why? Because a legal challenge to these state laws allows for the possibility that the case will eventually go to the Supreme Court, where Roe v. Wade could be overturned completely. This prospect has "frightened those who are pro-abortion rights into being grateful for what they have," even if it's obsolete at a state level. Here, an excerpt:

Gone are the days in which legislatures at least attempted to ensure state regulations conformed to the broadest interpretation of the Roe constraints. The new game lies in expressly violating Roe... at the state level, in the hopes of either forcing the issue at the Supreme Court or making abortion unobtainable as a matter of fact. Either way, abortion opponents believe they will win — and here pro-abortion rights groups may actually agree...

The risk of challenging these clearly unconstitutional laws and then losing at the Supreme Court is evidently so high, according to Terry O'Neill, president of the National Organization for Women, that it's not worth taking. As she explained last week to Rachel Maddow, the fear that Justice Samuel Alito would vote to overturn Roe is so deep that reproductive rights groups may be opting to leave the state bans in place. And, as she conceded in that interview, wherever unconstitutional state abortion bans go unchallenged, they become law.