On Roe’s 33rd anniversary, a chill wind blows

As we commemorate the 33rd anniversary of the Supreme Court’s Roe v. Wade decision, we face threats to reproductive freedoms so severe that if Samuel Alito is indeed confirmed to a lifetime appointment to the high court, millions of Americans may no longer have access to safe, legal abortion. It is hard to imagine – and likely. Thirty-three years of protected rights could fall victim to extremist dismantling of this most critical decision for the health, safety and autonomy of women.

In Roe, the court recognized that the Constitution protects a woman’s personal and private childbearing decisions (decision to terminate a pregnancy) under the Due Process Clause of the 14th Amendment. In striking down a Texas criminal ban on abortion, the court ruled that any law intruding upon a fundamental right of a woman to decide whether to terminate her pregnancy before viability must survive a demanding standard of review known as “strict scrutiny.” Restrictions on abortion early in pregnancy, with a few exceptions, were generally invalidated under Roe.

Roe was a balanced ruling. It recognized the state’s increasing interest in the fetus as the pregnancy progressed, and allowed for regulations in the second trimester designed to protect a woman’s health. Restrictions on abortion in the third trimester were allowable, so long as they included protections for a woman’s health and life.

Almost immediately, Roe put an end to dangerous back-alley abortions. It also helped equalize the pre-Roe, two-tier system of access to legal abortion, whereby wealthier women could, in some instances, travel to obtain a legal or illegal abortion from a safe provider, while others resorted to self-induced or dangerous, illegal abortion or forced childbearing. Reproductive freedom helped propel women’s equality, enabling women to make decisions to benefit the families they already had or the families they hoped to have.

If confirmed, Alito will don his robe against a menacing backdrop of anti-choice state and federal legislation. The Bush administration and many anti-choice state governments have seized opportunities to exploit any ambiguity in the Supreme Court’s support for the constitutional protection for the right to choose. With the ultimate objective of preventing as many women as possible from being able to exercise their reproductive options, they have put into place a wide array of burdensome restrictions. Many of these onerous laws would have surely been struck down by former justices who understood that the right to choose is part of our fundamental liberty and right of privacy as Americans.

Since Bush took office in 2001, states across the country have considered more than 2500 anti-choice measures and more than 200 of these have been enacted. In 2004, state legislatures enacted 29 anti-choice measures, 57 more were enacted in 2005.

Perhaps the most notable pieces of anti-choice legislation enacted in 2004 were Michigan’s new ban on abortion which could effectively outlaw abortion even in the earliest stages of pregnancy, and South Dakota’s “trigger law”: if Roe is overturned, an immediate abortion ban will be in place.

Only four states have pro-choice majorities in each legislative house and a pro-choice governor: Connecticut, Maine, New Jersey and Washington. By contrast, in 19 states the majority of the legislators in each house and the governor are anti-choice and are poised to enact additional anti-choice legislation should they get the green light from the Supreme Court. It bears noting that this distribution of power does not reflect the overwhelming support of Americans throughout the country for reproductive rights and access to safe, legal abortion.

Amid this ominous legal and political landscape, confirming Samuel Alito would clearly move the course of reproductive rights in a dangerous direction. He has categorically stated that he does not believe the Constitution protects the right to choose, and has set forth a strategy-since adopted-to undermine Roe’s premises and “mitigate its effects.” His evasiveness during the hearing process was alarming and in no way provided comfort to Americans hoping for a balanced replacement for Sandra Day O’Connor.

Alito should not be confirmed to the Supreme Court and the Senate has more than enough reason to reject his nomination or filibuster the vote. We hope that Sens. Snowe and Collins follow their ideals and oppose his nomination or support a filibuster.

Toward the end of his tenure on the court, Justice Harry Blackmun, one of the architects of the Roe decision, wrote of the freedom to choose: “For today, the women of this Nation still retain the liberty to control their destinies. But the signs are evident and very ominous, and a chill wind blows.” We will soon learn whether or not Maine Sens. Snowe and Collins are prepared to throw caution to the wind and accept a nominee that so many Mainers do not.

This commentary was signed by George A. Hill, president and CEO of the Family Planning Association of Maine; Ruth Lockhart, executive director of the Mabel Wadsworth Women’s Health Center; and Nancy Mosher, president and CEO of Planned Parenthood of Northern New England.